Clause 4

Serious Crime Bill [Lords] – in a Public Bill Committee at 5:30 pm on 26 June 2007.

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Involvement in serious crime: evidence

Question proposed, That the clause stand part of the Bill.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department 5:45, 26 June 2007

On a point of order, Mr. Benton. The Government wish to oppose the inclusion of clause 4 and schedule 13. For the benefit——to be honest——of myself and perhaps that of the Committee, could you advise me on the procedure?

Photo of Joe Benton Joe Benton Labour, Bootle

Clause 4 is now under discussion. If the Minister wishes to withdraw it, now is the appropriate time.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

It might be helpful to the Committee if I gave some opening remarks. It is the Government’s intention that clause 4 and schedule 13 be opposed.

The Government want to support the efforts of the security services and law enforcement in their fight   against terrorism and serious crime. No one on this Committee will disagree with that aim, I am sure, but whether or not it is possible to increase the effectiveness of interception, attempting to do so by extending its use to the evidential arena is difficult, not least because, as the agencies have made clear, interception is one of their most effective tools and there is a danger that its evidential use would seriously hamper the fight by undermining its use and effectiveness and seriously impact effort elsewhere.

Why do they say that? What have they to protect? Is the police view on intercept evidence not different from that of the intelligence agencies, and how is it that our agencies cannot do what every other country using interception does? Those points have been raised repeatedly in recent discussions, so I shall address some of them now.

There is no difference in view between the law enforcement and intelligence communities on intercept as evidence. Close scrutiny of what key figures have said on the subject shows that they support what the Government have been saying—the laws should be changed to allow intercept evidence if safeguards can be put in place to protect sensitive capabilities, techniques and resources, and the benefits of changing the law outweigh the risks of doing so.

The Attorney-General, whose office has been working closely with the Home Office; the Director of Public Prosecutions, who recently gave evidence before the Joint Committee on Human Rights; and the Metropolitan Police Commissioner, who is often misrepresented as an unqualified supporter of intercept as evidence, believe that safeguards are essential. Without safeguards, there can be no benefits.

Let us consider Lord Lloyd’s proposal. Where are the additional safeguards required? The model before us has none. What have UK intercepting agencies to protect that is not dealt with perfectly adequately in the overseas jurisdictions using intercept evidence? The answer is the very thing that sets the UK apart and, I would say, ahead of overseas jurisdictions.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

Let me develop this point, and then of course I will. The UK’s model is intelligence-led policing, in which intelligence agencies and law enforcement often work hand in hand. That is not replicated anywhere else. Nowhere else in the world can one find law enforcement tasking intelligence officers on interception matters. In contrast, overseas jurisdictions protect advanced intelligence capabilities from exposure in court simply by not sharing them with law enforcement. That leaves overseas law enforcement with perfectly serviceable but more basic capabilities.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I understand the point that the Minister is making. It is welcome that the Government are at least considering introducing intercept evidence, but I ask him this. Schedule 13 provides for the admissibility of intercept and metering evidence. He says rightly that it does not include safeguards, but is there any reason why schedule 13 cannot be agreed to with a view to the Government’s developing the safeguards elsewhere and, if necessary, later?

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

In answer to the point made by the hon. Gentleman, the Government want to look at all of this in the round, which is why we wish to take out both the clause and schedule 13. We want to ensure that we have a model that works and is agreed, and that the intelligence and law enforcement agencies feel it is acceptable. At the present time, we do not have that model.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I understand the Minister’s point, but we have just been through a series of arguments in which he has said that it is necessary to have provisions in the Bill that will enable changes to be made later if circumstances change. Surely, he cannot have it both ways. In this case, we could have the schedule and provisions ready for a situation in which circumstances do change.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

We do not know whether the law enforcement or intelligence agencies are satisfied with schedule 13 or whether there are additional safeguards that they want included. Those things are not worked out by Lord Lloyd’s amendment or by the inclusion of clause 4 or schedule 13. There are still a number of unanswered questions.

