Scope of Warrants

Part of Orders of the Day — Interception of Communications Bill – in the House of Commons at 8:45 pm on 2 April 1985.

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Photo of Mr Leon Brittan Mr Leon Brittan , Richmond (Yorks) 8:45, 2 April 1985

Perhaps I could first finish my explanation, which is related to the point made by the hon. Member for Blaydon (Mr. McWilliam). I think that I can clear that up. Clause 7 deals with the powers of the tribunal. If one thinks of it first in relation to an ordinary domestic warrant issued, say, for crime purposes, one of the powers that the tribunal has is to direct the destruction of copies of the intercepted material. It should be remembered that the situation envisaged is that the tribunal finds that a warrant has been improperly issued or, in other words, that the interception has been lawful but that the Secretary of State should not have issued the warrant. It is in those circumstances that the tribunal can direct the destruction of copies of the intercepted material, which is to say the material that has been intercepted pursuant to a warrant.

When one is talking about the exercise of the power in relation to external communications, one has to consider a situation in which there is both a warrant and a certificate and the material that is actually examined, as opposed to intercepted, is only that of a character described in the certificate. That may be less than that covered by the warrant. That is why there is reference to "so much of it"—that is, the intercepted material— as is certified by the relevant certificate". It is only the material that is certified by the relevant certificate that has been lawfully intercepted. The warrant and the certificate go hand in hand.

The job of the tribunal is to make orders in relation to lawful interception, but interception which it finds to be improper in the sense of not having been reasonably ordered by the Secretary of State. If we refer to material that has been examined which is not covered by the certificate, that is not an area for the tribunal to consider. It will not be material that is covered by clause 3(2). It will have the warrant but not the certificate applied to it.

I hope that that explains the ambit and rationale of clause 3. If the hon. Member for Caithness and Sutherland (Mr. Maclennan) thinks it is wrong that a power which has been exercised by successive Governments since 1920 should exist, I cannot pretend that the Bill will remove it. If, however, he favours a more restrictive use of the power, limited and confined in a way that it has not been limited and confined since 1920, and supervised both by the commissioner, in terms of the general exercise of the power, and by the tribunal in dealing with particular complaints against abuse of the power, I think that as a fair-minded person he will agree that the measure we have introduced provides a limitation which no Government since 1920 have thought it proper to provide.