Terrorism Bill

– in the House of Lords at 9:15 pm on 13 December 2005.

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House again in Committee on Clause 23.

[Amendments Nos. 122 to 124 not moved.]

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 126 not moved.]

Clause 23, as amended, agreed to.

Clause 24 [Grounds for extending detention]:

[Amendments Nos. 127 and 128 not moved.]

Clause 24 agreed to.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

moved Amendment No. 129:

After Clause 24, insert the following new clause—

"EXPIRY OR RENEWAL OF EXTENDED MAXIMUM DETENTION PERIOD

(1) This section applies to any time which—

(a) is more than one year after the commencement of section 23; and

(b) does not fall within a period in relation to which this section is disapplied by an order under subsection (2).

(2) The Secretary of State may by order made by statutory instrument disapply this section in relation to any period of not more than one year beginning with the coming into force of the order.

(3) Schedule 8 to the Terrorism Act 2000 (c. 11) has effect in relation to any further extension under paragraph 36 of that Schedule for a period beginning at a time to which this section applies-

(a) as if in sub-paragraph (3)(b) of that paragraph, for "28 days" there were substituted "14 days"; and

(b) as if that paragraph and paragraph 37 of that Schedule had effect with the further consequential modifications set out in subsection (4).

(4) The further consequential modifications are—

(a) the substitution of the words "a judicial authority" for paragraphs (a) and (b) of sub-paragraph (1A) of paragraph 36;

(b) the omission of sub-paragraphs (1B) and (7) of that paragraph;

(c) the omission of the words "or senior judge" wherever ocurring in sub-paragraphs (3AA) and (5) of that paragraph and in paragraph 37(2); and

(d) the omission of the words from "but" onwards in paragraph 36(4).

(5) Where at a time to which this section applies—

(a) a person is being detained by virtue of a further extension under paragraph 36 of Schedule 8 to the Terrorism Act 2000 (c. 11),

(b) his further detention was authorised (at a time to which this section did not apply) for a period ending more than 14 days after the relevant time, and

(c) that 14 days has expired, the person with custody of that individual must release him immediately.

(6) The Secretary of State must not make an order containing (with or without other provision) any provision disapplying this section in relation to any period unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(7) In this section "the relevant time" has the same meaning as in paragraph 36 of Schedule 8 to the Terrorism Act 2000 (c. 11)."

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I ask the Committee to agree that this new clause be added to the Bill. At the same time, I ask it to agree that Clause 36, which the new clause replaces, should not stand part of the Bill. I hope that we need not spend long on the amendment. In the contentious area of pre-charge detention, this is one aspect that is largely uncontentious. I am sure that Members of the Committee will give thanks for that.

As the Committee will be aware, in another place, the Government committed to bringing forward a sunset clause to deal with the extended period of pre-charge detention. We were keen that Parliament should have another opportunity to consider the matter after that power had been in operation for a year, after which we felt that some of the concern about the extension of the maximum period for which a terrorist suspect could be detained prior to charge would have fallen away. Several amendments intended to provide that that extension would be time-limited to 12 months were tabled on Report in another place. One of those is now contained in the Bill in Clause 36. Clause 36 provides that Clause 23 ceases to have effect after 12 months unless an order is made by the Secretary of State providing that it shall remain in force for a period of 12 months. The order will be subject to the affirmative resolution procedure.

As the Committee may be aware, Clause 36 was proposed by Mr David Winnick, who did not have at his disposal the expert services and significant experience of parliamentary counsel when he drafted his amendment. As a result, Mr Winnick has accepted that Clause 36 is technically defective. In the incidence of no order being made, under the present drafting, Clause 36 would remove certain texts from Schedule 8 to the Terrorism Act 2000 that are necessary to the operation of that Act. Also, as drafted, Clause 36 does not take account of the fact that Clause 23 makes amendments to Schedule 8 beyond increasing the maximum period of pre-charge detention. The new clause replaces Clause 36 in line with a commitment given to the House by my right honourable friend the Home Secretary at Report. It reflects the spirit of Clause 36 and replicates all its key provisions.

The new clause provides that extension of the maximum period of detention and related provisions in the clause shall cease to have effect 12 months after the commencement of that clause unless an order continuing the provisions for a further 12 months has been approved by both Houses of Parliament. If such an order is not passed, the maximum pre-charge detention period in terrorism cases will revert to 14 days. That, in effect, provides for the annual renewal of the extension of the maximum to 28 days.

The proposed new clause also contains provisions governing what would happen to those detained at the time should Parliament decline to renew the powers. That explains why such a relatively lengthy clause is needed for what should be a fairly simple provision. The new clause also differs from Clause 36 in that it focuses on amending Schedule 8 to the Terrorism Act 2000 rather than Clause 23, thereby ensuring that the other amendments made by Clause 23 to Schedule 8 to that Act remain unaffected if an order renewing the extended period of detention is not made. That is important, as it preserves the useful alterations to the operation of Schedule 8, which included a number of enhancements to existing procedures advocated by the police and the Crown Prosecution Service, the inclusion of which was agreed by the other place.

The new clause correctly represents the spirit of Clause 36 while ensuring that no damage would be done to the fabric of the Terrorism Act 2000 if the powers to extend detention to 28 days were to lapse. That is important, as I am sure all noble Lords would accept. I do not believe that noble Lords would ever consider allowing defective legislation to leave this place. I beg to move.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

I simply observe that the length of this amendment is of inverse importance to the political impact that it had on the amendment tabled in another place.

On Question amendment agreed to.

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

moved Amendment No. 130:

After Clause 24, insert the following new clause—

"EVIDENCE

(1) The Regulation of Investigatory Powers Act 2000 (c. 23) is amended as follows.

(2) In section 5(3)(b) for the words "or detecting" substitute "detecting or prosecuting".

(3) In section 17(1) after the words "Subject to section 18" insert "and section 18A".

(4) After section 18 insert—

"18A EVIDENCE

(1) Notwithstanding section 17, evidence of—

(a) the contents of an intercepted communication, and

(b) communications data, shall be admissible in criminal proceedings to which this section applies.

(2) This section applies to—

(a) proceedings in respect of serious crime;

(b) proceedings in respect of an offence or offences relating to terrorism.

(3) An application for permission to introduce such evidence may be made by the prosecution for the purposes of conducting a criminal prosecution to which this section applies, and not otherwise.

(4) Unless and until an application has been made by the prosecution in any such proceedings, the provisions of section 17 shall continue to apply in connection with those proceedings.

(5) In deciding whether to admit evidence under this section, the court shall take account of all relevant considerations, including in particular—

(a) any application by the Secretary of State to withhold the evidence or part of the evidence on the grounds that its disclosure, or the disclosure of facts relating to the obtaining of the evidence, would be contrary to the public interest, and

(b) any submission that the evidence was obtained unlawfully.""

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

Ten days ago we had a debate in this House on the Interception of Communications (Admissibility of Evidence) Bill, the purpose of which is to make intercept evidence available in cases of serious crime, including terrorism. I hope that that Bill will in due course be referred to a Select Committee, for the reasons that I gave 10 days ago. This amendment has exactly the same objective but takes a more direct approach.

The events of 7 July make it more than ever necessary to use every shred of available evidence to convict those suspected of being terrorists before they commit their atrocities. The recent decision of the House of Lords that evidence obtained by torture is no longer admissible underlines that necessity.

We have gone over that ground many, many times in this House. I have some sympathy with the noble Baroness for having to listen to my arguments yet again. I shall outline them as quickly as I can. As recently as 20 July this year, the Prime Minister said that he was, in principle, in favour of intercept evidence being admitted in court, subject of course to suitable safeguards. He said that he would consult the security services again to see whether something could not be worked out. Many others have expressed the same view, including the Newton committee, Sir Ian Blair and Sir David Calvert-Smith, the retired Director of Public Prosecutions.

We all know that the security services, and GCHQ in particular, are concerned that their techniques should not be compromised. But I believe that a way can be found to admit evidence in at least some terrorist cases without revealing their methods. Similarly, a way can be found to protect those who work for mobile telephone companies. I have in my hand a letter from the Mobile Broadband Group, which comprises all the main mobile telephone companies. It says that it has no objection in principle to this evidence being admitted provided that its witnesses can be given anonymity, which they point out is the case in France, Germany, the United States and Canada.

