Issue and Duration of Warrants

Orders of the Day — Interception of Communications Bill – in the House of Commons at 9:15 pm on 2nd April 1985.

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Photo of Mr Gerry Bermingham Mr Gerry Bermingham , St Helens South 9:15 pm, 2nd April 1985

I beg to move amendment No. 29, in page 3, line 33, leave out 'the Secretary of State' and insert 'a Secretary of State designated by the Prime Minister'.

Photo of Mr John Forrester Mr John Forrester , Stoke-on-Trent North

With this it will be convenient to take the following amendments: No. 30, in page 3, line 33, leave out from 'State' to end of line 37.

Government amendments Nos. 31 and 45.

No. 46, in page 4, line 32, leave out from 'State' to end of line 38.

Government amendment No. 47.

Photo of Mr Gerry Bermingham Mr Gerry Bermingham , St Helens South

In moving amendment No. 29, I ask the Committee to consider the Government amendments which go part of the way to meet the point that we sought to raise in amendments Nos. 29, 30 and 46.

The amendments would eliminate the possibility of civil servants authorising or modifying warrants for interception. This would prevent civil servants from having to make what might appear to be political decisions. This situation arises when a Government changes and there is an interregnum state. The Secretary of State as the person authorised is a continuing creature, in that Secretaries of State never die but hand over to each other, but Governments do change, so we have sought to cover the intervening period. I am in the happy position of noting the Government amendments included for consideration in this group of amendments. The wording of amendment No. 45 is slightly different from that of amendment No. 31. Amendment No. 31 fortunately takes us almost all the way down the road that our amendment sought to follow. In amendment No. 31 provision is made whereby the Secretary of State has expressly authorised its issue and a statement of that fact is endorsed thereon, under the hand of an official of his department of or above the rank of Assistant Under Secretary of State". I suggest that that is a high enough rank, and I do not wish to see it percolating any lower down. I am sure that many of my hon. Friends will be satisfied with the amendment.

I wish to raise one small point on amendment No. 45. Government amendment No. 45 is similar to Government amendment No. 31, except that the former includes the words: under the hand of a person holding office under the Crown". Those are words that we are seeking to delete from clause 4. In other words, whereas we are seeking to remove confusion, the Government—though I concede that they are going part of the way with us in our attempt to clarify the situation and to avoid civil servants being put in the position of appearing to take political decisions — are muddying the waters again by the wording of amendment No. 45. I hope that between now and a later stage of the Bill the Minister will consider my comments, especially about the way in which amendment No. 45 appears to reinstate in clause 5 that which we are seeking to remove from clause 4.

Photo of Mr David Waddington Mr David Waddington , Ribble Valley

The White Paper published on 7 February 1985 explained which Secretaries of State were responsible for the issue of warrants, namely, the Home and Foreign Secretaries and the Secretaries of State for Scotland and for Northern Ireland. Those responsible for issue are, of course, responsible for everything else to do with warrants, such as their renewal and the oversight of all associated arrangements.

It has been made clear that no Secretaries of State other than those referred to in the White Paper carry out those responsibilities, and it is not the intention of the Government, any more than of their predecessors, that any Minister holding the office of Secretary of State should have the same responsibilities as the four Secretaries of State named.

The designation of Secretaries of State, as the amendment proposes, is therefore unnecessary. Nor would it have any precise effect. The designation in terms of the amendment would be at the discretion of the Prime Minister. If it were the Government's intention—which it is not — to involve a wider circle of Secretaries of State in matters to do with warrants, the Prime Minister could freely designate whichever such Ministers were thought appropriate. In other words, designation in itself does nothing to limit the number of Secretaries of State.

I hope that Government amendments Nos. 31, 45 and 47 meet the concerns that have been expressed about emergency provisions. No. 31 retains the principle of an urgency procedure. This is essential, and, for that reason, we could not accept amendment No. 30. Occasions may arise when it is vital for effect to be given to an interception warrant at short notice. It would not be appropriate to give examples of where that has happened, but hon. Members may be assured that it does happen.

