§ 7 pm
§ Mr. Maclennan
I beg to move amendment No. 79, in page 6, line 38, leave out from beginning to `to' in line 40 and insert'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,'.
§ The Temporary Chairman
With this it will be convenient to discuss the following amendments: No. 83, in page 7, line 6, leave out subsection (2).
No. 84, in page 7, line 6, leave out 'Commissioner' and insert 'Board'.
No. 85, in page 7, line 13, leave out 'Commissioner' and insert 'Board'.
No. 86, in page 7, line 13, leave out from 'as' to end of line 14 and insert`they may require for the purpose of enabling them to carry out their functions under this section'.No. 89, in page 7, line 16, leave out 'Commissioner' and insert 'Board'.
No. 91, in page 7, line 19, leave out 'Commissioner' and insert 'Board'.
No. 94, in page 7, line 25, leave out 'he' and insert `they'.
No. 97, in page 7, line 28, leave out 'Commissioner' and insert 'Board'.
1270 No. 99, in page 7, line 29, leave out 'his' and insert `their'.
No. 103, in page 7, line 33, leave out 'Commissioner' and insert 'Board'.
No. 104, in page 7, line 35, leave out 'Commissioner' and insert 'Board'.
No. 120, in Clause 11, page 10, line 12, leave out `Commissioner' and insert 'Board'.
§ Mr. Maclennan
The purpose of the amendments is to make two important changes to the way in which the Secretary of State's functions, when carrying out his responsibility to issue warrants for the interception of communications, is reviewed. The way in which these functions have been carried out in the past has caused public disquiet. We want to ensure that Secretaries of State responsible for authorising interception act in accordance with the highest traditions of probity and legality.
Earlier, we considered Parliament's role. I have said that I do not think that Parliament, either through a Select Committee or by any other means, can review such matters if an investigation into the Executive's conduct in the day-to-day operations of the security services is involved. However, Parliament has an overriding responsibility to ensure that a proper review is conducted. Parliament cannot be satisfied with the appearance at the Dispatch Box of a Prime Minister announcing the setting up of an inquiry or giving a general assurance after a breakdown.
The principle in clause 8 that the commissioner should be responsible for reviewing the conduct of Secretaries of State is sound. However, Parliament itself, rather than the Prime Minister, as head of the Government and head of the security services, should be able to appoint the commissioner. Parliament and the public will he more satisfied as to the competence, probity and tenacity of the body entrusted with that function if Parliament has indicated who it prefers to carry out that task.
The method of appointment which I propose is that which is followed by Parliament when it appoints the Comptroller and Auditor General, although that appointment is subject to the agreement of the Chairman of the Public Accounts Committee. I do not suggest that the appointment of a board of five Privy Councillors should be subject to the approval of any individual Member of Parliament or of any Select Committee. The appointment should be subject to the approval of the House as a whole.
There is a precedent for such a mode of appointment. I believe that Parliament would welcome such a method, because it entrusts hon. Members with the task of choosing five suitable Privy Councillors to exercise the commissioner's role. The five need not necessarily be members of the Commons, or of the Lords, but Parliament would probably think it appropriate that those who had held high office and had issued warrants for the interception of communications would be suitable to consider whether Government practices are appropriate and whether they conform not only with the law but with good administration.
The five Privy Councillors would be better suited to carry out that function than would a judge. I regret that the public no longer perceive judges in the way that they did 10 years ago. Judges are independent. High ranking judicial officers are men of independence and great public spirit, but, because of the change in the public's perception of the judiciary, a judge is no longer regarded as totally 1271 independent of the Executive. That change in public opinion is measured by the popular public opinion polls. A recent Gallup poll drew attention to the changed perception of the independence of judges. Because of that, a judge is not necessarily the right person for the task of overseeing senior Ministers.
The problem is increased because the appointment is to be by the Prime Minister, who has overriding responsibility for security. There should be a disjunction between the Prime Minister's responsibility for security and the appointment of the person whose continuing task is to oversee the conduct of the Prime Minister and Secretaries of State. It is right that the Prime Minister's voice should be heard. Amendment No. 79 provides for an address to be presented by the House of Commons and states:no motion shall be made for such an address except by the Prime Minister".The Prime Minister will have a substantial voice in the nominating process, although the appointment by Her Majesty by letters patent of five members of the Privy Council will be done on the basis of an address by the House of Commons. The independence of the five Privy Councillors can be assured by the obvious need to maintain a balance for ensuring that the task of oversight is not carried out by a single commissioner.
I believe that the appointment of Lord Bridge and his conduct of the recent inquiry into Cathy Massiter's allegations were extremely unfortunate. He was unwise to take on the task. It was impossible to reassure the public by discharging the task in that way. The fault lies with the Prime Minister for having asked Lord Bridge to take on the task, but Lord Bridge was unwise to accept it. That point has been forcefully expressed by my right hon. Friend the Member for Glasgow, Hillhead (Mr. Jenkins).
§ Mr. Maclennan
The matters that had given rise to public anxiety could not conceivably have been investigated properly or in depth in a weekend. The terms of reference of the inquiry were so narrow that they excluded many of the matters that had given rise to public anxiety. That is why Lord Bridge made himself appear to be a tool of the Executive.
§ Mr. Norris
In fairness to Lord Bridge, is it not right to say that, as the present monitor, he was given a narrow brief, and therefore was unable to delve into the matters which some people would have liked him to investigate? Surely Lord Bridge's integrity, ability or judgment cannot be questioned on that basis.
§ Mr. Maclennan
The hon. Gentleman seeks to defend Lord Bridge's ability, integrity and judgment. I did not attack Lord Bridge's ability or integrity, but I did attack, and shall persist in attacking, his judgment. It was extremely unwise for a high-ranking judge to take on such a duty. It was an embarrassment to the Bench. I believe that the point has been well made and that it need not be laboured. It was not just unwise for Lord Bridge to take on that task; it would have been unwise for any judge to do so. It was peculiarly unwise for Lord Bridge to take on the task, because of his continuing responsibilities. He was asked to judge the effectiveness with which he was conducting his continuing scrutiny of public matters.
§ Mr. Mark Carlisle
The hon. Gentleman is totally misguided and unfair. Lord Bridge is the judicial monitor who is responsible for these matters. Surely he was the obvious judge to carry out the task. It would have been wrong for Lord Bridge to decline to carry out that task, which the Prime Minister asked him to perform. He was asked to review the interceptions that were made in previous years to confirm that they accorded with proper principle in the carrying out of individual warrants. Surely, because of his position, Lord Bridge was the one person who was qualified to look at that matter, although I agree that he was given limited scope. It was not his fault that he had limited scope. If the right hon. Member for Glasgow, Hillhead (Mr. Jenkins) was correct to criticise Lord Bridge, why did he happily agree that interceptions during his period of office should be investigated by Lord Bridge?
§ Mr. Maclennan
My right hon. Friend the Member for Hillhead had nothing to hide, nor, I assume, did other right hon. Members who had held high office. The right hon. and learned Member for Warrington, South (Mr. Carlisle) shows a strange insensitivity to public opinion in believing that those who were concerned about the way in which those powers had been exercised could have been satisfied by appointing Lord Bridge and giving him what the right hon. and learned Gentleman admitted was an extremely restricted remit which had to be carried out in about four days. That is a matter of judgment. My judgment is that Lord Bridge not only failed to reassure public opinion, but damaged the independence of the Bench by putting himself in a position where he had to carry out the Prime Minister's will.
With that case in mind, I believe that the proposal that a review should be conducted by a single judge is no longer an adequate way of dealing with a continuing problem. I say that with regret, because in the past that proposal might have commended itself to hon. Members. A decade ago, hon. Members might have thought that a senior member of the Bench would be an entirely appropriate person to carry out the task because of his independence of mind and character.
There is a further important reason why I believe that the appointment of a judge is inappropriate—
§ Mr. Maclennan
The hon. Gentleman is not obliged to remain in the Chamber in a semi-comatose posture if he finds the debate uninteresting.
§ The Temporary Chairman
Order. May I make it clear to the Committee that I deplore seated interventions. Hon. Members must either be quiet or seek to intervene in the normal way.
§ Mr. Maclennan
There is a further reason why I believe that a judge is not the appropriate person to conduct this continuing review. It is that the judge is not being asked to discharge a judicial role. He is being asked to scrutinise the conduct of certain senior members of the Executive in difficult matters. Judging whether actions are properly undertaken is not a matter of evaluating the law and ascertaining whether regulations have been followed entirely. The Home Secretary has told us that it is a matter of considering whether discretions have been properly exercised. That is not best done by legal analysis, or even 1273 by judicial analysis. It would be much better if it were done by those who had had to exercise such judgments for themselves. When an issue of national security is at stake, it would be better if the evaluation of whether the Secretary of State made a decision correctly was carried out by someone who had previously had to evaluate whether the interests of the security of the state would be harmed by not authorising a telephone tap.
There is a powerful case for ensuring that the scrutiny of the functions of Secretaries of State is conducted not by an individual but by several people whose seniority is such that they have some experience of the conduct of such matters and whose judgment has been proved in the House of Commons to show that they are fit to hold high office. Privy Councillors are conscious of the needs of security and absolute secrecy in accordance with their oaths. The parliamentary responsibility for oversight is not finally discharged by ensuring that that body shall be appointed by the letters patent procedure. It is appropriate that the board of five Privy Councillors should be answerable to the House. The provision in the Bill is a little short of what is required, and we may wish to return to this matter later.
There is a case for the report of the commissioner being considered by a Select Committee, whose findings might be suitable for report to and debate in the House. Whether or not we go down that route, the House will feel greater satisfaction if it is acting upon the report of a board of five Privy Councillors, rather than on the advice of a single commissioner appointed by the Prime Minister.
