HC Deb 02 April 1985 vol 76 cc1098-135
Mr. Alex Carlile

I beg to move amendment No. 10, in page 2, line 9, leave out 'issue a' and insert 'apply to a judge of the High Court for'.

The Chairman

With this we may discuss the following amendments: No. 11, in page 2, line 9, leave out 'requiring' and insert 'permitting'.

No. 131, in page 2, line 9, leave out 'requiring', and insert— '.—(2) A warrant under this section may require'. No. 13, in page 2, line 17, leave out 'issue' and insert 'apply for'.

No. 132, in page 2, line 18, after 'is', insert 'urgent and'.

No. 133, in page 2, line 27, at end insert— '(3A) A Judge of the High Court may, on the application of the Secretary of State issue a warrant if he considers it necessary for the purpose of preventing and detecting serious crime. (3B) The Board may on the application of the Secretary of State issue a warrant if it considers it necessary:

  1. (a) in the interests of national security; or
  2. (b) for the purpose of safeguarding the economic wellbeing of the United Kingdom.'.
No. 20, in page 2, line 29, at end add— '(5) A warrant shall not be issued unless a High Court judge is satisfied that the warrant is necessary on the grounds set out in (2)(a), (b) and (c) above.'. No. 134, in clause 4, page 3, leave out line 32.

No. 27, in page 3, line 32, leave out 'issued' and insert 'applied for'.

No. 135, in page 3, line 33, leave out '(a)' and insert 'An application for a warrant shall not be made except'. No. 136, in page 3, line 33, leave out from '; or' to end of line 37.

No. 32, in page 3, line 36, leave out 'issue' and insert 'apply for'.

No. 33, in page 3, line 37, at end insert— '(1A) A warrant shall not be issued on the grounds set out in section 2(2)(b) above except by order of a judge of the High Court.'. No. 34, in page 3, line 41, after 'period', insert 'apply to'.

No. 138, in page 4, line 4, leave out subsection (5) and insert— '(5) A warrant shall not be renewed except by—

  1. (a) a Judge of the High Court on the grounds set out in 2(5) above;
  2. (b) the Board on the grounds set out in 2(6) above.'.
No. 37, in page 4, line 4, leave out 'an instrument under the hand of' and insert 'by order of a judge of the High Court upon application by'. No. 139, in page 4, leave out lines 7 to 13 and add—
  1. '(a) in relation to a warrant issued by the Secretary of State the period of six hours beginning from the time when it was issued.
  2. (b) in relation to a warrant issued by a Judge of the High Court the period of three months beginning with the day it was last issued or renewed.
  3. (c) in relation to a warrant issued by the Board the period of three months beginning with the day it was last issued or renewed.'.
No. 40, in clause 5, page 4, line 15, at beginning insert 'apply to a judge to'. No. 42, in page 4, line 18, at beginning insert 'apply to a judge of the High Court to'. No. 44, in page 4, line 31, leave out from 'by' to end of line 37 and insert 'order of a judge of the High Court'. No. 48, in clause 6, page 5, line 1, leave out 'the Secretary of State issues a warrant he' and insert 'a warrant has been issued by a High Court judge the Secretary of State'. New clause 8—Functions of the Board
  1. '(1) Her Majesty may by letters patent appoint a Board of five members of Her Majesty's Privy Council which power shall be exercisable on an address presented by the House of Commons and no motion shall be made for such an address except by the Prime Minister.
  2. (2) The Board will carry out the functions assigned to it under section 2 and 4 of this Act.
  3. (3) As soon as practicable after the end of each calendar year the Board shall make a report to the House of Commons with respect to it carrying out its functions under this Act.'.

Mr. Carlile

This debate is about the issue of warrants and whether they should require prior approval. Two alternatives are presented in my amendments and the other amendments. Prior judicial approval for the issue of warrants is required under those amendments; and in new clause 8, tabled by the hon. Member for Oxford, East (Mr. Norris), a board of Privy Councillors is suggested.

The Times diary has given us a day-by-day account of what goes on in a Select Committee. A Select Committee of the present type could not be expected realistically to carry out the role of prior scrutiny. However, a different view could be taken of a board of five members of Her Majesty's Privy Council who, ex hypothesi, do and would keep secrets. Indeed, I feel sure that it is not one of Her Majesty's Privy Councillors who has been leaking information to the Times diary.

Mr. Kilroy-Silk

Does the hon. and learned Gentleman want to bet?

Mr. Carlile

The hon. Member for Knowsley, North (Mr. Kilroy-Silk), from a sedentary position, is offering me a financial bet on that proposition. I shall have a word with him afterwards, because I am sure that if a bet is struck I shall win it.

The idea of judicial authority has not been plucked out of the air by myself, my right hon. and hon. Friends or others who support the view that there should be prior judicial authority. The Royal Commission on criminal procedure was of the opinion that there should be prior judicial authority before the issuing of a warrant. I am surprised that that recommendation has not found favour with the Government, unless they are about to change their mind, which I suspect is not the case.

I am surprised especially that the royal commission's recommendations have not been taken up by the Government, because they were drawn in extremely persuasive terms. I shall not weary the Committee by going through those terms as the arguments are well known by the few right hon. and hon. Members who are in the Chamber. The Bill has rightly been sent to a Committee of the whole House because of the importance of the matters which come within its compass. However, and ironically, I suspect that if it were being considered by a Standing Committee in a Committee Room there would be far more right hon. and hon. Members present than there are now in the Chamber. It does little credit to the House of Commons that so few Members are present to deal with matters of such importance.

I do not rely for my argument in favour of prior .judicial authority solely upon the Royal Commission on criminal procedure. Throughout the world—this is not confined to Europe — there are examples of the use of prior judicial approval. It is used in Canada, for example, and in Denmark, where the decision is taken by a competent judicial authority. The procedure is used in Sweden, in Spain and in Switzerland. In Switzerland, the investigating judge must submit a copy of his decision with a case file and an explanatory note to the President of Indictments. If the President decides that the judge has overstepped the limits, he will revoke the order, and the revocation will stand.

The procedure of prior judicial approval is used also in Italy, where a warrant may be issued by a public prosecutor in the place where the offence has been committed, or by an investigating judge. I am not terribly enthusiastic about issue by a public prosecutor, but the Italians have a well developed judicial system. As we know from today's tragedy in Sicily, Italian judges take as fiercely independent a position as our own judges are accustomed to taking.

In Austria, there is a well developed and tried system from which we could learn a great deal. There tapping has to be approved by a college of three judges, which authorises the warrant and supervises the investigation. That system works perfectly well in Austria. There is no reason why something similar should not be adopted here.

It was made clear by myself and many others on Second Reading—by definition, our arguments were apparently accepted because we are debating the Bill in Committee on the Floor of the House—that the Bill codifies—for which we are grateful — a severe intrusion into private property, private life and the private conversations and communications of the private citizen. It is vital that we give the best possible protection to the private citizen against the unjustified issue of a warrant, while of course bearing in mind that there are cases where a warrant of this sort must be issued in the public interest.

There are those who take the view — I believe that the Labour party does—that judges are not responsible enough, capable enough or even intelligent enough to be able to consider the issues which would be placed before them on an application for the issue of a warrant. However, we are not asking for the application to take place before a lay magistrate, or a stipendary magistrate, or even a circuit judge; we are saying that a High Court judge, one of the 70 or so most experienced judges in England — Liberals would seek to introduce a similar provision for Scotland and I confess that I overlooked the different terminology that would be required in drafting amendments Nos. 10 and 11 to make them apply to Scotland as well—should be asked to consider whether a warrant should be issued.

High Court judges are accustomed day by day to dealing with extremely complicated urgent ex parte applications and to sifting most complex and difficult facts. They deal with issues of public policy which may be of the most sensitive nature — for example, many such decisions were required of judges during the miners' strike. The proper protection of the citizen would be met by requiring the authority seeking the warrant to go before a High Court judge, to submit itself to a proper procedure and to apply to the judge for the warrant.

Mr. Douglas Hogg (Grantham)

Is the hon. and learned Gentleman not ignoring the distinction, both in theory and in practice, between a judicial act and an executive act? Judges are extremely well versed in judicial acts; but the considerations involved in an executive act are often different and are matters to which they are not accustomed.

Mr. Carlile

The hon. Gentleman has assisted me in highlighting the reasons why the amendments have been tabled. I recognise that what is provided for at present is an executive act. I believe that it should cease to be wholly an executive act. The executive act should be the decision that one should apply for a warrant. There should then follow a specific judicial act. I note that the Minister is casting admiring glances at the hon. Member for Grantham (Mr. Hogg) as thanks for later argument. It is desirable and necessary that we should introduce a judicial level of inquiry — the judicial filter — before such warrants are issued. I hope, although I am not confident, that the Government will accept the view which I have expressed and will recognise that we should follow the example of our friends and some of our neighbours abroad and introduce the concept for which I am arguing.

6 pm

Mr. Steve Norris (Oxford, East)

In discussing this group of amendments, we are considering the most important issue in the Bill — who is to judge the suitability of a warrant to intrude upon a fundamental civil liberty of the citizen, to subject that citizen to the type of control by the state which, under any circumstances other than those outlined in the Bill, would be intolerable. A warrant may be considered necessary in relation to serious crime, national security or — this is another dubious category—the state's economic well-being.

Given that we must decide who shall judge, we must face the fact that the Government insist that it is the Home Secretary alone who shall act, not just as judge but as judge and jury, in his application to carry out his executive action. This is despite the fact, as the hon. and learned Member for Montgomery (Mr. Carlile) pointed out, that the royal commission specifically recommended an independent judicial review process. The Bill does not refer to the alternatives that are available to us and that are entirely safe in the context of the requirements of national security. As far as I know, no hon. Member would seek to diminish those requirements or to suggest that they are irrelevant. We have the option of allowing judges the power to provide an overview of an executive application made by the Home Secretary. The hon. and learned Member for Montgomery was correct in his response to the point made by my hon. Friend the Member for Grantham (Mr. Hogg).

While we are happy to allow judges to decide, in similar circumstances, whether to issue a warrant to search an individual's premises or to issue a care order, we are not prepared to do so when an application is made for a warrant to carry out interception. That is odd, especially as one of the main justifications for interception is suspicion that a serious crime will be prevented or detected. That is an unreasonable distinction, because we have already given judges this power in other circumstances. I do not know whether the interception of a person's communications is regarded as a greater invasion of privacy than a search of a person's home. I should have thought that both were equally important and serious steps that should not be taken without proper supervision. For many years we have been prepared to allow judges to authorise the issue of search warrants, so surely the same procedure could apply to warrants for interception.

Mr. Maclennan

Does the hon. Gentleman recognise the difference between warrants to search a house and warrants to intercept communications? Although the need to uphold the law may require interception in a home, in the case of interception of communications we are speaking about reasons of state. There is a difference between asking a judge to consider whether the law would be assisted by interception in a home and asking him to consider the matter for reasons of state of the type set out in clause 2.

Mr. Norris

I am grateful to the hon. Gentleman for reminding me that I should have better ordered my argument if I had started by reminding hon. Members that there are three classifications that must be considered in applying for a warrant to intercept—suspicion of serious crime, the security of the state and the economic well-being of the state. I apologise to the Committee for not making that point clear. My point about the right of judges to issue warrants was confined to consideration of serious crime. As evidenced by my having tabled new clause 8, I have other ideas on national security which the Committee should discuss.

We are happy to say that judges should have the right to decide whether the police are acting properly in seeking to infringe a person's fundamental civil liberty by entering his home against his will; yet the Bill says that judges should not have the right to supervise the potentially equal infringement of a civil right in relation to interception of communications.

Mr. Eldon Griffiths

Not by the police.

Mr. Norris

As my hon. Friend observes, not by the police. Judges should decide whether a proper case has been made out in an application for a warrent to intercept, to detect or prevent a serious crime. We must consider equally the applications for warrants in matters of national security and economic well-being. The Opposition suggest that the appropriate mechanism should be an application by the Home Secretary to a Select Committee. As the hon. and learned Member for Montgomery observes, Select Committees are, regrettably, not noted for their own security, as any reader of the Times diary could confirm. However high one's opinion of one's colleagues might be, to suggest that a Select Committee, chosen from among all hon. Members, is the appropriate body to consider the serious and confidential applications that are likely to be made under this procedure is naive. Such a procedure is not viable in any way.