That brings me back to a point which I have mentioned over and over again. We still are the only country in the world, other than Ireland, which does not admit this evidence. In Australia, the federal director of prosecutions has said, as recently as 22 February 2005, that he could not do without intercept evidence. Australia has a system of separate warrants, which are evidential warrants for use in court and warrants which are solely for intelligence purposes. In this country, we call that the two-tier system. It was discussed as long as five years ago. I remember attending a Home Office conference on this very subject where it was top of the agenda. I have to ask yet again: if it can be done in Australia, why can it not be done here?

I know that there is fear among all those who have worked in intelligence services that once evidence is admitted in a single case, Pandora's box will be opened and defence lawyers will have a field day. I suggest that that fear is misplaced. It will always be for the prosecution to decide in any case whether to use intercept evidence. If the prosecution decides not to use the evidence, there will be no way in which the defence can get hold of it. Section 17 of the Regulation of Investigatory Powers Act will provide a complete bar.

No one suggests that this evidence will be useful in all cases or even in a majority of cases, but it will be very useful in at least some cases. What is difficult to justify is a blanket ban on the use of intercept evidence. Because that is so difficult in my view to justify, and that being all that I seek to achieve, I beg to move.

Photo of Lord Robertson of Port Ellen Lord Robertson of Port Ellen Labour 9:45, 13 December 2005

On the grounds that I do not have the same amount of déjà vu on the subject as everyone else, I will speak first in the debate initiated by the noble and learned Lord. First, again I declare what might be an interest. I am deputy chairman of Cable and Wireless, the second largest telecommunications company in the country. But I repeat that I talk today from my experience as a former Secretary of State for Defence and as a former Secretary-General of NATO, which is why I am strongly and passionately opposed to what sounds on the face of it to be the attractive proposition that the noble and learned Lord puts forward.

If I thought we could protect all the sources and techniques and still make intercept evidence available, I too would be attracted. But I know that we cannot do so, which would make it a serious liability, counter-productive and, indeed, dangerous to those involved in these activities. We were told recently by the authorities that both before and after 7 July major operations of a terrorist nature in this country have been frustrated by information that was gained. It may not be sufficient to put anyone on trial, but it has prevented atrocities taking place. I believe that all in this country agree that deterrence is better than simple conviction. If, by convicting a couple of people, we declare our hand and expose our techniques for gathering information on a wide range of things, we would have a bad bargain and we might rue the day we went down that route.

Most of these arguments have been rehearsed in previous debates. Not only did I participate in the debate on the Private Member's Bill brought forward by the noble and learned Lord, Lord Lloyd of Berwick, but I have also read some of the other debates that have taken place. The ground is well and truly trodden, but sometimes in politics certain key things need to be repeated in order that they can be appreciated fully.

The fact is that communications of all sorts are becoming ever more sophisticated, complex, concealed and surmountable. The criminal classes present a constant challenge in their efforts to stay ahead of those who stand for an ordered rather than a disordered society. If we were to expose the methods by which information is gathered, as inevitably we would have to do if the law was changed in the form being suggested, we would suffer more and be in much greater danger.

I shall go over some of the evidence put forward in the last debate, but before I do so I should like to pray in aid someone who takes a view similar to that of the noble and learned Lord; sometimes, it has to be said, with the same persistence. I refer to Mr Anthony Arlidge, QC, who appears to be doing the rounds of the legal conferences arguing in favour of the admissibility of intercept evidence. I do not know him personally or anything of his provenance, and I do not know how mighty he is in terms of the legal profession. However, he certainly pops up at conference after conference arguing strongly that intercepted information should be put into evidence. He has a somewhat na-ve view of telecommunications since he seems to think that the only evidence we are talking about is telephone evidence. Much of the information gained is not strictly telephone evidence at all, but for the moment we shall leave that to one side.

I shall quote from a press release issued by Mr Arlidge's chambers after he attended a Sweet and Maxwell conference held on 28 June this year:

"However, Anthony Arlidge QC cautions that allowing intercept evidence to be used in court would not be without risk. The defence might seek to argue, he claims, that it is relevant for them to know if, for example, there has been a participating informant and then try to force the argument to the point that the prosecution have to drop their case".

That is exactly the point I made in the last debate. Indeed, it was at the suggestion of the noble and learned Lord that, in extremis, that is what the Government could do, but nothing would be more likely to undermine the authority of the court system and the strength of argument against terrorists than dropping cases in the middle of proceedings. However, Mr Arlidge goes on to make a quite devastating point:

"Once taps are admissible, the opportunities to play this game will be greatly extended".

So we are not talking here about some layman who was the subject of criticism in the last debate when I made the assertion that clever lawyers can always be outwitted by even cleverer lawyers. We now have a very clever lawyer making the argument that we are opening a door here. If he says there is a risk, it is right and proper to examine that risk to see whether it is worth taking.

Let me refer to some of the other views that have been expressed. The noble and learned Lord mentioned a few of the authorities which argue in favour of intercept evidence being used in court. In his 2004 report, the Intelligence Services Commissioner was very frank indeed: he said it 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. That is a very clear and explicit point. The commissioner was quoted by the noble Baroness, Lady Park, in the previous debate, in a speech which is well worthy of Members of this House reading again.

But, of course, as we found in the previous debate, the most devastating evidence against the proposition put forward this evening comes from Sir Swinton Thomas, the Intercept of Communications Commissioner. There was a remarkable exchange between the noble and learned Lord, Lord Lloyd of Berwick, and the noble and learned Lord, Lord Ackner, in the previous debate. I am sorry the noble and learned Lord, Lord Ackner, is not part of the tableau today. It was quite memorable. It was certainly worth spending a Friday afternoon in the House of Lords simply to enjoy it.

The noble and learned Lord, Lord Ackner, chose to read out the letter from Sir Swinton Thomas, which the Intercept of Communications Commissioner had sent to both of these mighty former Law Lords. Sir Swinton Thomas was absolutely clear in what he was saying. He said categorically in his 2004 report that he was 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. We are bound to listen to the considered view of this eminent lawyer—who was given the task by the country of looking specifically at this issue—and to bear in mind very carefully what he has said.

But, of course, he went beyond what he himself called the bland words in his report. I think they are pretty devastating words—they do not sound bland to me—but in the letter that he sent to the two noble and learned Lords, Lord Lloyd of Berwick and Lord Ackner, he went beyond that. The noble and learned Lord, Lord Ackner, said that Sir Swinton Thomas 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 do not believe that this House and this Parliament can afford to ignore such an explicit warning given by the man charged with that responsibility.

If we are to do anything in this regard before we take that step, the words in the letter sent to both the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick, should be held very much in mind. I suggest that the argument still remains, very clearly and positively, against making any change in the existing law.

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

Before the noble Lord sits down, perhaps I may ask him a question. Is he arguing that there would be no cases at all in which it would be safe to use intercept evidence in trials? That seems fairly improbable but, if he is not arguing that, what is the problem with saying that it is permissible but not compulsory to use intercept evidence; and if the security services decide that it is not appropriate to use intercept evidence, they are not under an obligation to disclose it?

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

That sounds quite plausible and reasonable. If Sir Swinton Thomas, who is in charge, were to come and make that case, and if he believed that the intelligence agencies thought that that was a possibility and could be done without compromising sources and techniques, I might be prepared to consider it. But, as I say, if the man the country has appointed to look specifically at the issue—never mind the other authorities who have been quoted time upon time—says that in his view the disclosure that is sought would do untold damage, especially to law enforcement and intelligence, and would substantially increase the risk to us all, we would be very unwise and very rash to ignore that advice.

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

Did the noble Lord ever make that point to the governments of France and Germany when he was Secretary-General of NATO? Did he say, "What on earth are you doing releasing all your secrets into the courts and to those dreadful lawyers who may use them in some dreadful way that will wreck the western alliance?"? Did the noble Lord ever say that?

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

Advising them on how they collected their intelligence was not really part of my responsibilities, but for a period, I had responsibility for the intelligence services of this country. If others wish to follow our example, I am sure it is open to them to do so.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 10:00, 13 December 2005

I support the new clause. I do so subject to all the precautions that one would wrap around it to ensure that when there were concerns about the security of the state and the protection of methods, those arguments could be made and the evidence not used.

The arguments against telephone taps used to be used against electronic eavesdropping—bugging. Now, in the courts, we regularly have transcripts of conversations in motor cars and inside people's homes because a bug has been placed there to pick up those conversations. It can be very devastating evidence in some cases, including terrorism cases.