§ Mr. Norris
I have listened to speeches by the hon. Member for Caithness and Sutherland (Mr. Maclennan) not only on this Bill but on what is now the Data Protection Act, when he, my hon. and learned Friend the Minister and I served on the Committee. I have often found the hon. Gentleman's observations to be lucid and helpful, but I regret that on this occasion I must say that I have never heard such nonsense—
§ Mr. Norris
Indeed, as my hon. Friend reminds me, it was a long speech.
There are two points on which I fundamentally disagree with the hon. Gentleman. I profoundly disagree with his uncharacteristically jaundiced view of the independence of the judiciary, and especially his unwarranted attack on Lord Bridge. There may have been an argument for widening the scope of the inquiry which the Prime Minister asked Lord Bridge to conduct, but that is a matter for debate elsewhere and on another occasion. There can be no doubt that at all times Lord Bridge fulfilled the warrant that had been given to him by the Prime Minister and that he discharged it, as far as we are aware, as well as could be expected.
The hon. Gentleman prefaced his attack on Lord Bridge by suggesting that a Gallup poll had indicated that esteem for the judiciary was on the wane. That might, in part, arise from the number of unreasonable attacks by Opposition Members on decisions by various members of the judiciary during the mining dispute. I do not believe that any responsible person has any lower opinion of the judiciary now than that which he has held for many years.
Clause 8(1) refers to the appointment of the commissioner asa person who holds or has held a high judicial office.There would be few of us in this Committee who could not think of a number of eminent judges, or former judges, 1274 who would not be entirely suitable to fulfil that description. Therefore, I entirely reject the notion that such a person would be unsuitable to carry out the functions of the commissioner.
The hon. Gentleman spoke about the desirability of divorcing the Executive from the judiciary in the authorisation of interceptions. I agreed with him yesterday that some divorcing of Executive and judiciary functions, both of which are elements of the authorisation of interceptions, was not only desirable, but that the absence of such a mechanism was a major defect of the Bill. I very much regret that the Committee chose not to approve the amendments that I tabled seeking to effect that divorce of functions. Therefore, the hon. Gentleman's amendments do not achieve the objectives that he has set himself.
Amendment No. 79 requires us toleave out from beginning to 'to' in line 40 and insert '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,'.The hon. Gentleman appears to want to substitute the five Privy Councillor members of the board for the commissioner. As my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) reminded us, as members of the Privy Council they could all also be senior judges. The hon. Gentleman wants to replace the commissioner with that body, not only in respect of the first function, which isto keep under review the carrying out by the Secretary of State of the functions conferred on him",but also the second function, which isto give the Tribunal such assistance as the Tribunal may require.It is unreasonable to move such an amendment when, implicit in the clause, are functions which can be carried out only by an individual. If the hon. Gentleman had moved an amendment to delete the first three words—"The Prime Minister" — and to substitute "Five Privy Councillors", thereby suggesting that it should be the five Privy Councillors who appointed the commissioner, I would have had more sympathy with the amendment. I believe that on those two fundamental grounds the hon. Gentleman's amendments are unworkable.
One of the functions referred to in clause 8(1)(a) is to keep under review clauses 2 to 5 of the Bill and the manner in which they are exercised. They include the definition of the only crucial part of the Bill where the commissioner will have to exercise discretion, and that is in the matter of the definition which my hon. Friend the Member for Grantham (Mr. Hogg) brought to our attention yesterday. My hon. Friend rightly suggested that the real difficulty in interpreting the Bill was that of defining precisely what is meant by the three grounds on which warrants are to be authorised. The commissioner, or the Privy Councillor body, will have the role of interpreting those criteria. The Committee had the opportunity to give a precise definition, but in its wisdom decided not to exercise that option.
I believe that all the amendments in this group would be unhelpful to the cause which in many ways the hon. Gentleman seeks to espouse, so I ask my hon. Friends to reject them.
§ Mr. Soley
We thought that we might lose the vote on the amendment which my right hon. Friend the Member 1275 for Manchester, Gorton (Mr. Kaufman) moved on Select Committee control. We then looked closely at this amendment and, because it seemed to call for a degree of parliamentary control, we were not unsympathetic to it.
Then I heard the speech proposing the amendment by the hon. Member for Caithness and Sutherland (Mr. Maclennan), which came close to dissuading me from supporting it. I had to re-read amendment No. 79 to make sure that I could still feel sympathetic towards it. I keep a list of solicitors and barristers whom I would pay not to defend me. He is now on that list. He made out about the worst possible case for the amendment that could be made.
It is nonsense to describe the situation in the way that the hon. Gentleman described it. In one breath he wanted parliamentary control and, in the next, he wanted that control to be exercised by Privy Councillors who were not even in the Houses of Parliament. What troubles me so much about the Social Democrats and Conservative Members is that they end up distrusting Parliament. The Labour party says on this issue that we should be giving more control to hon. Members because Parliament, through the Home Secretary and the Prime Minister, controls the security services. What, then, would be the point of bringing in Privy Councillors from outside Parliament?
A case could, I suppose, be made out for Privy Councillors doing the job. I would rather have the control done by way of Select Committee, as we said earlier. Failing that, a case could be put forward for Privy Councillor control. Whatever case might be made for that, the case adduced by the hon. Member for Caithness and Sutherland was extremely poor. Nevertheless, the hon. Gentleman's amendment would allow for a degree of parliamentary control, and I have in mind the words of the amendment rather than the hon. Gentleman's words that will appear in the Official Report. We are not unsympathetic to his idea, although it is far from a good amendment.
We challenge the Government to say what degree of parliamentary control will be exercised over the interception of communications as proposed in the Bill when all that we shall have is a continuation of the present system, with the Home Secretary and Prime Minister doing it. I pointed out earlier that, with the best will in the world, no Prime Minister or Home Secretary can give sufficient time and attention to all the workings of the tribunal, the commissioner and the others involved to ensure the control that the public rightly seek.
As I said in the debate on the last amendment, people in almost every other country in the western world have, and expect, that sort of control. That is what we seek. The amendment represents a poor second best—made worse by the way in which the hon. Member for Caithness and Sutherland moved it — but at least it would give an element of parliamentary control.
§ Mr. Waddington
I am a kindly chap and it is not my habit to rub salt into wounds. After the demolition done by my hon. Friend the Member for Oxford, East (Mr. Norris), it is not necessary for me to say much. We have spent an inordinately long time on a completely worthless amendment which was introduced in an extraordinary way by the hon. Member for Caithness and Sutherland (Mr.
1276 Maclennan), whom I admire and with whom I am often forced to agree. On this occasion, however, he presented a ludicrous case.
The hon. Member for Caithness and Sutherland said, among other things, that the public's perception of the independence of the judiciary had declined. I agree with my hon. Friends who said that it was about time that we in Parliament made it plain that there was no justification for any loss of confidence in our judiciary, for we know how independent they are.
In considering, for example, the monitor, now the commissioner, it is ludicrous to say that there should be a different method of appointment or he would not be respected as independent. We are talking about somebody, in the case of the present monitor, who holds high judicial office. It is ridiculous to say that it is necessary to have another form of appointment to persuade the general public that such a man is prepared to perform independently.
It was preposterous for the hon. Gentleman to say that it had been unwise for Lord Bridge to take on the job that he had been asked to do. Far too many people have deliberately set out to confuse the public about the task that was given to Lord Bridge. That task was purely to see whether warrants issued by the Home Secretary had been properly authorised, according to the guidelines. It is clear that that task was entirely appropriate for somebody who, for more than a year, had been exercising the role of monitor and had a knowledge of the way in which the system worked. He was the obvious person to carry out the task.
It is shaming that members of the hon. Gentleman's party should have made press statements and comments in Parliament denigrating a fine public servant who, on this occasion, was rightly prepared to carry out a task which he had been asked by the Prime Minister to perform.
The essence of the case put forward by the hon. Member for Caithness and Sutherland was that the role was one not for a judge but for a board of Privy Councillors. What absolute rubbish. The commissioner is the successor of the monitor, whose post has been in existence sice 1980. His job is to keep under continuous review the way in which the Secretary of State carries out his duties. He can go where he likes and see what material he likes. It is a policing role carried out by someone who commands public confidence, who is absolutely independent, who has an experienced legal mind and who can act independently and decisively.
The work which I have just described is not work for a committee of any sort. We are not talking about a committee of inquiry designed to produce recommendations about an incident. We are talking about a continuing review of the exercise of discretion and all of the associated administrative procedures. It is ludicrous to say that such a role could be carried out by a committee. In those circumstances, with great confidence I invite the Committee to reject the amendment.
§ Mr. Maclennan
I listened carefully to the slender arguments adduced by the Minister and the hon. Member for Oxford, East (Mr. Norris) and to the patently malignant remarks of the hon. Member on the Opposition Front Bench, the name of whose constituency eludes me. [HON. MEMBERS:" Hammersmith"]. I refer, of course, to the hon. Member for Hammersmith (Mr. Soley).
§ Mr. John Golding (Newcastle-under-Lyme)
Perhaps it would be advisable for the hon. Member for Caithness and Sutherland (Mr. Maclennan) to come nearer the Opposition Front Bench so as more easily to see the hon. Member to whom he is referring. Otherwise there may be much confusion in the Official Report about who said what.
§ Mr. Maclennan
Only one Labour Member has deigned to speak on the amendment. I am sure that Hansard will not have any difficulty in determining who that hon. Member was. His reputation, in any event, runs before him.
The Minister allowed his attitudes to be put forward as a substitute for reason on this occasion. I regret that, because he is a thoughtful man who normally listens to argument and does not take refuge in words such as "preposterous," as he did on this occasion.
The Minister, like his hon. Friend the Member for Oxford, East, failed to analyse the function of the commissioner. It is not a judicial function in any sense. It is not a function of evaluating evidence and reaching a verdict. It is that of conducting a continuing inquiry into Executive activities. I do not believe that judges are the right people to carry out that type of inquiry at that level.
