Interception of Communications (Admissibility of Evidence) Bill [HL]

– in the House of Lords at 11:05 am on 18 November 2005.

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Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 11:05, 18 November 2005

My Lords, I beg to move that this Bill be now read a second time. The purpose of this short Bill is to enable intercept evidence to be given in court subject to adequate safeguards. Those safeguards are set out in the Bill in Clause 1 subsections (3) and (4) and Clause 2.

Intercept evidence, as I am sure all your Lordships are aware, is of great importance in identifying criminals—both terrorists and those engaged in other forms of serious crime, in particular those engaged in the importation of drugs. We could not do without it. But although the use of intercept evidence to identify criminals is well established, we do not permit that same evidence, however compelling it may be, to be used to bring those criminals to trial. That is the effect of Section 17 of the Regulation of Investigatory Powers Act. I emphasise that the Bill is not limited to terrorism but also covers all forms of serious crime. In the case of terrorism, if there is no other evidence against the suspected terrorist, or the other evidence is weak, it will mean either that he has to be detained indefinitely as was done in the case of the Belmarsh detainees—happily that will no longer be possible—or alternatively he has to be released without charge. I have never regarded that as making sense, and I know that view is shared by many others. Recently, there has been a groundswell of opinion that we should look again at Section 17 of RIPA, to see if anything can be done. That is what I am asking your Lordships to do in this Bill.

As recently as 20 July 2005, after the terrible events of 7 July, the Prime Minister said in answer to a question from Mr Howard:

"I am very happy to go back and consult the security services and the police about that. My own view has always been that if we possibly can use intercept evidence, we should, because of the obvious value that it can provide in certain cases. The difficulty is that, up to now, we have been advised by the security services that the disadvantages outweigh the benefits. However, in the light of what has happened, it is obviously sensible to go back and consult them again. It is not an issue on which there is an objection of principle to using such evidence. On the contrary, as a matter of principle, I would prefer to use it rather than not use it, but we have to take account of our advice".—[Hansard, Commons, 20/7/05; col. 1246.]

I find that answer encouraging; the Prime Minister has not closed the door. The question is whether there is some way in which we can open that door a little wider—or perhaps it would be more accurate to say that we should take a look behind that door—to see if there is some way in which the security services might be willing to allow their evidence to be tested. There is a way in which we can go ahead and do that, which is why if the Bill gets a Second Reading I hope that it will be referred to a Select Committee of this House for investigation and for report. A Select Committee of Members of this House covering the three related fields of intelligence, law enforcement and the criminal justice system would be the ideal forum to investigate the evidence both for and against Section 17 of RIPA, and I hope that it would come to some agreed view. The House is rich in experts in all those three fields. Some of the evidence would no doubt have to be given in closed session, but I understand that there would be no difficulty about that.

Whether we should have a Select Committee is, of course, a matter in the first instance for the Liaison Committee. At the end of last term I made an application before the Liaison Committee. It saw the importance of the subject, but said that it would defer the decision until the autumn to see if there was anything in the proposed Government legislation on this topic. Unfortunately, there is not. So if the Bill is given a Second Reading, I propose to go back to the Liaison Committee in the hope of persuading it that a Select Committee is the best way ahead.

What are the reasons for admitting the evidence? The main reason is the obvious one—that it will enable the conviction of some serious criminals who would otherwise escape justice. That is now common ground because of the conclusion of the most recent report of a Home Office review on this subject—the fifth in the past 10 years. The Statement made by the Home Secretary on 26 January included the comment that the evidential use of intercept would be likely to help to convict some serious criminals. Of course, no one suggests that intercept evidence will be of value in every case or even in a majority of cases. But clearly it will be of some use in some cases. It is true that Mr Clarke went on to say that it would be unlikely to be of use in terrorism cases. I was puzzled by that, and I asked to see a copy of the confidential report in which the reasoning was set out. There is no intrinsic difference between a conspiracy to commit a terrorist act and a conspiracy to import drugs. I could not find in the report any justification for the view that it would not be of use in the future in terrorist cases. But clearly that matter could be investigated by a Select Committee, if such a committee were set up.

There is another consideration which points in the same direction. We are the only country in the world, except Ireland, which does not admit intercept evidence. Why, one asks, would all the other countries take the risk of admitting such evidence—if there is a risk involved—unless there is a corresponding benefit? It is said that our system in the United Kingdom is in some way unique—that there is a uniquely close relationship between the intelligence and law enforcement agencies. But our criminal justice system is exactly the same as that in the United States and Australia, where over the past 20 years or more they have found no difficulty in admitting such evidence. They get great value from it. In support of that, perhaps I may quote the views expressed earlier this year by the Federal Director of Public Prosecutions in Australia:

"We rarely now have a drug importation prosecution that does not have telephone intercept evidence in it. I can think of any number of prosecutions where we would have real difficulty in prosecuting without it—we just would not get the evidence".

That view is borne out by Sir David Calvert-Smith, who was the Director of Public Prosecutions in England and Wales. He described the ban on intercept evidence as,

"a damaging restriction . . . weakening Britain's fight against organised crime, drug trafficking and terrorism".

He said that the admission of phone taps would assist enormously.

Sir Ian Blair is of the same view. He said:

"I have long been in favour of intercept evidence being used in court. In policing terms, it would make my job much easier. The simple reason why it would be better is that if we've got this, we can put it in front of a court and the court can weigh it up".

Finally, and perhaps most importantly, I refer to the views of the Newton committee. It sums up the arguments both for and against the admission of evidence in court and then says in very measured terms:

"We understand the concerns of the intelligence and security services, which include not only the protection of sources and methods but also the need to ensure that interception for intelligence purposes is not impeded by the imposition of complex procedures to meet evidential requirements. We recognise that a balance has to be struck between the public interest in prosecuting particular cases and the public interest in maintaining the effectiveness of intelligence gathering techniques and capabilities. We consider, however, that the balance has not been struck in the right place if intercepted communications can never be used evidentially".

I suggest that those extracts—I could quote many more—make a very strong case in favour of admitting intercept evidence unless there is some insuperable objection.

I know that the intelligence services have great concerns about this matter—I do not underestimate them for one moment. The thought of intercept evidence being used in court makes shivers run down their spines. We shall, I know, hear from the noble Baroness, Lady Ramsay, who is to speak next. I have to be very careful in her presence because all I ever learnt about investigation and interception techniques at the more sophisticated end at GCHQ, I learnt at her knee. We shall also hear from the noble Baroness, Lady Park, who also has huge experience in this field.

It seems to me that there are two ways in which those concerns might be met. First, there are safeguards in the Bill. Only the prosecution can apply to introduce evidence; the defence cannot do so. There will be no access to intercept material at all unless the prosecution has applied and the judge has agreed. If some of the evidence has to be excluded on grounds of public interest, it will always be open to the Secretary of State to issue a public interest immunity certificate. Those are methods which could be investigated in a Select Committee, and they are matters which I am sure the noble Lord, Lord Thomas, will want to cover at the end of the debate. He may well suggest improvements to the Bill.

The other way in which the concerns of the intelligence services could be met would be to change the way in which warrants are issued. At the moment we have a single-tiered system, under which the Secretary of State issues all warrants. But that system could be changed into a two-tier system or even, as is now suggested, a three-tier system. The Home Secretary would continue to issue warrants covering intelligence matters, as he does now, but a judicial authority would issue the evidential warrants.

At the end of 1999, I attended a Home Office seminar on that subject. It seemed to me that there was a great deal to be said for the two-tier system. It would be much cheaper and would give absolute protection to GCHQ, a matter which concerns the noble Baronesses the most. During the seminar, the only objection I heard was a possible problem in relation to Article 6 of the Human Rights Act in that it might contravene the principle of equality of arms. I read the legal advice, I listened to the arguments and I found them unconvincing.

Whether intercept evidence should be admissible has been under discussion now for at least 10 years. There is no doubt that it is a subject of importance if, as is now agreed between all the agencies, some serious criminals could be convicted who would otherwise escape justice. The Prime Minister said that he is acting on the advice of the security services and the police. I understand that. But I am not happy that the decision should be taken on the advice of the police and the security services without Parliament having a chance to investigate and to test that advice. I believe that a Select Committee of this House could play an enormously important part in that respect. The security services might even be persuaded that their fears are groundless, but whether they are or not, I do not believe that it is a matter that should be decided on their mere say so. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Lloyd of Berwick.)

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour 11:22, 18 November 2005

My Lords, I have more than a passing sense of déjà vu about arguing yet again against the use of interception material as evidence in court with the noble and learned Lord, Lord Lloyd of Berwick, in this House, this time in the form of a Bill. He was kind enough to say that I taught him all he knew about interception. All I can say is that I could not have taught him very well because I think he is so wrong about this.

As of now arguments against such use remain, in my opinion, overwhelming and I speak from a background of considerable professional experience in this somewhat arcane field. I am very concerned at the growing clamour for the use of this material as court evidence in the UK, which in a large part results from a very imperfect picture of what intercept entails, what its use in court would reveal and the loss of intelligence capability that would ensue.

The whole area of intercept is much wider and much more complex in scope and type of operations than most people can possibly imagine; and fortunately that includes those who are the targets of intercept operations because, again and again, transcripts show people assuming, wrongly, that they are secure in whatever means they are using to communicate. The slightest revelation of interception risks blowing for ever the techniques involved and in some cases putting at risk human agents. It not only means the end of that particular operation but, by extension, others which will be surmised to be in place on similar types of targets.

The extreme vulnerability of intercept to instant loss if revealed or even hinted at is especially true if the material is encoded or encrypted, where often very sensitive technical means and/or human agents are involved, and the loss of access is usually permanent. It is often said, as the noble and learned Lord did in his introduction, that "other countries use intercept evidence in court, why do not we?". There are actually many reasons for that and I shall touch on just a few.