When it comes to tapping telephones, it is different. A tap on a telephone on a landline follows pretty much the same sort of exemplar I mentioned with electronic eavesdropping in cars, for example, using the traditional bug. But we are talking about hoovering up conversations by satellite, and there is a resistance to making that kind of evidence available. I argue that that method is unreliable for the same reason. Sometimes it is not reliable because of the quality of the recording; sometimes conversations will take place in languages not familiar to those who are making a recording at a land station, picking up on the satellite waves; and the translations are not always very accurate.

There are very good reasons for us calling into question the quality of some of that evidence. I can see good reasons for why it should not be seen as a reliable source of evidence, even as a source of intelligence. But if it is good, there must be occasions when the prosecution authorities say, "This is evidence which we would be content to place before a court and we would be happy to have the appropriate witnesses called to support it without it giving away any of the great national secrets which concern people".

It is always a source of amusement to me that there are no secrets about how this is done. This kind of information is available to people. You may think you are privy to great secrets regarding the methods, but I can assure you that I have access to people who tell me exactly what the methods are. So it is a nonsense to think that it is a secret.

In the panoply of methods to deal with terrorism, the state should be able to use this where appropriate and where it feels it would not be putting anybody or any particular method at risk. We can draft this provision in a way that would provide the sort of protections that the noble and learned Lord, Lord Lloyd of Berwick, has referred to under Clause 17.

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

In holding the scales, justice may be blind but there is no reason why prosecution should be. Speaking as a former Lord Advocate, I would have expected to be aware of all the material which led the police force to suggest that there should be a prosecution of an individual for a terrorism offence.

I remind noble Lords that in Clause 19, the Attorney-General, though not apparently the Lord Advocate, is given the discretion whether prosecution should proceed in certain matters relating to,

"the affairs of a country other than the United Kingdom".

It is perfectly reasonable for the Lord Advocate in Scotland—although I hesitate to think who it would be south of the Border; it may well be the Attorney-General in a case so important as to involve intercept evidence—to consider whether it would be advisable that such evidence should be produced in court. There might be many reasons why it should not be, but that is a matter of discretion which the Attorney-General or the Lord Advocate can consider and discuss with those who would be most effective.

I must say to the noble and learned Lord, Lord Lloyd, that perhaps it would easier to stop the use of the evidence at first blush than have it produced by the prosecution and have the Secretary of State intervene by coming into court and saying that it should not be used. The first place to consider whether it would be appropriate in all the circumstances to lead it as evidence is at the point when the prosecution is marshalling its evidence.

I have a great deal of sympathy with what the noble and learned Lord is endeavouring to do in this case. Frankly, the fears that the noble Lord, Lord Robertson, has ventilated—and I have read the Second Reading debate on the Bill proposed by the noble and learned Lord, Lord Lloyd—may perhaps be overstated. If we cannot trust the prosecutor in deciding where these matters lie, who can we trust? If we trust the Attorney-General in Clause 19, why cannot we trust him and the Lord Advocate in deciding whether these matters should be led in evidence against the background of all the concerns that have been expressed, both today and in earlier debates? For that reason, though with a certain caution about the one part of it that I mentioned, I generally support the thrust of the clause.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

As the noble and learned Lord, Lord Cameron of Lochbroom, said, this issue was discussed in the interesting Second Reading debate on the Bill proposed by the noble and learned Lord, Lord Lloyd of Berwick, on the admissibility of intercept evidence. At that point, those who argued against the noble and learned Lord did so very much on the basis of how much intercept evidence has changed over the past few years.

The point of my own experience has been that the intercept evidence that we are arguing about is not the admissibility of telephone tapping or the other means of listening in on conversations that might be described as "bugging" in the broadest sense. We are talking about the very difficult intercept evidence that has been gathered by those who work, often outside this country, often after very lengthy periods of familiarity in very hostile circumstances. The way in which that evidence is collected is extremely complex, lengthy and painstaking, and often those who gather it would be put at enormous and unacceptable risk of detection were it to be exposed. If that sort of evidence is made admissible, the people who have done that extraordinarily courageous work for us are put at very great risk—certainly of exposure and possibly of reprisal. It also puts that source of intelligence beyond our reach in future.

When this was discussed on Friday 18 November, the noble Baronesses, Lady Ramsay of Cartvale and Lady Park of Monmouth, who are both experienced practitioners and come from very different political traditions, had a remarkable coincidence of view on this very point. It is nothing to do with party politics or whether you believe in human rights.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

I know that that is not the noble and learned Lord's point. But it is remarkable that, none the less, those who had the practical experience of dealing with this agreed absolutely on that point.

The noble Lord, Lord Robertson of Port Ellen, and I have been—I hope he will not take exception to this—birds of passage on this rather than dedicated professionals over a lifetime. Our view as birds of passage coincides with what the noble and learned Lord, Lord Ackner—who sadly is not in his place this evening—reported to us, as my noble friend Lord Robertson said, about what Sir Swinton Thomas said about the disclosure. He said that it,

"would do untold damage ... to law enforcement and intelligence", but—and this is the crucial point—

"substantially increase the risk to us all".—[Hansard, 18/11/05; col. 1310.]

I accept that there may be a change that might be possible at some point in the future. But sadly, as matters stand, the priority is that of safeguarding information which we otherwise would not have. That information allows us to safeguard the security not only of those who undertake this very difficult task of intelligence gathering for us but, as importantly—more importantly—the people of this country.

The noble and learned Lord, Lord Lloyd of Berwick, the noble Lord, Lord Goodhart, and the noble Baroness, Lady Kennedy of The Shaws, have said, "You would not have to put that sort of evidence into court. You would do it only when it was appropriate". But if we were not to put such evidence into court, all three noble Lords—great practitioners of their art—would say, "Why not? Why have the Government not been able to put this evidence into court?".

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

Perhaps I may finish the point. I am sure that all the noble Lords will get up and challenge me immediately afterwards.

I am not a lawyer. But my experience of dealing with these things when you are not able to put forward evidence is that, even if the noble Lords themselves did not say it, the argument would run, and it would certainly run in newspapers and public opinion as, "Well, the evidence cannot stand up. The reason this is not being done is not because of the delicacy of the source. It is because the evidence does not stack up".

The noble Baroness, Lady Kennedy, says there are no secrets. Well, I very much hope that there are.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

I was talking about in methodology. The methodology is not a secret. There are people who know.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

Of course there are people who know. But I beg to differ with the noble Baroness. Of course I knew what she said. What we are talking about is exactly methodology. I do not know whether the noble Baroness or those who are her sources have been taken through certain protocols to which one signs up for life. Those of us who have know exactly what I am talking about. That sort of information, believe you me, I would not impart to another soul. I would not do that. If anybody has told the noble Baroness those things they should not have done and they have behaved disgracefully in doing so. The noble Baroness may smile and laugh about it but I think that the security of this country and those protocols are enormously important. She may think they are a bit of a joke. We beg to differ.

The fact is that these are enormously important issues. There are real secrets about how this information is gathered. Long may they stay secret.

Photo of Lord Elton Lord Elton Conservative

Could the noble Baroness explain to a fascinated and as yet uncommitted observer who like her is not a lawyer how it is that we are told that every other country except Ireland uses this method but their operatives have not forfeited their lives and their systems do not work?

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour 10:15, 13 December 2005

Because intercept evidence means a variety of different things to different people. Intercept evidence is phone tapping. Intercept evidence is bugging. It covers a whole range of things which might in certain circumstances be permissible. I say to the noble and learned Lord, Lord Lloyd of Berwick, that I am not claiming this will be out of court for ever. I am saying that once you permit intercept evidence of any sort, you have to explain why you do not permit intercept evidence of all sorts. I do not believe that we are sufficiently well attuned in this regard at the moment, but I do not rule the measure out completely. It would be foolhardy so to do because methodologies change all the time. But at the point where we are now I ask the noble Lord to reflect on what the commissioner has said on this point—the commissioner who is not fighting a particular corner, who is charged with the oversight of the safety of this information overall—that it would put us at an unacceptable risk.

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

I respect the noble Baroness enormously, as she knows, and her experience in the Foreign Office. But really the debate turns into those who know something about court procedure and those who do not—who have no idea what goes on in court or what the safeguards are. It is ridiculous to say that the defence can demand to see everything and everything will be revealed. That is just not the case. I think I said in the debate on the Bill introduced by the noble and learned Lord, Lord Lloyd, that in the last bugging case I was involved in—the bugging of a car, a house and so on—the languages concerned were Turkish and Albanian. They were translated. There was no problem. We heard all about that. I asked the prosecutor whether there was any intercept evidence that would help the defence. He said, as he was perfectly entitled to do, "I know my duty under the Act and I have performed it". That was the end. I could not ask him any more. If he felt that there was nothing to be revealed, that was it. I could not challenge it. There was nobody to whom I could complain. That is what happens.