I thank the hon. Gentleman for recognising that the Government want to discuss the issue and are prepared to do so. He knows that there will be a review on Privy Council terms to consider the use of intercept as evidence. The details of the review are yet to be worked out, but it will be a serious review about how to introduce something that is workable and practicable, which is better than leaving something in the Bill, about which we are not totally sure. With the best of intentions, he cannot be sure that our intelligence and law enforcement agencies are absolutely satisfied with every bit of the schedule or whether they would like to see other things included. At the present time, we think that it is appropriate to take the clause and schedule out of the Bill so that the review has a clean slate, can look at the issue in its totality and can propose something that we hope and expect to be included in a Bill in the autumn.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Will the Minister forgive me if I build on the point that my hon. Friend the Member for Rugby and Kenilworth made? As far as I can see, schedule 13 will be commenced by a commencement order under clause 84 of the Bill. That lies within the sole discretion of the Secretary of State, so the provisions under schedule 13 will not come into force unless and until a commencement order is made, which can be done only by the Secretary of Sate.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

As I said, it may be that it can be commenced under the clause to which the right hon. and learned Gentleman referred. What he failed to mention was the point that I made to his hon. Friend: we do not know, and neither does the Committee, whether all our intelligence and law enforcement agencies are absolutely satisfied that the provisions under schedule 13 are appropriate to the model that they want. As I have said, our intention is to take out the schedule.

The strength of our system is illustrated by the creation of the Serious Organised Crime Agency last year, which combines intelligence with enforcement, and by police forces across the country that call on the security services to help with their investigations. The UK’s approach has produced outstanding results. Where is the evidence that overseas countries do better than the UK in fighting terrorism and serious crime? As Baroness Scotland mentioned recently in another place, we can point to figures that show that intercept evidence is not always used as extensively or as effectively overseas as is sometimes claimed.

What is important is what would happen in the UK if we had intercept as evidence. Would we improve on the results that we get now? The Government have said before that intercept as evidence is not a magic bullet against terrorism, which was one of the conclusions of the 2003-04 review. The prospect of improvement always needs to be taken seriously, particularly in the current climate where the stakes are raised and where there are strongly opposing views on how to go forward, as was evidenced in the House of Lords. That is why, earlier this month, the Government agreed to commission a review of intercept as evidence on Privy Council terms.

To rebut Lord Lloyd’s proposals vigorously might give the impression that we are prejudging the outcome of the new review, which would not be helpful and I certainly do not wish to do so. I do not wish to leave anyone in any doubt that Lord Lloyd’s proposals do not provide a sound basis to progress the issue of intercept as evidence. As we stated on Second Reading, we believe that they are unworkable and, indeed, defective—so much so, that it is not possible, nor, given the seriousness of the subject, appropriate, to make such amendments during the passage of the Bill. Any sensible person involved in this complex subject will recognise the need for the appropriate safeguards and to develop a workable, legal model for change. To do otherwise, as would happen if we retained Lord Lloyd’s amendment, would undermine the effectiveness of our intelligence and law enforcement agencies. That could have damaging results.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I do not want to be pedantic, but I would like a clear understanding of what the Minister means by intercept evidence, because various classes of evidence could fall under that definition such as that intercepted by telephone, bugging and e-mails. I need to know exactly, as I think the Committee does, what class or classes of evidence will fall under that definition in the Bill.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

That is one of the very points that the review needs to debate—what we mean by intercept evidence. What sorts of intercept evidence do we believe would be appropriate in court were we to allow it? The right hon. and learned Gentleman’s point is one of the important questions for the review: whether the examples that he gave are the sorts of evidence that should be admissible in court. I think that he makes a valid point. Intercept evidence would be a huge catch-all for a range of different types of evidence. His question identifies very clearly the need for the review,  because, of course, one of the questions for it would be: what counts as intercept evidence and what is admissible in court?

Changing the law on the basis of what works is the way in which to proceed, and we do not believe that Lord Lloyd’s amendment would give us that certainty. The Government have signalled their intention to proceed on a responsible basis by commissioning the review on Privy Council terms. I hope that the Committee will support that approach. I propose, therefore, that clause 4 and schedule 13 do not stand part of the Bill.

Photo of Joe Benton Joe Benton Labour, Bootle

Order. In accordance with the Order Paper, the two items will be presented to the Committee and voted upon.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

On a point of order, Mr. Benton, that is very helpful, but I was ensuring that I do not get that particularly important amendment wrong.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

We are unhappy about the Government’s approach. On Second Reading, I made it clear that we wanted to retain Lord Lloyd’s amendment—now clause 4—until we were clear about the terms on which the Privy Councillor review of the use of intercept evidence in court was being conducted. In response to me, the Minister for Security, Counter Terrorism and Police said:

“It is my understanding that discussions between the Prime Minister and the Leader of the Opposition are continuing and that matters such as those raised by the hon. Gentleman”— that is me—

“will be resolved, at least in outline, by the time we are in Committee. If that is not the case, I will write to the hon. Gentleman to make that clear.”

