With permission, Mr. Speaker, I should like to make a statement. As the House will be aware, there appeared in The Sunday Times yesterday allegations that conversations between my hon. Friend Mr. Khan and a constituent of his, Mr. Babar Ahmad, detained in prison on an extradition warrant, had been subject to covert recording when my hon. Friend visited Mr. Ahmad on two occasions in 2005 and 2006 at Her Majesty's prison Woodhill.
I was made aware of the burden of these allegations on Saturday afternoon. My right hon. Friend the Home Secretary and I discussed the matter and we agreed that an immediate inquiry should be established. In a statement to The Sunday Times issued on my behalf early on Saturday evening I announced this, and expressed my concerns about the allegations, if true.
It may assist the House if I now give some detail of the differing ways in which the statutory authorisation regimes for intercept, and for intrusive surveillance, operate. But just before I do so, let me underline the fact, drawn from my experience as a Minister directly involved in these matters over many years, that no authorisations are granted unless by law they are necessary for the detection or prevention of crime or the protection of national security or for related matters, and are proportionate, and unless the information concerned cannot be obtained by other means. Any authorisation for the interception of telephone calls and other public telecommunications requires a warrant personally signed by the relevant Secretary of State—usually the Home Secretary in respect of the police, Security Service and other domestic law enforcement agencies, and the Foreign Secretary in respect of the Secret Intelligence Service and GCHQ. Such a Secretary of State warrant is also required for surveillance operations—including eavesdropping—where sought by the three intelligence agencies. The telecommunications regime is overseen by the interception of communications commissioner—normally a retired member of the senior judiciary, currently Sir Paul Kennedy. This is laid down in the Regulation of Investigatory Powers Act 2000—known as RIPA. Surveillance under this regime is overseen by the intelligence services commissioner under the Intelligence Services Act 1994.
Under the 2000 Act, the regime in respect of intrusive surveillance operations by the police and other domestic law enforcement agencies is different. Under these provisions, which originated with the Police Act 1997, passed in the closing months of the previous Administration, with our support, there is a hierarchy of approvals depending on the nature of the surveillance concerned. In the case of eavesdropping operations, authorisation by a chief officer of police or officer of equivalent rank in the Metropolitan Police Service is required. This regime is supervised by the chief surveillance commissioner—currently Sir Christopher Rose, formerly a senior judge of the Court of Appeal. Ministers play no part in these authorisations.
Where any operation involves the use of premises of HM Prison Service, neither the Prison Service nor the Minister concerned is asked for any additional authorisation for the particular operation. What the Prison Service is asked for, on the basis of a brief summary, is permission to conduct the operation, and that judgment by the Prison Service is based on whether any order or control issues arise, not on the merits of the authorisation itself.
The story in The Sunday Times related to claims in respect of an alleged operation sought by and authorised by the police. It follows that this matter falls within the regime supervised by the chief surveillance commissioner. I can now announce to the House that, with the agreement of my right hon. Friend the Home Secretary, the chief surveillance commissioner, Sir Christopher Rose, has agreed to conduct an inquiry with the following terms of reference:
"To investigate the circumstances relating to the visits to Babar Ahmad at HMP Woodhill by Sadiq Khan MP in May 2005 and June 2006, to establish whether the visits were subject to any form of surveillance and if so by whose authority and with whose knowledge, and to report his findings to the Prime Minister, the Home Secretary and" to me as
"the Justice Secretary."
The inquiry will of its nature be fact-finding. Sir Christopher has told me that his aim is to conduct the inquiry as quickly as possible, but consistent with the thoroughness required. He says that he will do his best to complete his task within two weeks. A further statement will be made to the House once we have received and have been able to consider his findings.
It may assist the House if I mention two other matters. The first is the Wilson doctrine. This, as the House knows, was originally promulgated by the then Prime Minister, the late Harold Wilson, in 1966, when he said that he had given instructions that there was to be no tapping of the telephones of Members of Parliament, and that if there were a development that required a change of policy he would, at such a moment as was compatible with the security of the country, make a statement about it. The terms of that statement have been endorsed by successive Prime Ministers, including by Tony Blair in a written ministerial statement to the House on
Secondly, the question has been raised about interception of, or surveillance of, conversations with any person—whether a suspect, a convicted criminal or otherwise—by their legal adviser. Those are all subject to explicit safeguards which generally prohibit such interception or surveillance.