Information might be obtained on a Saturday night pointing to the need to intercept to prevent a terrorist attack the next day. It would be absurd if the police were deprived of the opportunity of preventing the crime simply because it was a Saturday night and because the time taken to open an office, prepare a warrant and take is to the Secretary of State would be too lengthy. The Government believe without the slightest qualification that in circumstances such as these it must be possible to issue a warrant at short notice. Indeed, it would be irresponsible not to provide for this situation, for which, as the 1980 White Paper indicates, there has long been provision.

The Government equally accept that there must be no derogation from the principle that it is the Secretary of State and the Secretary of State alone who takes the decision. In no circumstances whatsover should this vital decision be capable of delegation to anybody else, he it another Minister in the same Department or an official. Personal control by the Secretary of State is at the heart of the whole statutory scheme.

The principle behind the urgency procedure in the present clause 4(1)(b), and also behind that provision as it would be changed by this amendment, is to reconcile these two requirements. This is achieved by requiring that the Secretary of State himself take the decision and that in an urgent case, having taken it, he can expressly authorise an official who can quickly gain access to the office to sign the warrant. The amendment will have this effect. There will remain an urgency procedure. The Secretary of State will be required personally to take the decision. Where he has done so, an official of the rank of at least Assistant Under-Secretary in his own Department will be able to sign the warrant but will be required to endorse on it the fact that the Secretary of State has authorised its issue. In this way the whole process is not merely associated with the Secretary of State but is kept in the hands of a very senior official. The Government entirely accept that this additional limitation is appropriate.

It is important to understand this provision against the provision in clause 4(6)(b). The effect of this is that a warrant issued under the urgency procedure lasts for only two working days following the day on which it is issued. If it is not then renewed by the Secretary of State over his own hand, there being no delegation of signature to an official in the case of renewal, the warrant lapses. This is a further very tight control on the urgency procedure which the Government believe meets the proper expectation of high standards and also sensibly allows for the submission of a proper application to the Secretary of State, who might, for example, have been out of London on Government business.

There are then similar urgency provisions as far as modification of warrants is concerned. Modification — this meets the point made by the hon. Member for St. Helens, South (Mr. Bermingham) — does not mean changing the person or the set of premises against which the warrant is directed; it deals only with the insertion or deletion of a particular address. Modification is therefore different from issue in that it is concerned with giving precise practical effect to a substantive decision which has already been taken to issue a warrant.

The arrangements in clause 5 reflect this difference and the need to include new addresses in a warrant at short notice as, for instance, track is kept of the movements of a suspected terrorist and he reveals his plans as to where he might next make a call.

Amendment No. 45 now seeks to introduce into clause 5 an equivalent provision to that which Government amendment No. 31 has introduced into clause 4. Where there is need for a very urgent modification of a warrant in respect of which the Secretary of State has given no authorisation as set out in the present clause 5(4)(b)—5(4) (a) in the amendment—then application must be made to him personally. Just as with issue, that decision may need to be taken at a time when the Secretary of State is absent from London and the office is closed. If the Secretary of State agrees to the modification, the amendment requires an official in his Department of at least Assistant Under-Secretary rank to make the modification.

It is in those circumstances that I commend Government amendments Nos. 31, 45 and 47 to the Committee. I hope that the Opposition will think it right to withdraw amendments Nos. 29 and 30.

Photo of Mr Gerry Bermingham Mr Gerry Bermingham , St Helens South

I tend to agree with the Minister that the necessary procedures need to be there in order to modify and to issue warrants in emergencies, when it is not always possible to get the Secretary of State himself. I believe that the safeguards now being built into the Act are necessary.

In the light of that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 31, in page 3, line 34, leave out from 'case' to end of line 37 and insert 'where the Secretary of State has expressly authorised its issue and a statement of that fact is endorsed thereon, under the hand of an official of his department of or above the rank of Assistant Under Secretary of State'.—[Mr. Waddington.]

Photo of Mr Clive Soley Mr Clive Soley , Hammersmith

I beg to move amendment No. 35, in page 3, line 42, at end insert— '(4) It shall be the duty of the Secretary of State to review whether a warrant continues to be necessary as mentioned in section 2(2) above before the expiry of one month from the issue of that warrant.'.