First, our very sophisticated and extensive expertise in this field is something of which we can all be very proud, but its very sophistication and scope renders it extremely vulnerable. A straightforward police telephone tap on home national territory would likely have little to lose in terms of giving away techniques or endangering sensitive sources and it is that kind of material alone which some other countries permit to be used in court. In some countries that is the only kind of intercept they actually produce and in those others, where more sophisticated techniques are employed by agencies other than the straightforward law enforcement agencies, it is only the more routine product of the law enforcement agencies' warrants that are produced in court.

Like the noble and learned Lord, I have also discussed in Australia and Washington what they do and do not use in court. In our country, and this leads to my second point, there is an almost unique—I say "almost", but I believe it is unique—closely interwoven relationship between our intelligence and security services and our law enforcement agencies. It is, therefore, much more difficult to disentangle the various contributions of intercept material than it is where there are clear divisions. To use material from the services—which, as I said, is not done even in countries where they use law enforcement agency transcripts—would endanger very sophisticated techniques as well as agents and entail much greater loss than most people realise.

Thirdly, our legal system with its adversarial roles for counsel, where defence counsel can roam far and wide at the discretion of the judge, means that defence counsel can range very widely on evidence or with someone in a witness box and that, in the case of intercept material, would pose an absolutely unacceptable risk of exposure. It also means enormous burdens of transcribing and preserving all related interception material if it is to be available for court evidence. That would certainly mean a considerable diminution of product from the services concerned, because of the sheer volume of what would have to be processed and kept. I do not wish to go into more detail than that on that point.

Countries whose legal systems contain investigative judges or magistrates can manage to handle sensitive material without the risks involved in using it in a British court. Before some noble Lord who is a barrister asks me, as I have been asked before more than once in this House, let me say that I am fully aware of public interest immunity procedures and indeed have had considerable experience of dealing with them in my past life and none of them, in my opinion, provides a satisfactory answer to the points I have raised about the use of intercept material in British courts as envisaged in this Bill.

A further point of difference in our legal system compared to the countries most quoted as using intercept material in court is that we have no statutory obligation on telecommunication companies to co-operate with the intelligence and security services or law enforcement agencies to facilitate interception. That obviously adds another factor of sensitivity about revealing operations.

After a previous debate in this House, I received a lengthy letter—some seven A4 pages—from an American law professor who courteously informed me that he had copied his letter to the noble Lords, Lord Thomas of Gresford and Lord Judd. The noble Lord, Lord Thomas, has previously quoted some of the professor's points in debates in this House. I have to say that nothing in that letter affects my position of complete opposition to this Bill.

I should like to make one other general point. It has been said that there can be nothing in principle against using intercept material as evidence.

I agree with that statement. This is not a matter of principle; it is a question of practicality and the effect of such a move on the efficiency and productivity of the services and agencies engaged in interception. In my opinion, if a list were to be made of any gains from such a move, as against a list of the losses—in productivity, efficiency and security of sources—then the difference in the lengths of those two lists would lead any sensible person to see that the losses far outweighed the gains.

On the suggestion for a Select Committee, I have to say that I do not see what a Select Committee would do that the Interception of Communications Commissioner, who is entrusted with precisely this task of looking at how the interception is working and overseeing the agencies which are practising it, is not doing on behalf of the Government, and reporting to Parliament about it.

I should like to conclude by quoting the present Interception of Communication Commissioner's recently published report for 2004, which I am sorry that the noble and learned Lord, Lord Lloyd of Berwick, did not quote from. In dealing precisely with Section 17 of the Regulation of Investigatory Powers Act 2000, which is the object for amendment in this Bill, the right honourable Sir Swinton Thomas says in paragraph 24:

"The question of the admission of intercept material in criminal proceedings has been discussed at some length in the course of 2004 between myself and Ministers, the Security and Intelligence Co-ordinator, the security, intelligence and law enforcement agencies and the communication service providers. The aim of all concerned is, of course, to use this material to the best advantage to prevent terrorism and crime, and to apprehend terrorists and criminals. The subject is a complex one, much more complex than at first sight might appear. It is not suitable for lengthy discussion in this Report. I have the considerable advantage in my position of having an overall picture of all those engaged in this work. I am left in no doubt that the balance falls firmly against any change in the present law and that any amendment of Section 17 of the Act would, overall, be damaging to the work of the security, intelligence and law enforcement agencies. I continue, of course, to have an open mind on this subject if any major change should occur in the future".

I find myself in complete agreement with that paragraph from the Interception of Communication Commissioner's report. I totally oppose this Bill.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 11:32, 18 November 2005

My Lords, let me start with the principle that it is plainly wrong if terrorists, drug dealers or people traffickers cannot be convicted because highly persuasive evidence of their guilt cannot be given in court. This means that dangerous people have to be released, or, at best, if they are terrorists, made subject to control orders. Therefore, I believe that there is a burden—and it is not a light burden—on the security services to justify the exclusion of intercept evidence.

We are not satisfied that the burden has been discharged. There are of course differences of opinion among those who know what goes on. And, why not, at least, as the noble and learned Lord, Lord Lloyd of Berwick, has suggested, set up a committee, whose members will have high-security clearance, which can take evidence in closed hearings, so far as is necessary, and make its report?

The noble Baroness, Lady Ramsay, made a strong case—and one which I personally find convincing—for saying that there are some circumstances in which the use of intercept evidence would damage national security. But, she accepted, there are also some circumstances, such as the ordinary police phone tap, where the use of intercepts would be of no danger to security.

I do not propose that intercept evidence should simply be a matter which is generally admissible, subject only to the public interest immunity procedure, as it now exists. I would certainly agree to reasonable steps being taken to prevent damage to national security. We do not want to have anything in the nature of a SIAC procedure here, but I can see no objection to the procedure proposed by the noble and learned Lord, Lord Lloyd, that intercepts should not be disclosed unless the prosecution, who will no doubt have consulted on this with the security services, wishes to use those intercepts.

Alternatively, it might be possible for the security services, if they want to withhold intercepts which would strengthen the prosecution case, to apply to a security-cleared judge for permission to withhold those intercepts. On such an application it would not be necessary for the defence to be represented, because permission to withhold that interest would benefit the defendant in the particular case, and the reasons for withholding the evidence would be possible prejudice to future investigations.

Other steps could be taken to minimise the problem. For example, I have had a letter from the Mobile Broadband Group, asking that employees of mobile operators should be allowed to remain anonymous if they are required to give evidence in court about interceptions because of the threats to them personally. That seems to be, to my mind, a reasonable proposition. This is simply an example of many steps which could be taken to protect national security without maintaining the ban on intercept evidence altogether.

The Bill is topical because in three days' time we will be having the Second Reading debate on the Terrorism Bill. My party has argued that it is important that those who are committing terrorist crimes should be convicted in the ordinary courts of this land, whenever it is possible to do so. Control orders are extremely unsatisfactory alternatives. That is because national security is better protected by convicting terrorists and putting them in prison than by imposing control orders and leaving them outside prison, and also because control orders involve the SIAC procedure, which means that the defendant does not know all the evidence which is relied on by the court against him—something which is inconsistent with the fairness of his trial.

It is important that these issues get debated during the passage of the Terrorism Bill, and, I believe, debates on amendments to the Terrorism Bill will get a much wider coverage than debates in the course of any future progress of this Bill, which has little chance of succeeding in the other place.

If amendments are put into the Terrorism Bill by your Lordships' House, it would, at the very least, put the Government under pressure to agree to set up the kind of committee which the noble and learned Lord wants as a price for buying-off those amendments. Therefore, I hope very much that the noble and learned Lord, Lord Lloyd, will put down the provisions of this Bill as an amendment to the Terrorism Bill. If not, it is likely that we will do so ourselves.

This is an important debate, which is by no means as one-sided as the noble Baroness, Lady Ramsay, suggests. We very strongly support the Bill which the noble and learned Lord, Lord Lloyd, has produced, and we hope that the subject of this Bill will be further considered in your Lordships' House because we believe it to be of great importance.

Photo of Lord Ackner Lord Ackner Crossbench 11:39, 18 November 2005

My Lords, it is a matter of great regret to me that I find I am speaking on the opposite side to that of my noble and learned friend Lord Lloyd, for whom I have particular respect. We have known the current Interception Commissioner for many years. He has already been referred to—the right honourable Sir Swinton Thomas—and he is one of the most respected former judges of the Court of Appeal. I have known him for more than 40 years as we were in chambers together. My noble and learned friend Lord Lloyd also knows him well as they are both Benchers of the Inner Temple. Sir Swinton has discussed with both of us his views on the proposal of my noble and learned friend Lord Lloyd, and he is strongly against it. He told us that the communications world and technology have changed out of all recognition in the past 15 years, and have done so in the six years that he has been Interception Commissioner. He told us that in the course of the next couple of years change will be even greater and faster as we move away from telephone to IP, virtually—

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I should tell the House that Sir Swinton Thomas, to whom the noble and learned Lord has just referred, wrote a letter to me in which he set out and expanded the views contained in his published document. I spoke to Sir Swinton this morning and he clearly said that he does not want the views that he expressed in his letter to be made public, directly or indirectly. I understand why he, as an Interception Commissioner, took that line. I hope that the contents of the letter written to me will not be made available to the House in this indirect way, contrary to the wishes of its writer.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, I spoke to Sir Swinton Thomas after—I stress that—he spoke to my noble and learned friend and he is happy for the substance of what he said to be made known to the House. In fact, I believe I have a duty to the House to inform it about what his views are, which my noble and learned friend has refrained from doing. Sir Swinton is the current Interception Commissioner and has made his views fully and strongly known to both of us. I propose to continue from where I was stopped.

Sir Swinton went on to inform us that whereas it is accepted that it is now virtually impossible to prove that "A" is talking to "B" on a mobile phone, which is what terrorists and criminals use, with IP interception itself will become much more difficult and proof impossible. He told both of us that that renders the Bill sterile. With regard to the extract from his annual report, he again informed us of the nature of the terms of the statement in paragraph 17, which has been read out. He also said that the bland words he used in the statement represent the results of lengthy and painstaking investigations and inquiries, particularly by law enforcement and intelligence agencies. We were both informed that the unanimous conclusion was that the abolition of the exclusion rules would be damaging to their work and, even if the material could be proved, its evidential value would be minimal, if it had any. He added that his view is that the disclosure that is now sought would do untold damage, especially to law enforcement and intelligence, and substantially increase the risk to us all.