He continued:

“It is right and proper that such issues are cleared up before the Committee stage”.—[Official Report, 12 June 2007; Vol. 461, c. 681.]

I have to tell the Minister that no such undertaking has been received—to coin a phrase. However, my right hon. Friend the Leader of the Opposition, wrote to the Prime Minister on 5 June setting out his proposed terms for co-operating with the Privy Councillor review. On Second Reading, in the House, I repeated some of those terms and our proposals for the review. I said:

“The committee of Privy Councillors that looks at this issue should be a cross-party committee”— one that is balanced. I continued:

“No one serving in Government should be on the committee”,

and that the

“committee must report well before November, in advance of First Reading of the new counter-terrorism Bill, to allow time for provisions to be incorporated in it”— [Interruption.]

Photo of Joe Benton Joe Benton Labour, Bootle

Order. I am sorry to interrupt the hon. Gentleman, but the noise level is getting high. Will members of the Committee please keep their voices down? We all want to hear what individual speakers have to say.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs) 6:00, 26 June 2007

I am grateful for your support as I make this very important speech, Mr. Benton. The fourth point that we put to the Prime Minister was that, crucially,

“there must be a presumption that the Government will accept the recommendations the committee makes once it has examined all the evidence”.—[Official Report, 12 June 2007; Vol. 461,c. 680.]

In summary, we sought assurances that the review would be truly independent. I made it clear on Second Reading that we could not possibly accept the removal of Lord Lloyd’s amendment until we understood the basis on which the Privy Councillor review was proceeding. The Minister for Security, Counter Terrorism and Police appeared to understand that concern and committed to tell me what progress had been made, but that has not happened. Given those circumstances, we cannot possibly go along with the Government and accept the clause’s withdrawal.

My second concern is that the review should be truly independent and not pre-judged. The Minister knows that we are concerned about that, but his remarks about concerns regarding the use of intercept evidence did not give me great confidence that the Government have an open mind on this issue. He talked about the real dangers of the use of intercept evidence and about Britain’s unique form of policing, which I shall discuss, but I must first question the extent to which there is a consistent Government view on this matter. The incoming Prime Minister made clear his support for the use of intercept evidence in a briefing to the Sunday papers on 3 June. He also said recently that he never believed that presentation should be a substitute for policy, and that we are about to enter an age in which spin would no longer be a feature of government, and yet he made that announcement, typically, by way of a briefing to the Sunday papers and not to this House. One of the relevant articles, in The Sunday Times of3 June, said:

Gordon Brown will this week put his personal authority behind a move to allow evidence from telephone taps to be used in court to ensure terrorist suspects do not escape the law.”

It went on:

“A source close to Brown”—

—of course, it would be a source in this new age of no spin—

“said: ‘Personally, Gordon believes the weight of argument points to using intercept evidence in court, but we want this review to build a nonpartisan consensus on the best balance between obtaining convictions of people plotting terrorist acts and preserving our sources of intelligence for the future. It is vital that the security services are closely consulted and happy with the outcome.’”

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

Can my hon. Friend confirm my recollection that that briefing was given on the condition that no position on the matter could be sought from Her Majesty’s Opposition before the story hit the Sunday newspapers?

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

Yes, I am happy to confirm to my hon. Friend, in so far as I am aware of the position, that in this new era of no spin and of accountable and transparent government, to which we all look forward immensely, the way in which the briefing was given  disallowed any of the relevant journalists from seeking an alternative view to the story that was handed to them. So much for the glorious new age that is to be ushered in tomorrow.

Mr. Hogg rose—

Photo of Joe Benton Joe Benton Labour, Bootle

Order. Before Mr. Hogg intervenes, may I point out that we are dealing with clause 4. The hon. Gentleman is making very interesting observations, but will he come back to the clause?

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

May I suggest to my hon. Friend that the answer to the anxiety expressed by the Minister on behalf of the intelligence and other services lies in paragraph 1(4) of schedule 13. Under that measure, intercept evidence is admissible only when the prosecution makes an application. The prosecution will, of course, reflect the wishes of the law enforcement agencies when determining whether to make such an application.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

I could not agree more, and I shall speak about the various safeguards that could easily be introduced to the operation and use of intercept evidence.