The new clause that the noble and learned Lord, Lord Lloyd, seeks to insert states specifically that only the prosecution can ask for permission to introduce such evidence, and:

"Unless and until an application has been made by the prosecution . . . the provisions of section 17 shall continue to apply in connection with those proceedings".

Even then the prosecution would have to apply to the judge to get permission for this evidence to be disclosed, if he wanted to. If there were any danger at all of these very secret things that do not apply in other countries—these techniques—becoming known, the prosecutor would not ask for that evidence to be introduced. The noble Baroness herself—I do not want to direct all my remarks to her because I can say the same to the noble Lord, Lord Robertson—has drawn a distinction between the dangers of revealing evidence that comes from overseas sources, where we may have somebody planted in some organisation or in some government whose safety would be at risk, and the ordinary evidence that may arise from an intercept where no such risk exists.

It is 13 years since I prosecuted a case involving letter bombs. In that case—and it was all admitted in court—the security services planted a probe inside the suspect's house and all his conversations on one end of the telephone were recorded. We did not hear what was on the other end of the telephone. I regarded that as ridiculous 13 years ago and I still regard it as ridiculous. In other words, there are areas in which the conversation—as with our Albanian and Turkish friends whom I mentioned and whose conversations, incidentally, took place abroad—can be recorded and we hear all about it, and there are areas where we do not. Nobody has to reveal anything to us if the national interest is involved.

I refer to the people who gang up at the behest of GCHQ and overrule Sir David Calvert-Smith. The noble Lord, Lord Carlile of Berriew, has been mentioned a great deal. He seems to have access to this information and says that intercept evidence should be admitted. All those people know what goes on in court and what protections exist; but that is precisely what the speakers tonight do not know.

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

Leaving aside the challenge that, "Some people do not know about the courts but they know about something else" and, "Some people know about intercept evidence but they do not know enough about the courts"; Sir Swinton Thomas knows about both. So why does the noble Lord think it was that someone of his eminence, charged with this responsibility, knowing the courts as he does and knowing the material collected by the intelligence services, came to the conclusion that he put in the letter to the noble and learned Lord, Lord Ackner, and the noble and learned Lord, Lord Lloyd? Why did he come to that conclusion?

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

Because it is one person's view.

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

I do not know—how am I supposed to answer for what is in his mind? That is precisely the sort of thing that we are investigating all the time in court. I do not know why he has come to that view and the noble Lord, Lord Carlile, and Sir David Calvert-Smith have come to a different view. Noble Lords who have been involved with the Security Service seem to be carried away by it. They think that everyone else in this country, including the legal profession—no, starting with the legal profession and going on to Her Majesty's judges—is incapable of assessing what the public interest is. That is nonsense.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

We all accept that we come from different backgrounds, but to accuse those who have a different view of being "carried away" and not really competent to join in a debate on this issue does not do the noble Lord any great service. His powers of argument are better than that, and he is a fairer man than that. It is an unfortunate way for him to have framed his argument. I am perfectly willing to believe that the noble Lord not only holds a strong view but has a right to hold a strong view. I wish the noble Lord would accord my noble friend and me the same courtesy.

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

I will certainly do so, and I will go and stand in the corner for a moment with a hat on my head. I apologise to the noble Baroness if she feels that I have been saying anything against her, because she knows I do not feel like that.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

I do not know what the words "carried away" were meant to mean, but they were pretty clear to those of us listening to the debate.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench

First, I apologise for not being here at the beginning of this; I did not quite fall asleep, but I did not realise that it was on. I will be very short.

It seems to be black or white—either we have total disclosure or we have non-disclosure. I cannot believe that either of those is in practical terms what we need to have on the ground. The world is not like that. Why is it that certain people when asked a certain question—heads of the security services or whatever—say, "This threatens our people completely and absolutely, if you disclose anything"? Why is that others say, "You need not disclose it"? I am not as eminent as the noble Baroness, Lady Park, or indeed the noble Baroness, Lady Symons, and I certainly do not know as much as they do.

To put it in slightly different terms, in Northern Ireland, we may have had information from those types of intercept or other types of information that we did not wish to disclose. There were mechanisms whereby that information was not used until such time as there could have been another source for it so that the sensitive source was not exposed. I cannot speak from their level, I fully accept that, but from my level, which was fairly low. In practical terms you have to balance what you are going to get and what you are prepared to sacrifice—if indeed you are prepared to sacrifice it—and how you might take the action that you wished to all along without exposing the individual, individuals or systems that originally set you on to it.

I was not in the Second World War, but I believe that the noble Baroness opposite would be able to describe occasions when exactly that sort of thing happened—when an operation took place and the original, sensitive sources were not exposed. We are being rather blinkered about the issue; I cannot understand why the Government and certain people are being so. I am sure that if you offered the security services the assurance that under no circumstances would they be exposed if they did not want to be, but that such information could be used when they agreed to it, they would say, "Yes, go ahead"—so why are we not working on that?

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

We are not worried about bugging, intercepts and all the rest of it—of course that can be done, and there is no danger if it is found out. It is an embarrassment; you have to find another way of covering the target—you have to start again. We are talking about the rare and almost irreplaceable human source who takes years to get into place. If he or she is lost, the replacement is extremely difficult. I say nothing about the fact that they may be killed but, practically speaking, in terms of value to the country, they are lost and you have to start again, maybe waiting two or three years.

Northern Ireland is not a fair example, really, because there were so many things going on there that it was probably quite possible to obscure a human source, and there were umpteen covering operations and intercepts—bugging people's cars and all the rest of it. Now we are talking about very sophisticated targets that are not under our control in many ways. The person involved may be sitting in Pakistan or Hamburg, and be very difficult to protect once the defence realises that you have intelligence and cannot account for it. You cannot say, "It's bugs" or "It's this or that". It is something that is human and very difficult to create or replace. That is what we are worried about.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

I find myself yet again at complete loggerheads with the noble and learned Lord, Lord Lloyd of Berwick, on the subject of the use of intercept material as evidence. If it did not have very unfortunate connotations, I would be tempted to say that I admired his indefatigability on the subject.

In my mind, this is not a debate between those who know about law and court procedure and those who do not, as the noble Lord, Lord Thomas of Gresford, said; it is really a debate between those who understand what we are talking about in the full, complex world of interception of communications and all that it entails, and those who do not. As I have said before, the rising clamour for the use of the material in British courts arises, to a large extent, from at best a very imperfect picture of what intercept actually entails and its scope, what its use in a British court would reveal, and the loss of intelligence capability that would ensue. The whole area of intercept is much wider and more complex in scope than most people can imagine. Luckily, that includes the targets for the operations. Dare I say that even noble Lords eminent in the law reveal by their comments that they do not realise what intercepted communications mean? They mean much more than tapping telephones. Even a hint at a type of technique risks losing that capability for ever and instantly, as cases have unfortunately proved in the past.

A constant refrain—we have heard it again tonight—is, "Other countries use intercept to give evidence in court. Why do we not?". As I have said before, there are many reasons. Tonight, due to brevity and the lateness of the hour, I shall speak about only three. I make no apology for reiterating the reasons, as their significance bears repetition. I went through them all at Second Reading, but I shall do it again.

First, we should all be very proud of sophisticated and extensive British expertise in interception and transcription. But its very sophistication and scope render it extremely vulnerable. I have said before, a straightforward police telephone tap on home national territory would have little to lose in revealing techniques or sensitive services, and it is that kind of material that other countries use in court. In some countries it is the only kind of intercept that they use, and in those countries where more sophisticated techniques are used by agencies other than the straightforward law enforcement agencies, it is the more routine product of the law enforcement agencies' warrants that is produced in court, to which the noble and learned Lord, Lord Lloyd, referred—the fact that there are different kinds of warrants in some countries. We do not operate like that, as he knows.

Secondly, we have a uniquely close, 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. Time prevents me from expanding on that, but it is a real difficulty of enormous complexity.