I therefore deemed it essential that this House should know of the harm that this information might result in if it was disclosed. For that reason, and with distinct sadness, I have risen to resist what my noble and learned friend seeks to do.

Photo of Lord Robertson of Port Ellen Lord Robertson of Port Ellen Labour 11:46, 18 November 2005

My Lords, although I intend to speak from my past, not current, experience, I should say, whether relevant or not, that I am deputy chairman of Cable & Wireless, a telecommunications company in the United Kingdom. I am delighted to follow the noble and learned Lord, Lord Ackner, who has made a devastating contribution to the proceedings here today. He has allowed me to be briefer than I intended to be. The words of the Interception Commissioner, as expanded upon in his letter to the noble and learned Lord, Lord Ackner, should be read carefully by all who are interested in this subject.

The proposition is superficially attractive. It seems to some people to be self-evident that it will facilitate the conviction of some evil and dangerous people, whether terrorists or organised criminals. To the outside eye, it can look sensible if we can, through some sophisticated supervised sieve, make available in court what can appear on the face of it to be damning evidence of wrongdoing. But that is a superficial attraction. The issue is much more complex and the downside of this proposal outweighs the benefits that it might bring. Indeed, the proposal is mistaken, misguided and, in certain circumstances, dangerous.

Those of us who have held the highest offices of state—I was Secretary of State for Defence—become part of a unique and tight intelligence community. We therefore become privy to knowledge of, and responsibility for, a wide range of methods for collecting sensitive and secret information. I found that a sobering and onerous burden to accept at the time and to carry it to the end of my life. From my experience, I pay tribute to the professionalism, tenacity, ingenuity and, very often, sheer gut courage of so many of those in British intelligence services who safeguard our security. They deserve, and should get, our gratitude and commendation, and when, as in this case, they have a unanimous opinion, we should pay careful attention to what they say.

I take seriously my obligation to protect both what I have come to know in the Ministry of Defence in the British Government and the other information and intelligence, including that from foreign sources, to which I had access while serving as Secretary-General of NATO. I shall share no secrets with the House today, although from my long years in the House of Commons, I recall that it was usually quite safe to disclose the most sensitive information in Parliament, because you could be absolutely sure that no one was listening to you.

I just wanted to make a couple of points to the House and to the noble and learned Lord, Lord Lloyd, in particular, who also knows more than he can share with the House today, to show that this is a profoundly misguided and possibly counterproductive route to go down. The methods used to intercept communications are varied and many of them ingenious. All are legal, but many are very sensitive indeed. If those methods were to become known, however restricted the audience was that got to know of them, those sources would be compromised and, in many cases, probably ended. Not only that, but the lives and safety of those involved in such communications methods might be compromised or threatened.

I am not an expert in English law, but the principle of discovery is built into that law and our interrogative and confrontational system. If one element of evidence is put into court, it will be simply a matter of time, logic or even fairness that all the intercepted information is placed outside the protected world where it had previously resided.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, the rule of discovery is not absolute and written in stone, never to be changed. Why should not the rules about what discovery must be given be modified as they apply to security-sensitive material?

Photo of Lord Robertson of Port Ellen Lord Robertson of Port Ellen Labour

My Lords, I am sure that clever lawyers could draw up a precise framework and even cleverer lawyers will be able to find their way round it. That is the point made by my noble friend Lady Ramsay. Depending on the discretion of the judge—at the end of the day, that is what we would be depending on—the defence can range far and wide, as it has done in the past, and compromise material that should not be compromised.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, what case does the noble Lord have in mind where the defence has ranged far and wide and introduced matters that have national security implications?

Photo of Lord Robertson of Port Ellen Lord Robertson of Port Ellen Labour

My Lords, I am not in a position to give a precise answer to that, but I recollect that recently there was a case where some form of intercept material was put into court and the judge decided that all the material, not simply the extract that was relevant, had to be transcribed and be part of the court's evidence. I am merely postulating what might happen if the current restrictions were lifted. The words of the Intercept Commissioner should be listened to carefully, because he is also an eminent lawyer. We would open a Pandora's box.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, the answer to that problem is that if the judge decides the point in favour of admitting evidence that would be embarrassing, the prosecution can always withdraw the case. That has happened many times. There is no difficulty there.

Photo of Lord Robertson of Port Ellen Lord Robertson of Port Ellen Labour

My Lords, frankly, I can think of nothing worse than withdrawing the case halfway through. We are here discussing the effectiveness and deterrent value of the law. I accept that cases will not proceed to court and that bad people will not be prosecuted in certain circumstances. That is the price we pay for ensuring that the information is available. It is a fact that terrorist outrages have been prevented during the past few years, major channels of communication have been blocked and major criminal operations have been stopped because of information gained that cannot be put into court. Those people may not have been found guilty in court, but the public have been protected as a consequence of the procedures that are already in place.

So although we pay a price and will have to pay a price in not having those people on trial and convicted, I believe that the price is acceptable for society, given the balance posed against it by the material being available. If the public think about it carefully, listen to the evidence of the consequences and are directed away from the superficial attractions of what is offered, they will come to the conclusion that we are best served by leaving well alone.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative 11:56, 18 November 2005

My Lords, the noble Baroness, Lady Ramsay, has said it all—at least, I thought that she had until I heard the noble Lord, Lord Robertson. I sit in the same corner as them. Although I greatly respect the noble and learned Lord, Lord Lloyd, for the brilliance with which he conducted the Gulf War inquiry, I cannot support the Bill.

I am not alone in resisting any proposal that could risk compromising intelligence collection and its methods. The Privy Counsellor Review Committee, which is clearly concerned that intercepted communications can never, at present, be used evidentially, recognises:

"It is important that making intelligence available for prosecution does not compromise the collection and use of intercepted communications for intelligence services".

The Interception of Communications Commissioner, who has been widely cited—including by the noble and learned Lord, Lord Lloyd—the right honourable Sir Swinton Thomas, stated categorically in his 2004 report that he is,

"left in no doubt that the balance falls firmly against any change in the present law and that any amendment . . . would, overall, be damaging to the work of the security, intelligence and law enforcement agencies".

He recognised that,

"interception played a vital part in the battle against terrorism and serious crime, and one that would not have been achieved by other means".

We cannot afford to lose that means.

Further, both the commissioner and the Privy Council believe that the disclosure of the number of the warrants issued in the interests of national security would be against the national interest if it helped agencies hostile to the state to estimate even approximately the extent of the interception of communications for security purposes. Sir Swinton Thomas agreed with his predecessor, the noble and learned Lord, Lord Nolan, that disclosures in that area would be prejudicial to the public interest. If they are as worried as that about disclosing only the number of warrants and the extent of the coverage, how much more must we be concerned about the content?

The Intelligence Services Commissioner in his 2004 report, is equally opposed to public disclosure of the number of warrants issued to the agencies because that would,

"assist the operation of those hostile to the state if they were able to estimate even approximately the extent of the work of the Security Service, SIS and GCHQ in fulfilling their functions".

We already have several well informed and serious bodies studying the issue that are able to make a just balance. Of course there is a degree of concern that probably motivates the wish of the noble and learned Lord to make that delicate and hard-won material evidential for the sake of the human rights of the defendant. Sir Swinton Thomas cites the Investigatory Powers Tribunal as follows:

"Everyone has the right to respect for his private and family life, his home and his correspondence . . . There shall be no interference by a public authority with the exercise of this right except such as it is in accordance with the law and is necessary in a democratic society in the interests of national security . . . or for the protection of the rights and freedoms of others".

Let us remember that there are a number of issues involving human rights, not only the human rights of the man or woman on trial.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I am grateful to the noble Baroness for giving way. Does she not appreciate that the defendant's human rights are not affected? The rights of the defendant are in no way affected by evidence against him being withheld. This is not a question of the human rights of the defendant, it is the efficacy of the prosecution with which we are concerned.

We want a more effective prosecution here, not an improvement of the defendant's human rights.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

My Lords, I thank the noble Lord for that intervention and am very glad to hear that that is the reason for his position. However, many people's argument has been, and will be, that the defendant has a right to know everything that exists in evidence against him so that he may defend himself. That is the issue and it is also an issue of law.

My concern is, as the ruling that I have just quoted says, the protection of the rights and freedoms of others, among whom I count the human agent, who in at least some of those cases will have been the means of securing access to the plans and communications of those planning or executing terrorism. As Sir Swinton Thomas says:

"The task of the agencies working in this field has become more difficult and complex as a result of the proliferation of mobile telephones and the greater sophistication of criminals and terrorists".

Things have moved so far since I knew anything about it that I do not even know what "IB" means. That may indicate that things have moved on. The hostile intelligence use of encryption is a great problem. There will be times when the key to that can be secured only by the penetration of a group by an agent. I assure noble Lords that, if we have that type of evidence, the defence will very soon be able to identify who was present at a particular meeting in Hamburg on a particular day and to identify the person who was slightly unlike the rest of them.

In this complex world of a fast-moving communications industry and an increasing number of targets who develop highly sophisticated expertise in inventing counter-interception measures, we cannot afford to use intercepted communication in court, even in camera. A good defence lawyer and a sophisticated defendant could very soon set in motion enquiries that could, if a human source were involved, lead to the identification of that source, the end of that intelligence product and, probably, of the agent. Sources take years to infiltrate hostile terrorist groups. We have to be blunt and point out that at least some of those groups will speak esoteric, very unusual languages. It takes a lot of time, not only to acquire the languages but to acquire the approach, the access and the ability to move in that particular world. Sources cannot be replaced for many months, if at all. Coming back to the judgment that I quoted from the Investigatory Powers Tribunal, agents as well as defendants have human rights. The defendant will have the whole majesty of the law there to protect his rights—the agent will not; and, not least, the public will lose vital protection.