Mr. Speaker, I commend my statement to the House.
I thank the Justice Secretary for advance sight of the statement. Indeed, I thank him for coming to the House rapidly to make the statement. Today he has told us what should happen—not what did happen. He has confirmed that the Wilson doctrine remains in force and that there have been no changes in process or practice, given the duty under the doctrine to notify the House of any such changes. I think he also confirmed that the alleged action—if it happened—was in breach of the spirit of the doctrine. By now he should be able to answer the question: who authorised this? Was it a Minister? Was it a policeman? If a policeman, at what rank was it authorised? Is there any truth in the rumours that appear to have been briefed to Nick Robinson of the BBC at lunchtime today?
More generally, in what ways did the authorities fail to follow proper procedure? Were the breaches of the applicable protocol accidental, or a deliberate and pre-meditated short-circuiting of the system? In particular, was it known in advance that a Member of Parliament would be bugged, and if so, was an explicit decision made not to switch off the recording equipment? Was higher authorisation sought before making that decision?
Clearly, there will be lessons to learn from this case, but can the Justice Secretary tell the House what the current arrangements are for ensuring compliance with the rules for authorising such recording of communications with MPs? What failures in the monitoring and review procedure allowed recordings of a Member of the House—made, we understand, in 2005 and 2006—to go unchecked for, in some cases, two and a half years? Those are all things that the Justice Secretary should be able to tell the House today. Others will take longer.
The Government will need to establish whether this is an isolated case or whether other Members of Parliament have been bugged in the past. Everyone in the House understands and accepts the privileged nature of communications between a Member of Parliament and a constituent. Everyone, including the Prime Minister and the Justice Secretary, accepts the almost absolute nature of that privilege. I say "almost" absolute because the question arises: what would happen if a Member of Parliament became implicated in some way in actions or communications relating to a terrorist plot? The Wilson doctrine is silent on that.
The inquiry that the Justice Secretary proposes might consider that issue, and after it has concluded, the Prime Minister should consult the Leader of the Opposition and other Opposition parties and return to the House on the matter. Given the security interests involved, the discretion required and the importance of sustaining public and parliamentary confidence in the system in place, I welcome the proposed independent review, but I believe that as far as possible the full report should come to the House, not just to Ministers.
The case has exposed two very serious risks. The first is that it is possible for the Executive to ride roughshod over the relationship between a Member of Parliament and his constituents—a relationship that is the very basis of parliamentary democracy. Secondly, the necessary authorisations for secret anti-terrorist activity may be being ignored. Wilson himself recognised that there is a "delicate balance"—his words—between the needs of security and democracy. It is the duty of Government to find and maintain that balance—and it is the job of the Justice Secretary in the next two weeks to re-establish that balance.
I thank the right hon. Gentleman for the manner in which he has responded to my statement, particularly his welcome for the independent inquiry by an extremely distinguished and experienced former senior member of the Court of Appeal.
The right hon. Gentleman asks me a series of questions. I made it clear in my statement that the allegations relate to claims in respect of an alleged operation sought and authorised by the police, and I set out the nature of authorisations in respect of such intrusive operations, which come under that part of the 2000 Act. I also said that we do not know whether the allegations are true, but we do, however, know the nature of the allegations and what is alleged. In so far as there was an authorisation of anything in this area, no Minister plays any part in such authorisations. I repeat that for the avoidance of doubt.
As for the right hon. Gentleman's other specific questions, I hope that he will accept that although they are entirely legitimate questions, for certain, they are now properly questions for Sir Christopher Rose. He will conduct his inquiry thoroughly but swiftly. He has allowed me to say that he hopes to complete it within two weeks. That is a very acceptable time scale for the House. Of course we understand the public and parliamentary interest in this matter.