Thirdly, our adversarial legal system, where defence counsel can roam widely at the discretion of the judge, produces in the case of intercept material an unacceptable risk of exposure. It also means enormous burdens of transcribing and preserving all related intercept material if it is to be available for court evidence, which would certainly mean a considerable diminution of product from the services concerned, because of the sheer volume that would have to be processed. Countries whose legal systems have investigative judges or magistrates can manage to handle sensitive material without the risks that would be involved in using such material in a British court.

A further difference in our legal system, compared with the oft-quoted other countries, is that we have no statutory obligation on telecommunication companies to facilitate interception by our services or law enforcement agencies, which obviously adds another factor of sensitivity about revealing operations.

To deal with the point raised by the noble Viscount, Lord Brookeborough, and other noble Lords, there is nothing in principle against using intercept material as evidence. I agree with my right honourable friend the Prime Minister, who the noble and learned Lord, Lord Lloyd of Berwick, quoted. This is not a matter of principle, it is a question of practicability and the effect of such a move on the efficiency and productivity of the services and agencies involved in interception. Talented legal minds in Whitehall have wrestled with this issue for a long time and under different governments. With rapidly-evolving technology, fresh solutions may be arrived at. But, as my noble friend Lady Symons so rightly said, we are where we are now, and as of today I am sure that if a list were to be made of any gains from such a move—which would be much fewer than people imagine because of the nature of intercept material, whose value is enormous but is not usually of an evidential nature—against a list of the losses in productivity, efficiency and security of sources, the only sensible conclusion would be that the losses far outweighed the gains.

That is the view of the Interception of Communications Commissioner, the distinguished lawyer, Sir Swinton Thomas, who has been much quoted here tonight—quite rightly. He is the current Interception of Communications Commissioner and knows what the situation is now, on the ground. And he also, along with the noble Lord, Lord Thomas of Gresford, presumably, knows what happens in a British court. In his report, printed on 3 November, he states:

"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 communications 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".

He says:

"I have the considerable advantage in my position of having an overall picture of all those engaged in this work".

He goes on with the words that other noble Lords have quoted tonight:

"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 could not agree more with that. I think that the noble Lord, Lord Thomas of Gresford, does a great disservice to people like Sir Swinton Thomas, as he did in his Second Reading speech when he spoke about Sir Swinton Thomas and the noble Lord, Lord Carlile of Berriew, straying into the intelligence community. I take exception to that, much as my noble friend Lady Symons took exception to the earlier remark. It does not do credit to any of us, tackling what is a very serious and complex problem, to insinuate that people who have knowledge of, and experience in, the intelligence and security agencies are somehow suspect in their judgment. In my opinion, that is what he is implying. I completely oppose this amendment.

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

Before the noble Baroness sits down, she referred to the report from Sir Swinton Thomas about the law enforcement agencies. Obviously I do not know who they were or whether they included the prosecution. Is the noble Baroness suggesting that the reasons that particular material should be withheld from a court are not susceptible to being explained to a prosecution or to someone of the order of the Lord Advocate or the Attorney-General so that they can question whether those reasons are well founded and, if they are, accept them and not make any use of that material, although it may be known that the law enforcement agencies, by whom I suspect she means the police, and those authorities have acted in the light of that?

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

This is a quotation from Sir Swinton Thomas's report for 2004 published on 3 November 2005. That is what I was quoting. I agree with the noble and learned Lord's analysis that it would be damaging to the work of the security, intelligence and law enforcement agencies. Law enforcement agencies mean what I take them to mean. Law enforcement agencies usually mean the police or authorities which have the power to arrest. In this country, as the noble and learned Lord, Lord Cameron, will well know, that is the police and the police alone. I do not see the problem with explaining what law enforcement agencies are, and I presume that that is what Sir Swinton Thomas had in mind. I agree with him that it would be damaging to their work to allow this material in court.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

At the moment, as we all know, there is a ban on domestic intercepts in UK court proceedings. My noble friend Lady Park of Monmouth, the noble Baronesses, Lady Symons and Lady Ramsay, and the noble Lord, Lord Robertson, have spoken impressively in favour of the retention of that ban, absolutely and without any qualification. The difficulty that we, the Opposition, have is very similar to the difficulty that the noble and learned Lord, Lord Lloyd—

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

I am sorry to interrupt. My noble friend and I did not argue "absolutely"; we said "as things stand now". We said that this was not a point of principle but an operational point. I would not wish the noble Lord to proceed on the basis that this is a point of principle. I made the point of saying twice "if things could be made so that this could be admissible" but, as things currently stand, in my view they cannot.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

I did not say that the noble Baronesses based their arguments on a point of principle. Indeed, I think that the noble Baroness, Lady Ramsay, said expressly that she was not against the admission of intercept evidence as a matter of principle. But, as I understood the speeches of both noble Baronesses, they said that at the moment they believed that domestic intercept evidence in British courts was unacceptable. That is the context in which I use the expression "absolutely".

I respectfully suggest to both noble Baronesses, and to others who reflected their views, that those views have to be balanced against certain important constitutional traditions. The consequence of that absolute ban is that we are unable to prosecute certain individuals in the courts who ought to be prosecuted because they breach the laws that we have on terrorist activities. We cannot prosecute many of these people because intercept evidence is inadmissible. I see the noble Baroness, Lady Ramsay, shaking her head. Does she suggest that if there were no ban on intercept evidence, and that intercept evidence were introduced in every case, we would not increase the number of prosecutions that we have against individuals for terrorist offences? Is that the suggestion of the noble Baroness?

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

No. Please do not put words in my mouth. The noble Lord is saying that lots of prosecutions are not brought because intercept evidence is not available. I wonder what grounds of evidence he has to make that kind of remark. How does he know that?

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

That was certainly the view of the Privy Counsellors on the review committee of the Privy Council of December 2003—colloquially known as the Newton committee—who are privy to all kinds of security information, because they have taken the Privy Council oath, to which the average citizen is not privy. They came to the conclusion that, had it been possible to use intercept evidence in terrorism cases, many more people would have been prosecuted and convicted.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

I thank the noble Lord for giving way. That evidence is not convincing enough. It is not enough to say that because intercept evidence is not admissible in courts, lots of prosecutions are not taking place. One of the problems for those of us who understand intercept material, have seen it, handled it and know what it is like, is, as I said in my speech, that it is usually not of an evidential nature. It is usually for current intelligence purposes. I cannot understand why the noble Lord, Lord Kingsland, cannot accept the word of Sir Swinton Thomas, who is privy to all the material as well as being a distinguished lawyer. If he comes to the conclusion that it would be harmful to our general national interests to allow this evidence, why is that not acceptable?

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

If the noble Baroness is saying that intercept evidence is usually not of use in a prosecution, why is she so concerned about it being admitted? If she is right in saying that it would be largely irrelevant, clearly the prosecution would not use it anyway.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

I said that usually the value of intercept material is for intelligence purposes and operational purposes. In my experience and in most people's experience it is very often not evidential. If the noble Lord feels that the evidence is so important, why does he think that the little value one would get from the evidence in some cases is completely outweighed by the vast amount of negative effects if one allowed this process to take place? I thought I had explained that in my speech, but obviously not clearly enough for the noble Lord.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

I had not understood that aspect of the speech of the noble Baroness. I am sure that it is my fault in comprehension rather than the fault of the noble Baroness in elucidation. As I understand it, if the noble Baroness is right, lifting the ban on intercept evidence would make very little difference because my understanding of what the noble Baroness said was that most of it would not be useful to the prosecution anyway.

Perhaps if I develop my argument—and I promise to do it crisply—the noble Baroness will not be as unsympathetic to what I am saying as she has been so far. My difficulty with the ban is that there will be certain circumstances in which intercept evidence will be cogent evidence for the purposes of prosecuting an alleged terrorist. The problem with not using it is that our constitution has to resort to extremely unconstitutional measures; such as, for example, a system of control orders under which we have to detain people without being able to prosecute them. In the debate that we have had this afternoon on 28 days versus 90 days, one of the reasons why the police are insisting that 90 days is the appropriate term between arrest and charge is because of the ban on intercept evidence. There are very strong constitutional reasons to lift that ban.

Having said that, I am acutely aware of the dangers to the security system that the noble Baroness, and other noble Lords who support her, identify: to individuals, to the systems of security and to the technologies used. It is crucial that they are all protected. Therefore, the answer to this problem is surely the one given by the noble Viscount, Lord Brookeborough, who, in effect, said that the prosecution should have the discretion to use intercept evidence in appropriate cases. Of course the prosecution will not use intercept evidence where there is any threat to the security services or to the advanced technology that enabled them to achieve the ends that they sought. I think that that is accepted by all noble Lords. But there will be circumstances in which intercept evidence can be deployed in court against an alleged terrorist without in any way compromising the sources of that evidence.