In the face of the resistance to the Bill from such distinguished legal authorities as Sir Swinton Thomas, the noble Lord, Lord Carlile of Berriew, and the special committees involved daily in assessing the situation, risks and needs, with their experience of the problems of dispensing justice under threat from terrorists, I do not believe that we should change the law. It is vital that we recognise that this world is not like the criminal world. I fear very much that people will say, "Why don't we start with the criminal world?" but the same problems do not arise. Once you open a door, the door opens wider and wider and precedents are set. Although I deeply respect the noble and learned Lord and his motives, I urge the House to recognise that this is a very dangerous path to tread and we should not require it to be trodden.

Photo of Lord Brennan Lord Brennan Labour 12:04, 18 November 2005

My Lords, Parliament has a major role to play in the campaign against terrorism. There are those in this House who are neither totally for the Bill nor totally against it but wish Parliament to have the opportunity to examine whether this state of the law should prevail or be changed. In fulfilling that task, Parliament does no more than its duty, testing political integrity with public responsibility—it tests political integrity by investigating whether the law should stay the same and looking at the evidence, and public responsibility, in deciding after such an inquiry whether the public interest is best served by the law staying the same or being changed. I regard that as neither inimical to the intelligence services nor a danger to the realm but as a practical exercise of the parliamentary function.

Should the law remain the same? I ask the question rhetorically because, as yet, I have no confident answer. Let me raise some of the issues that Parliament could properly consider in order for evidence to be given within the proper constraints of security. First, I cannot imagine that the prosecution or the intelligence services would wish to use this opportunity to introduce intercepted evidence if there were other adequate evidence to found the prospects of prosecution being successful. There would be no point; the balance would be completely wrong. But I ask rhetorically, because I do not know the answer as a parliamentarian: what is to be done if the critical evidence in a case is an intercepted communication? Is it then to be said that the balance of interest favours the continuance of secrecy and those guilty go unprosecuted? That is a serious moral question with which Parliament should grapple. If it transpired upon reasonable inquiry that that category of case were so small a prospect as to be discounted, the secrecy argument may prevail, but if there were a sufficient or significant number of possible cases where that evidence is critical, should we maintain the secrecy? The noble and learned Lord, Lord Lloyd, pointed out in a 1996 report that some 20 prosecutions might have been mounted if intercept evidence could have been used. That is a significant figure. But all I am asking for is inquiry.

Secondly, in the modern communications system, do we make a distinction between the telephonic and the electronic? Is an intercepted telephone call to be kept secret but an e-mail, which is simply a printed document, to be used? If so, what are the differences? I find that technically worth investigating. These days, a BlackBerry will accommodate both the telephone call and the written message.

Thirdly, I endorse the concerns raised about disclosure. It is a serious issue that concerns the House. I know from personal experience of a case in Ireland where a limited amount of disclosure led to such a degree of litigation that it finished up in the Supreme Court of Ireland on the extent of disclosure in a terrorist case. That is extremely serious. There is no point in passing the Bill without responsibly addressing that question and producing a just solution.

Despite the reservations of the noble Baroness, Lady Park, I am ready to make a distinction between serious crime and terrorism. Why not? Why should I treat a determined drug runner making millions of pounds as in a similar category to a terrorist who takes life indiscriminately? I am ready to make such a distinction if the facts justify it and if the level of secrecy in that sector is different from the terrorist sector.

Anticipating Monday's debate, Clause 17 of the Terrorism Bill envisages the prosecution of terrorist offences committed abroad. Are we to have the irony of a prosecution launched from this country which can use interceptive communications taken from the United States or another country, but not communications of a similar kind obtained in this country? I find that a peculiar aspect of a campaign against terrorism, if that is what we can anticipate. The Bill is in skeletal form, and there is plenty of opportunity to discuss the full range of safeguards that might sensibly be considered.

Finally, I beg to differ with the eloquence of the noble Baroness, Lady Ramsay, about the nature of the debate. I do not detect clamour. When I hear the Metropolitan Police Commissioner seek the use of this evidence in court, the recently retired Director of Public Prosecutions in the same vein and the Newton committee with its Privy Counsellors, that is not clamour. It is reasoned argument, which deserves a reasoned response. I admire in equal measure Sir Swinton Thomas, the present Interception Commissioner, the noble Lord, Lord Carlile of Berriew, and those who hold a different view. But the very fact of differing views surely bespeaks the responsibility of Parliament to inquire.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

My Lords, does the noble Lord agree that there is a difference between the views of Sir Swinton Thomas and the noble Lord, Lord Carlile, who are privy to all the issues, and, I am sorry to say, the view of all of us? Secondly, does the noble Lord agree that what Sir Ian Blair, the Metropolitan Police Commissioner, said referred to criminal cases? Our point is that it might work for criminal cases, but once you start on that slippery path, it will go on to the rest.

Photo of Lord Brennan Lord Brennan Labour

My Lords, I naturally respect the noble Baroness's views, but I do not recollect from Sir Ian's speech that he made that distinction. Whether he did or did not, he merely provokes the opportunity for debate. On the status of the Interception Commissioner, the noble Lord, Lord Carlile, and those who are privy to information that influences their views, I am afraid that I take a very simplistic parliamentary view. Within proper constraints of security of information, it is ultimately for Parliament to decide those matters and not those who my noble friend Lord Robertson called the unique and very tight intelligence community—brave, sophisticated and vital as it is.

Finally, the question of whether Parliament should debate this issue arises. If those who have spoken in favour of the present system are right, they may prove to be right in subsequent debates. If change is to be made, I am sure that the House would consider it with great prudence and considerable reserve. But, at the very least, if we are to accept that the rules of the game have changed and if we are to acknowledge that the campaign against terrorism demands action by all, above all it demands at least consideration by this Parliament.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative 12:14, 18 November 2005

My Lords, I am very glad to follow the noble Lord, Lord Brennan, who has reminded the House that we are dealing with an extraordinarily difficult issue on which there are very respectable views on both sides of the argument. I grew up in parliamentary terms starting in 1979 as Parliamentary Private Secretary to Sir Michael Havers when he was Attorney-General. Very slowly, I was let into some small part of the secret world in which others in this House have moved much more widely. I think, of course, of my noble friend Lady Park and the noble Baroness, Lady Ramsay, with enormous respect in that regard. I express my thanks to the noble and learned Lord, Lord Lloyd of Berwick, for initiating this extremely important debate. I approach his Bill with great caution, but I approach it in very much the same way as the noble Lord, Lord Brennan. This is an area where genuine inquiry is justified—inquiry in a very careful and, if necessary, secret way. But it is a matter for sincere discussion.

I have grown up as a lawyer with most of the great lawyers sitting in the Chamber. I have been led by them. I have been in long cases with or against them. I have a very high regard for Sir Swinton Thomas. I am also a member of the Inner Temple. When I find that there are differences of view between him and the noble and learned Lords, Lord Ackner and Lord Lloyd, I realise that we are in very sophisticated country. When I became Solicitor General and, ultimately, Attorney-General, I was allowed a rather more penetrating look into small portions of this world.

If you regard the whole security services world and the whole criminal justice world as a cake, there are some who see slices of it, but I suspect that the noble Baroness, Lady Ramsay, and my noble friend Lady Park, have seen perhaps a very large part of the cake. But I doubt if there is anyone in the world who sees the whole cake. The need-to-know principle applies as one of the ways of protecting it. But that does not mean that Parliament should not be entitled, in a careful and sensible way, to investigate.

I worked closely when he was a prosecutor, and briefly when he became Director of Public Prosecutions, with Sir David Calvert-Smith, who is a lawyer of the highest integrity and intelligence. He believes that in some cases—it is always only to be some cases—this might be of genuine assistance, without causing disproportionate damage and, I hope, without causing any damage whatever to the security services. The fact that Sir David believes it so sincerely, that Sir Ian Blair believes it and that the Newton committee regard it as a strong case means that we have a very real argument for moving cautiously forward, giving this Bill its Second Reading and getting it into a Select Committee.

I do not express any opinion beyond that stage on whether, ultimately, I would vote for or against the Bill. I would certainly require the very strongest safeguards, but I do not take the view, which the noble Lord, Lord Brennan, put well, that because you look at some aspects and dare to peep through the door, the door will necessarily swing open. As he rightly said, we see some communications, but we do not see all communications, and we never should. I know a good deal about the problem of disclosure. During my period on watch as Attorney-General, the issue of public interest immunity certificates was rightly put under strong scrutiny in a wide variety of areas. It is not easy, particularly when you have to have accredited counsel who are not acting for the defendant, but who are coming in as intermediaries to try to see fair play. Because they are security cleared they can see more material than could possibly be properly disclosed to defence counsel or defence solicitors who, by the nature of their role, would have to reveal it to their client. They, certainly, could not necessarily be relied on not to reveal it because they would feel a very strong conflict of interest. So we have to be very careful.

But what are we balancing all this against? It is particularly relevant that this debate is being held on the Friday before we debate the Terrorism Bill on Monday. We are considering this against the backdrop of a world in which—going back four years to the Anti-terrorism, Crime and Security Act 2001, the measure struck down by the Law Lords resulting in the release of the 23 accused from Belmarsh prison—we have actually detained people without trial in this country, in some cases for just over two years, something we had not done since the days of the Star Chamber.

We have also had a very serious debate about detaining people for 90 days pending charge. A number of our citizens are under control orders. We have to think about placing restrictions on the liberty of the subject in order to protect the people of our nation as a whole in a way that we have not had to consider before. This Bill, which may play a small but significant part in bringing to justice those most likely to be drug runners and what might be thought of as ordinary criminals, but possibly also those in the terrorist world, may help us to be more proportionate in how we take away liberty without any form of trial at all.

I conclude by making a simple point. While it is obvious that noble Lords who have worked in the security services feel passionately about this, and while Sir Swinton Thomas obviously feels passionately that we dare not open the door at all, we should give the Bill a Second Reading and move for it to be brought before a Select Committee. We should then think very carefully about what we learn from that committee as to whether we allow it to go further. The Government certainly have control of the Bill. It would be difficult for this measure ever to become law unless the Government are convinced, because it would certainly be defeated in another place. However, this is a serious debate and I hope that it will be allowed to continue.