The Minister did himself less than justice in being so dismissive of the possibility of a committee of Privy Councillors being the appropriate body to conduct a continuing inquiry. When it suits the Government, that is precisely what they set up. They established a committee of Privy Councillors to look into the conduct of the Falklands campaign. It was analogous, and involved high executive decisions taken by Secretaries of State on issues of national security. It was precisely the sort of matter in which it would have been wrong to ask a judge to intervene. It is far more appropriate for someone of the calibre of Lord Franks or the right hon. Member for Morley and Leeds, South (Mr. Rees) to conduct such an inquiry.
An inquiry by Privy Councillors into matters that touch on national security would carry weight. That is what we seek to ensure. The review of the exercise of the functions would be seen by the public and Parliament to carry weight.
I must retract one of my remarks about Lord Bridge. I have no criticism of his abilities or his public-spiritedness. He is an eminent man, who has reached his eminence through the demonstration of his qualities of character and mind. However, it was a mistake to give an individual judge such a task. It was the Government's mistake. It was a mistake for a judge to seek to discharge that role. Lord Bridge made that mistake. It would be a mistake for a judge to accept the role of commissioner under the terms of clause 8. However, if Parliament wishes and prefers to entrust that task to a judge than to a committee of Privy Councillors, no one will quarrel with that.
I must confront head-on the Minister's allegation that I was contributing to undermining the public's esteem of the Bench. That is a complete misconception. I specifically said that I believed that the judiciary was independent, and was properly regarded as such. However, I must draw attention to changing public opinion, and Ministers who are not aware of it are simply out of touch. The Minister should not seek to turn the charge against me. As a lawyer I have nothing but 1278 admiration for the Bench, its independence, integrity and public-spiritedness. I regret that the Minister thought that his weak argument would be bolstered by making a personal accusation of that kind. It was uncharacteristic and I hope that, on reflection, he will regret it.
§ Amendment negatived.7.45 pm
§ The Temporary Chairman
With this it will be convenient to take the following amendments: No. 90, in page 7, line 19, leave out subsection (5) and insert—'(5) If at any time it appears to the Commissioner that there has been a contravention of sections 2 to 6 above which has not been the subject of a report made by the Tribunal under section 7 above he shall refer the matter to the Tribunal for investigation under that section.(5A) If at any time it appears to the Commissioner that any arrangements made for the purposes of section 6 above have proved inadequate he shall make a report to the Prime Minister with respect to those arrangements.'.No. 92, in page 7, line 20, after 'that' insert'an offence under section I above has been committed or'.No. 93, in page 7, line 20, leave out '2' and insert '1'.
No. 96, in page 7, line 26, after 'that', insert 'offence or'.
No. 100, in page 7, line 30, at end insert`nothing shall prevent the Commissioner from reporting upon any matter which he considers to be connected to the matters referred to in sections 1 to 6 of this Act, nor from making recommendations for the better regulation of the matters referred to in this Act'.No. 101, in page 7, line 30, at end insert`that report shall enumerate the number of occasions on which it appears to the Board that there has been a contravention of sections 2 to 5 above'.No. 106, in page 7, line 40, at end add'which exclusion may not remove the enumeration of the apparent contravention of sections 2 to 5 above referred to in subsection (6) above'.No. 108, in page 7, line 40, at end add—'(9) Where it seems appropriate to the Board and following consultation with the Prime Minister, the Board may report to the Tribunal its opinion that there has been a contravention of sections 2 to 5 above. On such a report the Tribunal shall notify any person who would in its opinion be entitled under section 7(2) to apply to the Tribunal for an investigation that it has received such a report from the Board.'.
§ Mr. Dubs
These amendments deal with the powers of the commissioner. I shall refer specifically to amendments Nos. 82, 93 and 100. All the amendments seek to widen the role and the functions of the commissioner.
Amendment No. 82 seeks to give the commissioner a wider role than that envisaged in the Bill. He would not merely supervise the Secretary of State in complying with the procedural requirements of the Bill, but would have the power to review the entire area of the interception of communications. He would also have a responsbility to review the extent of unauthorised interception which is not covered in the present arrangements for the commissioner's powers.
Amendment No. 93 would oblige the commissioner to report on any unauthorised or inappropriate interceptions which have been discovered, apart from any which may have been reported to the tribunal. Amendment No. 100 is intended to strengthen the role of the commissioner so 1279 that he could act as a watchdog over all operations which involve the interception of communications. It mould allow the commissioner to review and comment on connected or related matters such as the visual surveillance of individuals or the infiltration of organisations. Why is it necessary for the commissioner to have wider powers than those envisaged in the Bill? I shall give some examples to justify the wider powers.
I shall deal with an incident that occurred a couple of weeks ago near my constituency, which is directly relevant to the amendments. The South London Hospital for Women and Children had been occupied by many women protesting against its closure. They had made contacts in the locality with many friendly people whose telephones they could use in their flats or houses, and where they went for cups of coffee. Those telephone numbers were on a list which the people occupying the hospital had made available. As a result of a court order obtained by the district local health authority, the police went in one night and removed the protesters.
On that evening four of the telephones in the neighbouring flats which had been part of the support system for the women occupying the hospital went out of action until the morning and then, miraculously, they started to work again. Hon. Members must decide whether that was a coincidence. However, I suggest that it is stretching the arm of coincidence too far for that to have occurred merely through a malfunctioning of the telephone system. Either the telephones were being intercepted and it was decided on the night when the police removed the protesters that to stop any support being marshalled it would be better to put the telephones out of order, or they were put out of order as part of a process of interception. It may have been a pure coincidence that four telephones went out of order. Other telephones may also have gone out of order, but I have not had time to check on that. I heard about the matter when people telephoned me to tell me what had happened.
I would like the commissioner to have the power to look into such an incident, and to be able to investigate such interception or interference with the telephones of ordinary people. At present there is no way in which people who feel their telephones have been interfered with have a right or the ability to have those wrongs redressed. If a commissioner had that responsibility, he could investigate and discover whether it was a coincidence or a deliberate attempt to undermine the ability of those women to telephone for more support on the night in question. However, if the events relating to the closure of the hospital were an isolated incident, one could say, "All right, it happened once".
We know well that whenever a cruise convoy leaves Greenham common heading westwards through Newbury towards Salisbury plain those people who are monitoring the movements of that convoy—this debate is not the occasion to go into the merits of that activity, but it is legal —and who telephone one another or who would like to to say that the convoy is heading down a road find suddenly that their telephones cease to function. There is no way in which that type of interference, which is what I allege it is, is within any of the terms of reference or the parameters which have been laid down by the Home Secretary or are suggested in the Bill.
§ Mr. Mark Carlisle
Perhaps I misunderstand what the hon. Gentleman has said, but surely what he is saying, if it be right, would be a matter for the tribunal rather than the commissioner. I thought that the tribunal was there to judge as the body to which the individual could go. As I understand it, the commissioner is more a judicial monitor. Although I do not accept the hon. Gentleman's argument that it is necessary to expand the role in the way he put forward, if it were, surely it would be the tribunal rather than the commissioner.
§ Mr. Dubs
I understand what the right hon. and learned Gentleman is saying. We are in some difficulty because the amendments seek to widen the role and functions of the commissioner and I therefore have to illustrate that predicament. As the Bill is at present drafted, it is unlikely that the incidents to which I have referred would be appropriate for the tribunal, because it would be argued that they do not necessarily represent interception of telephone communications so much as interference with or prevention of them. That being so, the amendments allow the commissioner to consider the wider question rather as some of us had hoped Lord Bridge would consider the wider question. I take the right hon. and learned Gentleman's point. It might be logical, if my argument were to be accepted, that one should also consider the functions, responsibilities and terms of reference of the tribunal and similarly to widen those responsibilities as I am seeking to widen those of the commissioner.
If the Minister were to accept the argument—I do not know that he will, even in the genial mood in which he is this evening—we could sort out the details on Report. There is a gap in the legislation and it is that gap to which I am drawing attention.
I shall return to the example of Lord Bridge which relates to the amendment. In a sense, the responsibility given by the Prime Minister to Lord Bridge recently in the context of anxiety about the "20/20 Vision" film about MI5 was narrow. I am not seeking to criticise Lord Bridge for the way in which he carried out his task. His terms of responsibility were so narrow that the conclusion to which he came was so inevitable that it was hardly worth his while carrying out the task. All he said was that no warrant for interception had been issued in contravention of the proper criteria, but the point about the "20/20 Vision" film and the amendments in relation to the commissioner are that other things may happen which are not directly and simply a matter of the precise way in which the Home Secretary has authorised an interception.
Clause 8(1)(a) states in relation to the functions of the commissioner:to keep under review the carrying out by the Secretary of State of the functions conferred on him by sections 2 to 5".It is a matter there of saying, "Is the Home Secretary carrying out the functions as he should?" There was a clear implication with the "20/20 Vision" film not that the Home Secretary, or successive Home Secretaries, had authorised some of the things that the film revealed, but that they had been carried out without any authorisation. That is the difference.
If Lord Bridge had been given different terms of reference, he might well have been able to come up with conclusions relevant to the charges made in the film. There are three matters which are relevant to the amendments. Lord Bridge should have been asked to answer the 1281 following three questions. First, did the interceptions and other forms of surveillance shown in the film take place? After all, the film was a matter of allegations. Secondly, who authorised them? Thirdly, if they were not authorised, how did it come about that any of them were carried out in an unauthorised manner? If those three questions had been answered, we should have had a longer and much more revealing report, although it would have taken Lord Bridge longer to investigate.
In the amendments, I am seeking to establish wider terms of reference which would allow the commissioner, if on any future occasion allegations were made similar to those in the MI5 film, to carry out the task which many of us hoped that Lord Bridge would have been able to carry out.