I sympathise with the Opposition's desire to ensure that such applications are ultimately within the purview of Parliament and that there is a degree of accountability to Parliament for the actions of the security services and the directions of the Home Secretary, but I suggest that there are alternative ways of achieving that end.

The Germans specifically recognise the distinction between serious crime and national security, and in the case of serious crime, applications for warrants are made to a judge. My right and learned Friend the Home Secretary put it to me that judges in Europe generally have a more investigative role than judges in Britain. My hon. and learned Friend gave that as a reason for distinguishing between the suitability of British and German judges to authorise search warrants. That is not a valid reason. The existence of a procedure to issue search warrants, care orders and so on shows that judges are capable of making decisions about serious crime.

In the case of national security, in Germany the appropriate Minister vets an application, ensures that it is suitable and then submits it to a committee of the German Parliament. I suggest that a board of five of Her Majesty's senior Privy Councillors is the appropriate mechanism to consider applications. Such persons should not be active on the Front Bench of either party, but would still be Members. If I may be allowed to pay him tribute, the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan), whose integrity in such matters is unquestioned, would be one of those able to bring to the board the appropriate experience and judgment that clearly would be prerequisites of members of the board.

A committee comprising senior Privy Councillors, who are above the daily hurly-burly of political life in the House, would be able to consider applications made to them by the Home Secretary and to approve or disapprove of them, depending on their suitability. Such a board needs to be accountable. I have suggested in new clause 8 that the board should report to Parliament as soon as is convenient after the end of each year, outlining those parts of its work that can be outlined and that would not compromise the integrity of the security services. I do not seek by that mechanism to diminish the Home Secretary's role or, it goes without saying, to cast any doubt upon my right hon. and learned Friend's integrity, or at any point to disagree with his assertion that he has, as his predecessors will have done, always taken a considerable amount of trouble to ensure that applications, when approved, are approved only on the highest possible criteria.

Hon. Members on both sides of the Committee do not want to see the operation of the security services opened up so that they are no longer effective, or spread out to the public view so that their ability to act is compromised, but want them to be brought clearly and unequivocally within the purview and remit of Parliament. The mechanism that I propose covers that circumstance and would be an effective method of ensuring that we had genuine accountability to Parliament in these important matters.

I trust that my hon. and learned Friend the Minister will allude to that proposition in his reply, because it is the most crucial part of the Bill.

Mr. Eldon Griffiths

No one doubts that this is a crucial part of the Bill and of our practice, because when we talk about national security we are speaking about the risk of treason, espionage and grievous terrorism. A heavy responsibility must be discharged by anyone who causes a warrant to be issued to tap telephones or to intercept mail, but it is done for equally serious reasons — to safeguard the public interest and the security of the realm.

The debate is about who should legitimate the Secretary of State's exercise of his prerogative. I may disappoint my hon. Friend the Member for Oxford, East (Mr. Norris) and the hon. and learned Member for Montgomery (Mr. Carlile), but I believe that only the House can legitimate the proper action of the Secretary of State. So long as the Home Secretary has the trust of the House, that is as far as it needs or ought to go.

I shall deal with the first point made by the hon. and learned Member for Montgomery, who always speaks eloquently and mellifluously. I accept that judges make a number of decisions that affect the issue of warrants for the police; but so do magistrates. While judges may know a great deal about the law, I do not believe that they can take the kind of decisions that apply where urgent matters touching upon espionage, terrorism, mutiny or treason are involved. I do not believe that that is within their working competence.

Mr. Alex Carlile

Will the hon. Gentleman tell us why he considers that judges are incapable of taking urgent decisions on important and difficult matters? Is he aware that almost every night of the week a judge somewhere, often in his home or at the judge's lodgings, has to take that type of decision?

Mr. Griffiths

I did not say that judges were incapable of taking difficult decisions. That is what they are judges for. In an issue touching upon the security of the state—the public safety—one should look to Her Majesty's Ministers who, for the time being, have the confidence of the House. They must take that decision. Her Majesty's Ministers must decide whether our soldiers, sailors and airmen go to war. The same Ministers must decide whether there is a tangible risk to the security of the state. That is my judgment and what I offer. I am not persuaded that a decision by the judges would be the right approach.

Similarly, my hon. Friend the Member for Oxford, East has suggested a group of Privy Councillors. We all know Privy Councillors. I have the greatest respect for most of them. [Interruption.] I know that the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan), who was Prime Minister for a number of years, will understand when I say with the greatest affection to the personality involved that I read the memoirs of a Privy Councillor, Mr. Richard Crossman, with the greatest interest. I suspect that when he was writing those diaries and was a senior member of the Privy Council and of the Government he was perhaps acting in a way that my hon. Friend would think was not entirely appropriate for the five-man Privy Council. The Secretary of State cannot, as it were, put into commission his exercise of the proper powers of prerogative that must belong with Her Majesty's Ministers responsible directly to the House.

6.15 pm
Mr. Norris

I presume that my hon. Friend is arguing that clause 2(2)(a), in the interests of national security", should be dealt with by the Home Secretary alone. That is an argument that can be advanced. My hon. Friend will not find me defending the posthumous reputation of Richard Crossman. If my hon. Friend had listened carefully to what I said, he would have understood that I was not suggesting that people who were active should be involved. I believe that my hon. Friend is confirming what I said about clause 2(2)(b): for the purpose of preventing or detecting serious crime". The idea that only the Home Secretary is capable of making decisions in respect of warrants for the purpose of preventing or detecting serious crime when judges do it every day in respect of search warrants surely is nonsense.

Mr. Griffiths

I hope that my hon. Friend will allow me to say that I am probably as familiar with the police seeking and obtaining warrants from magistrates and judges as anyone in the House. However, we are not talking about that; we are talking about where the security of the state — public safety in the broadest and highest sense of the word—is at risk. I have said before, and I have to say it now, that whether we like it or not we are driven to trust the Home Secretary. I have trusted Labour and Conservative Home Secretaries. Although it sounds simple to say that, I believe that it is the proper constitutional, and by far the most expedient and practical, position to be in.

Issues of speed can militate against judicial arrangements and Privy Councillors. There is the issue of the "need to know". How widely these matters must be spread before authorisation is an important point. Issues would arise as to how for judges would require sources of information to be revealed to them before they decided. The same would apply to Privy Councillors. The House must face the dilemma. Let us suppose that a judicial review by five Privy Councillors were to reverse the Home Secretary's request and say that he could not have the warrant. What, then, is the Home Secretary's position? In my judgment, he would have no choice but to resign because he would, as a Minister of the Crown charged with the public safety, have formed a judgment. Ministers have to decide whether our soldiers, sailors and airmen can be committed to war. They can be involved in places such as Northern Ireland with the most difficult, sensitive and in every way demanding decisions. The reverse of that is that they must be equally capable and willing to take decisions that affect the defence of the state against treason and espionage.

If the Home Secretary of the day, on the advice that was available to him from the security services and others, had come to the conclusion that public safety, the national interest and the security of the state required that an interception warrant be issued, and then a group of judges or a group of Privy Councillors were to reverse that decision without having access to all the information on which the Secretary of State had formed his judgment, would not the position of the Secretary of State become impossible? He would have to resign. We should not have any longer the prerogative—and it is a prerogative—of Her Majesty's Ministers being able to determine, while they are in office, the security of the state. In fact, their high office would be put into commission. That is not practicable. So long as the Home Secretary bears the responsibility, he must be given the trust of the House in carrying it out.

Mr. Douglas Hogg

There is a distinction to be drawn between the national defence and economic well-being argument and the argument about for the purpose of preventing or detecting serious crime". With regard to the interests of national security and economic well-being, it is utterly inappropriate to leave the matter to judges because it is essentially and necessarily an Executive action. If there has been an abuse of the Executive power, there should be a review, and it is at that stage that the judicial intervention takes place, although it is perfectly true that judicial intervention in this instance takes the form of a tribunal. On the two major categories of national security and economic well-being, there is a major distinction between the executive role of Government, who are responsible for doing the executive act, and the judicial role, which is, if necessary, to provide a remedy if the executive act has been outside the statutory powers. I entirely disagree with the hon. and learned Member for Montgomery (Mr. Carlile) when he seeks to confuse the two.

There are pragmatic arguments as well. I shall mention three. First, what about appeals? If a judge refuses the Home Secretary's application, does the matter go to appeal? If it does, does it go to the Court of Appeal, and what sort of publicity will be given to that, if any? If it cannot go to appeal, is a single judge to be able to frustrate the Home Secretary's application based on grounds of national security? Frankly, I find that concept utterly preposterous.

Secondly, there is the matter of speed. I can conceive of quite a few cases in which expedition is of the essence. If the Home Secretary has to make a detailed application, set out his grounds, accumulate the evidence and no doubt instruct counsel, it will take a long time. Counsel might be the hon. and learned Member for Montgomery or even myself. I am not one to refuse briefs of that kind or of any kind. I am not proud. [Interruption.] I shall represent my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths). However, if the Home Secretary has to do that, a great deal of time may pass.

The third point is consistency. The plain fact is that judges are not wholly consistent among themselves. We need consistency in approach. We shall not get that from a bench of judges, especially when it comprises people such as Lord Denning.

Passing from those considerations, I refer now to others of serious crime. My hon. Friend the Member for Oxford, East (Mr. Norris) has a point about paragraph (b). There is no particular reason why judges should not be able to do what my hon. Friend is suggesting they should do. It is possible, and I have no great objections to the principle. However, I do not believe that any benefit will be derived from the process. The difficulties are essentially pragmatic ones of consistency and expedition. I doubt that the judgments will be entirely consistent, and I believe that they would be more lengthy in the obtaining.

The mischief that my hon. Friend is seeking to gainsay is largely cured by the review mechanism provided for under the Bill. Therefore, I see no great advantage. The possible difficulties are taken into account through the review procedure. Therefore, I would not support my hon. Friend, but he has a point.

Mr. Norris

My hon. Friend mentioned the principles of consistency and expedition in relation to the review by the Home Secretary. Does he agree that those same principles of consistency and expedition apply equally to search warrants? In that case, it has been accepted for a considerable time that judicial involvement is perfectly reasonable. Does not my hon. Friend think that the same applies in this case?

Mr. Hogg

Those things do not march exactly together. To start with, search warrants are common—and have to be—and arise in many thousands of cases, whereas in the case of paragraph (b), on serious crime, the number of warrants issued each year is but a few hundred.

I come back to the point that there are some pragmatic objections to be raised. The present procedure is not a serious mischief, and the review procedure will take into account such mischief as may arise, so I see no great merit in what my hon. Friend suggests.

Mr. Mark Carlisle (Warrington, South)

Having listened to what has been said, I believe that the suggestion that the matter could be dealt with by a High Court judge is impractical and unsuitable. There is no clear analogy between the granting of a search warrant, which, as my hon. Friend the Member for Grantham (Mr. Hogg) says, is a common everyday occurrence, and the granting of the Home Secretary's approval for interception.

It is also important that the applications should themselves be dealt with in total security. As a junior Minister in the Home Office for four years, I never saw a single application for a warrant for telephone tapping because applications go directly to the Home Secretary, and the Home Secretary alone. If someone else is involved, inevitably there is a greater danger that the knowledge about the application being made will get out. When one is dealing with national security, one does not want to know that the person whose telephone one wishes to intercept is indeed having his telephone intercepted.

In the end, as my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) said, it comes down to trusting the Home Secretary. I am happy to say that, certainly in the years that I have been in the House, I have had complete confidence in leaving that decision in the hands of the Home Secretary of the day, irrespective of the party to which he belongs. There is no other way to deal with the matter. If we try to turn it over to the judges, there will be arguments about lack of accountability. It is a matter of whether one trusts the Home Secretary with that power. I believe that one should and that we have been well served by those who have had it to date.

Mr. Kilroy-Silk

The Labour party has no problem about supporting the series of amendments tabled by the hon. and learned Member for Montgomery (Mr. Carlile), which lay down more stringent conditions to be satisfied before warrants are issued. Like him, we regard safeguards as necessary and important, and we want those safeguards to be as stringent and effective as possible. We want warrants to be issued only when they are absolutely necessary.