Photo of Lord Judd Lord Judd Labour 12:22, 18 November 2005

My Lords, I am happy to follow the noble and learned Lord, Lord Lyell, because I am very sympathetic to many of the arguments he has put forward. Perhaps I may say at the outset that I am immensely grateful to the noble and learned Lord, Lord Lloyd of Berwick, for having given the House the opportunity to consider this matter. I hope that my personal and much respected friend, my noble friend Lady Ramsay, will forgive me if I say that I envy her the absolute and unqualified certainty of her conviction in these matters.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

My Lords, I am grateful to my noble friend for giving way. Since he has mentioned my name, does he not think that perhaps the strength of my conviction comes from over 22 years in government service? I have a great deal of experience which has led me to be absolutely certain about this issue.

Photo of Lord Judd Lord Judd Labour

My Lords, of course I take the intervention of my noble friend in the spirit in which it is made. It is characteristic of her personal warmth and sensitivity. But I remain of the position on which the noble and learned Lord, Lord Lyell, has argued. These are incredibly complex matters and I have no hesitation in saying that I anguish about them. I have to consider the points made on both sides of the argument. They have been made with force and must be taken seriously. But what I am trying to do, and here I think that I represent the position of many others, is find the right way forward. What I admire in the proposition that has been put before us by the noble and learned Lord, Lord Lloyd of Berwick, is that it would give us the opportunity to consider the issue dispassionately and in more depth. In that way we would become even more convinced that any policy we pursue has been thoroughly examined rather than just accepted on the say-so of those who undoubtedly carry the weight of heavy responsibility.

That is the first point I wanted to make. In July I was encouraged when, in the midst of those terrible events and the pressures that flowed from them, the Prime Minister expressed his personal readiness to examine the issue and made clear his belief that the case was not open and shut, rather that it was one which could do with examination. He has candidly put forward his position, as things stand, as one that rests on the advice of the police and the security services. Of course that puts a terrific responsibility on them and I take second place to no one in my admiration for the quality and dedication of those in the police and security services, as well as for much of the very fine work which they do to protect our society. But as an unqualified adherent to parliamentary democracy, I believe that the sovereignty of Parliament cannot be overlooked in these matters. In the end, for policies in crucially important areas, the view and responsibility of Parliament is crucial. Therefore the idea of a Select Committee is excellent.

We have heard the arguments—they cannot be underestimated—about the need to protect the integrity of security systems, of sources and, indeed, the safety and well-being of those who work in the security services. All those issues have to be taken very seriously indeed. A Select Committee of the kind proposed should be able to take the arguments fully into account. However, what is so persuasive in the proposal of the noble and learned Lord is his emphasis and, indeed, re-emphasis of the point that any action taken would be on the initiative of the prosecution and that the intervention of the Secretary of State to protect the matters about which my noble friend Lady Ramsay and the noble Baroness, Lady Park, are so concerned would remain as real as ever.

I have found the exchanges this morning between the noble and learned Lords, Lord Lloyd and Lord Ackner, a little disturbing. They reveal to me as a layman that among these august centres of expertise and legal knowledge, on crucial matters there can be a difference of interpretation. If anything in the debate has brought home to me the importance of further and wise consideration—such as in the context of a Select Committee, for example—it is what has been illustrated to us this morning. Two noble and learned Lords whom we deeply respect—

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, I think I made it clear that I was not putting forward my interpretation. I thought it was quite wrong for Sir Swinton Thomas's views to be suppressed. They were being suppressed and, accordingly, I rose to my feet to make sure that they were put before the House. That was the function I sought to perform.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, perhaps I may answer the point since it involves me. The reason I did not refer to Sir Swinton Thomas's views is the very reason which he explained to me this morning: that he did not want those views repeated in this House. That is exactly what my noble and learned friend has done.

Photo of Lord Judd Lord Judd Labour

My Lords, I am not a lawyer, but after those two interventions I am close to saying, "I rest my case". It appears that two deeply respected Members of our House have had a conversation with the same person and have come to different conclusions regarding what that person has said.

If this can happen on such a crucial issue, how important is it to the whole sphere that we should have a sober examination in depth of the propositions and issues before us?

Let me conclude with a few observations. The noble Lord, Lord Goodhart, emphasised—I thought a little defensively; I hope he was not being defensive—the importance of strengthening the effectiveness of prosecution. I agree with him on that. It is totally wrong that people who may be guilty of the most heinous offences should have any chance of going free because of the limitations on what can be considered in court.

But there is another side to the argument. We are living in the real world in terribly dangerous times, and the battle for hearts and minds is crucial. It has always been central to the acceptance and endorsement of the British system of justice that we strive to ensure that justice is not only done but is seen to be done. As soon as one moves into the realm of security, there are, of course, compromises. I am a realist and I know that compromises will always be there if you accept the importance of security. The issue is where the compromise is struck—which compromises are acceptable and which are not; what safeguards there are; what arrangements there are. Those matters need to be tested and, I suspect, periodically examined in the Select Committee, to make absolutely certain that the compromises are as good and wholesome as possible. If there is any danger that justice is unnecessarily not being seen to be done and is unduly secretive—exclusive, if you like—in the way it is administered, that will play into the hands of the cynical manipulators of the young and others whom they wish to recruit to their extremist causes. That would be an own goal of very serious dimensions.

By his proposals, the noble and learned Lord, Lord Lloyd, has presented the House with a wonderful opportunity to take forward a dispassionate, measured examination of where we stand and whether where we stand is the best way to confront the issues of the future. In doing so, it would be foolish not to take into account the concerns that have been honestly and repeatedly expressed by the noble Baroness, Lady Park, and my noble friend Lady Ramsay. But we must also take into account the reality of the context in which we are operating and the need to ensure that we do not inadvertently strengthen the position of the extremists.

Photo of The Earl of Erroll The Earl of Erroll Crossbench 12:33, 18 November 2005

My Lords, I rise to speak in this debate because I have spoken on RIPA and given consideration to the proposals for data retention, about which I am being lobbied. I am interested in ICT—information and communications technology—and I sit on the advisory board of ISTA, the Information Systems Security Association. So this is an area in which I am interested.

When I first saw the proposals in the Bill my first thought was "Why not?" I have often wondered why such information is not available to the courts and not used to prosecute criminals in order to protect us. I then thought that it may be to cover up the fact that the intelligence services do not receive as much information as we think they receive and that it may be a way of scaring criminals. I then thought a bit harder and came to the conclusion that that is probably not so, particularly as I know something about technology.

The next question that arose in my mind was: how often are intelligence sources not given enough information to trap suspects in some other action or something else that they are doing? In other words, why can they not use the intelligence to catch them for something else? It must be fairly rare that you have to rely only on intercept evidence to trap someone. The only case I can think of is where I was involved in considering some fraud issues about 15 years ago and we were trying to find where Mr Big might have slipped up and communicated with some of his underlings. Of course, such people try to cut themselves out of the picture—you see this in stories about the Mafia and so on—and so you try to trace that one piece of communication that they made to someone in the field because they do not want to get their own hands dirty. So I can see these proposals may be useful in that kind of situation.

But then we come to the next issue—which really worries me—and that is the question of what evidence is presented in court if some of it is protected. This could lead to selected presentation. It is rather like advertising the review of a play, where the good bits are printed, the bad bits are cut out and you end up with a highly selective presentation. Sooner or later someone will manufacture or twist evidence in order to present too good a case. Something will come out of the woodwork, there will be a scandal and the judges, quite rightly, will say, "We need to know more. You will have to reveal more about this evidence". The point has been made by several noble Lords that this could be the thin end of the wedge and will slowly open up—probably because one of the agencies will make a mistake.

I am also concerned that we start off in law with great barriers and extreme confidentiality and then something comes into fashion—anti-money-laundering, for example—and suddenly the protected client-lawyer relationships and communications are completely destroyed overnight by a government who think it is a good idea to do so. Knowing that Parliament will suddenly take these rather extreme views over a short-term issue, we have to be very aware and careful to ensure that we are not opening up a can of worms.

Some people who wish to enhance their careers—this is not particularly concerned with those who work in the intelligence services, but they are no different from other human beings—may use information that they should not use to push their career forward, even though they have the power to do so. We have to be very careful that that should not happen and we need to put in very strong protections.

We know—you cannot get away from the fact—that there are inter-agency rivalries. The reason for all these agencies is to ensure that there is some rivalry, to ensure that there are silos and to ensure that all the information does not leap across them. But this can lead to mistakes being made and, once you start making mistakes you have the problem of reverse engineering in the way people think. Having written software programmes, I am aware of this problem. I have always enjoyed looking at a programme and working out the thoughts of the person who had written it. Given a system, I am very interested in how to get into it or around it. It is not hacking, particularly, but a consideration of where its vulnerabilities are and so on. Once you are aware of the concept that it is possible, you can then work out how it can be done. So that is one of the dangers.

You can work in two ways: either on an analysis of what has happened or an analysis of what has not happened—in other words, you work on the cases that have been brought to court and wonder why the other ones have not been brought, or the other way round. It is amazing what inadvertent information you can give away by your behaviour and by what you reveal. So that is another issue that needs to be looked at extremely carefully.

I am aware that some other countries do not receive the intelligence information that we receive. I do not particularly want to know why or why not—I ought not to because I am not cleared to that level of security—but it is a known fact that has been quietly revealed in the speeches that have gone before me. But would it be all right to reveal some information at the lower end of the scale? We open people's letters, we can photograph letters and written information and so on, so why, when prosecuting the smaller criminals, can we not use telephone tapping information? Or can we? I am not sure where the lines are drawn in intercepting communications.

Information obtained under Clause 1(1)(b) of the Bill, which relates to the admissibility of intercept and metering evidence, is retained under RIPA and is available to a plethora of government agencies. As that is well known, why can we not use that kind of information? I think it would be perfectly all right to use information that is obviously and effectively in the public domain, although with restricted access. If the police have tapped a telephone or carried out some interception that is above board, I cannot see the problem in using any of that information. But I can see a problem with high-level intelligence information, about which we have to be very careful.