It is a matter of the terms of reference. I have conceded the right hon. and learned Gentleman's argument about the terms of reference of the tribunal, but, nevertheless, I should like to feel that if there were unease in the future the commissioner could study the whole range of allegations, because unless allegations are investigated how can any of us be satisfied that the events that we have been told about have been happening? As the Bill now stands, we may have further MI5 films and further investigations by the commissioner along the lines of the Lord Bridge inquiry, and none of us will be happy that the truth has come out.
The Minister owes it to the House and, obliquely, to Lord Bridge and to whoever will be appointed commissioner to modify the Bill. I hope that that will be done by accepting these amendments so that the type of anxiety that I have expressed will not be felt in the future.
§ Mr. Douglas Hogg
I should like to speak to amendments Nos. 92 and 96. I shall anticipate the criticism that is likely to be made by my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) and say that the amendments are mirrored by amendments Nos. 63 and 75 which I tabled previously with respect to the tribunal's powers.
The purpose of amendments Nos. 92 and 96 is similar to that which the hon. Member for Battersea (Mr. Dubs) sought to achieve. It is desirable that the, commissioner should be empowered to determine whether an offence has been committed under clause 1. That is a jurisdiction which I wish to give to the tribunal as well. On reading the Bill, it seemed that the commissioner, as is also the case with the tribunal, is empowered to consider almost anything other than whether a substantive offence under clause 1 has been committed.
The commissioner receives the tribunal's report. He determines whether the Home Secretary is acting within the scope of the jurisdiction conferred on him by clause 2. The commissioner is empowered to determine whether the time limits have expired or have not been adhered to. He is empowered to determine whether the Home Secretary has complied with the procedure necessary to obtain a warrant. They are all proper matters for the commissioner to determine, but the one matter which he is precluded from determining is whether there has been unauthorised tapping, which is an offence under clause 1.
For the life of me I cannot understand why the commissioner, who receives information which discloses prima facie evidence of an offence under clause 1, should not be empowered to say, "This is my conclusion." Indeed, there are powerful reasons why he should. This is 1282 an infringement of the liberty of the subject. It is a criminal offence. At the discretion of the DPP, it is prosecutable. Why should not the commissioner draw the commission of an offence to the attention of the Prime Minister in the course of his report? He should do so. I would be very pleased if my hon. and learned Friend the Minister of State could accede at least to the spirit of the amendment.
§ 8 pm
§ Mr. Maclennan
I rise to support the amendment in the name of the hon. Member for Grantham (Mr. Hogg). He has deployed his arguments with brevity and cogency and I will not animadvert further upon them. I should like, however, to commend to the Committee amendment No. 90 in the name of my hon. Friends and myself.
As the Bill is drafted, the procedures for investigating contraventions are somewhat inadequate. Only the tribunal will be able to investigate complaints by the public under the terms of clause 7(2), and neither the commissioner nor the Prime Minister seems to have any obligation to inform the tribunal of contraventions found by the commissioner. Someone whose communications have been wrongly intercepted may never know or suspect what has happened. As such contraventions cannot be considered by the ordinary courts or, under the terms of clause 9, even referred to in them, the commissioner should have an obligation to refer all contraventions to the tribunal.
Amendment No. 90 is designed to ensure that that should happen. It will also require the commissioner to have regard to the safeguards in clause 6 in deciding whether there had been a contravention. The commissioner would only report to the Prime Minister on the adequacy of the safeguards, as he or she would receive reports from the tribunal of its findings on any contraventions under clause 7(4).
§ Mr. Waddington
The Opposition amendments and those of my hon. Friend the Member for Grantham (Mr. Hogg) give the commissioner a role other than that provided for in the scheme of the Bill. The amendments tabled by the hon. Member for Caithness and Sutherland (Mr. Maclennan) and his hon. Friends deal with a different point, but one that is also important. I promise not to be rude to the hon. Gentleman again.
The commissioner's role is to undertake from within a continuing review of everything concerned with authorised interception. That is often forgotten. His role is to ensure that warrants have been properly authorised. That task is entirely appropriate for a senior judicial figure and is one that a single person can effectively undertake.
Offences against the criminal law, on the other hand, are a matter for the police. What is the commissioner supposed to review in connection with clause 1? Is he supposed to supervise the adequacy of investigations or to become the recipient of allegations of criminal conduct that should be made to the police? I do not know. The commissioner has manageable duties under the Bill. How could he look into the operation of clause 1? His task is within Government. He has to consider whether, when the Secretary of State has authorised a warrant, he has done so correctly. It is not the commissioner's job to roam the country asking people whether they have heard funny clicks on their telephone lines.
I am not being frivolous. If the commissioner's job is other than to work within Government to make sure that 1283 when the Home Secretary issues a warrant he does so properly, what is his job? Is he to wander round the country in an investigative role? If so, is he the appropriate person to carry out that role? Is he to consider the way in which the police investigate offences? That would not be appropriate. Is he to be the recipient of complaints from members of the public that they think their wires have been tapped? That, again, would be inappropriate. That is a job for the police. I do not think for a moment that the commissioner could investigate the operation of clause 1. We should not muddle inquiries into offences, which are one distinct matter, with the duties of the commissioner, which are another.
My hon. Friend the Member for Grantham has raised — not in his own speech — a different point. What should happen if by chance, while carrying out his duties, the commissioner came across unlawful interception? Clearly, we in no way accept the implication that public servants will engage in unlawful interception contrary to clause 1. It is inherently unlikely that the commissioner will come across unlawful interception in the course of his duties, as his duties are undertaken within the Government, ascertaining whether the Secretary of State has issued warrants properly according to the guidelines.
In the unlikely event of his discovering that there has been unlawful interception, the commissioner is hardly likely not to bring to the attention of the authorities such evidence of an offence as he has discovered. In that respect, he would behave no differently from any other responsible person to whom evidence of an offence became available.
Amendment No. 101 stipulates that the commissioner's report should state the number of occasions when clauses 2 to 5 had been contravened.
§ Mr. Maclennan
I did not speak to amendment No. 101 because I assumed that it had fallen with an earlier amendment to which I spoke. However, I would be grateful for the Minister's remarks on it.
§ Mr. Waddington
I do not wish to speak for longer than necessary. Unless the hon. Gentleman particularly wants me to deal with that amendment, it would be more profitable for me to deal with matters about which hon. Members have shown concern.
Other amendments in the group suggest that the commissioner should report to the tribunal matters that have apparently not come to its notice, that the tribunal should then notify the person or persons concerned, and that the commissioner should report to the Prime Minister about any arrangements under clause 6 that he considers inadequate. There are considerable practicable difficulties in what is suggested. The tribunal is not supposed to substitute its own views for those of the Secretary of State, but rather to consider whether he has acted reasonably. The commissioner would be looking for cases in which something had gone wrong with the system. For instance, there might be a case in which the Home Secretary had acted reasonably but in which subsequent events had cast doubt on the reliability of the sources of his information. The commissioner will be able to question the wisdom of the issue of particular warrants without disputing the reasonableness of the Secretary of State's decision.
Presumably, if the necessary consequence of the commissioner's reporting his disquiet about a particular 1284 warrant was that the warrant became public knowledge, he would seek to minimise the damage to the system by limiting criticism to cases in which the issue of the warrant was beyond doubt unreasonable. Even then, difficulties would arise. For example, let us suppose that a warrant is properly issued in respect of a terrorist living in certain accommodation. However, a mistake is made and the Secretary of State is asked to renew the warrant after the terrorist has moved out and a perfectly innocent person has moved into that accommodation. If the commissioner notified the tribunal, and the tribunal notified the persons concerned, the tribunal would have to notify the terrorist as well as the householder. There is no easy way round the problem. We could not begin to follow the form of words chosen by the hon. Gentleman, and I am not suggesting that any other form would solve the problem that I have just described. That merely shows that the Bill is right to draw a clear distinction between the role of the commissioner in checking the system and the role of the tribunal in giving remedies to those who think that they are victims of improperly authorised interception.
I was surprised by what the hon. Member for Battersea (Mr. Dubs) said. In effect, he said that the amendments are important because the problem with the Bill is that people will have no opportunity to have their wrongs redressed. The whole point of the Bill is that, for the first time, people will have an opportunity to have their wrongs redressed. In those circumstances, I invite the hon. Gentleman to withdraw his amendment.
§ Mr. Mark Carlisle
Although I accept that the commissioner is not the right body to consider the matters that the hon. Member for Battersea (Mr. Dubs) has mentioned, what is the status of the tribunal? I accept that the role of the commissioner is to review the carrying out of the Secretary of State's duties in the granting of warrants, but it must be highly likely that the tribunal will find during its inquiries that unlawful interception has taken place. I am not clear what is to happen if the tribunal, on receiving a complaint from a member of the public who believes that his mail or telephone has been intercepted, finds that there is prima facie evidence of interception for which no warrant has been granted. Should the matter be referred to the police? What is the tribunal expected to do? Is there not a lacuna and should the tribunal be required to refer such matters to the Director of Public Prosecutions?
§ Mr. Waddington
The tribunal is under no duty to report such matters to the police, but it will act as any other body or individual would act. There is no reason to suppose that a tribunal would fail in its clear duty. It would have exactly the same duty as any other citizen who learnt that a criminal offence had been committed. These matters were discussed yesterday when my right hon. and learned Friend was unable to be here.
§ Mr. Dubs
I accept that our amendments should also apply to the tribunal. I have listened carefully to the Minister but do not believe that he has answered the main doubt.