Unfortunately, we cannot agree with the hon. and learned Gentleman in his desire to substitute a judge for the Home Secretary in issuing warrants. The hon. Member for Oxford, East (Mr. Norris) favours a committee of Privy Councillors which we cannot accept either. The hon. Member for Bury St. Edmunds (Mr. Griffiths) also mentioned this matter. We are now discussing perhaps the most crucial area of the Bill, which is about the question: who guards the guards? Who is responsible and under what conditions? What degree of political accountability is there for issuing warrants?

There is no dissent by any party on either side of the Committee from our objective of obtaining proper accountability and responsibility. We all want to ensure that there is a proper balance between the needs of accountability and of public interest in these matters. A fine line has to be drawn between the one and the other. There is no hard and fast argument for any one of the propositions that we are now debating, but after a great deal of consideration it seems to us inappropriate to vest such responsibility either in a High Court judge or in a committee of Privy Councillors, respected or otherwise, politically active or dormant. That is irrelevent.

We cannot accept a system which allows a Home Secretary to divest himself of this important function—not, as the hon. and learned Member for Montgomery seemed to suggest, because we have anything against judges, although in their speeches some of the apparently learned members of another place show a remarkable naivety about the British constitution as well as about political life and, indeed, life in general, which cannot inspire anyone with much confidence in their judgment in that area. We are not against judges, but this is not an issue that they are appropriate or competent to decide. It is not a judicial function. It is a political and executive decision which must be taken by a political and executive figure who is responsible to the House of Commons. It is a matter not of whether judges are competent, but of whether they are appropriate and acceptable. As the hon. Member for Grantham (Mr. Hogg) has said, there is no good reason why one judge should be set up as a greater authority to determine whether a warrant should be issued in the national interest than the Home Secretary, who is responsible to the House of Commons. Clearly, the Home Secretary is in a better position to take such a decision than any one judge, however eminent, learned or competent.

6.30 pm

More importantly, we want to ensure that there is some accountability for decision-making in this area, however tenuous and remote it may be in practice. We know that leaving the power with the Home Secretary does not mean that he will make statements in Parliament or answer questions, either orally or in writing, but he will be no less accountable than a High Court judge operating on exactly the same criteria.

Although the Home Secretary is not formally accountable in the sense that he is not prepared to account for himself by answering questions in Parliament, there is a practical sense in which he will be accountable and will regard himself as such in a way that no High Court judge could or would. First, we expect any Home Secretary, whatever his party, to do his job conscientiously and diligently and to ensure that only warrants that are necessary are in fact issued.

That goes without saying. In that respect, he is no different from a High Court judge or a bevy of Privy Councillors. More than that, however, a Home Secretary knows that there may be a leak or a scandal. There may be a Cathy Massiter lurking in the background. Perhaps not while he is Home Secretary, but in the months, years or decades ahead, a scandal may break and he will be responsible. His reputation will be on the line for the actions that he has taken. The whole House knows of the reverberations in the homes and private offices of all previous Prime Ministers and Home Secretaries who held office during the period to which Cathy Massiter's allegations related. Every one of those distinguished and honourable individuals wanted to be sure that he had acted properly in the circumstances prevailing at the time and issued only warrants that were appropriate and could be defended both at the time and subsequently.

That pragmatic aspect of the accountability and responsibility of a Home Secretary, tenuous and remote though it is, is extremely important. Only an incumbent of that office can really know the importance and the influential nature of making oneself potentially accountable to the future in one's everyday actions as Home Secretary. The fact that his reputation, integrity and competence may be at stake in the future must make a Home Secretary far more circumspect and diligent in his decisions than any High Court judge. For that reason alone, therefore, we prefer to retain the provisions in the Bill and must regretfully oppose the amendments proposed by the hon. and learned Member for Montgomery.

Mr. Waddington

I shall not weary the Committee with a long speech because the arguments advanced by the hon. Member for Knowsley, North (Mr. Kilroy-Silk) and by my hon. Friends the Members for Bury St. Edmunds (Mr. Griffiths) and for Grantham (Mr. Hogg) have really clinched the matter.

The arguments can be put quite shortly. I do not believe that it is right in principle for judges to be involved in these matters. When one reflects even for a moment on all the recent excitement about matters of this kind, I am sure that no High Court judge would wish to have the job thrust on him. One can think of no task more likely to put the judiciary straight into the centre of the political arena. My hon. Friend the Member for Bury St. Edmunds is entirely right. The Home Secretary is responsible to Parliament, and he has vast responsibilities which he cannot shuffle off on anyone else. There is no way in which a responsibility as solemn and important as this can be shuffled off on anyone else.

There are also practical problems. Judges are entirely unqualified to carry out these responsibilities. My right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) has said that he never came across any of these warrants when he was at the Home Office, although we know that there is a direct line to the Home Secretary who has skilled people to advise him on whether he should exercise his powers. It seems incredible to suggest that a judge would be capable of reaching a more correct conclusion about whether it is necessary to issue a warrant than a Home Secretary furnished with information by people who have dealt with these matters for a long period under a variety of Governments and are used to dealing with members of the security services seeking to put applications before the Secretary of State.

I am not at all impressed by arguments about what goes on in other countries. Judges in other countries discharge a whole range of responsibilities that our judges do not have. From the little knowledge that we have about other legal systems, we know that judges carry out administrative and all kinds of inquisitorial responsibilities which our judges do not undertake.

I listened carefully to the comments of my hon. Friend the Member for Oxford, East (Mr. Norris) about search warrants. That is a typical case of confusion being created because the same word is used for entirely separate things. There is not the slightest resemblance between warrants for interception and search warrants, except that someone was unwise enough to describe them both as warrants. That is the only connection between the two.

A search warrant relates to the exercise of police powers. The police seek it and the police execute it. Its issue relates to the long-standing responsibilities of magistrates for enforcement of the law. The search is a public act. The occupier of the house knows of it and is entitled to see the warrant. That is how the person executing it gets in. The results of the search are likely to be included as evidence in subsequent proceedings.

Here we are dealing with the issue of a warrant to obtain information that is never used in evidence in any proceedings. Such a warrant does not necessarily have anything to do with the police, and the results cannot be used in court. Therefore, with respect to my hon. Friend, it is impossible to draw any analogy between search warrants and the warrants under discussion.

Mr. Norris

I bow to my hon. and learned Friend's infinitely superior legal knowledge and experience, but there is at least one analogy between the two warrants which goes beyong the mere use of the same word. Both involve a fundamental infringement of an important civil liberty, which should not be undertaken without due account having been taken of all the circumstances in which that civil liberty is to be infringed. In that context, the two are not just similar but almost identical.

Mr. Waddington

I agree with my hon. Friend. We are talking about an infringement of civil liberties. That is why the Home Secretary is so careful in using these powers, and why, in this legislation, we are for the first time giving to the individual who feels that the Home Secretary has not properly exercised his powers the right to say to a tribunal that, in the circumstances, he does not think that the Home Secretary has properly exercised his powers.

My hon. Friend was right to recognise that this is a most important departure in our law. It should at once be recognised in the country, as it already is in the House of Commons, that the Bill does not restrict but extends people's rights. For the first time, there is to be a new check on the exercise by the Home Secretary of his power.

Let us now revert to the essence of the debate. I cannot see that it matters two hoots whether one introduces a judge, five Privy Councillors or 15 Privy Councillors. The buck stops, and should stop, with the Home Secretary. That is the argument on which we stand, and that is why we are convinced that the structure of the Bill is right.

Mr. Alex Carlile

It is troubling to hear the Minister of State smugly adhering to a unique aspect of the British system which is lacking in almost all the other countries that have been referred to — the rule that the Home Secretary, on his own, should decide whether a warrant should be issued.

The debate seems to have revolved around two points. The first is that we trust our Home Secretary and therefore the buck should stop with him. The second is the proposition that the Home Secretary is accountable to Parliament, and that is enough.

Of course we trust our Home Secretaries; I do not suggest otherwise. However, the real question is whether the accountability relied upon truly exists nowadays.

I shall have to speak from memory, because I had not anticipated that the question of accountability would be so prominent in the debate. However, I recall a pamphlet issued by the Conservative political centre in about 1973 and written by the present Secretary of State for Education and Science. I also recall the Dimbleby lecture delivered in, I believe, 1975 by the present Lord Chancellor. In both cases the point was forcefully made that Parliament no longer provides a satisfactory form of accountability to redress wrongs done to the private citizen who would be likely to suffer from such wrongs. Both the right hon. Member for Leeds, North-East (Sir K. Joseph) and the Lord Chancellor argued in those publications — the lecture was published later—that what was needed was not only a written constitution but court procedures in our domestic jurisdiction designed to protect the liberty of the citizen.

I do not accept that the accountability point is sufficiently strong. By keying the arguments to those two questions—whether we trust our Home Secretaries, and whether there is sufficient accountability — the point of the amendment seems to have been missed. The point is that this should no longer be a purely executive act. It is not good enough to say that we can forget about procedures in other countries because their judges have administrative roles. Our judges have administrative roles. They are the arbiters of administrative law. Every day they hear applications for judicial review.

The great constitutional argument on the Administration of Justice Bill, arising under clause 43, is whether judges should continue to play such an important part in administrative law. In another place, where many experienced judges and lawyers sit, the verdict has been given on more than one occasion in no uncertain terms.

Mr. Douglas Hogg

The hon. and learned Gentleman is confused about the role of judges. He speaks of judicial review. In those cases, the judges are determining whether an executive action is within or without the existing law. They are not taking executive action themselves.

6.45 pm
Mr. Carlile

With respect to the hon. Gentleman, whose arguments during the debate have been persuasive, I suggest that there is a perfectly clear role for judges. I would adopt the analogy of search warrants, which relate to material of the highest confidentiality, as we can see from the Police and Criminal Evidence Act 1984. I adopt the analogy suggested by the hon. Member for Oxford, East (Mr. Norris).

I have confidence that the matter will not end here and that there will be extensive arguments on these points in another place. With the leave of the House, and in the keen anticipation of those arguments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Douglas Hogg

I beg to move amendment No. 12, in page 2, line 17, leave out subsections (2) to (4) and add—

'(2) The Secretary of State shall not issue a warrant under this section unless there exist reasonable grounds for considering and he does consider that the warrant is necessary—

  1. (a) for the defence of the realm;
  2. (b) for the purpose of preventing or detecting serious crime; or
  3. (c) for the purpose of safeguarding the economic well being of the United Kingdom.

(3) A warrant shall not be considered necessary as mentioned in subsection (2)(a) above unless the information which it is considered necessary to acquire is information required to defend the United Kingdom from external and internal dangers arising from attempts at espionage or sabotage or from the actions of persons and organisations whether directed from within or without the country which may reasonably be considered to be subversive to the state. No action shall be considered "subversive to the state" unless it is an action which can reasonably be regarded as one which threatens the safety and well being of the state and which is intended to undermine or overthrow parliamentary democracy by unlawful political or unlawful industrial or by violent means.

(4) A warrant shall not be considered necessary as mentioned in subsection (2)(b) unless normal methods of investigation have been tried and have failed or must from the nature of things be unlikely to succeed if tried and unless there exist good reasons for believing that an interception would be likely to lead to an arrest and conviction. For the purpose of subsection (2)(b) a crime is not to be regarded as a "serious crime" unless it is one for which a man with no previous criminal record could reasonably be expected to be sentenced to at least three years imprisonment or an offence of lesser gravity in which either a large number of people is involved or there is good reason to apprehend the use of violence.

(5) A warrant shall not be considered necessary as mentioned in subsection (2)(c) unless the information which it is considered necessary to acquire is information relating to the acts or intentions of persons outside the British Islands.

(6) A warrent shall not be considered necessary as mentioned in subsection (2)(a) and (c) above unless in each case other methods of investigation have been tried and have failed or must from the nature of things be unlikely to succeed if tried.

(7) References in the following provisions of this Act to a warrant are references to a warrant under this section.'.

The First Deputy Chairman of Ways and Means (Mr. Ernest Armstrong)

With this it will be convenient to take the following amendments: No. 14, in page 2, line 18, leave out 'he considers that'.

No. 15, in page 2, line 18, after 'considers', insert 'on reasonable grounds'.