That leads me to my next point. The Government complain about the absence of safeguards in Lord Lloyd’s amendment, but they could have come forward with proposed safeguards of their own. Instead, they choose to strike down the measure so that the House of Commons has no long stop on the Privy Councillor review.

Before leaving the issue of the extent to which the Government are united on the matter, the Attorney-General, who will resign in the next 24 hours or so, told the “Today” programme on 21 September last year:

“We do have a need to use intercept in court if we’re going to give ourselves the chance of convicting some of the most dangerous and prolific criminals in the country. It is a vital tool therefore for organised serious crime - this is what I’ve been told particularly by colleagues in the United States - and for terrorism.”

It would appear that there is a difference of views within the Government, so it is probably wise for them to seek a Privy Councillor review of the issue. That way, the concerns that have been expressed by the intelligence services can be addressed.

It should be noted that the intelligence services alone continue to have concerns. I have not heard that directly——it has been reported by the Prime Minister and the Home Secretary.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

The hon. Gentleman said that only the intelligence services are worried about the use of intercept evidence. Deputy Chief Constable Jon Murphy spoke on behalf of the Association of Chief Police Officers when giving evidence to the JCHR in March. He said:

“If we reduce our capacity in order to serve the evidential regime, there is a possibility...that we will lose”—— the capacity——

“to disrupt some potentially catastrophic scenarios.”

The intelligence services are not the only ones with concerns.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

I am grateful for the Minister’s interesting intervention, but it is my understanding that both the Metropolitan Police Commissioner and his assistant, Andy Hayman—I shall say more about his views—who lead on the issue of terrorism, believe that intercept evidence should be considered. I accept that other individual officers have concerns and that those need to be investigated by the Privy Council committee. I am asking for the assurance, which I have been given, that that committee will go ahead on the terms requested by the Leader of the Opposition.

The Minister seemed to dispute the potential benefits of the use of intercept evidence and suggested that Britain has a kind of unique system to which we should hang on. Let us examine that claim. First, it is clear that other countries use intercept evidence successfully. If we look at cases that brought the conviction of al-Qaeda members in the United States following 9/11, mafia godfathers in New York and war criminals in The Hague, we will see that intercept evidence was used. I agree that Britain is different in this respect: we have increasingly been urged by the Government to accept measures that are more and more draconian and restrictive of civil liberties on the ground that insufficient evidence can be assembled to pursue prosecutions of terrorists.

One consequence of the failure to use intercept evidence as our peer group countries have done is that Government proposals for the indefinite detention without trial of terrorist suspects have been struck down, while the control orders that they introduced are ineffective. Those were serious incursions into civil liberties. The extension of pre-charge detention in relation to terrorist suspects was agreed by the House, but the Government now propose a further extension. All those matters demonstrate the price of the Government apparently having a closed mind on the use of intercept evidence.

The Minister says that Britain is different. It is different in one important respect: we have chosen not to use a procedure that is used everywhere else but have instead embarked upon measures that will cause a serious reduction in civil liberties. The serious crime prevention orders are very much in the same vein.

The Minister managed to find a police officer who has expressed concern about the use of intercept evidence. Perhaps he will find another. However, he will know that the Home Affairs Committee concluded that there was “universal support” for the use of intercept evidence. Indeed, the call for its use has been supported by the Chancellor of the Exchequer—tomorrow’s Prime Minister—and the Attorney-General, by the present Director of Public Prosecutions and his predecessor, by Andy Hayman, Assistant Commissioner of the Metropolitan police and the Commissioner, and by the Government’s adviser on terrorism Lord Carlile, who, with caveats, has said that it should be considered by the Joint Committee on Human Rights. An overwhelming consensus is emerging that the issue should be looked at. A case can be made for the use of intercept evidence. The question is why the Government have stood in the way of a proper review for so long.