I understood him to say that if, during an investigation, the commissioner comes across breaches of the law, he is expected to report the matter to the police. The Minister did not say why the commissioner should not be allowed 1285 to investigate prima facie when there have been allegations of the law being broken. I take the analogy of the Lord Bridge inquiry. He was asked to examine something which was defined pretty narrowly and he did not look further into whether some of the allegations in the film on MI5 were accurate. The Minister seemed to say that it is all right if the commissioner stumbles on something, in which case he will report it, but that he should not be empowered to set out to discover whether such things have happened. If the Minister is saying that such matters should be left to the tribunal, he must answer more fully how it will operate in circumstances such as I have described.
§ Mr. Waddington
I am not saying that that function should be carried out by the tribunal. It is to act in a quasi-judicial way. I am suggesting that those matters are for investigation by the police.
§ Mr. Dubs
The difficulty is how such matters are drawn to the attention of the police. I am sorry to labour the point, but the allegations in the MI5 film have not been answered, and the Minister knows it. There are clear allegations in that film that the law has been broken. Perhaps the law has not been broken because, before the Bill becomes law, we have no law. Perhaps that is the answer. However, if the Bill becomes law in its present form and if the film had been produced after then, how could the film's allegations be investigated? I suspect that they could not be investigated by the tribunal, unless those whose phones had apparently been intercepted complained to the tribunal. The alternative would be a Lord Bridge type inquiry, but with wider terms of reference—which are the subject of our amendments. I am not sure what the Minister is saying cannot happen and why. I think that the proposition is reasonable.
§ Mr. Waddington
I thought that I had made this matter plain. The commissioner's role is perfectly easy to understand. He works within the Government, carrying out a continuing review of how the Home Secretary carries out his duties, to ensure that when the Home Secretary issues a warrant he does so properly. How on earth can that be compared with investigating whether a criminal offence has been committed?
§ Mr. Waddington
No. The tribunal is concerned with complaints about warrants that should not have been issued but which have been issued. Clause 1 is concerned with breaches of the law. It creates a new criminal offence. If a person believes that he is the victim of the commission of a criminal offence, he will behave exactly as he would if any other offence had been committed. These are matters for investigation by the police. Any number of judges cannot carry out the work of the police. A man such as Lord Bridge cannot go on a roving commission investigating whether criminal offences have been committed. That would be improper. The job of investigating the new criminal offence created by clause 1 is for the police.
§ Mr. Dubs
I understand that, but we are still in a difficulty. If it is alleged that there have been interceptions without the issue of a warrant by the Secretary of State, as outlined in clause 1, what is an aggrieved person to do?
1286 The police will not have enough information on which to act. If MI5 is carrying out unauthorised interceptions, as was alleged in the film, the matter is too remote for the police to get the evidence. The whole point of the Lord Bridge inquiry is that it was set up following the allegations in the film on MI5. The Home Secretary may shake his head. However, when the Bill becomes law the police may well be able to carry out investigations if there are allegations of the kind made in the film. I understand the Minister's theoretical answer, but I do not understand how it will work in practice. Therefore, I do not believe that the point at issue has been covered. If the Minister says that the point has been covered, I can do no more than allow reinforcements to come in from the hon. Member for Grantham (Mr. Hogg).
§ Mr. Douglas Hogg
I have some sympathy with the point that the hon. Gentleman is making. The Minister said that if there has been a breach under clause 1 this is entirely a matter for the police. If, however, the hon. Member for Battersea (Mr. Dubs) cares to look at clause 7(2) of the Bill he will see that it empowers anybody who believes that his mail has been interfered with or his telephone tapped to go to the tribunal. At that stage the tribunal is in a position to determine whether an offence under clause 1 has been committed. Why should it not make a report to that effect?
§ Mr. Dubs
If that is the case, the tribunal is nearly there, but not quite. I repeat that I am unhappy about this matter and I am not sure whether it will be possible to resolve it. I believe that we are left with an inadequacy in the Bill. I do not think that our discussions have pinned down whether the inadequacy is in the way the tribunal functions or in the way that the commissioner might function. I am prepared to accept that the terms of reference of the tribunal ought perhaps to be widened, but I repeat that there is a sense of anxiety which the Minister has not allayed.
§ Amendment negatived.
§ Mr. Golding
I beg to move amendment No. 87, in page 7, line 15, at end insert—'(4) In pursuance of his functions under this Act the Commissioner may receive and retain documents or information from any person whomsoever, and such receipt or retention shall not be the subject of proceedings for an offence.'.
§ The Second Deputy Chairman of Ways and Means (Sir Paul Dean)
With this it will be convenient to discuss the following amendments: No. 88, in page 7, line 15, at end insert—'(4) It shall be lawful for any person holding office under the Crown or engaged in the business of the post office or in the running of a public telecommuncation system who reasonably believes that an offence under section 1 above has or might have been committed or that there has or might have been a contravention of sections 2 to 5 above in relation to a relevant warrant or relevant certificate, to disclose or give the Commissioner such documents or information as the Commissioner might reasonably be expected to need in order to determine whether an offence under Clause 1 above has been or1287 might have been committed or whether there has been or might have been a contravention of sections 2 to 5 above in relation to a relevant warrant certificate.'.
New clause 2 — Protection for disclosure of information to the Tribunal, the Commissioner or the Select Committee—'Disclosure of information to the Tribunal, the Commissioner, or the Select Committee, in pursuance of their functions under this Act, shall not be the subject of proceedings for any offence.'.New clause 3—Complaints Commissioner in respect of allegations of misconduct and abuse of authority by members of the security services intercepting communications—
- '(1) The Prime Minister shall appoint a person who holds or has held a high public office (in this section referred to as "the Complaint's Commissioner") to carry out the following functions, namely—
- (a) to investigate any complaint made to the Complaints Commissioner by a member of the Security Services in respect of an allegation of misconduct or abuse of lawful authority by another member of the Security Services in relation to the interception of communications; and
- (b) to decide whether in all the circumstances any such allegation is of such a character and substance as to justify a report by the Complaints Commissioner to the relevant Secretary of State; and if this is the case,
- (c) to make as soon as practicable, a report to the relevant Secretary of State with respect to the alleged complaint.
- (2) The Complaints Commissioner shall hold office in accordance with the terms of his appointment.'.Amendment (a) to the proposed new clause 3, at end add:'(3) The Complaints Commissioner shall present an annual report to parliament of the number of complaints he has received and the number of complaints he has reported to the Secretary of State.'.
§ Mr. Golding
May I say what a pleasure it is to debate the amendments without undue pressure on time.
These amendments relate to the situation that will face individuals who give information about unlawful telephone tapping. They will not be subject to the Official Secrets Act if they pass on information in a proper manner. I added my name to new clause 2 because of my interest as an official of the union which organises both the engineering and clerical staff of British Telecom and many workers in the Post Office. I want them to receive absolute protection when they provide information to the commissioner, the tribunal or a Select Committee, if such a committee is created, and also to a complaints commissioner, if this proposal is accepted.
Telephone tapping is undertaken by a small group of our members, and many others come across it in the course of their work. It is not a pleasant duty. Our members are sensitive to the criticism to which they are subjected for being associated with it. Many of them are also troubled when they believe that there is no apparently legitimate reason for the taps. They tell me that they particularly resent taps being installed for the monitoring of industrial disputes. As good citizens they support telephone tapping to fight serious crime and subversion, but the problem that our members face is that they cannot tell anybody when they believe that telephone tapping has gone beyond that. The managers of BT do not wish to know. They put the responsibility on the Home Office.
Our members are inhibited from coming to the union because of the Official Secrets Act. They ought to be able 1288 to complain either when they see what they believe to be unauthorised tapping or when they believe that the Government are failing to keep the law. They ought to be able to go to the commissioner, the tribunal or a Select Committee without fearing that action will be taken against them. The Bill, as drafted, does not provide that protection.
Clause 8(3) says:It shall be the duty of every person holding office under the Crown or engaged in the business of the Post Office or in the running of a public telecommunication system to disclose or give to the Commissioner such documents or information as he may require for the purpose of enabling him to carry out his functions under this section.That, to me, implies immunity from prosecution, and I should be delighted if the Home Secretary could reassure me that that is so. However, even if such a reassurance is given, clause 8(3) does not cover tribunals or, if it were to be given power, a Select Committee. Under schedule 1 persons holding office under the Crown have a duty to provide information, and presumably they will escape prosecution under the Official Secrets Act, but this immunity does not extend to BT or Post Office employees who now work for private employers. Why should the conditions be different for the commissioner and the tribunal?
§ Mr. Douglas Hogg
Is there not yet another objection to this subsection, namely, that the duty to provide information or documents arises only if it is required—that is, if it is asked for — and does not provide immunity in the event of a public servant volunteering it?
§ Mr. Golding
The hon. Gentleman will have a chance to speak to his excellent amendment later. However, I shall refer to it now. My next sentence would have been that clause 8(3), which covers information to the commissioner on request, does not cover those cases where the employee wishes to give unsolicited information. This is indeed a very important question. BT and Post Office employees ought to be able freely to pass on information which worries them, yet it ought to be passed to somebody who, without holding direct responsibility, is totally safe from a security point of view. That means the commissioner, the tribunal or, if our proposals are accepted, the Select Committee and the complaints commissioner.
I would emphasise most strongly to the Home Secretary that it would be better if BT and Post Office employees, whom I represent, who are very troubled and disturbed about what they see, could go to the commissioner or to the tribunal rather than leak information to the newspapers in the hope that something will happen.
When people come to me asking what they should do in those circumstances, I would much rather be able to tell them that there is someone whom they can tell who is absolutely safe from the point of view of the security of the realm than to have to tell them that there is nothing that they can do, knowing that they will then be tempted to ring the Daily Express, the Daily Mail, The Guardian or The Observer. From the point of view of security, the Home Secretary would do well to think hard about this practical point.