No. 16, in page 2, leave out lines 19 to 23 and insert—

  1. '(a) for the defence of the realm;
  2. 1113
  3. (b) for the detection or prevention of a major subversive, terrorist or espionage activity that is likely to injure the national interest; or
  4. (c) for the purpose of preventing or detecting a grave offence; and unless the following conditions apply—
    1. (i) normal methods of investigation must have been tried and failed, or must from the nature of things be unlikely to succeed if tried; and
    2. (ii) there must be a good reason to think that an interception would be likely to lead to an arrest and a conviction, or, in the case of warrants for interception on behalf of the security service, the material likely to be obtained by interception must be of direct use in compiling the information that is necessary to the security service in carrying out the tasks laid upon it by any directive given by the Secretary of State to its Director General.'.
No. 17, page 2, line 23, at end insert—

'(2A) A warrant shall not be issued unless—

  1. (a) no other method of investigation is available, or all other methods have failed or are impracticable; and
  2. (b) in the case of paragraph (b) of subsection (2), there are reasonable grounds for believing that an interception is likely to lead to an arrest and conviction.'.
No. 18, page 2, line 24, leave out subsection (3).

No. 49, in clause 6, page 5, line 3, leave out 'he considers' and insert 'are'.

No. 50, in clause 6, page 5, line 3, leave out 'he considers' and insert 'are reasonably'.

No. 52, in clause 6, page 5, line 22, leave out from `that' to end of line 23 and add 'the Secretary of State on reasonable grounds considers necessary in accordance with section 2(2)(a), (b) and (c) above'. Government amendment No. 60.

No. 140, in clause 10, page 9, line 9, at end insert— '"grave offence" means a criminal offence for which the penalty is fixed by law or for which the maximum sentence is 14 years imprisonment.'. No. 141, in clause 10, page 9, line 19, at end insert— '"subversive" means having in contemplation the overthrow of the government by unlawful means; No. 117, in clause 10, page 9, line 28, at end insert '"serious crime" means a criminal offence for which the penalty is fixed by law or for which the maximum sentence is 14 years imprisonment.'. Government amendment No. 118.

Mr. Hogg

The purpose of the amendment is to give greater clarity to the three phrases in clause 2(2). The justification for giving greater clarity to them is twofold. We are now legislating to define the relationship between society and the individual. We have to bear in mind that what we are contemplating is an infringement of the right of privacy, and that it is right that the House should define as exactly and fully as possible the circumstances in which an infringement of privacy is justified. I am very much opposed to giving wide, general discretionary powers to any Home Secretary or any Minister — although, of course, my right hon. and learned Friend the present Home Secretary would exercise such power in a singularly fair manner. It is the duty of Parliament to define such powers as fully and precisely as is possible. That is the principle that I put before the House in support of a clear definition.

There is a second and related reason why the Committee needs to define the powers clearly. For the first time, we are enacting a review of an appeal procedure. We are laying down the circumstances in which an aggrieved person may apply to a tribunal in order to have an executive act by the Home Secretary inquired into. There is not much point in providing such a procedure unless the tribunal is to have standards and criteria against which it can set its examination. If powers are too widely or broadly defined, it is difficult for any review tribunal to determine whether they have been exceeded or incorrectly adhered to. That is the twofold objective that I had in mind when I drafted amendment No. 12.

The Government have made it plain that the Bill does not in any way extend the scope of the existing practices to which my right hon. and learned Friend the Home Secretary presently adheres. In other words, the Bill does not enlarge the circumstances within which warrants may be issued. In drafting the amendment I sought to include only those practices that fall within existing practice and custom. There is nothing here that either enlarges or reduces the powers of a Home Secretary.

I turn briefly to subsection (3). We are dealing with the concept of the defence of the realm. The "defence of the realm", or, if hon. Members prefer it, "national security", are phrases that by themselves have little meaning. They mean only what the person involved wishes them to mean. I find that unsatisfactory. The concept of national security and of the defence of the realm is capable of more precise definition. The definition that I have adopted is one that was given in September 1952 by Sir David Maxwell Fyfe, as he then was, in his directive to the security service. I understand that that defintion is the one that is presently adhered to by my right hon. and learned Friend the Home Secretary, and it has stood the test of time.

I should like the definition given by Sir David Maxwell Fyfe, or some similar definition, to be incorporated into the statute so that the power is not unfettered and so that the Home Secretary of the day knows the tests that are to be applied when he has to consider the concept of national security or the defence of the realm. In subsection (3) I have tried to determine the meaning of "subversive". Again, I have adopted existing practice and have used the language that the Lord Harris used in 1975. It is highly undesirable that a phrase such as "subversive" or "subversive to the state" should not be defined. After all, what is subversive in some people's eyes is no more than a proper expression of political dissent in the eyes of another. These things are capable of precise definition and should be incorporated into the statute. That is the justification for subsection (3).

A similar proposition applies to what I have proposed in subsection (4). The existing practice has been only to issue warrants in respect of serious crime in the circumstances set out in subsection (4). The Government are to be congratulated on their amendment No. 118, which largely — although no doubt more eloquently — does what I have tried to achieve in subsection (4). It defines the meaning of "serious crime", and I would support the Government's amendment, because it seeks to achieve the purpose that I have in mind.

The hon. Member for Knowsley, North (Mr. Kilroy-Silk) said that clause 2 formed the heart of the Bill, and he is right. It forms the heart of the Bill for two reasons: first, it defines the circumstances in respect of which the Home Secretary may issue a warrant; secondly, it defines the circumstances against which the review tribunal must apply its tests if there is an appeal to it. I am against broad phraseology, especially when the liberty of the subject is involved. It is the duty of this House to define as exactly as possible what we mean by such phrasing. I have done no more than to incorporate in statutory form the practice that has been adhered to by many Governments since 1952.

If my right hon. and learned Friend the Home Secretary is not prepared to accept my amendment, perhaps he will tell us why. I have not endeavoured to cut down his powers or to enlarge them. I have endeavoured only to define the custom and practice as they now exist. The question that I put to him is, why is he not prepared to give statutory definition to the present practice, if that is indeed his position?

Mr. Gerald Kaufman (Manchester, Gorton)

The amendment moved by the hon. Member for Grantham (Mr. Hogg) is one very good way of trying to remedy the shortcomings of clause 2(2). As it stands, subsection (2) is dangerously widely drafted. We have tried to remedy the position in other ways. But, like the hon. Gentleman, I acknowledge that the Government have at least moved in one area, in tabling their amendment, and we welcome that.

If I were in a more captious frame of mind I could, I suppose, tease the Government for having put yet another definition of "serious crime" on the statute book. Section 116 of the Police and Criminal Evidence Act contains the definition of a "serious arrestable offence". In Committee we spent many wearying but enlivening hours discussing that. But the definition that the Government have put forward this time does not bear much resemblance to the definition in that Act. I do not wish to be over-captious, because we are grateful to the Government for what they are doing on this occasion, but it is not a good idea for there to be different definitions of serious crime or serious offences in different pieces of legislation. A time will have to come when we seek definitions that can be used in every piece of legislation and transferred from one measure to another.

We certainly welcome the definition in the Government amendment to clause 10 regarding serious crime. The Government have been sensible and helpful in including in statutory parlance the criteria regarding serious crime that are contained in the 1980 White Paper, but we cannot understand why they have not gone further, and have not brought in the other criteria in that White Paper. That is why we have tabled amendments to that end. Perhaps I should give you notice, Mr. Armstrong, that if the Government do not respond satisfactorily to our case, we shall seek a vote on amendment No. 16.

7 pm

We have simply lifted the words out of the 1980 White Paper in an effort to define more strictly the three areas governing the issuing of warrants. In a sense, those areas are more important than serious crime. According to current practice, as stated in the White Paper, the periodicity for the renewal of warrants on those other areas is much longer than that for the renewal of warrants for serious crime. If the Government intend, as we hope, to put into statutory form the practice that the Home Secretary affirmed on Second Reading would continue, it is impossible to understand how they can be satisfied with a Bill that defines so slackly some of the most serious areas for the issuing of warrants.

When the Home Secretary responds, as it seems apparent that he will, to this group of amendments, I hope he will say that the Government will give further consideration to these two other areas. They have shown themselves in quite a short time able to redraft 2(2)(b). That being so, it may be more difficult for them to define "national security" in a way that would cover their objectives. Nevertheless, we believe that between now and, if not Report stage, when the Bill reaches the House of Lords, the Government should attempt to provide a better definition. We also believe that it is essential for the Government to provide a better definition of "economic well being".

The fact is that, despite any assurances that the Home Secretary may give, I am sure in good faith, the definition of "national security" in the Bill would allow the Government, if they wished, to permit the interception of the communications of, for example, the Campaign for Nuclear Disarmament. The Government may have no wish to do so. The Home Secretary has made certain statements about his view of the status of the Campaign for Nuclear Disarmament, but we are talking not about the Secretary of State's good will but about what will be the law.

As the Secretary of State has rightly claimed that this is an innovation, in that for the first time there is to be statutory regulation of the interception of communications, it seems to the Opposition to be very important indeed that if for the first time there is to be a statute it should incorporate the practice rather than that the practice should be left to assurances given, I am sure in good faith, by the Government. That is why, whatever reassurances the Home Secretary may give about CND not being tapped under the national security provision, the fact is that the Act would permit it to be tapped. We do not believe that that is right and proper.

I suppose that it could be regarded as appropriate for the Home Secretary to authorise a warrant for the interception of the communications of Friends of the Earth under either paragraph (a) or (c). If, for example, a nuclear power station were to be built at Sizewell and Friends of the Earth or another organisation decided for its own, in my view admirable, purposes that it wished to act in a strong way against the construction of that power station, it might affect national security because nuclear matters are involved. It might also affect economic well-being, in the sense that the power supplies of the nation might be put at risk. Although I am sure that the Home Secretary has in mind, when referring to economic well-being, only external communications, nevertheless those could be involved. That being so, we are very disturbed by the slackness of these two definitions.

I repeat that we are not dealing, and we never deal, with assurances given to Parliament by Ministers. Assurances given to Parliament by Ministers are not the law. We are making a law and I believe that we should make a strictly and properly defined law. The Home Secretary has conceded the need for a strictly and properly defined law by his amendment to clause 10 which will define serious crime, as stated in the subsection.

Therefore, I trust that when the Home Secretary replies to the debate he will say that he will think more carefully about this matter. Although he has said that it has been the practice under Conservative Governments for the economic well-being criterion to be used, we have great misgivings about it being put into a statute in such a loose and improperly defined way.

On the question of subversion, I agree with the hon. Member for Grantham (Mr. Hogg) that an attempt to overthrow a Government is not of itself a subversive act. I am engaged in an attempt—I trust it will be successful —to overthrow the Government. It is my dearest wish that that should be brought about, but I trust that that does not make me a subversive.

Mr. Corbett

One never knows.

Mr. Kaufman

As my hon. Friend says, one never knows.

The right to seek by lawful means to overthrow a British Government is one of the most cherished rights of British people. Indeed, a former Conservative Prime Minister seems to be involved a good deal in it at the moment. That is why we have tried to provide a definition of subversion in amendment No. 141. We know that it is not a good definition and we should like it to be a better definition. However, it states clearly that to be subversive a person must have in contemplation the overthrow of the government by unlawful means". I am sure that everybody will agree that to attempt to overthrow the Government by unlawful means is subversive and against which society has the right to protect itself, but to seek to do so by lawful means must be a democratic right in our society.

Mr. David Winnick (Walsall, North)

Does not my right hon. Friend agree that what he is suggesting in another amendment regarding the redefinition of subversion brings us closer to what was suggested by Lord Denning and to what was in force until Lord Harris of Greenwich, when he was Minister of State, changed the definition in his speech in another place in February 1975. Does my right hon. Friend agree that as the definition of subversion now stands, under which it could be said that one was trying to undermine or overthrow parliamentary democracy by political or industrial means, the security services and the special branch are given all the ammunition that they need and that it has led to the very serious allegations in the recent film about MI5?

Mr. Kaufman

My hon. Friend intervenes at a felicitous moment because I was about to turn to the definition given by Lord Harris. It is about time that we took this imprimatur of holy writ away from the Lord Harris definition. If the Labout Government at that time had wanted to provide an ex cathedra definition of "subversive" they would not have chosen a minor debate on a day which was unimportant in itself in terms of that debate. The date of the announcement of the Government's policy on the European Community referendum was the main issue of the day. The Labour Government would not have chosen a minor debate in the House of Lords as the vehicle for a major definition of "subversive". Nor, with respect to the noble Lord, would they have chosen a junior Minister at the Home Office as the appropriate person, in the middle of his speech, to provide the categorical ex cathedra definition which was to run through British political life and constitutional practice for a decade or more. I do not think Lord Harris contemplated that that was quite the role for which he was being cast in that otherwise uneventful debate. Therefore, I hope we shall not say, just because Lord Harris happened to say that on that day, that that is it. We want a better definition.