Earlier, in response to my right hon. and learned Friend, who spoke well on the subject, I referred to the potential safeguards that could be introduced. Those safeguards operate perfectly acceptably in other countries. The use of such evidence could be authorised by a judge, as happens in the United States, and those proceedings could be heard in camera. As he said, it is highly unlikely that prosecutions would rely on intercept evidence about which the state was unhappy. However, the defence could be given the right to challenge the use of such evidence; clearance could be given for defence lawyers and judges to ensure that it was appropriate for them to make judgments about the use of such evidence; and the evidence itself could be edited or summarised. That is important, because some of the objections to the use of intercept evidence that the Government rehearsed on Second Reading

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

May I caution my hon. Friend against arguing a case to the effect that counsel instructed by the defendant may have information that he cannot communicate to the defendant? That is something that I could not support.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

I understand my right hon. and learned Friend’s concern about breaching the privileged relationship that must exist. Nevertheless, the principal objection levelled against the use of intercept evidence is that its disclosure would reveal to our enemies——to those who are being surveyed——the methods being deployed in that surveillance by the intelligence services and others.

Assistant Commissioner Hayman dealt with that when he gave evidence to the Home Affairs Committee. He said that he was initially unsupportive of the use of intercept evidence, but that he had now moved. He felt that the other side were well aware of the methodologies, and he described the argument as lightweight. He went on to deal with the next objection to the use of intercept evidence. None of the objections is trivial. The next objection is that a tremendous logistical burden would be placed on the authorities if vast amounts of evidence had to be transcribed, but he said that if an investigation was focused and precise, that need not be the case.

All the issues will be examined in the committee of Privy Councillors, assuming that it goes ahead. Will the Minister tell us whether it will, and the reason for the delay? I do not know whether the delay is because of the change in regime, or because the Government are having difficulty accepting the suggestions from the Leader of the Opposition about the committee’s composition. It is important that we understand those concerns and receive the reassurance that the committee will be open-minded about the way in which it reviews the evidence.

In the circumstances, it is unreasonable to expect us to accept the withdrawal of the provision rather than its amendment, with all the safeguards that we could discuss today, before we know even whether the review is going ahead or on what basis.

Several hon. Members rose—

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs) 6:15, 26 June 2007

Thank you, Mr Benton, for giving me an opportunity to speak about the matter more briefly than the previous speaker.

Ever since the right hon. Member for Witney (Mr. Cameron) became leader of the Conservative party, drifting leftwards on policy, he has sought a clause IV moment. I always thought that the Conservative party’s adoption of clause IV would be that moment, and although we have not gone quite that far, we have—to some extent—got to the point where the Conservatives are adopting clause IV. We share their opinion in Committee this afternoon.

The reason why we share their opinion is that when I expressed to the Home Secretary in the House my view that it was desirable to allow intercept evidence in court, he was absolutely scathing to the point of rudeness in his dismissal of that position. The Leader of the House, the right hon. Member for Blackburn (Mr. Straw), supported him in that opinion and assertion, not orally, but with vehemently expressed body language, and although we do not know, there is speculation that the Leader of the House may become Home Secretary again tomorrow, having previously held the post. It was none the less clear to me and to other Members, some of whom are in Committee this afternoon, that the Government had dismissed out of hand the case for allowing intercept evidence.

The Government have made their case by seeking to portray members of the Liberal Democrat and Conservative parties as hopelessly irresponsible and out of touch for thinking that intercept evidence had a role to play. We were left in that position, until suddenly—low and behold—and magically, the man who will be Prime Minister tomorrow announced, as we have heard, through the Sunday newspapers thatthe position had been stood on its head. Suddenly, the Labour Government, far from being dismissive of the use of intercept evidence in court cases, were inclined towards it being used.

The situation is obviously a humiliation for the Home Secretary, but he is shortly to depart in any case. It also gives us all in Committee good reason to doubt that the Government will follow through with the consistency and focus that we might like on allowing intercept evidence subject to the considerations and recommendations of the Privy Councillors.

It is worth recalling that we are not saying that intercept evidence should be compulsory in court cases. We are not claiming, as the Minister rightly said, that it is a silver bullet. It is merely one of the tools at the disposal of those who wish to prosecute serious crimes. We share the view expressed by the Conservative Front Bench spokesman and many others beyond the House that it is legitimate and sensible to allow intercept evidence to be used. We are minded to support both the clause and the schedule on the basis that they are before us and we have no firm and consistent reason for believing that the Government are committed to going down that path were they to remove them from the Bill.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

It is a pleasure to serve under your chairmanship, Mr. Benton.

I want to speak in favour of retention of clause 4 and schedule 13, and I confess that I am still a little mystified as to the Government’s profound reluctance to accept the provisions as part of the Bill. I am grateful for, and recognise the Government’s movement, to which the Minister referred this afternoon. It is good to know that they are moving slowly in the direction of admissibility of intercept evidence, but I fear that that movement is too slow, and it seems anyway, for reasons that have been given, that there is no reason why we could not have the provisions in the Bill, and that all the necessary safeguards that the Minister believes should come could follow.