So far I have dealt only with the Official Secrets Act, but it is also important that no internal disciplinary action should be taken against any BT employee who gives 1289 information. At present, the Bill does not cover that and the Home Secretary should consider it carefully. Under paragraph 4(2) of schedule 1 the tribunal is forbidden to disclose any information given to it without the consent of the person disclosing it, but BT and Post Office employees may regard that as insufficient protection because by the act of communicating, whether by letter or in some other way, their views on particular instances of telephone tapping they may not only have committed a breach of the Official Secrets Act but have acted in a way detrimental to the business and thus be subject to internal disciplinary proceedings. Just as no prosecution under the Official Secrets Act should be permitted, so no internal disciplinary proceedings should be permitted in these circumstances.
On Second Reading I asked in an intervention:Can the Home Secretary tell us whether employees working for public telephone operators will be able to give evidence to the tribunal about unauthorised telephone tapping without risking prosecution under the Official Secrets Act 1911? If employees cannot give such evidence, are we not to depend on official sources only for what are the facts of the situation?The Home Secretary replied:I am perfectly satisfied that the tribunal will have full powers to take whatever evidence is necessary in relation to a particular case. I do not believe that there will be any inhibition of the kind that the hon. Gentleman mentions." —[Official Report, 12 March 1985; Vol. 75, c. 164.]It is not the ability to take evidence that is the question. The point is the ability to give evidence without fear of reprisals either under the Official Secrets Act or under internal disciplinary codes. That is very important indeed.
I ask the Secretary of State to consider these matters very carefully. I hope that we shall get a good response today. I should make it clear that in a matter as serious as this I would not press the precise wording of a particular amendment or seek to divide the Committee on the matter. It is not an issue of great party principle. It is, however, a matter of great practical consequence.
Before the hon. Member for Grantham (Mr. Hogg) jumps up again, I wish to deal with the background to this group of amendments and to say something about the hon. Gentleman's own proposals. New clause 3 recognises the importance of giving members of the security forces the opportunity to initiate complaints. It is essential that anyone who believes that something is going on unlawfully should be able to take the evidence to a person who is completely safe from the security point of view.
This group of amendments seeks to deal with a very difficult problem — how to ensure that Ministers and others are not encouraged to break the law because they act in complete secrecy and can rely on the fact that those who know about or stumble across the activities in question will baulk at the consequences of disclosure. That is the nub of the matter. At present, there is a great deal of discontent. We know that there is discontent in MI5, and I find it among employees of BT because on occasion—I do not wish to exaggerate this—they believe that things are not quite right and they want to be able to tell someone.
It is no answer to say that BT employees can go to the management of BT, because the management is not interested and will simply say that it is the business of the Home Office. It is equally pointless to tell employees of BT or MI5 that the right person to approach is the Home Secretary, because the Home Secretary is seen to be responsible for these activities and the people undertaking 1290 them may well be carrying them out in his name, so he is certainly the wrong person with whom to have a chat about what is going on.
There must be an independent person to whom people can go. Frankly, I am not fussy whether it is the commissioner, the tribunal or a complaints commissioner, but there must be an independent person to whom people can express their unease about the apparent unlawfulness of what is happening in their sphere of activity. I believe that this will also act as a check on the Home Secretary and his officials and on MI5, making them more accountable. If they know that there is a possibility of people operating in the field going to an independent person with responsibility for the oversight of telephone tapping, they will be more careful about keeping within the law. That is human nature. It is not, however, the major point to which I wish to draw attention.
The essential point is this. Despite my earlier comments, I believe that Post Office employees are covered as Crown employees, but it is vital that all BT employees should be exempt from any threat under the Official Secrets Act or internal disciplinary procedures if they give evidence, solicited or unsolicited, to the commissioner, the tribunal or any other responsible body.
§ Sir Edward Gardner
I wish to speak to new clause 3 which stands in my name and those of my right hon. and hon. Friends.
The new clause seeks to give the security services what I believe many people on both sides of the Committee would agree are badly needed facilities—the means to make a complaint or to express dissatisfaction about what is happening within the service. It hardly needs to be said that secrecy is the ace weapon of the secret service, giving the security services the same advantages of stealth and surprise on which the sinister people — terrorists, dangerous criminals and those involved in subversion—also rely.
The trouble with secrecy, of course, is that in the wrong hands, and handled irresponsibly, it can be a weapon that backfires. In those circumstances, the people who will suffer are the people who should not be touched by the secret services, and civil liberty itself can, indeed, as we know, be put in danger.
It would in my view, and I am sure in the view of all hon. Members, be quite unrealistic to suppose that any service or any group of people could ever be looked upon as being free from the risk of having in their number those who might misconduct themselves or abuse or misuse privilege and authority. When this happens, if it does happen, the question is the very question that new clause 3 attempts to answer: what happens if a member of the security services discovers, believes or, indeed, is certain that a colleague in the service is, in the words of new clause 3, abusing the authority which has been given to him? To whom does this discontented, dissatisfied or possibly very alarmed member of MI5, for example, turn? At the moment, there does not appear to be anyone. There is no channel through which he can put a complaint. There is no one to whom he can say "I feel that something is going wrong in the service, and I want to have it investigated and put right." There is no oversight, no independent person standing either inside or outside the service who can undertake the very responsible and, I believe, very necessary task of making up his mind whether something is going wrong.
1291 As to the case of Michael Bettaney, an MI5 officer who was recently the subject of a criminal investigation and ultimate conviction, this man, it seems, when he was dissatisfied turned, or tried to turn, to the KGB. A colleague who was working with him, a Miss Miranda Ingram, has said, or at least certainly has written in New Society, that she knew Bettaney well, and if Bettaney had had someone to whom he could have talked in confidence, in her view, from what she knew of the man and the circumstances, it was unlikely that he would have done what he did.
May I ask the Committee also to consider the case of Sir Roger Hollis. My hon. Friend the Member for Thanet, South (Mr. Aitken) referred to this case earlier in the debate, and I do not want to repeat what he said. It is important to remember that not only was Sir Roger Hollis the director-general of the service MI5, but ultimately he became the target of suspicion of officers in that service who found themselves impotent when they tried to express their dissatisfaction and uncertainty about what Sir Roger Hollis was doing because they believed — rightly or wrongly—that he was the man who was the mole, who was in fact working with the KGB. When the colleagues of Sir Roger Hollis — and this seems to me wholly pertinent to the question of the proposal contained in new clause 3 that there should be a complaints commissioner to whom members of the secret service should be able to turn—tried to make known their suspicions, they had ultimately to send one of their number to No. 10 Downing street. He tried to see the Prime Minister and ultimately he was fortunate in being able to consult the secretary of the Cabinet of the day, Lord Hunt of Tanworth, and from that, of course, as we all know, flowed the inquiry into the various events which have given rise to the suspicions.
If there had been, as I submit to the Committee that there certainly ought to be, a complaints commissioner standing outside the security services, then there would be no reason, and certainly no excuse, for someone like Miss Massiter to turn to the media to try to get relief. It is the absence of someone to whom the dissatisfied officer in MI5 or the security services can turn that leaves what I believe is an alarming gap in the procedures that ought to be available within the secret service.
The support that is being given, I understand—though looking round the Chamber would not be the best evidence of it—to new clause 3 is substantial and wide and covers both sides of the Committee, I am happy to say. I understand, for example, that the right hon. Member for Morley and Leeds, South (Mr. Rees), a former Labour Home Secretary, and the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan), a former Home Secretary and a former Prime Minister, both have indicated their support for new clause 3 and the intention which it proclaims of the appointment by the Prime Minister of a complaints commissioner. The complaints commissioner would first investigate any complaint, he would then have to decide whether the complaint was one of substance and was sufficiently serious to justify a report, and he would then have to report, as new clause 3 makes quite clear, to the relevant Secretary of State. His duties—and this has been pointed out during the course of the debate—would be wholly different, separate and 1292 distinguishable from the duties of the commissioner who is now known as the judicial monitor. His duties would be those which at present are being fulfilled by no one in MI5.
There is an alternative to the solution which is set out in new clause 3, and I recognise that. The alternative is a reorganisation of the administration within MI5. It would be a managerial solution. Attempts should be made by the management to see that when complaints are made they are heard and investigated, and conclusions are reached which would be for the benefit of the service. I do not for one moment have the least confidence in that alternative being a remedy for the specific difficulties that we are facing at present through the absence of a proper channel for complaint.
In America, the CIA and the FBI were both troubled—and grievously troubled—by the sort of problems that we in this country have found affecting MI5. In America, they tried to resolve those problems by administrative reform, by bringing in what one might call managerial solutions, and they failed. And what did they do, having failed? They appointed an inspector general within an oversight system of the kind that is proposed by new clause 3. In Canada, people were troubled, as they had been in America and we have been here, by the problem of no proper channel for complaint. They tried to bring in the alternative of a managerial solution. They, too, failed. What did they do? They appointed an inspector general of the kind that is proposed by the new clause, under the title of a complaints commissioner. I am told that in both America and Canada they call him an ombudsman. I do not mind what they call him provided that we have one.
There were suspicions in the case of Sir Roger Hollis, there was the case of Michael Bettaney and the film of Miss Massiter. If anyone believes that we have seen the last of those troubles, he is deceiving himself. Those troubles and problems are so serious and so fundamentally affect the future security and efficiency of our security services that they must be faced by the Government. I believe that my new clause contains the proper and effective solution. If my right hon. and learned Friend the Home Secretary cannot say that it is the right solution, I hope that he will at least undertake to look again at the problem so that at some later stage we may have the opportunity of reconsidering all these difficulties and bringing them to a proper and satisfactory conclusion.
§ Mr. Maclennan
I support new clause 3, spoken to by the hon. and learned Member for Fylde (Sir E. Gardner) with eloquence and cogency. It would be difficult to resist the force of what he said about the present situation and the inadequacies of the routes available to those within the secret service who are concerned, rightly or wrongly, that there has been some fault or activity that they believe is reprehensible, dangerous or wrong.