Photo of Mr Harold Walker Mr Harold Walker , Doncaster Central

With this we may discuss the following amendments: No. 36, in page 3, line 42, at end insert— '(3A) The renewal of a warrant shall be for a period not greater than the period for which it was originally issued.'. No. 38, in page 4, line 8, leave out 'six' and insert `two'.

No. 39, in page 4, line 8, leave out 'six' and insert 'three'.

Photo of Mr Clive Soley Mr Clive Soley , Hammersmith

To satisfy my hon. Friend the Member for Birmingham, Erdington (Mr. Corbett), who is about to leave the Chamber, I shall break with tradition and stand up to move this amendment.

We come now to the important matter of the issue and duration of warrants. Following some constructive discussion betweem my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman), myself and the Home Secretary, I hope that the Minister will feel able to go some way towards meeting the amendment.

We seek to restrict the time that the warrant may last from the proposed six months to two months, which would bring it into line with the guidance in the 1980 White Paper. It is an important matter. As the Minister said earlier, it is important not least because, unlike search warrants, warrants to intercept are a covert activity — one does not necessarily know that one has been tapped, even after the event. Therefore, the duration of a warrant is extremely important. We are anxious to keep the duration under tight control. If the Minister agrees to replace the six months' provision with two months, that will be welcomed by all.

Amendment No. 35 seeks to restore one of the safeguards of the 1980 White Paper, which is to have an obligatory monthly review of existing warrants.

Amendment No. 36 would ensure that the Secretary of State could not renew a warrant for longer than the period for which it was originally issued. That is a self-evident safeguard that appears to have been omitted from the Bill.

Photo of Mr David Waddington Mr David Waddington , Ribble Valley

The Government have made it clear from the beginning that they were not seeking either powers or practices that were not already available and exercised by them or their predecessors. That principle has underpinned the formulation of the Bill. The intention of the provision in clause 4(6)(a) is to establish a sensible framework within which existing practices might continue. The six months' duration of a warrant is a maximum — a warrant does not have to last that long. The Secretary of State can revoke or renew it at any stage during its validity, but six months is the longest period that a warrant may last, as will be seen from the 1980 White Paper.

It has not been the Government's intention that all warrants automatically should last for that period, irrespective of existing practices or the circumstances of individual cases. However, the Government accept that, as drafted, the Bill confers the theoretical power to allow some warrants to last longer than they currently last. The Government accept that that position may give rise to misunderstanding, so they will table an amendment to incorporate the 1980 White Paper arrangement in a way appropriate for application in the Bill.

In those circumstances the Government, while bound to resist the amendments, hope that they will be withdrawn.

The 1980 White Paper arrangements were framed in terms of the authority from whom the application came. That is not appropriate to put on the face of the Bill. The Government's proposed amendment will, therefore, specify that, as in 1980, all warrants on first issue should be valid for a period not exceeding two months. Thereafter, warrants issued for the prevention or detection of serious crime will fall to be renewed every month. Warrants issued on either of the two other criteria — national security and the country's economic well-being — will fall to be renewed every six months. This arrangement is consistent with the scheme described in 1980 and reflects the fact that investigations relating to serious crime are, by their nature, related to particular events and that it is right to reassess the situation at relatively short intervals.

Warrants related to national security are likely to be of longer standing — for example, because of the acute difficulties of obtaining vital intelligence about terrorist groups. The Government cannot, therefore, accept the proposition in amendment No. 36.

If after two months the Secretary of State has established a real and continuing need for the interception in question, he should be able to place it in future, as he has in the past, on a suitable basis and to have to renew it every six months. He should not have to undertake a perfunctory renewal at more frequent intervals than the circumstances make appropriate. The requirement will, of course, remain that he must cancel a warrant if he considers that it is no longer necessary.

Photo of Mr Robert Maclennan Mr Robert Maclennan , Caithness and Sutherland

The Minister has made a helpful speech which must satisfy all those hon. Members who tabled amendments suggesting an alteration to the protracted period suggested in the Bill, which does not match the White Paper's recommendations. There was no obvious explanation for that length of time. I look forward to the Government's amendment and I shall not press mine.

Photo of Mr Clive Soley Mr Clive Soley , Hammersmith

The Government have made a significant and important concession to the Opposition. We have worked hard on our amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4, as amended, ordered to stand part of the Bill.