As I understand it, all that the noble and learned Lord, Lord Lloyd, is seeking to do is to introduce into the law an opportunity for the prosecution to deploy intercept evidence where there is no danger that those who delivered it will be compromised. I entirely concur with the intervention made by the noble and learned Lord, Lord Cameron of Lochbroom, who said that we should trust the prosecutor. After all, we trust the security services, so why should we not, equally, trust the prosecutor? The prosecutor will be aware of all the concerns of the security services before he or she brings the prosecution; and all those concerns will have to be brought into balance with the legitimate constitutional concerns that have been expressed by the noble Lord, Lord Thomas of Gresford, and other noble Lords in this House. The correct approach is to leave it to the DPP and, in certain extremely difficult cases, the Attorney-General, to balance legitimately protecting our security, on the one hand, against the constitutional desirability of prosecuting people on the other—rather than subjecting them to control orders or to very long periods of detention without charge, which are repugnant to our constitutional traditions.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

It must follow from what I have said that that is so. I respectfully suggest to the Minister, who is about to stand up to make her speech, which we all eagerly await, that there is a simple answer to the noble and learned Lord, Lord Lloyd. That is not perhaps accepting his amendment word for word; but accepting the spirit of his amendments. I do not see that the Government's position, as expressed so far, would be in any way harmed by that.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I have had the advantage of listening to this debate, as indeed I have had on a number of other occasions. I am always intrigued by how little variation there is. I agree with the noble and learned Lord, Lord Lloyd of Berwick, that his amendment is virtually identical to the contents of his Private Member's Bill, which had its Second Reading 10 days ago.

I will not repeat all the arguments that have been so carefully gone into by a number of my noble friends. I confess to the noble and learned Lord, Lord Lloyd, that I am tempted to say, as he doubtless has said on many occasions in the Judicial Committee of this House, "Having heard the judgments given by my noble friends Lord Robertson, Lady Ramsay and Lady Symons of Vernham Dean and the noble Baroness, Lady Park, I agree and have nothing further to add". I know that that would do a disservice to many of the arguments that have been made and therefore I will try, if I can, to deal with them in short measure.

On the point about eavesdropping or the evidence given, I say to my noble friend Lady Kennedy of The Shaws that evidence can come from, as a number of my noble friends have said, a variety of sources which are not disclosed in evidence. Interception is a single method and the evidence necessarily provides details of the capability. I was left breathless by her assertion that she either knows or has access to all the methods used and adopted by GCHQ, SIS, the police and others who are charged and entrusted with maintaining our security. If that were so, could I just say to her that I tremble?

A number of noble Lords have discussed the information provided to us by the right honourable Sir Swinton Thomas. Noble Lords will know that Sir Swinton Thomas is a very highly regarded member of the judiciary. I know that is not true of all members of the judiciary, but I hope that noble Lords will agree with me that Sir Swinton Thomas is a particularly fine and revered member, and certainly much admired—and I say it without reservation—by me, and, I would hope, by all noble Lords who have had the privilege to appear before him.

So, in answer to the point of the noble Lord, Lord Thomas of Gresford, regarding those who are not familiar with the court procedure, I assure him that I have a little knowledge of court procedure and, having had that knowledge, I concur with the comments made by the right honourable Sir Swinton Thomas in the judgments he has made. I say that, burdened as I am as a lawyer, with a little knowledge.

As my noble friend Lord Bassam of Brighton reminded your Lordships on 18 November, my right honourable friend the Home Secretary in his Written Statement to the House on 26 January on the outcome of the review on intercept as evidence, reported that the Government were not persuaded that the benefits of changing the law to permit intercept evidence outweighed the risks of doing so. I need to emphasise that this is a balancing exercise. My right honourable friend explained that the strength of the United Kingdom's system was built on the close co-operation between intelligence and law enforcement agencies, unparalleled in the rest of the world, and that this had delivered impressive results.

It is not that we do not use the intercept product—we do, very successfully—to gather intelligence to make arrests and seizures and to disrupt and prevent terrorist activity. But successive reviews have not found a way of using intercept evidentially and protecting the sensitive capabilities and techniques on which United Kingdom's agency co-operation is predicated.

That is not for the want of looking. This is not intransigence; this is not unwillingness; this is not an implacable hostility; it is that we have simply not found a way to do this safely. The Committee should recognise that we, as the Government of this country, must put the safety of the nation first.

Finding a way to limit exposure of sensitive material in courts is extremely difficult because our disclosure rules rightly seek to provide the defence with all the information necessary for a fair trial. Of course, if intercept as evidence were to result in the convictions of lots more serious criminals and terrorists, our decision on whether to go ahead would have been more difficult. However, intercept evidence is not a silver bullet.

Frequent comparisons are made with other countries' use of intercept as evidence, but there is no evidence that their evidential approach produces better results than our intelligence-only approach. Indeed, comparative figures suggest that the reverse is true. That directly answers some of the points raised by the noble Lords, Lord Thomas of Gresford and Lord Kingsland. I have already said that we get very good results under the current arrangements. The review of intercept as evidence shows that there might be an increase in convictions, but that that would be modest and limited to lower-level criminals involved in serious crime—but not terrorism—and would be unlikely to be sustainable.

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

I may have misheard the noble Baroness, but the latest Home Office review stated that there would be an increase in the number of prosecutions if intercept evidence was admissible. That was its unanimous review.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

That is why I say that there might be an increase in convictions but that that would be modest. Experience from other countries shows that the resources required to ensure that intercept material can be used evidentially would limit the number of evidential cases that law enforcement could handle.

Let me explain why. Intercept as evidence will not transform results against the most serious criminals or against terrorists, who tend to be the most security-conscious in their use of communications. I know that it is the serious criminals and the serious terrorists about whom the noble and learned Lord, Lord Lloyd, is most anxious. Let us consider them. This is not just the UK's conclusions, which were based on the examination of real cases. For example, there has been recent media reporting of unsuccessful use of intercept product in terrorist trials in Spain and Italy.

Australia's latest published figures on interception under the Telecommunications (Interception) Act 1979 report for the year ending 2004 shows that there were no convictions in the five terrorism trials that used intercept evidence in 2003–04. The Canadian 2004 annual report on the use of electronic surveillance shows that there were 683 interception authorisations that year, but that none ended with a conviction.

In the United States in 2004, 1,710 intercept authorisations—that is, evidential interceptions—were used, which is fewer than in the United Kingdom; that resulted in 634 convictions. That is a lower proportion of authorisations resulting in convictions than in the United Kingdom where, using intercept for intelligence only, rather than evidentially, we estimate that we have a better rate of converting arrests into convictions. A further important consideration that my right honourable friend the Home Secretary mentioned in his Written Statement is that it does not make sense to change our system just as technology is changing and before we know what that means for how interception is regulated and deployed in future.

My noble friends Lady Ramsay, Lady Symons and the noble Baroness, Lady Park, say that we cannot do it now but we may be able to do it in future, in which case we will want to, because of the obvious benefits; they are absolutely right. Technology is moving—and moving faster by the second.

Over the next few years, the world of communications technology is likely to change very significantly in lots of ways. Terms such as "wiretap evidence" will soon be as redundant as talk of telephone operators and switchboards is today. They will be replaced by technologies such as Voice over Internet Protocol (VoIP), where the human voice is broken up into many signals transmitted across a variety of different routes before being brought together again on delivery, rather than being carried over a single line.

The noble Lord's amendments provide no guarantee of the safeguards necessary to protect the relationship between intelligence and law enforcement agencies. That would lead to a reduction in co-operation, in the options available to criminal investigation and in its effectiveness as an intelligence tool and ultimately as an evidential tool. Increased reliance on PII only could not provide the degree of assurance sought. Crucially, the amendments take no account of that technological change. The Government are working with the communications industry to understand and respond effectively to technological change and to examine any evidential opportunities that that brings.

However, one thing is certain: in just a few years' time the communications and interception world will be radically different from the one that we are looking at now, let alone the position when the noble Lord was more actively engaged in his previous role as Interception of Communications Commissioner. That is true for the rest of the world, not just the UK. Indeed, the early signs are that the UK is ahead of the rest of the world in meeting the challenges.