The right hon. Gentleman also refers to the Wilson doctrine. I spelt out the nature of that doctrine—and as for any implications for the Wilson doctrine, I think it best if we wait until we have the result of the inquiry by Sir Christopher Rose.
I join the shadow Home Secretary in thanking the Lord Chancellor for coming to the House to make the statement, and for launching the inquiry, which was his decision, with the Home Secretary, and was not done at the request of my hon. Friend Mr. Khan. Will the Lord Chancellor say to Sir Christopher that if he wishes to make any recommendation concerning the Wilson doctrine it can be considered in the future, but that it is absolutely vital that he stick to the timetable of two weeks?
I thank my right hon. Friend for what he has said. On the time scale, I have already said that Sir Christopher will carry out the inquiry as quickly as possible, consistent with the thoroughness required. He hopes to be able to complete it within two weeks—I believe that he almost certainly will—but I hope that the House will accept that if there is a balance between speed and thoroughness, thoroughness must be the priority.
I am grateful to the Lord Chancellor for his statement. I welcome the inquiry that he has launched, and I hope that, unless the systems are entirely dysfunctional, the audit trail will be clear and unambiguous. Is it not the case that these events have added piquancy because they took place in one of Her Majesty's prisons, and because Mr. Babar Ahmad was held on an extradition request from the United States, under the US-UK extradition treaty, for alleged actions that may or may not have happened on British territory?
The Lord Chancellor has implied that the Wilson doctrine is to be upheld by the Government, and there are good reasons for doing that, but does he agree that there may be a need for a restatement of the doctrine, given the ambiguities in the current arrangements, in differing levels of warrantry for various intercepts, and the fact that the doctrine can be set aside, and that fact will not be announced if the Prime Minister feels that it is in the national interest not to announce it? Is there now a case—I think that this was proposed as long ago as 2003 by my right hon. Friend Mr. Beith, the Chairman of the Justice Committee—for authorisation for all intercepts on Members of this House to be taken at a high level by an independent judicial authority, such as the Lord Chief Justice?
What specific actions have been taken since March 2006, when Sir Ian Blair admitted recording conversations with the then Attorney-General, Lord Goldsmith? Does the fact that protocols are apparently not understood by senior police officers not undermine the safeguards offered and enacted on the ever-expanding surveillance activity in this country, and underline the need for vigilance, which the House should exercise, in response to any further extension of intrusive surveillance powers?
On the issue of an audit trail, Sir Christopher Rose will obviously wish to examine that matter, and I do not want to anticipate his findings. The hon. Gentleman referred to the Wilson doctrine. I understand the point that he was making, but I repeat for the benefit of the House that if there are any implications for the Wilson doctrine, it is best that we wait until we have the result of the Rose inquiry.
The hon. Gentleman also referred to a recording—I think that this is a matter of fact—made by the Commissioner of Police of the Metropolis of one phone call with my right hon. and noble Friend Lord Goldsmith, who was Attorney-General at the time. That was an entirely separate matter, which as far as I know did not come under any of the regimes that we are discussing, because it was a recording made by one party to a telephone call of the other party's conversation. The commissioner has already explained what happened in that case.
Woodhill prison is in my constituency, and many people who work there are my constituents. They do a job of great complexity, as the prison has a wide range of prisoners, including some who are high security risks. Will the Lord Chancellor assure me that the inquiry will be handled in such a way as to minimise any destabilisation of the work done by prison officers and staff during that period?
Yes is the answer to that question, and in answering it I pay tribute to the prison officers and other staff of all grades at Her Majesty's Prison, Woodhill, as well as those throughout the Prison Service, who are dedicated and professional and do an extremely difficult job very well indeed.
The Justice Secretary said that the allegations first came to light on Saturday. This is Monday. Surely it is possible between Saturday and Monday to ascertain whether someone has been bugged, and what authorisation was given for the bugging. That is the general "bugging" question. Surely it is also possible to determine whether the bugging, if it did occur, took place in the presence of a Member of Parliament. I am concerned that we are drowning in inquiries on almost every subject under the sun, and I am concerned about the time that they take. Yet we are to have more inquiries, when here, technically, the question of what happened that Saturday is something that the right hon. Gentleman can answer.