The hon. and learned Gentleman made a positive case extremely well. I have tried hard to think what conceivable arguments the Government might try to apply against it. The strongest argument that they could dredge up is that the new clause would be ineffective because it would be difficult for an outsider to have total access to the workings of the machine that would enable an effective examination to take place. In the case of Sir Roger Hollis, it was possible for channels to be blocked, or at least it was alleged that that happened. There is no guarantee that an outsider, given the most far-reaching powers, would be able to unblock such channels or would not be stopped by 1293 the battlement deliberately put in the way by someone obstructive in a hierarchy where it is possible to block communications.
However, that argument of ineffectiveness does not demolish the hon. and learned Gentleman's case. I suspect that the complaints that arise from time to time flow from an incomplete appreciation of the picture by someone in the service who is capable of seeing it only from that corner from which he views those things, a part of the whole. All that is needed is an outside, independent person to say, "I have looked at the situation in the round and I think that what has happened is justified and was done for good reasons." Then many of the problems might disappear.
I think that the hon. and learned Gentleman has in mind someone of the highest authority and experience and of the utmost probity and reliability to be in such a role. Therefore, there is no possible security argument that could be deployed against the hon. and learned Gentleman's case.
§ Sir Edward Gardner
The person who would be eligible for such an appointment by the Prime Minister would, as the new clause says, be someone who holds or has held high public office.
§ Mr. Maclennan
I have no doubt that suitable names spring to mind.
Even if the new clause does not altogether deal with the problem, which has occurred repeatedly—the hon. and learned Gentleman cited the examples of the Bettaney, Hollis and Massiter cases—we must try to do something to improve the situation. It may not be the perfect remedy, but at least it does not carry within it any seeds of the destruction of the service. It is not such a radical proposal that it need cause fluttering in the dovecots of those who have a professional involvement in security matters and to whom "outside intervention" of any sort would certainly seem unusual. It should not necessarily be unwelcome.
§ Mr. Douglas Hogg
I should like to speak to amendment No. 88, which is in my name.
I also support in broad terms new clause 3 argued so persuasively by my hon. and learned Friend the Member for Fylde (Sir E. Gardner) and the point made by the hon. Member for Caithness and Sutherland (Mr. Maclennan).
However, I do not want to range as widely as my hon. and learned Friend because I should like to confine my attention to the scope of the Bill. We are seeking to determine a good system for investigating complaints about the misuse of the interception of telephones and postal communications. That is the prime purpose of the Bill. The inevitable truth is that those who know most about the abuses are those who are employed either in the public service or by the relevant agencies of the public service. For the most part, they are covered either by the Official Secrets Act or by restrictive covenants in their contracts of employment. Consequently, they cannot go to the commissioner with a complaint without exposing themselves either to prosecution under the Act or perhaps to disciplinary procedure arising from a breach of their contract of employment.
It is perfectly true that subsection (3) gives unlimited protection, but that protection exists only when the commissioner requires disclosure of information or production of documents. It does not exist when somebody wishes to volunteer either one or the other. It is in the 1294 public interest that members of the security services, Crown employees of one kind or another, employees of BT or the Post Office, should be able to go to the commissioner if they have reasonable grounds to suppose that an offence is being committed under clause 1 or that there has been a contravention of clauses 2 to 6, and that they should be able to do this without exposing themselves to legal sanctions.
There are three things which make this desirable. First, this is a way whereby abuses will be discovered and the existence of the sanction will itself be a further restraint and check on abuses. That is the first advantage.
Secondly, these are matters that should be brought to the attention of the public. Furthermore, this will act as a safeguard for discontented members of the security services. If they do not have a safe quarter to which they can turn, they will be dissatisfied and discontented.
§ 9 Pm
§ Mr. Golding
I am not sure that it is a matter of bringing it to the attention of the public. The attraction of the amendment for me is that it is taken to somebody who is going to examine it in private. These are not matters, speaking for myself, about which we want public discussion. I have been appalled at the naming of Harry Newton as an MI5 agent without possibility of proof or disproof. We do not want discussion of these matters in public, either because of the individuals involved or because of the security of the realm or wanting to fight crime. What is needed is access to somebody in private who is able to act on one's behalf.
§ Mr. Hogg
The rebuke is well taken and the hon. Gentleman is quite right. To use President Reagan's words, I mis-spoke myself. The point I am making is that it is desirable that there should be a body to which discontented members of the security services can turn. It is the fact of disclosure to that body and then an independent and private inquiry that will do so much to reduce discontent within the secret service and elsewhere.
The third point is that, if there is not this particular safety valve, people will undoubtedly turn to the press and there will be a whole series of scare stories, which would be in nobody's interest.
Accordingly, I am in favour of some means whereby members of the security service, the Post Office and BT who fear there may have been an offence or a contravention can pass on this information without exposing themselves to legal action.
§ Mr. Brittan
The debate covers two separate but related aspects of the Bill. The first is the anxieties initially expressed by the hon. Member for Newcastle-under-Lyme (Mr. Golding) about the position whereby the staff of BT or the Post Office had information which they were afraid to disclose for fear that they would be guilty of an offence under the Official Secrets Act.
I would not wish those staff to be inhibited in any way by such a concern. The only reason why I cannot advise the Committee to accept this amendment is that I believe that they need not be inhibited by any such concern under the provisions of the Bill together with the general law as it stands. I can certainly assure the Committee that if I were not of that view I would be extremely sympathetic to the belief that it is necessary to do something about it.
1295 I have no desire to prevent those with legitimate grounds for making a complaint or anxieties to express through the proper channel from doing so.
To explain why I think that it is not necessary for there to be any provision other than what stands on the face of the Bill it is necessary once again to make the distinction I made at an earlier stage, in our deliberations on another amendment, between the various institutions and the various things that may go wrong. I will deal first with the aspect that has been the main subject of this part of the debate and the anxiety expressed by the hon. Member for Birmingham, Erdington (Mr. Corbett)—that is, breaches of the law; matters which become offences under clause 1 but which have not been offences until now.
I am advised that, if a telecommunications or Post Office employee were, like any other member of the public in a similar position, to make a complaint to the police—which would be the proper avenue for dealing with breaches of the law—he would not be in breach of section 2 of the Official Secrets Act.
I should explain—this relates perhaps to some of the earlier debates rather than to this one—that it is my intention to issue guidelines to the police, as I said on Second Reading, as to how they should discharge the new function of investigating breaches of the law constituted by this newly created offence. The police will have a new task and they might require assistance from outside their own ranks to investigate matters which previously had not been subject to their scrutiny. Someone who makes a complaint to the police about a breach of the law will not be liable to prosecution under the Official Secrets Act.
We must also consider impropriety, which is within the ambit of the commissioner and the tribunal. I do not want anyone to be inhibited by the fear of prosecution under section 2 of the Official Secrets Act.
Hon. Members have mentioned clause 8(3), which imposes a duty on all concerned to disclose to the commissioner such documents or information as he may require to enable him to carry out his functions. My hon. Friend the Member for Grantham (Mr. Hogg) made a distinction between information sought by the commissioner and information volunteered by those who believe that their information is relevant to the commissioner's task. It will be for the commissioner to determine how he formulates his requirement for information and documents.
There is little doubt that those requirements will be expressed — this is the Government's intention — in general terms and be directed to the Ministers or senior persons concerned and so will apply to all subordinate staff. Anyone in possession of information which he thinks is relevant to the commissioner, even if he has not been asked for it, would be authorised to disclose it, and therefore not be guilty of an offence under section 2. If there were any doubt, the person need only tell the commissioner that he is in possession of relevant information or documents and the commissioner will ensure that his requirement is framed, or reframed, in terms which cover those circumstances. It is inconceivable that that would not be done.
Although I sympathise with the anxieties of hon. Members on both sides, I do not believe that an 1296 amendment is necessary because the Bill, with the general law, is couched in terms which will have the desired effect.
§ Mr. Golding
The Minister has been helpful and I thank him. However, I am still unclear about why the provision is different for the commissioner and for the tribunal. Have I missed the explanation?
§ Mr. Brittan
The tribunal's position is different. The commissioner is concerned with interception in general terms, with the whole operation of the system and perhaps with impropriety in the broader sense. The tribunal is concerned with a narrower question. It must decide whether official interception has taken place — a relatively simple matter—and whether it should have taken place in the sense of the Secretary of State acting reasonably in applying the criteria when he issues the warrant. For those purposes, the information relates to the material presented to the Secretary of State. That material will not emanate from Post Office or telecommunications employees. The tribunal's task therefore differs from the commissioner's task. It is almost impossible to conceive of circumstances in which the particular protection of the tribunal as opposed to that of the commissioner is called for.
§ Mr. Golding
The Home Secretary might find it difficult to envisage such circumstances, but what harm is there in the Home Secretary making it absolutely clear that, if such circumstances arose, the same cover would apply to tribunals as applies to commissioners? Because there is doubt in the minds of BT staff, and possibly Post Office staff, what do we have to lose by making it absolutely certain in the Bill that BT and Post Office employees can give evidence to the tribunal, if they wish, without fear of prosecution under the Official Secrets Act? In many ways, it would be simpler if the Home Secretary, who has been so helpful in the matter of the commissioner, at the very least said, "I shall look at this aspect again before Report" rather than shut the door.
§ Mr. Brittan
I am grateful to the hon. Gentleman for accepting what I said about complaints about the police. I beg him not to fail to appreciate that, just because the police are not mentioned, they are the most important part of the matter. I am grateful to the hon. Gentleman also for accepting that the coverage effectively deals with the commissioner.
I do not believe, for the reasons that I have given, that there is a problem in relation to the tribunal, but I shall be happy to consider the hon. Gentleman's points further. As presently advised, it would be wrong for me to give the impression that a further gap needs to be filled. I shall certainly consider the hon. Gentleman's point.
