§ 3.40 p.m.
§ Viscount Whitelaw
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Viscount Whitelaw.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL of LISTOWEL in the Chair.]
§ Clause 1 [Prohibition of Interception]:
Viscount Whitelaw moved Amendment No. 1:
Page 1, line 5, at beginning insert ("Subject to the following provisions of this section,").
The noble Viscount said: I hope it will be for the convenience of your Lordships if I present Amendments Nos. 1, 2, 3 and 21 together.
Amendment No. 2: Page 1, line 7, leave out from ("offence") to end of line 15 and insert ("and").
Amendment No. 3: Page 1, line 20, at end insert—
Amendment No. 21: Clause 10, page 9, line 23, at end insert—
The amendments are all concerned with exceptions to the new interception offence.
(" "wireless telegraphy" has the same meaning as in the Wireless Telegraphy Act 1949;").
§ I believe your Lordships will agree that there will be circumstances in which activities amounting to interception take place perfectly legitimately. The purpose of these exceptions to the offence is to specify those circumstances so that where they arise there is no question of criminality. The warrant imposes a 853 requirement to undertake an interception; and the exception for acting in execution of a warrant, currently Clause 1(1)(a) and Clause 1(2)(a) in the amended version, is unchanged by the amendments.
§ The second exception, Clause 1(1)(b), is designed to allow somebody to give consent to the interception of his communications. If somebody wants his telephone calls listened to—if, for example, a member of his family has been kidnapped or he is being blackmailed—there is no reason why this should not be done. The Government have, however, accepted that Clause 1(1)(b) is too wide. As the noble and learned Lord, Lord Denning, said at Second Reading, it could allow a hotel proprietor to consent to the interception of the communications of all those in his hotel. It is not the Government's intention that this aspect should be covered by the exception.
§ Accordingly, my honourable friend the Minister of State at the Home Office undertook in another place to reframe the provision, and the amendments before your Lordships today fulfil that undertaking. Clause 1(1)(b) is accordingly recast as Clause 1(2)(b) in two ways. First, the consent may now be given only by the person to or from whom the communications are travelling, instead of a person occupying the premises. Thus, in the example, everybody who uses that telephone must give his consent: the proprietor and all his guests.
§ The new provision also contains a reference to having reasonable grounds for believing that his consent has been given, so as to secure the position of the public telecommunications operator. If a clear assurance had been given by the family of a kidnap victim that only those who had consented would be allowed to use the telephone, it would be quite wrong for an offence to be committed by a member of British Telecommunications staff simply because a neighbour was allowed into the house to use the telephone, but through an oversight was not first asked to give consent. In this way we believe that the consent provision is now properly framed, meeting the criticism about its excessive breadth and also safeguarding the position of those who with consent undertake the interception.
§ This amendment also clarifies the exception dealing with the provision of postal or public telecommunications services. The need for this exception was generally agreed in another place and will, I believe, be agreed by your Lordships. For example, an engineer may need to discover whether a line is being used before he starts to work on it; action may be needed to deal with persistent, obscene and harrassing telephone calls; Post Office staff may need to open an item if it apears to be inflammable or dangerous. All these activities are necessary and have long been covered in legislation. Yet all of them could, in certain circumstances, be construed as interception. It is essential that the staff of these organisations run no risk at all of criminality by properly carrying out their duties. If they exceed their duties, that is another matter and the exception will not apply to them.
§ The last element in this amendment is new. Further examination of the Bill since it was introduced has shown it to be necessary. Whereas the previous exception covers staff operating the public postal and 854 telecommunications systems, this confirms the exception already contained in the Wireless Telegraphy Act 1949 for those who exercise powers under the Wireless Telegraphy Acts to monitor radio transmissions.
§ It is important that the radio spectrum is properly regulated. The whole radio licensing system, the identification and remedying of interference, and action against those who deliberately jam or intercept radio communications depends on this system of monitoring. Not only do businesses, but all of us who watch television or listen to radio, rely on such communications; they are crucial to services on which the safety of many lives depends.
§ Certain kinds of telecommunication on the public system are nowadays conveyed by radio for part of their journey. In due course, for example, it is the Government's intention to designate the new cellular radio services as public telecommunication systems. If there were interference with the public system—the operator would want steps taken to prevent it at once—or the public system was itself causing interference, those acting for the Secretary of State might have to monitor across a band used by that system. The content of the messages would be of no interest in itself, except to the extent that it may be relevant to establishing the nature and source of the interference. This new limb to the offence is introduced against that possibility.
§ Your Lordships will note that the provision is narrowly cast. It relates only to things done with the authority of the Secretary of State—that means, in practice, the Secretary of State for Trade and Industry—and it relates only to things done under the relevant powers of the Wireless Telegraphy Act 1949. It applies also only to the interception of communications when being conveyed by radio. A definition is added consequentially to Clause 10. I commend the amendments to your Lordships. I beg to move.