I can answer about my own state of knowledge on Saturday afternoon, which I have already explained. I do not think that it is quite fair to suggest that my right hon. Friend the Home Secretary and I have not acted with speed. As soon as we understood the nature of the allegations, which was late Saturday afternoon, my right hon. Friend and I discussed the matter and agreed that an independent inquiry should be established. That was announced in a statement that evening to The Sunday Times. I suggest that we could not have acted with greater speed, and that the appropriate way to behave if one is setting up an inquiry is to ensure that it has proper terms of reference and that there is an individual who has accepted the invitation to run it, and then to make a statement to the House. It would have been impossible to make this statement any earlier than I have.
Does my right hon. Friend agree that there are circumstances in which the authorities can legitimately bug a detainee, and that such surveillance need not be suspended when the detainee meets a Member of Parliament? However, I put it to him that the Wilson doctrine, which has served this country well and which protects Members of Parliament from eavesdropping by the state, should not be eroded.
On my right hon. Friend's second point, there was wide approbation across the House when the then Prime Minister, Tony Blair, explained in a written ministerial statement in March 2006 that, notwithstanding proposals emanating from the interception of communications commissioner, he had come to the view, widely shared by all Members, that the Wilson doctrine should continue. As for the regime, the Regulation of Investigatory Powers Act 2000 lays down detailed regulations governing the use of those powers and the level at which they can be authorised, as well as proper oversight by commissioners who are always former senior members of the judiciary.
It would seem as if something has happened that should not have happened, so there is a risk that other things that should not have happened might have happened. Can the terms of the inquiry be enlarged so that Sir Christopher Rose has an opportunity to identify whether, at Woodhill or anywhere else, conversations between prisoners on remand and their legal advisers have been recorded? If they have, not only is the integrity of the criminal justice system at risk, but individual convictions will be prejudiced and will probably have to be set aside. Sir Christopher would do well to examine, too, the question of whether private conversations with legal advisers have been recorded, whether at Woodhill or at other prisons.
The inquiry is specifically into the allegations that have been made in respect of our hon. Friend the Member for Tooting. I repeat to the right hon. and learned Gentleman and to the House that on the subject of legal professional privilege—in other words, conversations between any individual, whatever their circumstances, and their legal adviser—specific rules are laid down in codes of practice and in non-statutory form, which, as I said, generally prohibit not only the interception or surveillance of such conversations but any accidental recording that takes place thereafter. To my certain knowledge, as a former Home Secretary and Foreign Secretary, those rules are rigorously enforced, and there is a careful audit of all interceptions and the use of those powers by the relevant commissioners.
Is it not the case that Swinton Thomas wanted the Wilson doctrine to be abandoned, because he knew that it had been broken and flouted over many years? Is not the problem that the Wilson doctrine has no statutory basis whatever, so it should be put on such a basis? The Home Secretary in a statement admitted to, or referred to, Parliament's failure to have oversight of the security and intelligence services. When will the Government provide for Parliament to have oversight of those services, as is the case in all other leading parliamentary democracies? At present, the scrutineers are hand-picked by the Prime Minister. Unacceptable.
I know that that is my hon. Friend's consistent view. We have introduced for consultation the question whether the basis of the Intelligence and Security Committee should be changed, but I remind him that in any event, the basis of the ISC's authority is not a quixotic decision by the Prime Minister or by any of his predecessors, but a thorough decision made by the House and the other place in statute in the Intelligence Services Act 1994.
Hon. Members in all parts of the house sometimes deal with constituency cases that are highly sensitive. The Secretary of State will be aware, because he has met me on a number of occasions, that I represent two men who have been in Guantanamo Bay. Is he confident that the case that we are discussing is an isolated incident? Can he give any assurance to my constituents that their conversations with me remain confidential, and that they have not at any stage been overheard by the security services?