Photo of Baroness Taylor of Bolton Baroness Taylor of Bolton Labour 12:39, 18 November 2005

My Lords, I am pleased to be able to participate in this very well informed debate. I am happy that such issues should be raised from time to time, although perhaps not on an annual basis, as seems to be suggested in some quarters. It is right to examine and re-examine these complex issues in a Chamber such as this where their complexities can be brought out rather than highlighting the simpler and more sensational attitudes which we sometimes read about even in the so-called serious press.

My reason for wanting to speak is that for four years, until the last election, I chaired the Intelligence and Security Committee. We followed the discussions on this matter with great interest and discussed it with Ministers and with agency heads on many occasions. I reassure the noble Earl, Lord Erroll, that discussions about intercept do not take place simply with the intention of scaring the criminals—they work on many occasions. The ISC followed through some of the operations that had taken place and saw the importance of intercept in, for example, illicit drugs cases and financial crime and the numerous arrests that resulted.

It has been said several times this morning that the use of intercept material as evidence has an obvious, significant and superficial appeal. If it was as simple as just using evidence with no consequences, there might be a very strong case for it. People have looked at what happens elsewhere. Noble Lords have quoted examples of what happens in other countries, where there are significant differences in the legal system.

People have assumed that there will be more convictions if we use intercept material in court. The case against that, which was argued by my noble friend Lady Ramsay and the noble Baroness, Lady Park, is very strong indeed. When the Intelligence and Security Committee looked at this issue, we did not come to conclusions, because that was not our role then. We had to understand that there was a significant downside to going down this path. In fact, I would go so far as to say that the use of intercept material in court could be counter-productive in getting convictions and pursuing certain cases, for reasons that I shall give later.

The noble and learned Lord, Lord Lloyd, said that there had been five reviews in 10 years. The latest and most in-depth review, carried out by the noble Lord, Lord Newton, was very important. It included members of the Intelligence and Security Committee so that we could dovetail our work with that of the noble Lord's committee. The outcome demonstrated just how complex these issues are, which means that we should not rush to a judgment or complain that this issue has been around for so long. The message from the fact that we have had five inquiries in 10 years is that this is an incredibly complex subject.

Ministers have spent a great deal of time on this issue. My noble friend Lord Judd quoted the approach of the Prime Minister, which is that if we can use intercept in court and it can be productive, then let us use it. Those colleagues who are in favour of the use of intercept should ask themselves why it has not been used yet. The reason that we do not use intercept in court as evidence is not because people want to block it or preserve secrecy for its own sake but because of the very real downside of taking that path. People have to understand that. The Newton committee brought that out to a certain extent.

My noble friend Lord Brennan asked why we could not treat serious crime and terrorism differently when it comes to the use of intercept material as evidence. Part of the problem is that you cannot compartmentalise the methodology that is used in one area and not in another. Disclosing intercept as evidence in court can lead to disclosure of methodology which is then transferable knowledge to a different area. That is why I emphasise how complex the issue is; with the best will in the world, we cannot simply say that we must move along that track and the consequences would always be beneficial. We could end up losing more than we gain. My noble friend Lord Robertson said that certain criminals might not be prosecuted because we could not use intercept and that we would have to face that consequence. My noble friend Lord Brennan questioned whether that was wise; it is a genuine moral dilemma.

If the consequence of disclosing our methodology is that the agencies cannot detect and apprehend, and therefore cannot possibly prosecute, a wider range of criminals or terrorists, then we have lost out. It is a moral dilemma which we should be realistic about and face. The dangers of going down the road proposed are very significant.

Other aspects of this issue have not been dwelt on today. I am not sure what lawyers will think about one which was raised in the Newton report. It was also recently raised by the noble Lord, Lord Carlile; as well as making interesting but somewhat belated comments about the proposed 90-day period he has spoken of using some form of investigatory magistrate. I am not sure whether Ministers are still considering that, but it could lead to some hope that something could be used in certain circumstances. I am not sure that it is the way forward, but so far as I have been able to judge, it might be the most likely way of making some progress on certain issues.

I am less convinced about the proposals on safeguards, such as the idea that only the prosecution should introduce such evidence. I am not sure to what extent our lawyers would allow that to remain the situation, given our human rights legislation. Other issues such as having two or three different types of warrant could also create real problems for the agencies. How do they know at the beginning of an inquiry what will be needed in evidence? They may apply for one type of warrant and if the inquiry takes a different turn, they are left high and dry, unable to produce that as evidence.

Finally, where should we go from here? The noble and learned Lord Lloyd, suggested a Second Reading, followed by a Select Committee, and there has been some support for further inquiries by Parliament. I remind the House that the Intelligence and Security Committee is a committee of parliamentarians, who represent us. They have access to the information and have already spent time looking at it. I suggest that if further work needs to be done by parliamentarians, the Intelligence and Security Committee should be doing it and, when its members feel it appropriate, they should be able to go public or say something to the House or to Parliament as a whole. That would be the best way forward. This is a complex issue, to which there are no simple answers, but the Intelligence and Security Committee can be useful to all of us in taking these issues further.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative 12:49, 18 November 2005

My Lords, having by misfortune missed much of the speech given by my noble and learned friend Lord Lloyd, I thought it only courteous to vacate my place in the list of speakers—fortunately being able, in sufficient time I hope, to notify the noble Lord, Lord Goodhart. Having heard the whole debate, I shall use the gap to make a point that, I do not believe has been alluded to as yet. It is a point of some interest—namely, that we are not the only country in the world, unfortunately, that faces a massive security threat, nor the only one that seeks to protect its safety by the employment of sophisticated covert agencies; yet, apparently, throughout the common-law world, with the sole exception of Ireland, we are the only country to deny ourselves in proceedings to convict offenders the admissibility of evidence obtained from intercepted communications. One wonders how countries such as America or Australia, which undoubtedly have sophisticated covert security agencies, manage to accommodate their interests while at the same time admitting that evidence. That seems to me a matter of legitimate and practical inquiry by Parliament—and by this House, in particular.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

My Lords, I am grateful to the noble Lord and am sorry to interrupt, but I shall do so very quickly. I am sorry if I did not make it clear in my own intervention, but Australia and America use the evidence from police intercepts. We have gone into the matter of different warrants, and so on, but that is not the point; the point is that they do not use intercepts from the sophisticated agencies, as the noble and learned Lord put it. In Australia and America, it is the warrants from police intercepts that are used in the courts.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, that is an interesting point and one that might properly be examined by the Select Committee that this Bill, if it gets its Second Reading, will enable to come into place. I am in agreement with what has been said by so many noble Lords, and in particular my noble and learned friend Lord Lyell of Markyate and the noble Lord, Lord Brennan, on this—and I believe that I have more than used up my time in the gap.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 12:52, 18 November 2005

My Lords, perhaps I may say how much we welcome this important debate and how much we support the idea behind the Bill and the suggestion that has been made that a Select Committee should examine the whole picture, following this Second Reading.

All of us in this House are looking for a balance. On the one hand, there are the ordinary processes of justice that we have in accordance with our traditions sought to export to the whole world: concepts of fairness and fair trial and due process. On the other hand, there is the need for security and the protection of people who are at the moment suffering from a terrorist threat. We shall pursue this matter next week, to some degree, in the debate on the Terrorism Bill, in which we shall consider whether people accused of being terrorists should be tried on evidence before a jury and punished in the ordinary way or whether they should be held without trial and possibly without charge on the basis of inadmissible evidence such as that which intercept evidence produces.

This is not a unique or new debate. In 1994, the noble and learned Lord, Lord Mustill, one of the Lords of Appeal in Ordinary, in the case of Preston said:

"Those who perform the interceptions wish to minimise the dissemination of the fact that they have been performed, since it is believed that this would diminish the value of activities which are by their nature clandestine. We need not consider to what extent this preoccupation with secrecy at all costs is soundly based for it has been treated as axiomatic for decades, if not longer . . . The need for surveillance and the need to keep it secret are undeniable. So also is the need to protect to the feasible maximum the privacy of those whose conversations are overheard without their consent. These policies are in flat contradiction to current opinions on the 'transparency' of the trial process. Something has to give way".

That view has been reflected in the content of some of the speeches that we have listened to today.

On the one hand, we have the former Director of Public Prosecutions and the Commissioner of the Metropolitan Police seeking to introduce into the trial process evidence that is currently inadmissible; on the other, we have the views trenchantly expressed of Sir Swinton Thomas, for whom I have the greatest regard. He is no relation to me, but I replaced him on the Criminal Injuries Compensation Board. He and others—possibly including my noble friend Lord Carlile, though I have not had a chance to talk to him—have strayed into the intelligence community. If you do that, and you meet people with such formidable, trenchant and assured views as the noble Baronesses, Lady Ramsay of Cartvale and Lady Park of Monmouth, you meet people whose views no doubt carry considerable weight. But we are all seeking that balance.

What is unique about intercept evidence and the intercept warrants that produce it is that the product cannot be used in a court of law; but the paradox is that foreign intercept evidence can be. The noble Baroness, Lady Park, referred to a person being in Hamburg; if that person was involved in a telephone communication from Hamburg, the German authorities could undoubtedly intercept that conversation and it could be used in a British court.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

My Lords, I believe that it has been made plain by a number of noble Lords that the issue is not straightforward telephone communication—it is the far more sophisticated mobile telephone and that extension of things that is at issue. Also, if the Germans make a decision and are prepared to let us have the result, that is fine; but it does not alter the risk to our system if we go in that direction.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, my point is that it does not really matter what instrument produces the communication. If foreign authorities intercept it, it can be used in this country in a British court of law. So there is nothing wrong in principle with the use of intercept evidence, when it comes to lawyers or the courts. That is not the reason why it is not introduced.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

My Lords, the point is—and the noble Lord is not quite seeing it—that if another country does not mind risking its sources, that is fine. I do not see why he finds it such a paradox, however. We are talking about British intelligence and material, and there is not a lot of relevance in talking about using evidence from another country in a British court.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I entirely follow the noble Baroness's point. Indeed, I propose to deal with it shortly; I am just leading up to it, and I am making that preliminary point before getting into the argument and grappling with the points that the noble Baroness has raised.

