Standing Committee F
Tuesday 21 March 2000
[Mrs. Ray Michie in the Chair]
Clause 5
Interception with a warrant
10.30 am
Mr. Richard Allan (Sheffield, Hallam): I beg to move amendment No. 64, in page 8, leave out lines 7 and 8.
This is a probing amendment designed to elicit from the Minister the purpose of this part of the clause. Subsection (3)(c) refers to
the economic well-being of the United Kingdom.
We want the Bill to define ``economic well-being'' more clearly and to specify the circumstances in which warrants may be issued on that basis. We understand the other parts of the subsection, which closely reflect the aims of article 8 of the European convention on human rights.
It is clear that warrants may be issued if they are necessary on the grounds set out in the subsection, and it is clear that the provision mirrors the wording of article 8, which suggests that certain intrusions are necessary in a democratic society. The reference to national security in subsection (3)(a) is not entirely clear but it, too, reflects article 8 of the convention. Subsection (3)(b) refers to the prevention or detection of serious crime, which also reflects the wording of article 8,
For the prevention of disorder and crime,
although we are pleased that the phrase is qualified in the Bill by the word ``serious'', which introduces another hurdle. However, we have some concerns about the meaning of the phrase,
for the purpose of safeguarding the economic well-being of the United Kingdom,
specifically in the context of intrusions against article 8 of the convention, which establishes a right to privacy. In particular, we note that the phrase is qualified by subsection (5), which makes it clear that the provision is limited to activities outside the United Kingdom. Therefore, subsection (3)(c) relates not to domestic matters, but to people who are crossing borders and who are involved in considerable activity outside the UK.
The phrase ``economic well-being'' could cover a range of circumstances, but we question whether the circumstances that the provision is designed to trap are not covered by other parts of the criminal law that deal with such matters as customs evasion, tax evasion, insider dealing, false accounting and counterfeiting. However, the Government have seen fit specifically to define those offences that we believe would be covered by subsection (3)(b), which relates to preventing or detecting serious crime. We want to elicit from the Minister what sort of activities the provision is designed to cover. Does it relate to the secret board meetings of German motor manufacturers who may threaten the economic well-being of the UK, or might warrants be issued to place intercepts on foreign companies that might be about to cause job losses in the UK? Or are we talking about activities that should be covered by the definitions of other sorts of criminal activity that I have mentioned? I want to probe that area and hope that the Minister will clarify the activities that we would define as serious crime that are not already covered by other areas of law for which he would expect the Secretary of State to issue warrants.
Mr. David Ruffley (Bury St. Edmunds): In prefacing a series of questions to the Minister, I want to congratulate him. Reading the minutes of evidence, I was struck by the genuinely helpful way in which he has dealt with questions put to him by the Opposition, because that is not always the way with Government Ministers. Our debate has been civilised and I hope that we can continue in that spirit.
Subsection (3) lists the four grounds on which a Secretary of State may issue a warrant if necessary. The term ``necessary'' is construed in accordance with the draft convention on mutual assistance in criminal matters that operates between member states of the European Union, as necessary in a democratic society. That is all fine and dandy, but I should be grateful if the Minister would explain why the subsection appears to be tracking that international convention. Why cannot we make law without reference to such international conventions? The history would be helpful.
My reason for thinking that it would help if we knew why, as the explanatory notes state, convention language is being tracked is that there are clear differences, helpfully elucidated in the explanatory notes, between the relevant articles of the convention and the clause. The amendments are, I think, intended to help in that context. Information to be collected under subsection (3)(c) will be restricted to
information relating to the acts or intentions of persons outside the British Islands.
The provision expressly excludes domestic activities, yet article 8 of the convention goes wider than that and covers protection of domestic tax revenues, as the explanatory notes point out. Why have the Government departed in the drafting of the clause from the apparent ambit of that article?
What is the reason for the jurisdictional reference to the British islands, for which the interpretation clause gives no definition, in preference to the United Kingdom? The question troubled me somewhat as I drank my cocoa last night and read through the clauses in preparation for today's festivities.
I wonder, in the light of concerns raised by the Liberal Democrat spokesman, why there has been no attempt to define the term ``economic well-being''. I fully understand—this point was dealt with on Second Reading—that it should have the meaning ascribed to it in the Security Service Act 1989 and the Intelligence Services Act 1994. However, I think that it was also pointed out on Second Reading that the appearance of the term in two recent Acts is not a reason for the Bill not to update the language and clarify the meaning. It is not clear and Liberty and other interest groups have raised a legitimate point for debate. We know that fraud, evasion of national customs laws, insider dealing, false accounting, counterfeiting and all the other examples that the Minister gave will be covered, but why should not that be stated in the Bill?