§ Lord Mishcon
The Committee will be grateful to the noble Viscount for the clear way in which he has explained these amendments. There is only one controversial issue in regard to this amendment to which I ought to draw the Committee's attention, and it is one that was raised very specifically in another place, and by the noble and learned Lord, Lord Denning, in this House at Second Reading. The concern was that in the Bill as it is before your Lordships and prior to this amendment—and I am referring of course to Clause 1(1)(b)—there is a provision that no offence would be committed under Clause 1 if a person occupying the premises to or from which the communication was sent had consented to the interception of his telephone call, or indeed of the communication under the Bill.
That not only raised the question of the hotel proprietor, but it also raised the question of whether somebody, who might be a guest in the premises and who was occupying them for a certain period of time, could give his consent and therefore no offence was committed. Therefore clarification was sought in another place and the Minister there, if I may put it in this way, very courteously and very sensibly said that that was a matter that would be considered and that an 855 amendment would be brought forward. It has been brought forward here at the Committee stage, and I think we all welcome it.
There was a suggestion—I ought just to conclude the argument, if there is one, by saying this—that it ought only to be by, if I may use the ugly expression, the consent of the communicatee and not just the consent of the communicator. It is sensible on reflection that it is either party who can consent to the interception. The Government have just about got it right and therefore, from these Benches, I certainly say that the amendment is in order.
§ Lord Denning
First, I wish to thank my noble friend the Lord President for this amendment, and I should like to point out how important it is. This Bill comes about because of a ruling of the European Court of Human Rights as to how far telephone tapping should be regulated by law. The Bill puts that into effect. One of the most important provisions is that there is not to be telephone tapping at all, except under a warrant of the Secretary of State. That is one angle and it fulfils the ruling of the European Court.
But one provision here is important where the Secretary of State does not come into it at all. That is where there is telephone tapping of ordinary lines. Let me give your Lordships' Committee an illustration, which has often been given, of something which is known to happen. Telephone calls are made anonymously to a householder, sometimes to a spinster or other lady, and they are abusive, pornographic and so on. The caller does not give his name, but he harrasses the individual subscriber in that way. Clearly there ought to be permission and power to tap that telephone so as to discover who is the miscreant. My only question is: who is to authorise the telephone being tapped? There is nothing in the Bill which says so. Indeed, apparently, a clerk in the telephone office could give the authorisation, so long as he reasonably believed that the lady was being harrassed by telephone calls.
There is also the case where a kidnapper wants to telephone, or where the person who is being called wants to know who is on the other end of the telephone. Who authorises that? As I read the clause, it is not the Secretary of State who authorises it. There is no one to authorise whether or not it should be done. We are concerned here with who is called the communicatee—the person who is receiving these harrassing telephone calls—and, certainly, such a person ought to be able to get the telephone tapped.
The other problem concerns the person who says, "I should like my message tapped so as to know what the other man"—maybe the kidnapper or his victim—"is saying". It is quite right that under this new provision, with the consent of the person who is making the call, the telephone can be tapped, but on whose authority? The clause does not tell us on whose authority it is to be done, and there is nothing in the European convention about this. It is a question of the right of privacy and the like.
In the case of an important business conversation, a man may say, "I should like you to tap this telephone conversation, so as to have on record what the other 856 man says"? This may be right and it may be done, but on whose authority? As I read the provision as it stands, it is not on the authority of the Secretary of State. All the person in the telephone office has to say is, "I reasonably believed that the person who communicated with me was going to make a telephone call and he said 'I should like it tapped'." Alternatively, the person who is receiving the call says, "I am receiving all these abusive telephone calls and I should like the calls to be tapped." Who gives the authority? The provision does not say. I should like included a provision whereby proper authority is given by somebody to tap a telephone in that way. I do not know whether it should be a magistrate, a superintendent of police, or who it should be, but I should not like this to be done except with the authorisation of a proper authority, because that seems to me an essential safeguard in the matter.
In the White Paper which preceded this Bill it was said to be sufficient if it was done with the consent of the subscriber. In the Bill as it reached the other House it was the occupier of the premises who gave the consent. It is now sufficient if there is the consent of the communicator or the communicatee. But there it is. The Bill does not say at all who is to authorise it. The clerk in the telephone office could say, "I was asked by the subscriber to tap, and I did it." That would not be good enough. The monitoring ought to be done on some proper authority, because in future it will quite rightly be a criminal offence to tap telephones. Therefore, the mere consent of the communicator or the communicatee may not itself be sufficient, unless there is some control over it and some authority to see that telephone tapping is not done unless it has been vetted by some proper authority. So while I very much welcome this amendment, which is a great improvement, I suggest that there is room for further improvement.