It is always a logical impossibility to prove a negative, but this is the first time that I can recall such an allegation being made. I repeat that the regime in respect of all those authorisations is an extremely careful and thorough one, laid down in law by the House and the other place in the very thorough 2000 Act. If any individual has any suspicion that there has been an unauthorised interception of their communications or surveillance of their activities, there are clear routes for making a complaint, including a complaint to the tribunal itself.
If my right hon. Friend was unaware of the issue and the Prime Minister had no knowledge of it, may I ask my right hon. Friend to assure the House that he will extend the inquiry's terms of reference to include how a prominent member of the Opposition Front-Bench team could claim that he had written a letter to the Prime Minister in December giving forewarning of the issue? Will that be part of the inquiry?
I shall certainly draw my hon. Friend's remarks to the attention of Sir Christopher Rose. I simply repeat what has already been said: David Davis has said and put on the record that he sent a particular letter, although the text of that letter makes no reference to the names of any individuals. The right hon. Gentleman has confirmed that.
It is also a matter of record that Downing street has checked all its files and records on the receipt of letters, and although there have been a number of communications from the right hon. Gentleman, this was certainly not one. I say on my behalf and that of my right hon. Friend the Home Secretary that we also knew nothing whatever of the letter until we were informed about it through the media by the right hon. Gentleman.
What the hon. Gentleman says is correct, and it is spelt out by Sir Swinton Thomas's report for 2005-06, in which he raises the question of whether the Wilson doctrine should be abandoned. Decisions about interception warrants in respect of police operations in Scotland are a matter not for any UK Secretary of State, but for the Scottish Executive.
The Lord Chancellor's statement appears to suggest that there is one regime for telephone tapping, another regime for bugging by policemen and another for bugging by members of the security services. When the inquiry is concluded, will he consider one protocol that covers all those circumstances in relation to Members of Parliament so that at the very least to bug or tap the telephone of an MP will require ministerial approval? In that way, our constituents—many of whom come to us as frightened, vulnerable or fearful individuals—could have some security that they were speaking to us in complete confidence.
As I pointed out in my statement, there are indeed three separate regimes; that is the position as the House and the other place accepted it for reasons that I could go into but will not detain the House on. As far as the implications for the Wilson doctrine are concerned, I think it best if we wait until the results of Sir Christopher Rose's inquiry.
I congratulate the Secretary of State on introducing this inquiry. Will he also do us—especially those of us in the focus group on this Bench—a favour? Will he extend the inquiry to beyond a fortnight? It will certainly need it if it looks into the allegations of MPs and trade union leaders being bugged in the strike of 1984 and 1985. That was when the Thatcher regime was in power. Despite all the protestations from many of us present in the House today, that regime would not have an inquiry—and we did not send one letter; we sent many scores of them.
This is a matter of history, because it is the first time that my hon. Friend has ever admitted to being a member of a focus group, although I have heard him on many occasions express opinions about them and say that he would never touch one with a bargepole.
I note what my hon. Friend has to say. I think that it is correct that the Interception of Communications Act 1984, the original statutory provision that laid down a proper statutory procedure for telephone intercept—not for other matters at that stage—probably did not come into force until quite late in that year. It was only introduced following an adverse decision in a case—the Malone case—in the European Court of Human Rights. Before that—it was a matter of considerable concern to many people, including me—the regime for telephone tapping was a non-statutory one operated in what we would now regard as unusual circumstances.
Notwithstanding the brevity of the Lord Chancellor's answer to my hon. Friend Richard Ottaway, will he expand a little on what the Wilson doctrine actually requires? It clearly requires that an MP should not be targeted for bugging or for telephone tapping. However, is it the case that if the security services are legitimately bugging or tapping the telephone of someone who is a legitimate target for them, the moment that person is found to be talking to a Member of Parliament, the bugging or telephone tapping has to cease, or is it allowed to continue because the MP himself or herself was not being targeted?
I am sorry to have to repeat what I said in my statement, but the terms of the Wilson doctrine are as laid down by the then Prime Minister, the late Harold Wilson, who said that he had given instructions that there was to be no tapping of the telephones of Members of Parliament and that if there were a development that required a change of policy, he would, at such a moment as was compatible with the security of the country, make a statement about it. That doctrine has been endorsed and repeated by successive Prime Ministers.
