Serious Organised Crime and Police Bill
6:20 pm

Lord Lloyd of Berwick (Crossbench)

My Lords, it is a great privilege to follow the marvellous speech of the noble Baroness. I am afraid that what I have to say will be regarded as a dull interlude in a fascinating debate.

When the Bill was going through the House of Commons, an amendment was tabled by Andrew Mitchell to repeal Section 17 of the Regulation of Investigatory Powers Act, commonly known as RIPA. That is the section that prohibits the use of intercept material in legal proceedings. In the short time that Andrew Mitchell was allowed—I may say to the noble Baroness, Lady Ramsay, whom I am not sure is in her place, that he is not a lawyer, but he seemed to show a mastery of the subject of interception—he made a very convincing case.

I shall be tabling a similar amendment in Committee, as I did five years ago when RIPA was being enacted. I will say a word or two about why that amendment should be agreed to. At the outset, I wish to pay the warmest possible tribute to the noble Baroness, Lady Ramsay, from whom I learnt all that I ever knew about the sophisticated techniques employed in interception. She was a marvellous teacher and I must have proved a slow-witted pupil: probably even more slow-witted when she sees the terms of my proposed amendment.

The noble Baroness made an important point this afternoon and a few days ago that interception is about more than telephone tapping, of which we have all heard. It is always important to remember that. On 26 January, as the Bill was going through the House of Commons, the Government published a Written Statement on interception, for which we had all been waiting a long time. I shall return to it in a moment.

I remind the House—I am sure the House has not forgotten—that we are the only country in the world apart from Ireland that does not use intercept material to convict serious criminals. When I was preparing my report on terrorism in 1995 I visited the United States of America, Canada, France and Germany and talked to the intelligence agencies in all those countries. They were astonished that we did not use intercept for evidential purposes: for convicting as well as catching criminals.

Of course it would not make a difference in every case, but it would make a difference in perhaps a large number of cases and in some cases it would prove crucial. In Australia it has been found that when defendants are faced with the transcript of an incriminating telephone conversation they are more likely than not to plead guilty straight away. Why cannot we use the same technique here?

I will not dwell on the many absurdities that arise in practice in the law as it now stands, but I can give just one example. Suppose there are two drug dealers engaged in a telephone conversation in England. If that conversation is intercepted in Holland—and these were the facts of a case that reached the House of Lords not very long ago—that intercept could be given in evidence in English proceedings to convict one, other or both of the defendants; but not if that conversation had been intercepted in England. That seems to me to be a crazy result that we have reached.

I come back to the Written Statement. The first thing to notice about it is that the review team could not reach an agreed conclusion, which might explain why it took so long. It was left instead to the Ministers to make the decision. It is important that it did find that evidential use of intercept material would be "likely" to convict some serious criminals who would not otherwise be convicted. Surely, that tilts the balance in favour of admitting the evidence, unless there are very strong evidence the other way.

What are those arguments? The report refers to the unique relationship that exists between the intelligence agencies and the police. It hints that that relationship might be prejudiced, and the noble Baroness, Lady Ramsay, made the same point earlier this afternoon. I know that the relationship is indeed very close, but is it unique? In Australia, intercept material is used both for evidential and intelligence purposes, and there has been no difficulty.

Then it is said that sophisticated techniques now in use might be compromised. That is an important point, which weighed heavily with the noble Baroness, Lady Ramsay, as was clear from her speech. There is now a well established procedure in the courts—I wish I could assure the noble Baroness, Lady Ramsay, of this—whereby such techniques would be protected from the public gaze. It is known as the public interest immunity certificate. It was explained by the noble Lord, Lord Thomas of Gresford, a day or so ago in the debate on the Prevention of Terrorism Act, and it is working well currently in the courts. The sophisticated techniques of which the noble Baroness spoke would not be at risk, and the more ordinary techniques of telephone tapping could be used to convict criminals.

I have one last point. As I said, I shall be tabling an amendment in Committee. I wonder whether it would be possible for me to see the report before the Committee stage. I am aware that the report is classified, but I wrote to the Home Secretary on 4 February asking whether I might, as a former chairman of the Security Commission, see the report. I wrote again on 16 February, pointing out that I still have the security safe in which my top secret documents used to be kept. I am afraid to say that I have not yet had a reply, although I do not complain about that, because the Home Secretary has clearly had other things on his mind in recent days. I wonder whether it might be possible for me together with the noble Baroness, Lady Ramsay, to be allowed to see the report. It may be that if we did, we might be able to resolve some of our differences.

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