§ Lord Mishcon
I wonder whether I may beg to differ from the noble and learned Lord. It is so rarely that anybody in this House has the courage to do so that I had indeed to invigorate myself in getting up and deciding to have that courage. I wonder whether this is right. We now know that if somebody wishes to have a call intercepted because it is offensive, that is dealt with very simply by talking to the exchange and asking that it be done because there is a nuisance, or sometimes by calling in the police and getting their guidance about asking the exchange. But there are other ways in which, with the permission of one or other party, calls are regularly and properly intercepted.
As a practising lawyer, perhaps I may say this to the Committee. There are many occasions in regard to a civil case where, with the permission of the client who is the person at one end of the telephone, a telephone call is intercepted in order to produce evidence before a civil court. That sometimes happens—and very grievously so—in matrimonial cases where questions of the welfare of children sometimes come into play, but much more often where there is a conspiracy to defraud and a civil action is taken. The solicitor thereupon says, "I have got to have some evidence about this. What I am going to do is ask you to be present in my office. I will consent to this interception, 857 and I should like to listen to you talking to that other party and I want to adduce that evidence." At the present stage of affairs no authorisation is necessary in the way that the noble and learned Lord suggests.
What this clause is dealing with is an offence and what it will say, if the Committee agrees to the amendment, is that there will be no offence if one of the parties to that conversation consents to its being intercepted. Indeed, if we introduced the whole question of having to obtain the authorisation of somebody for such a conversation as I was talking about, which is intercepted so often in a legal case, then, if I may most respectfully suggest it to the noble and learned Lord, it would be a matter of grave concern to my profession and, indeed, to the one which he adorned for so many years and continues to adorn.
§ 4 p.m.
§ Lord Denning
Perhaps I may just say one word. I had not heard all those arguments before. They are very good, if I may say so, but it does mean that the person at one or other end of the telephone can say to the clerk in the exchange, "Tap this conversation, will you?" It may be quite right but in a way I should be quite glad if a little further thought could be given to this question.
§ Lord Foot
Perhaps I may say just a few words from these Benches. It seems to me and to my colleagues that these three amendments are a genuine and real attempt to meet the criticism of the former clause. I had hoped that we were going to let this go through with complete unanimity. I was going to say to the Committee that I hoped we should go on as we had started. That has not quite happened because the noble and learned Lord, Lord Denning, has raised this interesting point.
I was also a little doubtful about the words which have been selected and wondered not so much whether somebody ought to be specified as the person who is capable of authorising such an interception but about how the consent was to be, as it were, registered. I suppose that it would be almost impossible to rewrite this little amendment so as to meet the noble and learned Lord's point, because I imagine that a number of different people might properly authorise. I should have thought that in the ordinary way it might be the general manager of the district post office who would take the responsibility. Certainly I should think it undesirable that anybody would have to go to a magistrate or to the chief of police in order that his or her consent should be given the imprimatur of the officer or the magistrate.
If the Government should think that there is any remaining substance in the noble and learned Lord's intervention, it would be proper and apt, would it not, to return to this matter at Report stage? If the Government draftsman thought that the words ought to be rewritten, we could deal with the matter at that time.
§ Viscount Whitelaw
I am grateful to all noble Lords for their reception of these amendments, which I am grateful they recognise to have been a genuine effort on the part of the Government to meet a problem. I hope 858 I can retain this unanimity to which the noble Lord, Lord Foot, referred by explaining what I understand to be the present position. There is no doubt that, in a serious matter like this, the final decision will be taken by someone at British Telecom with the proper authority and indeed following established procedures.
That is what I am advised is the position. It would of course be very much in British Telecom's own interests that that should be so, and indeed very much in their operators' interests, because if a mistake was made in any way an offence would be committed. Naturally, when dealing with their own employees, British Telecom would be most anxious to ensure that they did not put them into that position.
That is the position, I would say to the noble and learned Lord, Lord Denning. If it were found to be sensible and reasonable to put some such definition into the Bill, it could be considered, but I have to tell the noble and learned Lord that I doubt it, because I think that British Telecom's procedures are very strict in this matter. I think it would be difficult to pin down the person concerned.
I hope I have satisfied the noble and learned Lord. When I hear two noble Lords of such immense distinction in the legal profession discussing these points, I, too, am very hesitant to come between them in any way. I hope that perhaps I may have satisfied them both.
§ Lord Denning
I am quite satisfied. If someone in a proper position in telecommunications authorises it, I am quite content and would not press the matter further.
§ On Question, amendment agreed to.
§ Viscount Whitelaw moved Amendment No 2:
§ [Printed earlier; col. 852.]
§ On Question, amendment agreed to.
§ Viscount Whitelaw moved Amendment No. 3:
§ [Printed earlier; col. 852.]
§ On Question, amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Baroness Cox
I think that this is a convenient moment to take the Statement. I therefore beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.