Under the 2000 Act, as under its predecessors, it is not possible to give answers as to whether a warrant is currently in force. However—let me repeat what I have said before people's imaginations run away with them—the only circumstance in which a warrant for interception can be authorised personally by a Secretary of State is for reasons of national security or for the prevention or detection of crime or related matters, and only, too, where that is shown to be both necessary and proportionate and information cannot be gained by any other means. I also say to my hon. Friend that in my experience over nine years of having to sign warrants as Foreign Secretary and as Home Secretary, enormous care was taken by the requesting agencies and by the Departments concerned, and not only by me as Secretary of State but by my colleagues, to ensure that all aspects of the spirit as well as the letter of the law were observed before a warrant was signed.
I know that the Secretary of State does not want to talk about the consequences of this case for the Wilson doctrine, but could he at least put on record his support for the reasons behind the doctrine, which include the apprehension that surveillance on Members of Parliament could be used for political purposes, either for the purposes of the Ministers concerned or—this was Harold Wilson's own fear—for the political purposes of the security services and the police?
I am happy to do that, and I made my position very clear in my statement on Saturday. I could not have been clearer. I also say to the hon. Gentleman, touching on the point raised by my hon. Friend Mr. Skinner, that the situation that arose in the mid-1960s and continued for quite a period afterwards is very different from today's situation, and that of at least the past two decades.
I should also point out an error, for which I apologise. The Interception of Communications Act was passed in 1985, which makes my point more strongly. As we now know, in those days, there was quite widespread surveillance of individuals, to do with national security and the cold war, and related matters involving the trade unions. It would be impossible to say these days that such individuals would come within the narrow terms of the Regulation of Investigatory Powers Act 2000. Things have changed.
I thank my right hon. Friend for his prompt action and his statement. In reply to an earlier question, he confirmed that in certain circumstances, and subject to a code of conduct, communications between a prisoner and his or her lawyer could be eavesdropped on. Would he expand in a little more detail on why the rules should be different for Members of Parliament?
I said that they could not be eavesdropped on, with great respect. There are different rules for different categories of sensitive information. Some are to be found in the codes of conduct, which are laid down under subordinate powers of the 2000 Act, and others are to be found in statements to this House, including the Wilson doctrine.
I am afraid that I cannot anticipate the first question that Sir Christopher Rose asks, and neither can anyone but he. As far as the matter of which Secretary of State should be making the statement is concerned, I am making it because the allegations relate to surveillance in one of Her Majesty's prisons, for which I am responsible.
In view of public sensitivities and their disconnection from this Parliament, is it not time for the Home Secretary to ensure that an independent Law Officer, not a politician, makes the decision on intercepting the communications of MPs? Would it not be a good idea always to put national security and the fighting of major crime before our own sensitivities?
The hon. Gentleman's latter point was made by Sir Swinton Thomas. He made a case for removing the Wilson doctrine, but it was not accepted. As far as the different regimes are concerned, they have all been considered quite recently. On the latest occasion, between 1999 and 2000, they were considered in the Regulation of Investigatory Powers Act. The House accepted, without a great deal of argument, that there should be different regimes in respect of intercept, surveillance by intelligence and security agencies and surveillance by the police. Of course, in the future, it is open to any Government and to this House to review the way in which those regimes operate.
Will the Secretary of State give an undertaking to the House that part of the review will consider independent, third-party intelligence agencies from outside this country, and the relationship, if any, that they had with the original request for the intercepts?
I cannot give that explicit undertaking because the hon. Gentleman appears to suggest that he has knowledge which I do not have. I repeat that Sir Christopher's inquiry, within the terms of reference, will be as thorough as all of us who know him would expect and believe.
I apologise to the hon. Gentleman; I cannot answer that question because it would literally be a criminal offence to do so under the 2000 Act, which was passed by the Commons and the other place without argument. I cannot give any details of whether an individual is subject to interception.