We do not claim for a moment that our definition in amendment No. 141 is the best definition. We hope that, with all their great drafting assistance, the Government can find a better definition, although after the little bit of a mess that they got themselves into over the live-in landlord, one begins to wonder just how marvellous the powers of parliamentary counsel now are.

My hon. Friend the Member for Knowsley, North (Mr. Kilroy-Silk) has already said that clause 2 is at the heart of the Bill. The Bill regulates the interception of communications by the two means given in the long title. It is not a Bill, as the Government have made clear, to expand the interception of communications. The definitions in subsection (2)(a) and (c) and the definition of "subsersive" on which they rest could he used to allow the expansion of this area. Therefore, I hope that the Secretary of State will agree to look again at subsection (2)(a) and (c). If he does that, we will find it reassuring.

Mr. Eldon Griffiths

In view of the uncharacteristic harmony that seems to be prevailing, will the right hon. Gentleman say why he has not included the term "parliamentary democracy" in his definition?

Mr. Kaufman

We did not feel that we needed to. The Government exist because of parliamentary democracy. Without parliamentary democracy in Britain we would not have a Government. Therefore, we felt that the overthrow of the Government by unlawful means was enough in the circumstances. But I would not argue with the hon. Gentleman. Anyone seeking to overthrow parliamentary democracy by unlawful means would be committing the most intolerable crime against Britain.

Mr. Tony Benn (Chesterfield)

I am sorry that I missed the first few minutes of the speech of the hon. Member for Grantham (Mr. Hogg), but I listened to the rest of it carefully. His amendment exposes the Bill's weakness. First, we are discussing a narrow area of Government interception. We are excluding all surveillance. Unfortunately, the Bill's long title prevents us from discussing the fact that without a warrant, without the Bill, the Home Secretary can authorise surveillance of virtually anybody's telephone. Indeed, the guidelines issued by my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees), which I think the Home Secretary has tightened up a bit, allow the Home Secretary to listen, in effect, to whoever he wishes to listen to.

The Secretary of State for the Home Department (Mr. Leon Brittan)


Mr. Benn

That is my understanding.

Mr. Brittan


Mr. Benn

Before the Home Secretary intervenes, perhaps I should warn him that his words might be taken as seriously as those of Lord Harris, so I hope that he gets it right.

Mr. Brittan

Having made such an assertion, will the right hon Gentleman say what there is in the guidelines that leads him to take that view? If he will identify the paragraph, I shall be able to deal with it.

Mr. Benn

The simple point is that the warrant and the legislation do not cover surveillance. I am saying only that the Bill is deficient. The point that I am clearly making is that the Home Secretary does not have to sign a warrant. Indeed, he subcontracts—his predecessor did and I think that he does—to police officials the power to engage in surveillance. From the point of view of somebody under surveillance or being intercepted, there is not much difference. A person is being listened to. That is my point.

Mr. Brittan

The right hon. Gentleman must not delude himself or try to delude anybody else. There is the world of difference between listening to somebody on the telephone, which is essentially what interception is about, and surveillance. The right hon. Gentleman has just said that under the cloak of surveillance people's telephone conversations can be listened to. That simply is not true.

Mr. Benn

With great respect, if the Home Secretary looked at the guidelines — I confine myself to those published by Lord Whitelaw, which had been issued by my right hon. Friend the Member for Morley and Leeds, South in 1977 — he will find that surveillance includes listening to what people say on the telephone. There is a narrow difference between permanent interception and surveillance of a line to see whether certain things are being done and said.

The Bill does not have credibility, in part because all we are being invited to do is to put into statute what has always been done by prerogative. There is no change of policy in the Bill. If anybody thinks that this is a great liberal measure which suddenly represents an advance on past practice, he would be wrong. It is simply a Bill to put into statute what has previously been done by prerogative. That is all. Nobody should assume that there is any change.

7.15 pm

Now I come to the ingenious and lengthy, if not slightly windy, definition of subversion of the hon. Member for Grantham. The reality is that we cannot define national security, crime and economic well-being other than in the way it has been hitherto defined by every Home Secretary — that the security services want to listen to people's telephone communications on those three grounds.

I want to put a point of view to the Committee which may not find acceptance but to which I hold strongly. There is only one legitimate criterion for listening to or intercepting a person's telephone calls—that a crime is being, is about to be or is thought likely to be about to be prepared or has been committed. Once we depart from what people do and include what they think, which is what subversion is all about, we are getting away from a basic principle, upon which British justice is supposed to be founded—that people are answerable only for what they have done. Subversion is about opinion and the advocasy of opinion. That is the way in which the term "subversive" is normally used, loosely, by the press, and much more than loosely by the security services.

It is true that some statements may be against the law when they are contrary to certain provisions of race relations legislation or other matters that might lead to incitement. Any right hon. or hon. Member who goes along the Corridor, as I did not long ago, to look at the state trials for the 17th century, will find that a Jesuit priest who was found in Britain at that time was executed. It was assumed that if he was a Jesuit priest he worked for the Pope. There was no argument or trial about whether he was a loyal citizen. Jesuit priests in Britain were executed by law because they were thought to be subversive.

I know that it is difficult in this present atmosphere to put to the Committee the point about which I feel most strongly. Parliamentary democracy has been referred to. I have always believed that we should have an elected Parliament. That may be an old-fashioned view, but I have never believed in the other place. Is it subversive for someone to say that we should get rid of the House of Lords? According to Lord Harris's definition, a person who advocates the undermining of parliamentary democracy by political means, which includes advocating the abolition of the House of Lords, is subversive. I know that that is a notional idea, because the security services have so much on their plate watching Militant, the Socialist Workers party, the Communist party and so on, that they probably do not have time for people who are simply in favour of getting rid of the House of Lords.

But once Parliament steps outside the principle that a crime entitles interception, it has moved into an area which even the hon. Member for Grantham with his legal knowledge could not clear up by longer and longer amendments. It is a crime which is potentially being prepared or executed or has been executed that entitles interception, and nothing else.

Mr. Eldon Griffiths

Does the right hon. Gentleman include all crimes? If so, he would be going a long way beyond the Bill. Some crimes are very minor. Does his definition include the contemplation of a crime as a ground for interception?

Mr. Benn

It depends on how one defines "contemplation". If people think about a crime, if contemplation has a slightly cerebral quality, I am not sure that even the hon. Gentleman would be in favour of that. Of course, I include serious crime. Everything justifying interception has to be criminal. Then we have to differentiate between the person who does not pay his parking ticket and those engaged in serious crime. Serious crime covers espionage.

Mr. Eldon Griffiths

In contemplation or in prospect.

Mr. Benn

I am talking about preparation. Contemplation is a difficult concept. The hon. Gentleman is trying to build a false bridge between criminal intent and opinion. Once we shift into the area of opinion we are on a slippery slope.

I hope that the Committee will believe me when I say that although I am supposed to be involved in a lot of Left-wing activities when I meet many people and attend meetings where I am criticised, I have never met a revolutionary in Britain. If by a revolutionary is meant somebody who is engaged not in preparing policy but in preparing to overthrow the state by force, I have never met one.

One of the ideas which have to be eliminated from the minds of some hon. Gentlemen—I will give the reason in a minute, because the Bill could work in the hands of a Labour Government or Governments of a different colour — is what I would call the Chapman Pincher tendency in the security services—the honest belief that if a person reads the Morning Star or contributes to Socialist Worker or Militant, he is, as the hon. Member for Bury St. Edmunds (Mr. Griffiths) would say, in contemplation of the crime of overthrowing the state. If that is the belief, then truly the Home Secretary might just as well take the total powers that he has taken. I make that as a general point only because I am not concerned at this stage with individual examples.

I say to the Committee that at its peril does it move from crime to opinion, the advocacy of opinion or the organisation of opinion, even if the opinion means that one changes the structure of power in the parliamentary system—and I have given one example in respect of the House of Lords.

One might argue certain other matters that I have argued. I have always believed that the right to make peace or war should be vested in the House of Commons, and nowhere else. In the United States, the President cannot make war without the consent of Congress. In Britain, war-making is a prerogative right. At the time of the Falklands war, the Prime Minister properly reminded Parliament that it had no right whatsoever to say whether we should go to war in the south Atlantic. I think that that is wrong, but it is a part of the constitution that Parliament should have no power of treaty-making or war-making.

The point I make is that the advocacy of opinion and the organisation of opinion, even if it goes to what are some of the central tenets of what we now call parliamentary democracy, is not subversive. The matter should be seen in that way.

Mr. Douglas Hogg

I agree with what the right hon. Gentleman has said about the advocacy of opinion, but does he agree that if one can define the means and they be unlawful, then that is subversive?

Mr. Benn

One then gets to the problem of the attitude towards law-breaking, which is a different question.

I believe strongly and have said in Parliament before that all our liberties were won by law-breaking. The Act of Uniformity said that one had to adhere to the 39 articles. Humanists, Catholics and Jews would never have had the right to worship as they wished if they had not broken the law. Is breaking the law on conscientious grounds subversion? I do not believe that it is for a moment. The Prime Minister would not be Prime Minister if the suffragettes had not chained themselves to the railings and broken the law. The law—dare I say it as a non-lawyer — proceeds majestically from breach to breach. But when people break the law, they take the consequences of breaking the law.

My old uncle, Ernest Benn, who was an individualist, did not believe in the census. When he was about 75, he would not fill in a census form. He thought that the Government had no right to ask him questions about how old he was, and so on. In fact, he was an early monetarist. I wish that he had lived to see the Prime Minister, because he would have loved to think that his ideas, which, when he advocated them, were seen as the lunatic Right, should now be regarded as Conservative. He was taken to court for not filling in the census form. What infuriated him more than anything else was that his barrister said, "Your honour, he is an old man, I hope that you will forgive him." He was not an old man who hoped to be forgiven, but a principled law breaker. He did not believe in the right of the Government to find out about his domestic circumstances, his age, what he did and how many children he had. I know that is not a serious crime, but it is law breaking.

The Home Secretary is not going to budge, I know. The people in the civil servants box are there to see that he does not budge. No predecessor would ever have allowed him to budge. For many years—this is why in the Bill there is no political advantage to be gained by Labour against Conservative or, dare I say it, by Liberal against Conservative, because when the Liberals were in power they pursued people and opened their letters, and it is all on the record — Home Secretaries, entrenched by law, have had total discretion to intercept, because it was done under the prerogative. That is why in 1660 the Post Office was nationalised by Charles II. He wanted to open the letters. From 1660 onwards, letters have always been opened. The king had to know who was saying what to whom. Therefore, from that time to this, successive Home Secretaries may have been occupying the bridal suite in the grand hotel called the Home Office, but the maitre d'hotel there has decided what has happened. The Maxwell Fyfe directive entrenched it. Maxwell Fyfe must have written that directive to please the permanent secretary or whoever it was who looked after security at the Home Office. Maxwell Fyfe said, "I, the elected Minister, will never interfere in what you do." Is that a principle of accountability? I am talking now not about parliamentary accountability, but about ministerial responsibility. The Home Secretary, assuming that he abides by the Maxwell Fyfe directive, is not even allowed to ask the security services what they have been up to.

As a matter of fact, the security services, being very human, have all sorts of ideas. I mentioned the Chapman Pincher tendency. Then there is the Cathy Massiter tendency. Within the security services, there are those who think that everybody to the Left of the leader of the Liberal party or the SDP, is a subversive; and there are others who think that, if one bugs CND, that is a direct attack upon civil liberties. Within that family—if that is the word—of the security services, there are tremendous arguments going on. Maxwell Fyfe said, "I am not going to interfere."

What I said on Second Reading I must say again. The United States would not permit the Home Secretary to accept the amendment because British intelligence is under the supervision of American intelligence. In saying this, I know exactly what I am saying because, as a Minister, I had to go to Washington to get permission from the Atomic Energy Commission under Dr. Glenn Seaborg for a minor change in our nuclear technology. The special relationship with America, which was part of the provision of the nuclear exchanges, means — and I have had responsibilities in this area over a very long period — that the Americans will not disclose nuclear secrets to us unless we satisfy them that they can supervise our intelligence services. Hon. Gentlemen may disregard this, but it is true. I know it to be true. I was within the framework where it was true. Therefore, the Home Secretary cannot budge on this.