Be that as it may, I want to make several general points about why intercept evidence is so important. I agree entirely with the hon. Member for Taunton that we are not suggesting that intercept evidence is the only weapon to defeat the serious crimes that the Bill is designed to counter, but it can be one. I agree with my hon. Friend the Member for Arundel and South Downs that there are safeguards that can be put in place to provide the necessary reassurance.

I am not setting myself up as a better expert on intelligence than the intelligence officers who advise the Minister, but if they are worried that there would be a release of information about sources that would damage ongoing operations, that is similar in many ways to the concerns that the police have always had about criminal operations in which surveillance is involved where we have developed adequate safeguards that have worked well.

I should declare an interest as a criminal barrister. I am not currently practising, but when I was I came across many instances of police operations in which surveillance was carried out. Someone’s home would be used for the surveillance, but the owners of the house were not keen for those involved in the criminal activity to know where the surveillance was placed, so that information was not disclosed in open court, nor was it made available to the defence. The judge would make a decision on the ground of public interest immunity that that information should not be vouchsafed to the court or to the defence. That system has worked admirably for many years, and there is no real difference between that situation and the situation regarding intelligence that we now confront.

Indeed, the Minister properly referred a number of times to the independence and trustworthiness of the judiciary, and the reliance that can be placed on the good sense of the judges. If that is true, we can also rely on that good sense and trustworthiness when deciding what information should and should not be made available in intelligence-related cases.

It seems to me that we should have the provisions in the Bill because we should have wider availability of intercept evidence to allow us to defeat precisely the sort of criminals that the Minister set out as the target for this legislation.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

It is a pleasure to follow my hon. Friend. I entirely agree with what he says about PII applications. At the end of last week, I finished a long case in which much of the evidence was the result of bugging conversations in cars. A number of PII applications were made along the lines indicated by my  hon. Friend, I think to protect the methods by which bugs were put into a vehicle, although I was for the defendant and therefore did not know. That is by the way.

The first question that one must ask is where the prima facie argument lies. It seems to me that as a matter of principle it lies in favour of admitting intercept evidence. Is it probative? Very often. Is it relevant? Very often. If it is both relevant and probative, it should in principle be admissible. Would it enable one to prosecute in cases that are not presently prosecuted? The answer is probably yes. It would be good for the point made by my hon. Friend the Member for Arundel and South Downs, in that it would enable us to move away from control orders and towards more prosecution.

What are the serious arguments against it? There are two, and here I speak with a degree of knowledge. It is old knowledge, as from 1990 to 1995 I was the Foreign Office Minister responsible for working with Government Communications Headquarters and the Secret Intelligence Service. I saw all the intelligence product coming to the Foreign Secretary’s desk and my own and was familiar with the methods and targets adopted by the Foreign Office and the intelligence services.

It seems to me that two issues of technique need to be addressed. The first is targets. It is obviously thoroughly undesirable that prospective or actual targets know that they are they are the targets of intercepted communications. I accept that. Secondly there is a point that is somewhat less strong now: the method used. When I was in the Foreign Office, methods were unquestionably used that were not generally known. I suspect that they are now. So there are serious questions to be considered on both targeting and methodology.

Another, different matter is the copying of material for ultimate disclosure to defendants. The prosecution is under a duty to disclose to the defendant any material that might undermine the prosecution’s case or reinforce the defence’s. It will be argued that the intelligence services are therefore under the duty to copy and make available bodies of the intercept evidence that they are accumulating for a trial. The question is whether those arguments, which are real and not derisory, should stand in the way of the admission of intercept evidence. In my view they should manifestly not.

The Bill itself provides the answer, although there may be other answers. As I said in my intervention on my hon. Friend the Member for Rugby and Kenilworth, paragraph 4(1) of schedule 13 makes it plain that intercept evidence will be admitted only on the application of the prosecution. For that purpose the prosecution is largely the spokesman of the intelligence services. If for one reason or another the intelligence services do not want the intercept evidence to be communicated, either because it reveals methodology or targets or because it involves too much transcribing input, a prosecution will not take place. The prosecution counsel will not make the application. That is the safeguard.

