Telephone tapping [1980]
01 January 1991
Telephone tapping [1980]
bacdoc October=1991
State Research, no 18, June/July 1980 [abridged]
In April the Home Secretary gave the official figures for the
number of warrants issued for telephone-tapping and mail-opening
for the first time in 23 years (The Interception of
Communications in Great Britain, Cmnd 7873, April 1980). The only
other report on the subject was the Birkett Committee of Privy
Councillors Report in October 1957 (Cmnd 283, October 1957). The
latest report from the Home Secretary, a mere eight pages, leaves
open more questions than it answers as to the actual extent of
telephone-tapping by the Customs, the police, Special Branch,
MI5, MI6, Defence Intelligence and the Government Communications
Headquarters (GCHQ) in Cheltenham.
The reasons occasioning Mr Whitelaw's report were the
outstanding promise by the previous Home Secretary, Mr Merlyn
Rees, to review the matter `in due course' (Hansard, 8.3.79)
after a judgement by Sir Robert Megarry in the Malone v
Commissioner of Police for the Metropolis on February 28 last
year. While Judge Megarry did not uphold Malone's attempt to have
the practice declared illegal, he did say that the subject `cries
out for legislation' (see Bulletin No 11).
Malone declared his intention to appeal to the European Court
which ruled in the case of Klauss and others v. Federal Republic
of Germany that certain minimum safeguards were necessary to
protect the rights of the individual under Article 8 of the
European Convention on Human Rights, to which Britain is a
signatory. The Court found that the West German system just
satisfied the minimum conditions. However, in West Germany
interception is covered by legislation, which allows for
supervision by a parliamentary committee, for the right of
complaint against suspected interception, and of notification to
the victim once surveillance has ceased.
In the Malone case Judge Megarry made it `abundantly clear'
that current British practice fails to meet the standards laid
down by the Convention and the European Court's ruling.
The need for a statement was further accentuated when, on
February 1, the New Statesman published a well-documented article
by Duncan Campbell which said that a tapping centre existed at
93 Ebury Bridge Road, London SW1, with the capacity to tap 1,000
lines simultaneously. An employee who worked at the tapping
centre said that the system had been planned in the late Sixties,
well before the onset of terrorist activities in the 1970s. The
New Statesman article further stated that the bulk of the
interception carried out by Ebury Bridge Road was not for the
police (some 10 per cent) but largely for the security forces -
the Special Branch, MI5 and others.
On April 1, Mr Whitelaw told the Commons that the government
had decided `not to introduce legislation' but thought it
desirable to introduce a `continuous independent check' by
inviting a `senior member of the judiciary' to review the
procedures and safeguards set out in the White Paper. The first
report, of the unnamed judge, would be published, but subsequent
reviews would not.
In the White Paper the Home Secretary argues that the warrant
protects `the Post Office staff from activities which might
otherwise be illegal' under the 1953 and 1969 Post Office Acts.
However, neither of these Acts (nor their predecessors of 1711,
1837 and 1908) confer the legal power to intercept
communications, they merely recognise the practice of
interception by the state.
The first question taken up by the Birkett Committee was to
establish the legal or statutory basis for the practice of
telephone-tapping - a task which was to prove insoluble. (Part
1, Birkett Report). The Home Office, giving evidence to the
Committee, expressed the view that the power stemmed from the
prerogative right (of the Crown) to examine all material carried
(by letter or phone) by the Crown and that this extended<