I turn to the next point. Assuming that the Home Secretary cannot budge, he will be very courteous when he replies to the hon. Member for Grantham, as one always is when helpful Back Benchers come up with suggestions, and the hon. Member for Grantham will be patted on the head. The prerogative is one thing, and it has happened for centuries. What goes on in the secrecy of power is something that Parliament does not know about and may not want to know about, but put it in the Bill and we take responsibility for it.

No Parliament should give this power to any Executive—Labour, Tory, Liberal or SDP. No Parliament should do it, and I will tell the Committee why. It is because another Government—perhaps a Labour Government or a Government of another colour — could use the language of the Bill to intercept the telephone calls of every Conservative Member. Once we started discussing national security, assuming that there was a change of Government and that we were to decide not to pursue the missiles and to get rid of cruise and so on, every Conservative party member who thought that was wrong and kept people informed as to what was happening would be acting contrary to national security as defined by the new Government. Every stockbroker who tried to export his capital abroad when exchange control was in operation in this country could have his telephone calls intercepted, because what he was doing could be, in the mind of a Labour Secretary of State, damaging to the economic well-being of the nation.

This is the clause which will lead me to vote against the Bill. I am not arguing a particular definition of national security or economic well-being. I am saying that no Parliament should entrust such powers to any Executive. Once we entrust such powers to the Executive, we are responsible for what it does. At present, we are not responsible for what the Home Secretary does. We shall have to wait for his memoirs, in which he will tell us what really happened, and then it will be too late for any of us to know and, if one waits 30 years, the file will have been weeded so that this will not be seen anyway. But once we take responsibility as a legislative assembly for giving the power to the Executive in statute, we are retrospectively legitimising 300 years of Executive interference in the right of free communication. It is justified only if a serious crime, defined in the proper way of espionage or violence of any kind, is in preparation, is being committed or has been committed.

7.30 pm

Once we have a toehold in the Bill—which changes nothing except the basis of authority, for which the Home Secretary will act entirely without regard to any principles that we control—it is time for Parliament to look at the security services. If Maxwell Fyfe could say what he said, then it should be in a Bill. If Lord Harris could say what he said in the House of Lords in 1975—I do not know whether it was what the civil servants told him to say or what suddenly came into his mind in a flash of rhetoric—it is clear that these are policy matters.

Parliament should decide policy matters. For example, let us discuss what is a subversive, let us legislate, and so on. Policy is for us. Operations must necessarily be for those who are responsible. Once an operation is completed, we expect those who have undertaken it to be accountable for that operation.

There must be many examples—because the security services are comprised of ordinary people—where errors have been made. I shall give one. A special branch man went to Wales to find out who was studying a course on Marxism at a school there. The matter was in a newspaper and I recall raising it with the then Home Secretary. That was the special branch going into what one might call the sphere of academic freedom, because it wanted to know who was studying Marxism. Is that, according to Maxwell Fyfe, excluded from ministerial responsibility? Is the Home Secretary not to prevent excesses or errors of that kind from recurring?

This is an important Bill. The last thing that I want to see is the House of Commons just rubber-stamping gross abuses of civil liberties that have occurred under all Governments and all Home Secretaries for as long as they have exercised that prerogative power. Whether I go into the Lobby with the hon. Member for Grantham is a technical decision. The reason that I have given in my remarks will explain to the Committee why I can support neither the clause nor the Bill.

Mr. Brittan

The right hon. Member for Chesterfield (Mr. Benn) explained candidly why he wishes to tear up 300 years of history as he invited the Committee to remove from the use of Government the powers which, on his highly selective reading of history, have been exercised for those 300 years.

His was a highly selective reading of history because when he talked, for example, about the use of surveillance at the beginning of his remarks, he wrongly suggested that a way to get round the powers was to ignore the provisions in paragraph 12 of the latest guidelines on surveillance, although that paragraph makes it clear that they cannot be used as a way to secure interception by the back door.

Similarly, to say, as the right hon. Gentleman said, that the Bill made no change but simply enshrined existing practice, was doing less than justice to the important innovation of the Bill in providing for a tribunal with effective power and access to information, with the right to strike down a Home Secretary's warrant and to award compensation. That is an innovation of the first order of magnitude.

Although the right hon. Member for Chesterfield has an encyclopaedic knowledge of everything that has happened since the days of the Stuarts, his energies would be better directed — if he wants to be fair in these matters — to taking account of that major innovation, one which no Home Secretary has previously put before Parliament and no Executive have been prepared to concede.

Mr. Benn

I am anxious to be fair to the right hon. and learned Gentleman. The point that he makes is in the Bill. Will he, for the purpose of clarification, explain the difference between the new system of monitoring that he mentions and the speedy examination of exactly the same issue that was undertaken by Lord Bridge? Was the Bridge job any different from that which the right hon. and learned Gentleman provides in the Bill?

Mr. Brittan

Lord Bridge conducted an inquiry, as it were, not under the backing of the Bill. Nor was he concerned with awarding damages or quashing a warrant of any kind. 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. The right hon. Gentleman fails to take account of what the Bill says. He allows his journey down 300 years of history to get the better of him when he fails to acknowledge the substantial change that is made by this legislation.

The memory of the right hon. Member for Chesterfield is not only selective about the last 300 years but is highly selective in rendering an account of what is in the Bill. Going back a shorter period than to the time of the Stuarts, it is strange that the right hon. Gentleman should criticise Parliament so severely for contemplating giving to Secretaries of State the powers provided in this measure, with the additional safeguards, when he ignores the fact that Parliament entrusted the power to intercept to the Secretary of State in the Post Office Act 1969, a piece of legislation which the right hon. Gentleman might recall from his previous ministerial career.

Mr. Benn

I do not rise from a desire to clear my reputation. That is not what I am about. The right hon. and learned Gentleman, to be fair, will recognise that when the Post Office was a Crown Department, the prerogative operated through the Postmaster-General. When it became a public corporation, the continuation of that prerogative under the legislation was not an endorsement but a continuity. If the right hon. and learned Gentleman examines the position, he will find that, as a Cabinet Minister, I raised all these points at the time.

Mr. Brittan

I do not know what points were raised in Cabinet. It is a fact, however, that the right hon. Gentleman was a member of a Government who did exactly what he now says we should not do — that is, gave parliamentary approval, not by an executive act and not by the prerogative but by way of specific statutory approval, to the act of interception by the Home Secretary of the day, which was what the Act to which the right hon. Gentleman referred did.

To say that it merely preserved continuity in the changing circumstances of the Post Office was an unworthy point for the right hon. Gentleman to make. To do him justice, he normally concentrates on matters of substance rather than on matters of form. In terms of the substance of the matter, there can be no doubt that the legislation to which he was a party did exactly what he is now condemning us for inviting Parliament to do.

I am grateful to the right hon. Member for Manchester, Gorton (Mr. Kaufman) for what he said about the Government amendment and the approach of the Government to these issues. The right hon. Gentleman put a number of points to me which were designed to tighten up the Bill. I have considered them all carefully, and many of them are reflected in Government amendments, such as the one that we are considering. While we have had a constructive dialogue, I do not expect the right hon. Member for Gorton to be satisfied with the remainder of the Bill. For my part, this has been a useful way to consider the exercise of powers which, as the right hon. Member for Chesterfield said, Governments of all political complexions have used.

The central question of this debate is the extent to which one can put precise definitions in a statute. My hon. Friend the Member for Grantham (Mr. Hogg) was seductive in inviting me to be as precise as possible in the definition of what are draconian powers. I hope that he will feel, as the right hon. Member for Gorton was good enough to say he felt, that the fact that we have sought to define crime in the amendment in a way more specifically than the Bill defines it shows that where it is possible to be more precise, I wish to be so.

It is not always possible to be more precise, even in that area of serious crime. The difficulty is illustrated by the fact that we were teased, even if mildly, for having a different definition from the definition of "serious crime" for the purposes of the Police and Criminal Evidence Act 1984.

The reason why we hesitated to define serious crime for the purposes of this legislation was precisely that the definition in the Police and Criminal Evidence Act, if applied here, would have enabled Home Secretaries to have a greater power of interception than has been past practice, as defined in the 1980 White Paper. It seemed crazy to introduce a definition that would allow more interception than has been the practice or than has been desired. It was for that reason that, after some hesitation as to the appropriateness of the language, we included — at the invitation of the Opposition — a definition culled from the 1980 White Paper rather than from the 1984 Act. That illustrates the difficulty of having a definition of a more precise kind than appears in the Bill for many of these areas.

Much of the discussion has been about the definition of national security and the definition of the economic well-being of the United Kingdom in relation to information regarding the acts or intentions of persons outside the British Isles. "National security" is an expression which is necessarily imprecise, but it appears in the European convention and is not some uniquely British and vague authorisation for executive discretion.

It is also fair to say that the word "subversive" covers one aspect of national security, but the foreign aspect of it is necessarily not covered by the operation of the security services and therefore would not be adequately covered by the definition of my hon. Friend the Member for Grantham. The problem with that is its limited character. It was for precisely this kind of reason that we came to the conclusion that no portmanteau definition was available that would cover both the aspects of national security relating to what can be broadly described as subversion and the use of it in relation to foreign intelligence. With due deference to my hon. Friend, therefore, I do not believe that his definition succeeds in achieving that objective.

Mr. Douglas Hogg

My right hon. and learned Friend is saying that he will not incorporate in this statute the Maxwell Fyfe directive. Is he, therefore, implying that he is in certain circumstances prepared to issue warrants in circumstances that are not covered by the Maxwell Fyfe directive?

7.45 pm
Mr. Brittan

The Maxwell Fife directive related to the work of the security service. My hon. Friend will be aware that the directive to the security service was in no sense comprehensive as far as foreign and defence matters are concerned because that is not primarily the role of the security service. If my hon. Friend looks at the 1985 White Paper he will find that the explanation for that is more readily apparent.

Mr. Winnick

Is the right hon. and learned Gentleman saying that the Government are not departing in any way from the definition of subversion given by Lord Harris in February 1975? If that is the case, does he not recognise — I am referring to internal matters in the United Kingdom — that that will inevitably, because it is so loosely worded, give rise to the sort of abuses that we have been hearing about in the last few months?

Mr. Brittan

I was coming to the question of subversion. The very fact that Lord Harris's definition was given in a debate—but I can assure the Committee that it was a considered definition and was not simply prepared for the purposes of some trivial debate—indicates that it would not be right to enshrine a particular definition of that kind in the statute, even though it is our intention to adhere to that definition as far as subversion goes, which is one limb of the work of the security service. Indeed, I gave evidence to the Home Affairs Select Committee explaining in some detail the operation of that provision, which is of two limbs. For activities to be subversive they have both to threaten the safety or well-being of the state and to be intended to undermine or overthrow parliamentary democracy by political, industrial or violent means. It is not sufficient for one limb of the argument to be met; both have to be met.

So, although of course I shall consider what the right hon. Member for Gorton said about the provision of tighter definitions, it would be wrong for me to hold out the hope that they are likely to be obtainable. We addressed that prospect in all good faith and were successful in providing the amendment, which I commend to the Committee, relating to serious crime, but we have not been successful in finding a comprehensive, effective definition likely to stand the test of time as far as the other limbs are concerned. I can assure the Committee once again that we have no intention of going in any way beyond the practices of Governments in the past and that the extra safeguards provided by a scrutiny both by the commissioner of the general practices and by the tribunal in relation to particular appeals are, I believe, valuable additions to this Bill.