My hon. and learned Friend the Member for Fylde (Sir E. Gardner) referred to wider matters. They are very much wider matters. The Bill relates to interception, so it is inevitable that my hon. and learned Friend's new clause should refer to complaints about interceptions. Many, if not most, of the complaints mentioned in the various examples given by my hon. and learned Friend either do not primarily relate to interception or do not relate to interception at all. It would be a curious remedy therefore to set up a complaints system that would deal with the problems which have been identified, rightly or wrongly, by my hon. and learned Friend and would confine itself 1297 to the interception of communications. It would plainly be impossible for this legislation to do anything other than confine itself to the interception of communications.
I hope that my hon. and learned Friend the Member for Fylde will not feel that, apart from any other considerations, the necessity of giving so narrow a remit to the commissioner makes it inappropriate for the legislation to contain such a provision.
§ Mr. Brittan
I think that I shall be dealing with the broader point to which my hon. and learned Friend intends to refer.
§ Sir Edward Gardner
I was going to point out that I was very much aware that some of my examples were merely illustrative of the need for a person to investigate complaints. I hope that my right hon. and learned Friend will hear in mind that the Massiter film dealt with alleged unlawful and wrongful interceptions.
§ Mr. Brittan
Perhaps my hon. and learned Friend would be good enough to peruse at his leisure my speech on Second Reading. He will find that I dealt seriatim with the various allegations, of which the allegations in relation to interception — which were the subject of Lord Bridge's report—were only a part. Therefore, the very example that my hon. and learned Friend gives appears to illustrate that this would be an ineffective remedy even if a remedy of this kind were appropriate for the security services.
I thought that my hon. and learned Friend was going to chide me with not dealing with the broader considerations that he raised. However, he was charitable enough to anticipate that I might go on to do so. Of course, I share and understand his concern and that of other hon. Members about the necessity for those in the security services to be able adequately to discharge their feelings of resentment, discontent, inadequacy as to their seniors' conduct or even a feeling that something more serious had gone wrong. It is important that there should be a proper way in which they can do so. However, there is a risk that, because there have been one or two cases such as those mentioned, wrong conclusions may be reached.
I do not accept that it necessarily follows that a person who has subsequently gone very seriously wrong would not have done so if there had been a person on whose shoulders he could lean. It is very easy, for charitable or other reasons, to make such assertions. Even if we were inclined to go down that path, we would be reluctant to impose so great a degree of confidence in an institution as to assume that it could avert a person in that frame of mind from committing offences. There is a risk that topical examples lead us to reach the wrong conclusions.
The experience of a disciplined service in which those who feel that something has gone wrong need a vehicle for expressing their discontent is not unique to the security services. Indeed, it is not unique to them for the position to be such that disclosure of information by disaffected persons would be damaging to the country. An obvious example is the armed forces of the Crown, where many people in both the lower and more senior positions are properly and necessarily equipped with material information of a highly secret nature.
I do not think that it would be suggested that we should have an ombudsman in that area of activity. It is 1298 appropriate to consider in the Civil Service as a whole what the proper channel of complaint should be. Most people who have been involved in these matters, whether in the Civil Service, armed forces or the security services, would feel that it is a proper function of senior management to organise itself so that there is a machinery whereby persons lower down can ventilate complaints with confidence that they will be properly investigated.
It is necessary that that should happen in any organisation — the so-called managerial solution, on which my hon. and learned Friend looked with an unnecessarily critical gaze—but we are talking not only about a large organisation but one where there is ministerial responsibility and oversight. I said on Second Reading that I regarded the discharge of that responsibility as one of my most important tasks; that I wished to make certain in my mind that the director-general and his senior colleagues so organised the security service that it was possible, and active encouragement was given, for complaints to be made.
I have discussed that matter with the new director-general and I propose to continue discussing it so as to satisfy myself that, within the security service, the problem is adequately understood and properly dealt with. That is the right approach. It is reasonable to have a system in which one is alert to the problem but in which the responsibility for dealing with it is put on the professional head of the service, under the superintendence of the Minister to whom he is responsible.
That is the proper approach to these matters and we should not be diverted from it because of an example, or even a couple of examples, where it is asserted, but cannot be proved, that the alternative approach commended in the amendment would have prevented serious matters that did occur.
I assure hon. Members, from the point of view of the director-general and myself, that I regard the provision of proper machinery in the security service for the ventilation of complaints of all kinds as a matter of great importance. The Committee owes a debt of gratitude to my hon. and learned Friend for giving us the opportunity to make the position on that absolutely clear.
§ Mr. Golding
It must be a sign of the times that the Home Secretary is far more critical of amendments standing in the names of his hon. Friends than he is of anything that we on these Benches say. I thank him for his positive approach to the problems that the members of my union face. I say that with the proviso that we shad almost certainly table a new clause on Report.
§ Mr. Brittan
The hon. Gentleman must not add to what I said. I expressed sympathy, but I gave no undertaking.
§ Mr. Golding
I am mystified. I simply thanked the right hon. and learned Gentleman for his positive approach. I shall read with wonderment the Official Report of what I must have said that has caused him so much concern. I am glad that the right hon. and learned Gentleman rose, because I am encouraged to examine every dot and comma of his reply. In other words, I shall examine far more carefully than I might otherwise have done the position that he adopted.
Until the Home Secretary rose to interrupt me, I was positively grateful to him for what he said about the 1299 commissioner and about access to the police. In view of his intervention, I am not sure whether he is withdrawing some of what he said earlier.
§ Mr. Golding
Any Conservative Member who tells me at 9.25 in the evening to "Get on with it" cannot have had as much experience of my speeches as, for example, the Government Whip. We are debating a matter that is most important to me. It will not be dealt with by Conservative Members, who come in out of the cold late in the debate and make comments from a sedentary position.
We are not satisfied with the position regarding the tribunals, and we shall certainly table a new clause for consideration on Report. I am not sure whether the Government should not give protection to British Telecom and Post Office employees in respect of information which tribunals may request from them. If the Government are saying that they cannot envisage tribunals asking for evidence, they should make it clear in the Bill that tribunals do not have the right to ask for information. It is wrong for the Government to create a position which will give tribunals the power to ask BT and Post Office personnel to give information relating to their duties which is covered by the Official Secrets Act without at the same time making it absolutely clear in the Bill that there will be no breach of the Act if the employees respond to that request. The Home Secretary cannot have it both ways.
§ Mr. Brittan
The hon. Gentleman is doing both himself and me less than justice. I said that I would consider his point carefully. If he wishes me to do so, I shall do so. However, if he misrepresents what I said, it makes it difficult to do so in the same spirit.
§ Mr. Golding
I should have thought that the Home Secretary would consider my point despite what I say. I should have thought that, acting in a judicial manner, he would not say to me, "If you are hard on me, I shall consider the matter differently from the way that I would consider it if you said nice things to me." The Home Secretary must consider the matter carefully.
I put two separate points to the right hon. and learned Gentleman. Under the Bill, will the tribunal have power to ask BT and Post Office staff about matters relating to their official duties? If the answer is yes, he must give protection to those employees. If the answer is no, he must make it absolutely clear to the tribunal that it cannot ask them about such matters. It must be one way or the other. That is my point.
I beg to ask leave to withdraw the amendment, although I am not satisfied—
§ The Second Deputy Chairman (Sir Paul Dean)
Order. Before the hon. Gentleman does that, another hon. Member wishes to make a contribution.
§ Sir Edward Gardner
I am bound to say to my right hon. and learned Friend that my faith in the efficacy of the proposal in new clause 3 has in no way been undermined by anything that he has proposed by way of an alternative managerial solution. I am anxious, as I hope every member of the Committee is, to give the idea contained in new clause 3 the opportunity of living on and, I hope, a more successful day.
§ The Second Deputy Chairman
Does the hon. Member for Newcastle-under-Lyme (Mr. Golding) wish to withdraw his amendment?
§ Amendment, by leave, withdrawn.
§ Mr. Douglas Hogg
I beg to move amendment No. 142, in page 7, line 31, leave out 'Subject to subsection (8) below'.
§ The Second Deputy Chairman
With this it will be convenient to discuss amendment No. 143, in page 7, line 33, at end insert'together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (8) below.'.
§ Mr. Hogg
This is part of the process which provides greater safeguards for the citizens. Under clause 8(4) the procedure is for the tribunal to report to the commissioner. The commissioner investigates and considers and then, in time, reports to the Prime Minister. The Prime Minister is under a duty to provide a copy of the annual report made by the commissioner, but it is clear and necessary that the Prime Minister should have the power to delete material which is prejudicial to the national security. It seems to me, and I hope that it will seem so to my hon. and learned Friend, that if that power is exercised, the fact that that material has been excluded should be contained in the report. It is additional information which I feel the House should have.
§ Mr. Waddington
The Government welcome the approach adopted in these amendments and will be glad to see them incorporated in the Bill. The commissioner's report must meet two requirements. It must be frank, and the commissioner must not in any way be inhibited in what he thinks is appropriate formally to draw to the Prime Minister's attention. He therefore may wish to comment on matters of the greatest secrecy. It is therefore also necessary that before the report is published such passages should be deleted. If that were not possible, the report could not serve the purpose which it is intended to serve.
The Government like these amendments because they, as it were, round off that arrangement. They ensure that the Prime Minister makes a statement if any changes have been made, so that Parliament is informed of the fact of deletions, but is not, of course, given any indication as to their content. These are welcome additions to the Bill. I am grateful to my hon. Friend for moving the amendment.
§ Amendment agreed to.
Amendment made: No. 143, in page 7, line 33, at end insert—
`together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (8) below.'. —[Mr. Douglas Hogg.]
§ Clause 8, as amended, ordered to stand part of the Bill.