Intercept evidence is not admissible, but directed or intrusive surveillance or the use of covert human intelligence under Part 2 of the Regulation of Investigatory Powers Act 2000, can be. So, for example, there is no problem about a member of the security services breaking into somebody's home and planting a bug there or for the product of that particular piece of covert surveillance being used in court. If a person's car is bugged, there is no problem in producing a record of the conversations that take place within the car. So, on the one hand, there is total prohibition on intercept evidence, and, on the other, you can use foreign intercept evidence and the product of surveillance freely in the courts of this country.

If government agencies intercept your communications legally, not just the content but the very existence of such data cannot be mentioned in a court of law. The interception cannot be used to provide evidence either. There are these drawbacks. A prosecution may not proceed because the only evidence is intercept evidence. It may be very strong, perhaps a confession or an admission. It may be part of a conspiracy that is going ahead, which could be fully proved by intercept evidence. However, because of this absolute prohibition, it cannot be used, and guilty people get away.

There is another aspect. The prosecution may not be able to rebut a plausible defence put forward in a trial. It may have intercept evidence in its possession, such as recorded conversations, but it may not use it. It knows the defendant is lying, and that the jury would be influenced if it could hear what the defendant said on the phone or on the Internet, but it cannot use it. People can be acquitted for that reason.

There is this aspect: the defence does not know of material that undermines the prosecution and supports its case. It does not even know that its conversations have been intercepted and recorded. There could well be material that would acquit it, but it is not admissible and anyway it does not know it exists. Defendants may be convicted quite unfairly.

Arguments against admissibility have been put forward in this debate. Some of them seem to be founded on a mistaken stereotype, one that causes amusement in this House, as happened yesterday: that of the defence counsel who conducts his case in a malign and dishonest way regardless of the public interest. As the noble Baroness herself said, the defence counsel may range far and wide in an adversarial contest. There could be unacceptable disclosure of techniques by reason of the way he conducts his case. The noble Lord, Lord Robertson, said that "clever lawyers will find a way" around anything put in their way that would protect sources, and so on.

As I have said on previous occasions, that is a total distortion of what actually happens in court. When I asked the noble Lord, Lord Robertson, whether he could tell me of a case where defence counsel has extracted information that has been to the detriment of the security of this country, he was unable to do so. These are stereotypes that have no foundation in reality.

It is said that the use of the material will disclose interception techniques and capabilities and may give rise to counter-measures by criminals or terrorists, which might greatly reduce the utility of that resource. For centuries, though, the courts have been quick to protect informers, and to ensure that the names of informers are not revealed in court. We are in a different world and technology has developed, but the court still has complete power, through the use of public interest immunity applications, to protect from disclosure information that is not in the public interest. If the judge were to hear it being put forward by a prosecuting counsel that, "If this information goes in, it will damage the security services", he can say: "It will not go in". He has control.

Photo of The Earl of Erroll The Earl of Erroll Crossbench

My Lords, I speak from the IT point of view. IP telephony was mentioned earlier as being difficult. I will not make any public comments on that, but a non-technical person might not realise that it would technically be possible to work out from what was presented in court where someone intercepted that communication from, because there are only certain points at which it could be intercepted. The very revelation that it was possible to get that information would then awaken one to what was going on behind the scenes. It is a technological process that lawyers would not realise was happening.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I am grateful to the noble Earl for his intervention because it allows me to make this point. If prosecuting counsel goes before the judge, he is not giving his own opinion, but telling the judge what he is instructed to say, not just by the CPS or whatever prosecuting authority is behind him, but also, behind it, the security services. I have appeared for the prosecution with one solicitor from the CPS and one from the security services sitting behind me to give the very sort of advice in that particular case to which the noble Earl refers. That is common practice. So, if there is an objection, the judge will know what that objection is and how these matters may come to light if the evidence is given.

Another objection to admissibility is that it does not matter very much; it is not very probative. I think the noble Baroness, Lady Taylor of Bolton, made that point. From her own experience on the committee, she thought that not a great deal of value would emerge. Sometimes, it is said, there would be difficulties in identifying a speaker. I have had experience of this quite recently in a case in Harrow involving the importation of a large quantity of heroin, some £50 million-worth, the second largest importation into this country. There we had foreign intercepts, buggings of cars and of conversations and so on, and it was highly probative. As for difficulties in identifying who was speaking, they simply did not arise. Even though some of the conspirators were speaking in Turkish, some in Albanian and some in English, there was no problem in identifying who was speaking at a particular time.

Then it is said that disclosure would be an intolerable burden—keeping records of all the conversations that take place, and so on. In the case to which I referred, I asked prosecuting counsel to ask the judge whether there was anything in the intercepts that would assist the defence case. He said to me, "No. I know my duties under the Act. I am fulfilling my duties". And that was it. There was nothing I could do about it. I had to rely on him. I trusted him to do his job, and still do. Lawyers have a considerable degree of professionalism, and act in accordance with the rules and traditions of their profession.

I think I am going on too long, so I will bring my remarks to an end. We support the Select Committee's idea. We think that decisions in this difficult field should be evidence-based, and should be based upon a consideration of all the issues, not just the single views of the intelligence services.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Chief Whip, Whips 1:09, 18 November 2005

My Lords, once again the noble and learned Lord, Lord Lloyd of Berwick, has raised a most interesting debate, even if he has chosen the slightly unusual vehicle of a Private Member's Bill in which to put it before your Lordships' House.

When I previously debated this matter with the noble and learned Lord and others five years ago on the Regulation of Investigatory Powers Bill—which is now an Act, of course—it was clear that there was a serious case to answer. The noble and learned Lord has expressed it again today with his usual clarity and forcefulness. However, it is also clear that there is a very considerable body of well informed opinion which takes the opposite view and which we should also respect, and which was expressed most clearly today by the noble Baroness, Lady Ramsay, the noble Lord, Lord Robertson, and my noble friend Lady Park of Monmouth. The background to what is an apparently simple question is very complex, both legally and technically.

We all know that technical progress regarding mobile phones and communications more generally races ahead. That has been referred to by several noble Lords in the course of this debate. Sometimes these changes no doubt help the security services but sometimes the reverse is the case. We can be sure that, like the security services, criminals and terrorists devote a great deal of expert time and effort to getting and staying a jump ahead. I do not know whether there are at present effective methods of tapping communications on the Internet, which seems to be the coming method of communicating. If such methods exist, I do not know whether they will count as intercepts or "bugs" for evidential purposes. They could fall either side of the line. There is, after all, a distinction between evidence obtained from telephone intercepts and that obtained from telephone bugs, as the noble Lord, Lord Thomas, said. The difference between the two is very slight but the difference regarding how they can be used in court is total. Much more difficult problems will arise in regard to e-mails, BlackBerries and all the other latest devices. I do not know whether the Minister will be able to give us more information about how those newer methods of communication will be affected by the measure, and perhaps it would be best not to publicise that, but the answer affects whether the Bill has any value because if the newer methods of communication are not open to the same problems, the Bill will not be of much value.

As has emerged clearly in the debate, the balance that we have to assess is whether there are many cases of serious criminals and terrorists who avoid conviction because of the restrictions on the use of this evidence on the one hand and whether the disclosure of the methods which would result from the use of such evidence would damage the ability of those who protect us to go on doing so as effectively as they do. Neither of those questions can really be judged by outsiders in public. Those involved in prosecutions can judge whether many prosecutions will fail on those grounds—we have not heard much evidence on that today one way or the other—but only those involved in the security services and the intelligence world can judge whether the effectiveness of protection would be damaged.

I echo the tribute that the noble Lord, Lord Robertson, paid to those who work in the security and intelligence services and the whole of that world. They are immensely brave, have high expertise, and we rely on them a very great deal. In considering their objections to the measure, such contacts as I have had with them leads me to make the following point.

I do not believe for one moment that anyone involved in the intelligence and security world would wish to do anything that would prevent terrorists and, for that matter, serious criminals, being convicted. On the contrary, their whole lives and expertise are devoted to trying to get people into court and to stop them doing the things they are attempting to do. They have no interest in prosecutions not succeeding for whatever reason. They spend their lives trying to ensure that they succeed, and that the terrible things, whether resulting from crime or terrorism, which might otherwise happen, do not do so. They are not on a different side regarding whether or not people should or could be prosecuted successfully. As I say, the legal matter and that of potential damage to the effectiveness of protection cannot really be judged by outsiders. I am certainly an outsider these days. I was a bit of an insider a decade and a half ago when I was a security Minister in Northern Ireland and dealt with these matters, but whatever I was at that point, time and technical progress certainly make me an outsider now. My provisional opinion is that we should consider very carefully the views of those involved in the intelligence world.

My other point concerns the vehicle of a Private Member's Bill. It is certainly an unusual vehicle. We shall no doubt discuss the issue again on other occasions. The noble Lord, Lord Goodhart, has promised to discuss the matter next week when we debate the Terrorism Bill. I am sure that on that occasion we shall discuss the measure in terms of the terrorist connection. There is a problem with Lords' Private Member's Bills generally. They are virtually always sterile anyway. I have to be careful not to criticise Commons' procedure. However, it is a fact that no Private Member's Bill starting in the Lords can succeed unless there is not a single word of discussion on it in another place. It is most unsatisfactory that any Bill should pass into law without a word of discussion in the elected House. However, that is an issue between the two Houses which would repay examination and is to a certain degree incidental to today's debate. The purpose of the noble and learned Lord, Lord Lloyd of Berwick, in proposing a Private Member's Bill is to get it into a special Select Committee. However, as has been pointed out, notably by the noble Baroness, Lady Taylor, it has already been considered—and can, indeed, be considered again in the wider context—by the Select Committee of another place. Therefore, we should hesitate before setting up such a committee. In any case that is a matter which will in due course come before the Liaison Committee if it is to be pursued.