The additional work commissioned on the subject will be completed by the end of the year. It would be premature to try to pre-empt the conclusions. But it is clear that the introduction of new technologies will raise by several notches the required protection of techniques and capabilities.

Photo of Lord Elton Lord Elton Conservative 11:00, 13 December 2005

The Minister suggests strongly that what is required is a clause such as is now on the Marshalled List but that would not come into effect until the Secretary of State introduces an instrument when the circumstances that the noble Baroness confidently predicts arrive.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

We have to look at whether there is evidence for the clause now. The clear evidence is that there is not. Noble Lords know that this Bill is likely to be replaced; we have a sunset clause and the noble Lord, Lord Carlile, is carrying out a review of the definition of terrorism. We have brought the Bill before the House to respond to the issues and emergencies that arose in July. Noble Lords will remember that we were going to do it in slightly slower time. There will be an opportunity to come back but noble Lords must look today at whether the issue is merited, what the evidence is and whether we should do it. This Government have the onerous burden of judging whether it would be in the interests of our nation and inviting the House to consider the facts as they now appear. That is the basis on which we now have to look at the provisions.

It would be reckless—subjectively reckless not just objectively reckless, for which we would be justifiably held culpable—to go for what may seem a few potential quick wins in terms of a modest increase in the number of convictions of people not otherwise currently convicted or convicted for lesser offences, but with the risk of irreparable damage to an effective capability that has a direct impact on national security. We need to be sure that that change would work for the UK now and in the future. I therefore invite the noble Lord to withdraw his amendment.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

Before the noble Baroness sits down, perhaps I may ask her why everything she has said is incompatible with giving the prosecution the discretion to use intercept evidence, depending on the circumstances of the alleged act and the nature of the intercept evidence used.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I had hoped that I had made the reason clear, but I will repeat it and make clear why I say it. Intercept evidence is not simply phone tapping. It is a variety of complex sources, which are not disclosed in evidence. It is a single method. Therefore, it is not possible to disaggregate and should not therefore be left solely to the prosecution. We are very clear that we do not think, for all the reasons given so elegantly in the speeches made by my noble friend Lord Robertson and Members of the Committee who have spoken, that that would be a satisfactory way forward. We do not think that this should simply be left for the prosecution and the prosecutor to decide. That is the import of the totality of all the information that I have sought to give the Committee.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

I am most grateful to the noble Baroness. As we are still in Committee, I shall exercise the scope that that gives me to press her a little further. Let us suppose that the security services say to the prosecutor: "In these particular circumstances, if you, Mr Prosecutor, use intercept evidence which is probative, we are completely happy about that because the intercept evidence you are going to use will not threaten in any way the security of our sources". Why in those circumstances can the prosecutor not use probative evidence to prosecute a terrorist rather than have to use control orders or other means which would subject the citizen to a long period of detention without trial?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

As I understand it, that is because there have been no such cases where the intelligence agencies have been able to so disaggregate the facts that substantive matters of evidence have been able to be put before the court in that way. That is the position. I assure the noble Lord that this is not anyone trying to be obdurate or difficult. Our clear preference, whenever possible, is always to be able to prosecute, always to have substantive evidence put before a court and always to get a conviction, if a conviction is possible, merited and just. That is always the preferred course. But, as I have said on a number of occasions, we simply do not have the means of putting intercept evidence before a court in a way that enables us to do it safely.

We have taken the view—which is not a view that we have come to easily—that it is not appropriate to admit that evidence. For those reasons—all the reasons given by everyone who has spoken against it—we remain opposed to its inclusion.

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

The noble Baroness, Lady Ramsay, and the noble Lord, Lord Robertson, made reference to the views of Sir Swinton Thomas. I, too, have some experience of intelligence matters, as I am sure that they know. I was the first Interception Commissioner. I, like Sir Swinton Thomas, come from what has been described as both backgrounds—the intelligence background and the criminal law system background. What I remember most vividly from my time as Interception Commissioner was, in a sense, the attitude of the intelligence services, which I fear is still their attitude. I was not even allowed to refer to the number of warrants that were issued by the Foreign Office or the Home Office. I was told that untold damage would come if those figures were mentioned and that people would be able to deduce something from those figures. I was not even allowed to refer to GCHQ: it did not exist. If I referred to GCHQ the heavens would fall in. So when I am told now that untold damage will flow from something which seems to me almost self evident, that in at least some cases intercept evidence should be admissible, I am a little cynical.

Underlying all that has been said against the amendment is the thought that if some evidence cannot be admitted, and of course I accept that some evidence should not be admitted, it follows that no evidence should be admitted. That seems unacceptable and simply does not follow as a matter either of common sense or logic. We are told that we are not talking about old-fashioned telephone tapping here, but we are. That is not all we are talking about, but we are doing so in part. I still see no reason why evidence of an old-fashioned telephone tap, such as evidence of old-fashioned bugging, should not be admitted in court.

In the end I come back to the intervention of the noble Lord, Lord Elton. If other countries can do this, and it is accepted that in general they can even with some differences between them, I must ask the question: given the will to do it, why can we not do so? I am only comforted by what the noble Baroness said in the course of her reply, which I will read with great care. She pointed out that at this moment the Government are considering the evidential opportunities of intercept evidence. Apparently those will be available by the end of the year, and I hope she is right. For some 10 years I have been waiting for this, but always one is told that there is something at this particular moment which goes against it. Now we are waiting for something which may happen in two years' time.

I am very grateful that the Government are considering this. In the mean time, I beg leave withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Elton Lord Elton Conservative

moved Amendment No. 130A:

After Clause 24, insert the following new clause—

"CONDITIONS OF AND TREATMENT UNDER DETENTION

Detention under any power in Part 1 of this Act shall be subject to section 66 of the Police and Criminal Evidence Act 1984 (c. 60) (codes of practice)."

Photo of Lord Elton Lord Elton Conservative

It is a matter of some regret that the one item which I said at Second Reading I wished to spend some time on should come up one hour and 10 minutes after the House should have risen. I can well understand that noble Lords may be a little bored and wish to leave before I finish. I shall be as brief as I can.

The amendment would insert a new clause after Clause 24 to ensure that the conditions of treatment under detention made under any power in Part 1 are subject to Section 66 of the Police and Criminal Evidence Act 1984. Clauses 23 and 24 in Part 2 amend the Terrorism Act 2000, and people detained under those clauses will, I presume, be held under conditions prescribed in Schedule 8 to that Act and the codes issued under it. But no specific reference is made to which codes would apply to those held under Part 1. In the absence of a specific direction elsewhere in the Bill, I presume they will fall automatically, will they not, to be held under the PACE codes that apply to police detention generally?

I have to go on a little because although that is a simple question, it is not a simple position. PACE Code C is one of five codes and lays down what is required generally. Other PACE codes deal with specific activities, and all five codes are ones with which the ordinary policeman has to be familiar. One hopes that they are quite simple. The latest revised version of PACE Code C, however, runs to 68 pages of fairly small print and is not quite as simple or self-contained as would at first seem. I shall take one example. Sub-paragraph (v) of Section 1.12 disapplies the provisions of the code generally from people held in custody under Schedule 7 to the Terrorism Act 2000. It states that what applies to them is a different code of practice issued under paragraph 6 of Schedule 14 to that Act, which deals with the recording of interviews. That seems clear until one reads to the end of the section and finds that, nevertheless:

"The provisions on conditions of detention and treatment in sections 8 and 9 [of PACE Code C] must be considered as the minimum standards of treatment of such detainees".

Does that mean that the whole of the Terrorism Act 2000 Schedule 14 code is subordinate to Sections 8 and 9 of the PACE Code C, or, indeed, what?

If we go on, as I did, to search for statutory instruments made under the Terrorism Act 2000, the first we find is one introducing a,

"Code of practice on Audio Recording of Interviews . . . of a person detained under Schedule 7 to, or Section 41 of, the 2000 Act if the interview takes place in a police station".

But the code was not published and made under paragraph 6 of Schedule 14 of the TA 2000, as indicated in PACE Code C, but under paragraph 4(2) of Schedule 8. I need to know whether there are two different codes under two different schedules and, if so, for what purposes and how are they most easily accessed by those people who need to know their rights in detention?

I did not pursue the matter further because I had already done much more than someone unfamiliar with legislation could possibly do. That demonstrates a defect in what we are now doing. The Minister need not run like a hare to the Dispatch Box because I realise that at this time of night it is not reasonable, without notice, to expect answers to such detailed questions, but I shall need the answers before Report, naturally in writing.