Is the Minister at liberty to tell us how many warrants have been issued in, say, this or the previous Parliament that would be covered by subsection (3)(c)? That might give the Committee an idea of the magnitude of the problem that interception warrants might cover.
Mr. Peter Luff (Mid-Worcestershire): I do not wish to appear uncharitable, but I must say that when I saw that the Liberal Democrats had tabled the amendment, I thought ``Here we go again''. I thought that I saw a characteristic but misplaced concern about the personal freedom of the individual. I have, however, thought about the arguments that were set out on Second Reading and advanced by the hon. Member for Sheffield, Hallam (Mr. Allan) just now, and I believe that the Liberal Democrats may have a point. Those of us who are fans of the James Bond films will know that 007's enemies have become increasingly preoccupied with economic matters but less concerned about nuclear issues, so the provision is clearly important.
As the Minister knows, there is much concern outside Parliament about the total compass of the Bill. It has been described as draconian and I am receiving increasingly hysterical e-mails from my constituents, who are alarmed about its impact on their activities. It is omnibus phrases—[Interruption.]. I shall not comment on the observation that has just been made.
Mr. Ian Taylor (Esher and Walton): Are the e-mails directed to my hon. Friend or does he merely intercept them?
Mr. Luff: They appear to be directed at me. The last one that I received said ``innocent until proven guilty'' about 20 times. That was the extent of its argument, although it made a helpful contribution to the debate and focused my mind on people's acute concern about the Bill. Phrases such as
economic well-being of the United Kingdom,
which the amendment would delete, are open to different interpretations. On Second Reading, it was suggested in answer to a question asked by the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) that definitions of economic well-being were contained in the Security Service Act 1989 and the Intelligence Services Act 1994. For the benefit of further accuracy, I obtained copies of those Acts, but I cannot find definitions of economic well-being. The phrase seems to have crept into the draftsman's lexicon without adequate definition. Perhaps the Minister will draw our attention to an earlier Act that defines it, but we should know exactly what it means before we allow it to be included in the Bill. The only definition of the phrase ``well-being'' that I have found is a dictionary definition, which describes it as a
healthy, contented or prosperous condition
and as ``moral or physical welfare''.
That is a pretty broad definition of the state of the economy that the Bill seeks to protect. It is important to test it and to pick up on the remarks of my hon. Friend the Member for Bury St. Edmunds (Mr. Ruffley) about subsection (5), which relates to the scope of enforcement. My hon. Friend reminded us that subsection (5) refers to
information relating to acts or intentions of persons outside the British Islands.
Interestingly, that test is different from that implied by the words that the Liberal Democrats seek to delete, which apply to the United Kingdom. The phrase ``British Islands'' clearly includes the Republic of Ireland. [Interruption.] I appear to be wrong about that, and I apologise immediately.
Mr. A. J. Beith (Berwick-upon-Tweed): The phrase includes the Isle of Man and the Channel Islands, but not the Republic of Ireland.
Mr. Luff: I am grateful to the hon. Gentleman, who anticipated and answered a question that I was going to ask about the full compass of the British islands.
More seriously, what does the provision achieve that is not already allowed under the 1989 and 1994 Acts and how does it relate to them? What exactly do the Government have in mind? Will the Minister give examples? Would the provision have enabled the Government to find out what Nick Leeson was up to in Singapore, or do they already have such power? Nick Leeson's activities in Singapore had a material effect on the economic well-being of the United Kingdom. The point made by the hon. Member for Hallam about BMW and Alchemy is entirely prescient and we should be given answers. Does Government communications headquarters have power to monitor electronic discussion between companies that operate outside the United Kingdom but which have subsidiaries or significant investments within it? One is tempted to ask the Minister what the Government are doing about Ford's e-mails on the future of Dagenham.
Even if the Minister answers those questions, we must ask whether we are satisfied that the provisions will not have a detrimental effect on the confidence in communications security enjoyed by foreign companies that invest in the UK. The issue is especially important—I am speaking on a slightly partisan note—in the light of the Administration's determination to undermine relationships with major multinationals by blaming them for what the Government should have known or worked out already. We must not do anything to undermine investors' confidence in the UK.
Is the Minister satisfied that the clause will not raise concerns with our trading partners and will not prompt the risk of retaliation? Does the World Trade Organisation have a role in regulating such activity? To what extent is the Minister free to take the step?
Finally, I am concerned about the different tests that apply to different clauses. Clause 46 (3), which partially mirrors the provisions here and which relates to access to keys, gives a different, shorter test. The subsection states:
A requirement to disclose a key is necessary on grounds falling within this subsection if it is necessary . . . in the interests of national security . . . for the purposes of preventing or detecting crime . . . in the interests of the economic well-being of the United Kingdom.
The fourth provision in clause 5(3)(d) is not included in the later clause; clause 21 applies a completely different list of tests regarding traffic data.
10.45 am
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