In some cases the prosecution will go ahead because the intelligence services are not concerned. If they are  concerned, there will not a prosecution. That is probably a sufficient safeguard.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

My right hon. and learned Friend will know well that in a PII application, if the judge were to determine that information should be disclosed to the defendants, and if the prosecution, presumably in consultation with intelligence authorities, were to determine that that price was simply too high, they could always discontinue the prosecution at that point.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

That is entirely right, and it does in fact happen. It reinforces the point that the safeguard that is already in the Bill will protect the interests of the security services on both methodology and targeting and the cost and burden of transcribing.

I hope that we will keep the provision in the Bill. I accept that it may require further discussion with the intelligence services to provide reassurance. However, we should be moving towards the admissibility of intercept evidence in principle. However, we should be moving towards the admissibility of intercept evidence in principle.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon 6:30, 26 June 2007

It is a pleasure to serve under you, Mr. Benton. I want to make only two or three short points.

I am also uncertain about why the Government are behaving so much like a bashful maiden about this category of evidence. I understand to some extent that the Minister wants to ensure that the provisions are brought in a way that perfectly satisfies the concerns of people who frequently have to risk their lives in circumstances of great danger, and I quite understand their concern that any legislation should be thoroughly researched and have a proper basis.

However, I am still troubled by some of what the Minister said. I was considerably puzzled by his statement that nowhere in the world other than the United Kingdom did the police and intelligence agencies work together on the interception of communications. If that is his information, it is wrong.

I have experience of several such jurisdictions; I have been advising a particular Government, not all that distant from here, in whose jurisdiction precisely that is taking place—the police and judicial authorities are working extremely closely with the intelligence agencies, specifically on the eavesdropping of communications in respect of some very serious criminals indeed. I invite those who brief the Minister to look again at the issue. If they would like a word with me, I can tell them where I am talking about and about the practices adopted elsewhere.

I, too, want to mention Lord Lloyd’s amendment. A good deal of injustice is being done by the Minister in characterising what we have been discussing as unsatisfactory and unsafe. With respect, it seems to me that the amendment has been drafted with the elegance of design that one would expect of the noble Lord. For the precise reasons mentioned by my right hon. and learned Friend, and for another reason that he may not yet have perceived—he certainly did not mention it a  moment ago—all the safeguards that any intelligence agency or police authority could reasonably wish for are contained, in one bold stroke, in the amendment.

Not only does clause 1(4) do precisely what my right hon. and learned Friend has said—that is, apply the provisions of section 17 of the Regulation of Investigatory Powers Act 2000 until an application is made by the Crown. It also goes much further. In effect, it enables the Crown to choose whether to make the application, in which case, as my right hon. and learned Friend said, it would need the approval of the intelligence services, which would have carried outthe eavesdropping. Furthermore, clause 1(4) enables the prosecution to tailor and fashion its application by submitting it on the terms in respect of which it wishes to have the intercept evidence admitted. Paragraph 2 to schedule 13, “Considerations for allowing intercept or metering evidence”, makes it plain that in

“deciding whether to admit intercept or metering evidence, the court shall take account of all relevant considerations...in particular...any application by the Secretary of State to withhold the evidence or part of the evidence on the ground that its disclosure, or the disclosure of facts relating to the obtaining of the evidence, would be contrary to the public interest”.

I can envisage what Lord Lloyd had in mind, and what the inevitable interpretation of the provision would be in the courts. A prosecutor would, with the approval of the intelligence agency, put before the court the terms of the evidence that he wished to be admitted. Such terms would no doubt omit a whole range of transcripts of other eavesdropped conversations. They might well omit the circumstances in which the evidence had been obtained. They would make clear to the judge the basis on which the Crown sought to have it admitted. If the judge said, “Well, no, unless you give details of this particular means of interception”, then the prosecution would withdraw the application.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I put it to my hon. and learned Friend that subsection (2) is double-locked because what it provides in its cumulative whole is first, the decision of the prosecuting authority. But it gives the Secretary of State the right to intervene if he or she feels that the prosecuting authority has made an error.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

Yes, it certainly does that. But what I am concentrating upon is that what this section appears to envisage is that if one were prosecuting this, one could put a statement before the court, edited and shorn of all details of how the interception had been carried out, of all details relating to other conversations or names, put it before the judge and say, “Will you allow that to be admitted into evidence?”. Of course, the defence would be able to make submissions based on that.If the judge said no, they could withdraw their application.