Mr. Douglas Hogg

I cannot conceal from my right hon. and learned Friend the Home Secretary that I am disappointed that he has not felt able to accept the amendment I have put forward. The Committee has heard the right hon. Member for Manchester, Gorton (Mr. Kaufman) say that the Labour party has it in mind to vote on amendment No. 16. I think it would be for the convenience of the Committee if that were to happen. Amendment No. 16 is remarkably close to amendment No. 12, which I put down, and I urge those of my hon. Friends who have been persuaded by the arguments put forward to support amendment No. 16. So that there should be only one Division, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 16, in page 2, leave out lines 19 to 23 and insert—

  1. '(a) for the defence of the realm;
  2. (b) for the detection or prevention of a major subversive, terrorist or espionage activity that is likely to injure the national interest; or
  3. (c) for the purpose of preventing or detecting a grave offence; and unless the following conditions apply—
    1. (i) normal methods of investigation must have been tried and failed, or must from the nature of things be unlikely to succeed if tried; and
    2. (ii) there must be a good reason to think that an interception would be likely to lead to an arrest and a conviction, or, in the case of warrants for interception on behalf of the security service, the material likely to be obtained by interception must be of direct use in compiling the information that is necessary to the security service in carrying out the tasks laid upon it by any directive given by the Secretary of State to its Director General.'.—[Mr. Kaufman.]

Question put, That the amendment be made:—

The Committee divided: Ayes 183, Noes 243.

Division No. 178] [7.50 pm
Adams, Allen (Paisley N) Banks, Tony (Newham NW)
Anderson, Donald Barnett, Guy
Archer, Rt Hon Peter Barron, Kevin
Ashdown, Paddy Beckett, Mrs Margaret
Ashley, Rt Hon Jack Beith, A. J.
Atkinson, N. (Tottenham) Benn, Tony
Bagier, Gordon A. T. Bermingham, Gerald
Bidwell, Sydney Hughes, Sean (Knowsley S)
Boothroyd, Miss Betty Janner, Hon Greville
Boyes, Roland John, Brynmor
Bray, Dr Jeremy Johnston, Russell
Brown, Gordon (D'f'mline E) Jones, Barry (Alyn & Deeside)
Brown, Hugh D. (Provan) Kaufman, Rt Hon Gerald
Brown, N. (N'c'tle-u-Tyne E) Kennedy, Charles
Brown, R. (N'c'tle-u-Tyne N) Kilroy-Silk, Robert
Brown, Ron (E'burgh, Leith) Kirkwood, Archy
Bruce, Malcolm Lambie, David
Buchan, Norman Lamond, James
Caborn, Richard Leadbitter, Ted
Callaghan, Jim (Heyw'd & M) Leighton, Ronald
Campbell, Ian Lewis, Ron (Carlisle)
Campbell-Savours, Dale Lewis, Terence (Worsley)
Canavan, Dennis Litherland, Robert
Carlile, Alexander (Montg'y) Lloyd, Tony (Stretford)
Carter-Jones, Lewis Loyden, Edward
Cartwright, John McCartney, Hugh
Clark, Dr David (S Shields) McDonald, Dr Oonagh
Clarke, Thomas McGuire, Michael
Clay, Robert McKay, Allen (Penistone)
Clwyd, Mrs Ann McKelvey, William
Cocks, Rt Hon M. (Bristol S.) Mackenzie, Rt Hon Gregor
Cohen, Harry Maclennan, Robert
Coleman, Donald McNamara, Kevin
Conlan, Bernard McTaggart, Robert
Cook, Frank (Stockton North) Madden, Max
Corbyn, Jeremy Marek, Dr John
Cowans, Harry Martin, Michael
Cox, Thomas (Tooting) Mason, Rt Hon Roy
Craigen, J. M. Maxton, John
Crowther, Stan Maynard, Miss Joan
Cunliffe, Lawrence Meadowcroft, Michael
Davies, Rt Hon Denzil (L'lli) Michie, William
Davies, Ronald (Caerphilly) Millan, Rt Hon Bruce
Davis, Terry (B'ham, H'ge H'l) Miller, Dr M. S. (E Kilbride)
Deakins, Eric Mitchell, Austin (G't Grimsby)
Dewar, Donald Morris, Rt Hon J. (Aberavon)
Dixon, Donald Nellist, David
Dobson, Frank O'Neill, Martin
Dormand, Jack Orme, Rt Hon Stanley
Dubs, Alfred Park, George
Dunwoody, Hon Mrs G. Parry, Robert
Eadie, Alex Pavitt, Laurie
Eastham, Ken Pendry, Tom
Edwards, Bob (W'h'mpt'n SE) Pike, Peter
Evans, John (St. Helens N) Powell, Raymond (Ogmore)
Ewing, Harry Prescott, John
Fatchett, Derek Randall, Stuart
Faulds, Andrew Redmond, M.
Field, Frank (Birkenhead) Rees, Rt Hon M. (Leeds S)
Fields, T. (L 'pool Broad Gn) Richardson, Ms Jo
Fisher, Mark Roberts, Allan (Bootle)
Flannery, Martin Roberts, Ernest (Hackney N)
Foot, Rt Hon Michael Robertson, George
Foster, Derek Robinson, G. (Coventry NW)
Foulkes, George Rooker, J. W.
Freeson, Rt Hon Reginald Rowlands, Ted
Freud, Clement Ryman, John
George, Bruce Sedgemore, Brian
Godman, Dr Norman Sheerman, Barry
Golding, John Shore, Rt Hon Peter
Gould, Bryan Short, Ms Clare (Ladywood)
Gourlay, Harry Short, Mrs R.(W'hampt'n NE)
Hamilton, James (M'well N) Skinner, Dennis
Hamilton, W. W. (Central Fife) Smith, C.(Isl'ton S & F'bury)
Hardy, Peter Snape, Peter
Harrison, Rt Hon Walter Soley, Clive
Haynes, Frank Spearing, Nigel
Healey, Rt Hon Denis Strang, Gavin
Heffer, Eric S. Thomas, Dafydd (Merioneth)
Hogg, Hon Douglas (Gr'th'm) Thompson, J. (Wansbeck)
Hogg, N. (C'nauld & Kilsyth) Thorne, Stan (Preston)
Home Robertson, John Tinn, James
Howell, Rt Hon D. (S'heath) Torney, Tom
Howells, Geraint Wainwright, R.
Hoyle, Douglas Wallace, James
Hughes, Robert (Aberdeen N) Warden, Gareth (Gower)
Hughes, Roy (Newport East) Wareing, Robert
Weetch, Ken Wrigglesworth, Ian
Welsh, Michael Young, David (Bolton SE)
White, James
Williams, Rt Hon A. Tellers for the Ayes:
Wilson, Gordon Mr. Robin Corbett and
Winnick, David Mr. John McWilliam.
Woodall, Alec
Adley, Robert Freeman, Roger
Aitken, Jonathan Gale, Roger
Alexander, Richard Garel-Jones, Tristan
Alison, Rt Hon Michael Goodhart, Sir Philip
Amess, David Gorst, John
Ancram, Michael Gower, Sir Raymond
Arnold, Tom Grant, Sir Anthony
Ashby, David Gregory, Conal
Aspinwall, Jack Griffiths, E. (B'y St Edm'ds)
Atkins, Robert (South Ribble) Grist, Ian
Baker, Rt Hon K. (Mole Vall'y) Grylls, Michael
Baker, Nicholas (N Dorset) Gummer, John Selwyn
Baldry, Tony Hamilton, Hon A. (Epsom)
Banks, Robert (Harrogate) Hannam, John
Batiste, Spencer Harris, David
Beaumont-Dark, Anthony Hawkins, Sir Paul (SW N'folk)
Bendall, Vivian Hayes, J.
Benyon, William Hayhoe, Barney
Best, Keith Hayward, Robert
Bevan, David Gilroy Heddle, John
Biggs-Davison, Sir John Hickmet, Richard
Blackburn, John Hicks, Robert
Blaker, Rt Hon Sir Peter Higgins, Rt Hon Terence L.
Boscawen, Hon Robert Holland, Sir Philip (Gedling)
Bottomley, Peter Hordern, Peter
Bottomley, Mrs Virginia Howard, Michael
Bowden, Gerald (Dulwich) Howarth, Gerald (Cannock)
Braine, Rt Hon Sir Bernard Hunter, Andrew
Brandon-Bravo, Martin Irving, Charles
Bright, Graham Jackson, Robert
Brinton, Tim Jenkin, Rt Hon Patrick
Brittan, Rt Hon Leon Johnson Smith, Sir Geoffrey
Brown, M. (Brigg & Cl'thpes) Kilfedder, James A.
Browne, John King, Rt Hon Tom
Bruinvels, Peter Knight, Mrs Jill (Edgbaston)
Buck, Sir Antony Lawrence, Ivan
Burt, Alistair Lennox-Boyd, Hon Mark
Butcher, John Lester, Jim
Carlisle, Kenneth (Lincoln) Lewis, Sir Kenneth (Stamf'd)
Carlisle, Rt Hon M. (W'ton S) Lightbown, David
Carttiss, Michael Lloyd, Ian (Havant)
Cash, William Lloyd, Peter, (Fareham)
Chapman, Sydney Lord, Michael
Chope, Christopher Lyell, Nicholas
Clark, Dr Michael (Rochford) McCrindle, Robert
Clarke, Rt Hon K. (Rushcliffe) McCurley, Mrs Anna
Clegg, Sir Walter Macfarlane, Neil
Colvin, Michael MacKay, John (Argyll & Bute)
Conway, Derek McNair-Wilson, P. (New F'st)
Coombs, Simon McQuarrie, Albert
Cope, John Major, John
Cormack, Patrick Malone, Gerald
Couchman, James Mather, Carol
Cranborne, Viscount Mawhinney, Dr Brian
Critchley, Julian Maxwell-Hyslop, Robin
Dickens, Geoffrey Mayhew, Sir Patrick
Douglas-Hamilton, Lord J. Merchant, Piers
Dover, Den Meyer, Sir Anthony
Dykes, Hugh Mills, Iain (Meriden)
Eggar, Tim Mills, Sir Peter (West Devon)
Emery, Sir Peter Miscampbell, Norman
Eyre, Sir Reginald Mitchell, David (NW Hants)
Fairbairn, Nicholas Moate, Roger
Fallon, Michael Monro, Sir Hector
Farr, Sir John Montgomery, Sir Fergus
Fenner, Mrs Peggy Moore, John
Finsberg, Sir Geoffrey Morrison, Hon C. (Devizes)
Forman, Nigel Morrison, Hon P. (Chester)
Forth, Eric Moynihan, Hon C.
Fowler, Rt Hon Norman Murphy, Christopher
Fox, Marcus Neale, Gerrard
Needham, Richard Stewart, Allan (Eastwood)
Nelson, Anthony Stewart, Andrew (Sherwood)
Neubert, Michael Stewart, Ian (N Hertf'dshire)
Newton, Tony Stokes, John
Nicholls, Patrick Stradling Thomas, J.
Normanton, Tom Sumberg, David
Norris, Steven Taylor, John (Solihull)
Onslow, Cranley Taylor, Teddy (S'end E)
Oppenheim, Phillip Temple-Morris, Peter
Osborn, Sir John Terlezki, Stefan
Ottaway, Richard Thomas, Rt Hon Peter
Page, Richard (Herts SW) Thompson, Donald (Calder V)
Patten, Christopher (Bath) Thompson, Patrick (N'ich N)
Pattie, Geoffrey Thornton, Malcolm
Pollock, Alexander Thurnham, Peter
Porter, Barry Townend, John (Bridlington)
Portillo, Michael Townsend, Cyril D. (B'heath)
Powell, William (Corby) Tracey, Richard
Powley, John Trippier, David
Proctor, K. Harvey Trotter, Neville
Raison, Rt Hon Timothy Twinn, Dr Ian
Rathbone, Tim van Straubenzee, Sir W.
Rees, Rt Hon Peter (Dover) Vaughan, Sir Gerard
Rhodes James, Robert Viggers, Peter
Roberts, Wyn (Conwy) Waddington, David
Roe, Mrs Marion Wakeham, Rt Hon John
Rossi, Sir Hugh Waldegrave, Hon William
Rowe, Andrew Walden, George
Rumbold, Mrs Angela Walker, Bill (T'side N)
Ryder, Richard Waller, Gary
Sackville, Hon Thomas Ward, John
Sainsbury, Hon Timothy Wardle, C. (Bexhill)
Sayeed, Jonathan Warren, Kenneth
Scott, Nicholas Watson, John
Shaw, Giles (Pudsey) Watts, John
Shaw, Sir Michael (Scarb') Wells, Bowen (Hertford)
Shelton, William (Streatham) Wells, Sir John (Maidstone)
Shepherd, Colin (Hereford) Wheeler, John
Shepherd, Richard (Aldridge) Whitfield, John
Shersby, Michael Wiggin, Jerry
Skeet, T. H. H. Wilkinson, John
Smith, Tim (Beaconsfield) Winterton, Mrs Ann
Soames, Hon Nicholas Winterton, Nicholas
Speller, Tony Wolfson, Mark
Spence, John Wood, Timothy
Spencer, Derek Woodcock, Michael
Spicer, Jim (W Dorset) Yeo, Tim
Squire, Robin Younger, Rt Hon George
Steen, Anthony
Stern, Michael Tellers for the Noes:
Stevens, Lewis (Nuneaton) Mr. Tony Durant and
Stevens, Martin (Fulham) Mr. Ian Lane.