The whole issue of the use of intercept evidence is a matter that we have debated before. It is clearly a matter that we shall debate again, and it is a matter of importance. However, it is not one that we should rush into. It is a much more technical and deeper matter than it first appears. I await the Minister's reply with the greatest interest.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 1:19, 18 November 2005

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, has made a valuable contribution to the debate on whether the law should be changed to lift the current ban on intercept evidence. He entered into that debate with his customary charm and with his usual thoughtful, intelligent and probative approach. The Bill is clearly drafted and is clear in its intent. We are under no illusions on where it wishes to take us.

We have had a very valuable debate, not least because it has given many people with much more experience than I have in this field the opportunity to examine the issues and bring forward their ideas and thinking in a way which we perhaps do not usually have in your Lordships' House. As the noble Lord, Lord Cope, said, the Second Reading of a Private Member's Bill is an unusual way in which to engender this debate and the considerations around it. To reflect momentarily on one of the other contributions, the noble and learned Lord, Lord Lyell, called for a whole-picture approach to the issue. Perhaps with all the different and various contributions we have had from Members with different backgrounds and experience, we have had a whole-picture approach to the issue.

Before I turn to the exquisite merits of the Bill, I remind your Lordships of the Government's stance and make that absolutely clear and transparent. The Government set out their position in a parliamentary Written Statement on 26 January 2005. My right honourable friend the Home Secretary stated then that, following the most thorough and wide-ranging review ever undertaken, the Government decided that the risks of change outweighed the benefits. Intercept, as we know, is extensively used in the United Kingdom as an intelligence tool and its use has consistently delivered very good results against serious crime and terrorism. There is no evidence that these results are bettered elsewhere in the world. Set against that, the review concluded that evidential use of intercept material would be likely to help secure only a modest increase in convictions of some serious criminals, but not the most serious and not terrorists.

The Home Secretary expanded on two areas of particular risk: the need to safeguard the unique co-operation between the intelligence and law enforcement agencies by protecting from disclosure their sensitive capabilities and techniques, and the need to understand the impact that new technology will have on the interception landscape. That has already been referred to in the exchange about the views of Sir Swinton Thomas, who I think made very clear that the forthcoming changes in technology in a sense make the proposed Bill sterile. That was a very potent point made by the interception commissioner. If a way could be found safely to use intercept as evidence without jeopardising this productive relationship, without resulting in an excessive resource burden on the intercepting agencies, and in a way that would stand the test of time and would be compatible with our responsibilities under the ECHR, then we would support such a measure. In a sense the point made by the Prime Minister on which the noble and learned Lord, Lord Lloyd, drew, is evidence of that. If those requirements could be met, who would not want to go along that route?

Unfortunately, the experience of 12 years of almost constant review, as has been referred to by many contributors to the debate, has shown that successive governments of both major parties have been unable to find a way of achieving that. Nor, with due respect to the noble and learned Lord, Lord Lloyd, has he. For the Bill that he has set out would on the face of it not appear to guarantee the safeguards necessary to protect that important relationship—a relationship which has drawn expressions of admiration and support in your Lordships' House today—between the intelligence and law enforcement agencies. That would lead to a reduction in co-operation, a reduction in the options available to criminal investigation and a reduction in its effectiveness as an intelligence—and ultimately as an evidential—tool. Increased reliance on public interest immunity alone could not provide the degree of assurance sought.

Crucially, the Bill does not take into account technology change. The Government are at this moment working with the communications industry in order to understand and respond effectively to technology change and to examine any evidential opportunities that that might offer. But one thing is certain. The communications and interception world in just a few years' time will be radically different, as we have heard this morning, from the one we are looking at now, let alone the position when the noble and learned Lord was more actively engaged in the subject in his previous role as Interception of Communications Commissioner.

The changes will be felt in the United Kingdom ahead of most of the rest of the world, but they will occur globally in the next decade, and the signs are that the United Kingdom is well ahead in preparing for them. That is in no small part due to the uniquely close co-operation in the United Kingdom between the intelligence agencies and law enforcement bodies, but also to the similarly close relationship we have established with the communications service provider industry. The additional work that has been commissioned on this subject will be completed by the end of the year and in the Government's view it would be premature to try to pre-empt any conclusions that might be drawn from that. Suffice it to say for now that the introduction of new technologies will raise by several notches the protections that are required to protect interception techniques and capabilities in the future.

A number of questions were raised in the debate which I should deal with in conclusion. The noble and learned Lord, Lord Lloyd, in particular asked about the value of utility in this matter. We take the view that, because of the terrorists' skill, it is extremely important for us to protect intercept facilities. Terrorists go to great lengths to avoid detection and intercept provides the enforcement agencies and those involved in the security of our nation with a very important tool. The noble and learned Lord, I think, referred to the Australian example of handling intercept material. There have been recent reports from Australia of five terrorist court cases in which intercept material was used but no convictions were obtained. That is felt to be due partly to the way in which key information was revealed. There have also been recent media reports of difficulties in using intercept evidence in terrorist cases in both Spain and Italy.

The noble Lord, Lord Goodhart, proposed guaranteeing the anonymity of employees used in intercept work and offered that as a form of safeguard. We take the view that guaranteeing anonymity in court of those employed in intercept work by service providers would not protect the degree of co-operation, assistance levels or the important relationship that is developed between the service providers and those in the intelligence service. So we do not necessarily see that as a particular benefit in arguing the case for the Bill, as the noble and learned Lord did.

Those are important points to consider. The noble Baroness, Lady Ramsay, made them forcefully, as did the noble Baroness, Lady Park, both of whom have long experience. I think that it is that experience to which we should listen most in this debate. We are in difficult times, times in which our security and safety in this country is very much in peril. When someone with the experience of the noble Baroness, Lady Ramsay, in this matter says that—and I paraphrase—to change from our current position would endanger very sophisticated techniques and pose unacceptable risks, then, in view of her 20 years' experience in dealing with these issues, I take such views very seriously. Nevertheless, this is a very important debate and one certainly does not wish to deny its validity. It is a debate that, outside the confines of the Second Reading of this Private Member's Bill, I have no doubt will be actively pursued.

During the course of the debate, the issue of referring the matter to a Select Committee has been raised. Here I am drawn to conclude, in agreement with the noble Baroness, Lady Taylor, that the Intelligence and Security Committee has done a great job in examining such issues in the past, and I do not see why it should not do that job in the future. Like the noble Lord, Lord Cope, I have severe doubts about whether it would be appropriate for a Select Committee of your Lordships' House to look at those matters in the same way, given the significant national security interests involved.

For all of the reasons that I have drawn upon and for many of the reasons advanced during the course of the debate, I am obviously going to conclude on behalf of the Government that we cannot support the noble and learned Lord's Bill, although convention is that the Bill receives its Second Reading in your Lordships' House. The Bill would be unlikely to secure a safe and sustainable way of using intercept evidence in the United Kingdom. While, like other noble Lords, I welcome the opportunity that the Bill has provided for us to have a debate in a constructive way this afternoon, ultimately the Government cannot support the Bill.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 1:31, 18 November 2005

My Lords, I am grateful to all noble Lords who have taken part in the debate, which has now lasted two and a half hours. I am not surprised to find that those who have spent their lives in the intelligence world have spoken against the Bill with such conviction and even passion—that is what I expected. However, I think I am right in saying that only the noble Baroness, Lady Ramsay, and possibly the Minister, have spoken against this matter being referred to a Select Committee. That is all I am asking. The importance of the matter is not in doubt, and the importance of it being investigated, if possible, by Parliament has been stressed and stressed well by the noble Lords, Lord Brennan and Lord Judd, and the noble and learned Lord, Lord Lyell.

Photo of Lord Robertson of Port Ellen Lord Robertson of Port Ellen Labour

My Lords, I should make it absolutely clear, since perhaps it was not clear from my speech, that I also oppose the matter being referred to a Select Committee. My noble friend Lady Taylor also made it clear in her speech that she opposed it, so silence should not necessarily be taken as consent.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I am grateful; I had forgotten that the noble Lord, Lord Robertson, spoke against the Select Committee. I was coming to the noble Baroness, Lady Taylor. I understood her to say that she was not against the investigation of this matter by a Select Committee, but she suggested that a more appropriate committee would be the one of which she has been a member, namely the Intelligence and Security Committee.

Photo of Baroness Taylor of Bolton Baroness Taylor of Bolton Labour

My Lords, I am grateful to the noble Lord for giving way. It would be duplication and in effect a waste of time to have a Select Committee when the Intelligence and Security Committee already has members who have some experience of this matter. It operates within the ring of secrecy and therefore could take evidence. The ISC is the body to which we as parliamentarians should look, because it is a statutory body of parliamentarians charged specifically with oversight of the agencies.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I fully understand that, and the committee is in charge of the agencies, but the problem is that perhaps its members are not as familiar as they might be with the realm of the criminal justice system. The point about having a Select Committee of this House is that it would be able to combine the expertise of those in the intelligence world, the police world and the criminal justice world. That is why I suggest that it is the way ahead.

The noble Lord, Lord Robertson, accepted that there was what he called a "superficial" attraction in the Bill because it would enable some serious criminals to be convicted. I agree that it would do that, and that is now common ground, but I cannot regard that as a "superficial" matter. Even if one terrorist could be charged and convicted before he had committed his terrorist act, thereby saving lives, surely that would be worth doing. We could do that if intercept evidence were admissible because there is seldom any other evidence which would enable him to be charged before he acted.

Of course we must be careful to protect the sophisticated techniques about which we all know, and, above all, we must be careful to protect human lives, as the noble Baroness, Lady Park, stressed. But there are ways in which that could be done and I believe that those ways should be investigated by a Select Committee, which is the purpose of the Bill.

As for the suggestion that such legislation is a waste of time because in two years' time everything will have changed, I hardly regard that as a suitable reason for not investigating the matter now. With that, I leave the matter to your Lordships.

On Question, Bill read a second time.