PACE and the PACE codes have just been extensively revised and agreed in Parliament last week, but the terms of reference of the review under which that was done do not appear to include the codes set up under other legislation—notably the Terrorism Act 2000—which appear to be interleaved with the PACE codes. When we get into this future Act of Parliament that we are making now, one has to consider the position of the unfortunate policeman who has to know which Act applies to this chap in this cell, which to that one, and which part of that one does not apply to him because of something that is in a third piece of legislation.

Apart from an explanation of the process that I have just referred to, I would ask the Minister to consider instigating a further review, rather more quickly, of the interaction between PACE Codes A to E and codes under other Acts, notably under TA 2000, and bringing out a handy guide, not only for policemen who have to administer the legislation but also for suspects who have to live under it. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 11:15, 13 December 2005

I congratulate the noble Lord on the delicate way in which he has threaded his way through the PACE codes. I hope that he is not an insomniac because, having looked at them myself quite recently, I can well understand how that might lead to a bout of insomnia. I can deal with the amendment briefly and I hope the noble Lord will be reasonably satisfied by the response I provide.

The noble Lord quite rightly wants to ensure that anyone arrested for an offence under Part 1 of the Bill should enjoy the protection of a code of practice made under the Police and Criminal Evidence Act 1984 or its territorial equivalent. We are at one on that issue obviously. I can assure the noble Lord that anyone arrested for a specific offence, including those created within the terms of the Bill in England and Wales, is automatically subject to the PACE regime and benefits from the codes of practice made under that Act, including Code C, to which the noble Lord referred, which pertains to treatment after arrest. There are similar arrangements in Scotland and Northern Ireland to ensure that equivalent protections exist. The other possibility is that when a person is arrested under the provisions of the Terrorism Act it may be that, following questioning, he is charged with one of the offences in the Bill.

As matters currently stand, a person arrested under the Terrorism Act 2000 in England and Wales is also automatically covered by PACE Code C. However, we recognise that different considerations might apply given the longer periods of detention for which that Act allows. We recognise the import of the argument and accept entirely that because of the longer periods of detention that could potentially arise we need to make special provision for that.

I am sure that the noble Lord will be aware that on Report in another place, my right honourable friend the Home Secretary made a very firm commitment to bring forward a specific and new code of practice to govern the treatment of those detained under Terrorism Act powers. My right honourable friend also set out how the codes would be made in England, Wales, Northern Ireland and Scotland, since slightly different procedures apply in each of those jurisdictions. Given the hour, it would be wrong— perhaps even inappropriate—for me to burden the Chamber with details, although these can be found at col. 329 in Commons Hansard of 9 November.

The key point is that we will seek to ensure that so far as possible, the same procedures and protections apply, regardless of where the individual resides in the United Kingdom and where he happens to be arrested. My right honourable friend concluded his remarks on the issue by saying,

"I can give a firm guarantee that the appropriate codes and their equivalent will be brought forward".—[Hansard, Commons, 9/11/05; col. 329.]

In light of that firm commitment and what I have said generally, I hope that the noble Lord will feel reassured and agree to withdraw his amendment. I cannot provide him with a timetable for the new arrangements. It occurs to me that I ought to inquire what such a timetable might be, and when I do I will share the information with the noble Lord as well as other noble Lords with an interest in the Bill.

Photo of Lord Elton Lord Elton Conservative

I am grateful for that reply, though how grateful I shall not know until I have read col. 329 of the proceedings in another place, and no doubt several columns after it.

I hope that the noble Baroness will keep in mind my request that the interaction of the two Acts be kept under review. Might I ask that it is done from the point of view of a humble policeman—a custody officer—who has to be trained to do a great many other things as well and who comes up to the quite modest academic requirements for admission to the police force which have been given some publicity recently? That is not a flippant request; it is serious—and I see from his fairly accepting expression that the noble Lord wishes to say something.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

As it happens, I dealt with the orders which were the product of a review of the PACE codes last Friday. The one thing that I solidly remember from reading the brief fairly thoroughly was that there had been very detailed consultation, not just with the usual suspects such as ACPO, as one would expect, but also, quite properly, with the Police Federation. It does not always agree with us on these matters, but, rather unusually, its members were rather pleased with the way in which the codes had been readdressed and were supportive of them. The Police Federation represents 75 per cent of the police service—perhaps slightly more than that these days—so we can take some comfort from that. We will be taking on board the noble Lord's perspective on these issues. It is right and proper that the ordinary police constable understands the import of the codes.

Photo of Lord Elton Lord Elton Conservative

I shall happily take away those remarks to digest and read tomorrow. Therefore, without future commitment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 25 and 26 agreed to.

Clause 27 [Search, seizure and forfeiture of terrorist publications]:

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

moved Amendment No. 131:

Page 29, line 9, at end insert—

"(d) it shall operate without prejudice to any rule of law whereby—

(i) communications between a professional legal adviser and his client, or

(ii) communications made in connection with or in contemplation of legal proceedings, and for the purposes of those proceedings, are in legal proceedings protected from disclosure on the ground of confidentiality."

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

This amendment seeks to preserve the confidentiality of communications between legal advisers and their clients—detained persons—in relation to Schedule 8. Our law is eager to protect the relationship between the solicitor and his client; it has made provision for the doctrine of confidentiality, for instance, in Part 2 of Schedule 7 of the Terrorism Act 2000, which applies only to Scotland and concerns, among other things, orders for production material, search warrants and explanations of material seized from or produced by a person.

Paragraph 33(1) states:

"This Part of this Schedule is without prejudice to any rule of law whereby—

(a) communications between a professional legal adviser and his client, or

(b) communications made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings, are in legal proceedings protected from disclosure on the ground of confidentiality".

The amendment, which was suggested by the Law Society of Scotland, seeks to preserve that relationship and to introduce into Schedule 8 a provision to the same effect as that in Part 2 of Schedule 7. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I am grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for tabling the amendment. His careful scrutiny of the Terrorism Bill has resulted in a number of very helpful changes and has made us think carefully about those amendments that we have not felt able to accept. I am not able to accept this amendment, although I appreciate the good intentions behind it.

As your Lordships will know, legal privilege material is exempt from seizure in England and Wales, under Section 19(6) of the Police and Criminal Evidence Act 1984, and in Northern Ireland, under Section 21(6) of the Police and Criminal Evidence (Northern Ireland) Order 1989. These provisions have general application, including to material falling within Clause 27 of the Terrorism Bill. No equivalent provision exists with regard to Scotland, but none has been felt necessary. There is, in any case, an extra layer of protection in Scotland compared with England and Wales because the Procurator Fiscal has to apply to a sheriff for the warrant and then instruct the police on what is to be searched for. The terms of any search will be limited to items falling within the definition of terrorist publications. If a legally privileged document were to be seized in error, it would be returned by the Procurator Fiscal.

Of course, as I have said, Clause 27 is relevant only to documents that could be terrorist publications. Almost as a matter of course, material subject to legal privilege could not fall within the definitions of terrorist publications. But, most importantly, if a privileged document were to be seized in error it could not be admitted in evidence as it is clear in Scottish law that communications between solicitor and client are privileged. The authority is of course a very recent one; it is McCowan v Wright (1852) 15 D 229.

I am, I repeat, grateful to the noble and learned Lord for tabling this amendment. I hope that those who invited him to table it will be content with my full exposition on why it is unnecessary.

Photo of The Duke of Montrose The Duke of Montrose Spokespersons In the Lords, Environment, Food & Rural Affairs, Deputy Chief Whip, Whips, Spokespersons In the Lords, (Also Shadow Minister for Women & Equality- Not In the Shadow Cabinet)

With the privileges accorded to us in Committee, perhaps the Minister would satisfy my curiosity as to whether the advice that she has given us has been promoted to her by her noble and learned friend Lady Clark of Calton, the Advocate General for Scotland, whose works we seldom get the chance to hear about.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

In relation to the provisions, we always consult our colleagues in Scotland to ensure that their expertise is reflected in anything that a mere person south of the Border might wish to say on matters that really fall within their peculiar knowledge.

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

I am very grateful to the Minister for her reply. I shall study it again. I had thought that she might say that in Schedule 8 it was very unlikely that there would be any material likely to be subject to legal privilege. However, that said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clauses 28 and 29 agreed to.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at twenty-nine minutes past eleven o'clock.