Question accordingly negatived.

8 pm

Mr. Harry Cohen (Leyton)

I beg to move amendment No. 19, in page 2, line 27, at end insert— '(4) A warrant shall not extend to data as defined by the Data Protection Act 1984.'.

The Temporary Chairman (Mr. John Forrester)

With this it will be convenient to discuss amendment No. 54, in clause 6, page 5, line 23, at end add— '(3) The requirements of this subsection are satisfied in relation to personal data as defined by the Data Protection Act 1984 if—

  1. (a) the personal data intercepted relate only to the person specified or described in the warrant;
  2. (b) any other personal data are destroyed.'.

Mr. Cohen

The amendments deal with personal information in computers. The issue will be of increasing importance. The Government have paid scant attention to the problem in the Bill and in general policy.

The Bill covers all forms of communications, whatever their nature, passing through the system, such as letters, telephone calls, telex messages, telegrams and other forms of electronic transmission such as computer data or facsimili.

On 26 February I asked the Home Secretary whether his current arrangements for interception of communications extend to the surveillance of data stored on, and transmitted to and from, computers; and if he will make a statement. He said: My powers to authorise under warrant the interception of communications extend only to the postal and public telecommunications systems but cover any form of communication in those systems, including the transmission through them of computer data. I have no such powers to authorise data stored on computers or to other forms of data base." — [Official Report, 26 February 1985; Vol. 74, c. 97.] He was trying to say that he had no power to authorise access to computer data. That might be all right on the surface, but the Secretary of State will have access to communications through the public telecommunications system.

Many computers are linked through the telecommunications system. The trend is increasing. We are talking about a massive new area to which the security services will have access.

An article in The Scotsman on 9 March entitled "Still in the Dark" stated that the most fundamental weakness of the Government's proposals is that they do not provide for the proven capacity of new technology to produce all kinds of sophisticated methods of surveillance. Nothing in the Government's proposals will check their growth or control their use. That article said that the Government have no control over the sophisticated equipment which is now available to the security services and that there is no control over access to data.

The new trend gives scope for the collection of vast amounts of data, much of it personal. The scope goes way beyond that of warrants issued in respect of certain individuals. Information can be accumulated on vast numbers of individuals for whom a particular warrant is not intended.

My amendment would ensure that irrelevant data were destroyed and discarded. Without such an amendment those data could be put on a person's file, even though the original warrant was not intended to cover that person. If such records are not destroyed, files on vast numbers of people could be created and Big Brother could operate in a big way. Political control over the issuing of warrants could become more of a sham than it is already.

Amendment No. 19 is a probing amendment. Why is access to data included in the Bill? Should that subject be considered separately on its own merits? Perhaps the Government have not worked out all the implications.

Intercepting a telephone call and intercepting communications between computers involves two different activities. Many data intercepted from a computer will not be relevant or related to a warrant. A warrant provides a means of facilitating the surveillance of many innocent individuals, organisations and companies. What is the scale of present activity, and what is it estimated to be?

International data will also be capable of interception. We remember what happened at GCHQ and the American listening post in Britain. How will the Bill apply to such computer data? Many of the data obtained will be irrelevant. What will happen to them? Will not the warrant be ineffective in terms of political control?

Communications between computers are increasing. the interception of transmissions between computers will also increase. It would be wrong to allow the rules of surveillance to be decided without proper consideration.

What will be on the warrant which relates to interceptions of computer data? Interceptions must not be allowed to get out of hand. I cannot imagine a security officer telling the Minister that he has a warrant which is capable of intercepting 50,000 records. What will appear on a warrant? Safeguards are a key principle of the amendments. It is certainly a key principle in amendment No. 54. That is the substance of the amendment. In a sense, it is a minimal amendment as it is not related to all data. It refers only to non-applicable personal data of the sort to which I have referred, which are the sort of data that should be destroyed. Any personal data that are intercepted and kept should relate only to the individual who is named on the warrant.

What is the safeguard if personal records are not destroyed? If they are not destroyed, the warrant system is open to massive abuse. If the security services want information on individuals other than the person named in the warrant, they should not obtain it by any back-door means. They should obtain other warrants that contain the names of those on whom they want information. The security services should not have the right generally to capture information and then to browse through it for purposes that are unconnected with the original warrant. I submit that the safeguards that I propose are necessary and that they should be made statutory.

If we leave it to the security services to administer safeguards in their own way, problems and abuses will inevitably arise. The Cathy Massiter case was an example of that. On Second Reading I referred to a chief constable who was interviewed and asked who he would consider to be subversive and who should be tapped. Included in his list was anyone decrying marriage, homosexuals, those who advocate less severe penalties in the courts and those who support indiscipline in our schools. That is an example of the abuse that will stem from the use of computer data. The Lindop report refers to the security services being, in the worst sense, a closed shop It describes them as "hermetic". They are open to the public view and to public criticism, but there is no guarantee that they do not stray beyond their allotted functions.

It is important that the safeguards of which I have spoken are put into law and administered under legal control. Do the Government recognise that the interception of computer data should not be considered the same as the interception of a telephone call? The 13ill suggests that they do not have that recognition. Do they recognise also that the collection of a vast amount of data is a dangerous new development? Data that are not specific to individual warrants relating to specific individuals should be destroyed. If that does not happen, a warrant that applies to an individual could be used to tap everyone who uses the telephone exchange in that individual neighbourhood. Satisfactory answers must be given to my questions before we embark on any expansion of tapping into computer data.

Mr. Waddington

At the beginning of his remarks, I thought that the hon. Member for Leyton (Mr. Cohen) was suggesting that the Government had done nothing about data protection. In the previous Session I laboured long with the hon. Member for Caithness and Sutherland (Mr. Maclennan) on that issue, so no one can tell me that the Government have done nothing on that score.

It is clear that the hon. Member for Leyton has raised some important issues, but it is apparent that he is harbouring some misconceptions. The first stage in the process that we are considering is the issue of the warrant. A warrant can be issued only in the circumstances that are set out in clause 2 or, in respect of particular persons or addresses, in clause 3. We are talking about the interception of communications passing through the public telecommunications system. Once a warrant has been obtained, no one knows what will be picked up as a result of it. We must discuss whether it is possible to exclude data from material that might be collected as a result of an interception. When that is considered, it is clear that is is impossible to do so.

8.15 pm

The Bill deals with interception of communications in the public system. This embraces all forms of telecommunications, such as voice telephony, telegrams, telex and data. Equally, the post covers communications in whatever form, written or electronic. The interception of computer data that are transmitted along telephone wires or sent through the post would be an offence under the Bill, unless there had been a warrant. The amendment takes one type of communication and seeks to put it in a special category so that it cannot be intercepted under a warrant. As I have said, that is impractical. Computer data travel down ordinary telephone wires, and it is only when the interception takes place that it can be determined whether computer data have been intercepted and whether they are personal data as defined in current legislation or another form of data. Only when a package is intercepted and opened can we determine the form of communication within it.

The amendment would place those carrying out authorised interception in an impossible position. Any one of the communications that they intercept could contain personal data as defined and thus be outside the authority of the warrant.

Mr. McWilliam

Does the Minister accept that it is no longer "the" public telephone network? We have several public telephone networks. Secondly, does he accept that postal packages do not need to be opened to have their contents intercepted? It is wrong to make the statements that he is making.

Mr. Waddington

The hon. Gentleman is wrong. Clause 1 states: A person who intentionally intercepts a communication in the course of its transmission by post or by means of a public telecommunications system shall be guilty of an offence". It refers specifically to "a public telecommunications system".

Mr. McWilliam

I am sorry if I was unclear. The Minister was talking about "the public telecommunications system". That does not exist. The Bill talks about "a public telecommunications system," because there are now several.

Mr. Waddington

The hon Gentleman is merely playing with words. If he wants to take up the time of the committee to discuss whether I should have said "a public telecommunications system" or "the public telecommunications system," I suggest that he is not making a very profitable intervention.

Mr. McWilliam

I am not playing with words. There is a great difference between "the public telecommunications system" when it is a state monopoly that is operated by civil and public servants and the position in which the Government have landed us. It is a much more serious matter to grant a warrant for the present system to be intercepted than it was in the past. I was not being facetious. Indeed, I was being quite deliberate. The Minister talked about "the public telecommunications system," and we no longer have only one system. I am not making a play on words. I am concerned about the fact that we have a dispersed telecommunications system rather than a specific system.

Mr. Waddington

The hon. Gentleman has made his point, but he is still wrong. Clause 10(1) defines a public telecommunication service as a telecommunication service provided by means of a public telecommunication system". It is, therefore, proper for me to refer to the public telecommunication service, to which we all refer and to which clause 1 refers. Having said that, we would do better to proceed.

If one intercepts a communication going through the post, one does not know until one has intercepted it whether it contains one type of material or another. It could contain data within the definition of the Data Protection Act 1984. We are examining the powers that should be given to the Secretary of State to issue a warrant in the first place, not trying to deal with the entirely artificial question whether, having issued the warrant, the Secretary of State should be prevented from dealing with particular types of material that come into his hands because of the proper use of that warrant. That is the misconception in the mind of the hon. Member for Blaydon (Mr. McWilliam).

If the warrant is necessary for one of the purposes defined in the Bill, that is a full and sufficient justification for the interception to be carried out under it. If personal data happen to be intercepted and are found to be relevant to any investigation into, say, terrorism, it is right that use should be made of that information, just as, under the Data Protection Act, there are exceptions from the nondisclosure provisions for crime and national security. If the intercepted material — be it personal data or something else—is found not to be relevant to any of the purposes, clause 6 contains comprehensive safeguards to ensure that it is destroyed as soon as that becomes clear.

The amendment to clause 6 is unnecessary. Clause 6 already contains comprehensive safeguards to ensure that intercepted material is copied, retained and disclosed only so far as that is strictly necessary for one of the purposes set out in clause 2. The amendment is also undesirable, because it would mean that intercepted personal data relating to someone other than the person specified in the warrant would have to be destroyed. Clearly, if an intercepted communication, including or consisting of personal data, has no relevance to any of the clause 2 purposes, it must be destroyed, as required by clause 6, regardless of whether the personal data relate to the subject of the warrant or to someone else. If such a communication contained information relevant to one of the purposes, it would be absurd to say that it had to be destroyed. The piece of information in question might be the vital clue that would lead to the apprehension of a terrorist or major criminal. The only relevant test — it is a strict one — is whether the intercepted material, whatever it might consist of, is relevant for one of the purposes of clause 2. The introduction of extraneous considerations is not only irrelevant but harmful.

Mr. Cohen

Clause 6 does not specifically say that non-relevant data should be destroyed. I should be grateful if the Minister would point out where in the legislation it says that such data should be destroyed. The hon. and learned Gentleman's point about terrorists should be considered seriously. I believe that that aspect could be dealt with by the issue of a separate warrant. We are in danger of a vast amount of data being collected — then set against the names of those on whom the security services have files—and automatically inserted in files. That is a Big Brother technique.

Mr. Waddington

I direct the hon. Gentleman to clause 6(2), which states; The requirements of this subsection are satisfied in relation to any intercepted material if each of the following, namely" — (a), (b), (c), (d), and (e)is limited to the minimum that is necessary as mentioned in section 2(2) above. If the material cannot be held justifiably, because it is not covered by any of the purposes in clause 2, it cannot be kept at all. Therefore, clause 6 deals with this matter.

I am glad that the hon. Gentleman has raised that interesting point. I hope that, in view of my explanation, he will feel that it is possible to withdraw his amendment.

Mr. Cohen

I shall study the Minister's statement with interest when it appears in Hansard and, if necessary, bring the amendment back at a later stage. I thank the Minister for his comments.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

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