It seems to me that that is not only reasonable but that it contains all the safeguards that could be needed. The Crown and the intelligence agency can decide whether to make an application, the terms on which that application should be made, the nature of what should be revealed or disclosed and then, if the judge decides that he will not admit it on that basis, they can simply withdraw it.

Those safeguards seem to provide almost everything it is conceivable that could be wanted. It may be that only in one case a year would one would make an application and it would be made on confined terms, which would give little away other than the fact that they have been eavesdropped. If the judge was willing to allow that evidence in, and he might very well, then why not use it in those circumstances? What possible apprehension could there be, provided one was willing to allow the fact that one had eavesdropped to have been disclosed in the first place? Of course, the whole of this argument presupposes that that disclosure is made.

In my submission to the Minister, he needs to look again at Lord Lloyd’s provision. It has been elegantly designed—as one would expect of the noble Lord, with his enormous amount of experience—and it needs to be carefully considered. Having said that, the provisions stand perhaps uncomfortably in this Bill. I am puzzled by an oddity of drafting which, under clause 4 apparently gives effect for the purposes of this Bill to schedule 13. It effectively says that the conditions of admissibility when the High Court is considering a serious crime prevention order shouldbe those set out in schedule 13. But scheduleparagraph 1(4) of schedule 13 seems to confine admissibility only to a criminal prosecution.

I have some unease. It may be that further discussion with the distinguished author of the clause would settle my mind, but at the moment I am not convinced that it stands in the right place in the Bill. But as a provision of schedule 13 for admitting intercept communication evidence, I submit to the Minister that this clause has some elegant advantages. I would be grateful if he enlightened me as to where the risks lie in that legislative proposal, if the prosecution can choose when and on what terms to make an application and further, if the judge declines to admit it on those terms they can then withdraw it.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

This an extremely important debate, not least because of the environment within which it happens. It is important for the Government’s role to be serious. They should not, in any sense, be seen to be playing games, but to be addressing the issue.

Parliament has been driven in the direction of legislation such as control orders, and a 28-day period of detention; the Government invited Parliament, happily unsuccessfully, to agree to a 90-day detention order. We have been trying to tell the Government that if they bring forward measures which, by any standard, are repressive and strong, to deal with terrorism they run the very serious risk of making the position worse. The laws being put in place make it easier for terrorists to recruit people to operate against the United Kingdom.

This is an extremely serious issue. Anyone who has read an account of the run-up to 9/11 in the United States will know that the CIA and the FBI had a very different approach to this kind of evidence. The CIA saw it as intelligence; the FBI tended to want it to be of evidential quality that they could produce in court. There was a serious difference in operations between the two agencies and they failed to co-operate adequately with each other. Had they co-operated properly with each other, it is likely that the passage of  information between them would have led to the earlier detection and arrest of the 9/11 bombers, and that appalling tragedy might have been averted.

The Minister referred earlier to the United Kingdom’s enormous advantage in having a system in which the agencies co-operate with each other. There will not be a divergence between the different agencies who are tasked with getting information and those who have to produce it as evidence in court. However, the danger in our approach is that the agencies dictate the agenda.

Parliament and the Government should be the arbiters of the overall public interest but in order to address the terrorists directly, because we have not confronted the issue we are being driven to impose serious, regressive legislation in order to go after the terrorist threat. By doing so, ironically, we run the risk of making that threat worse, because the legislation acts as a recruiting sergeant for the terrorists.

The issue has been around for a long time. The incoming Prime Minister presented it in a briefing to which journalists were not invited, or were told that if they took the briefing, they could not seek a comment from the official Opposition. It is unfortunate that the Government still seem to be trying to present Opposition parties as soft on terrorism. The Government should bear it in mind that the provision suggested by their lordships acts as a long-stop in the review process on which they are about to embark.

People would get the wrong message if the Government were to extract the clause from the Bill. From now on, they should avoid the presentation issues and deal with the real issue of co-operation between the agencies, which includes Parliament and Government. We must all try together to get the right powers to take on the terrorists effectively without handing them the tool of repressive legislation that will simply help them to do their work.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department 6:45, 26 June 2007

I thank all hon. Members who have contributed to debate and discussion of this part of the Bill for their comments. The hon. Member for Reigate makes the point that this is an extremely important issue that all of us want to see resolved, and I think that we all agree. He stressed the importance of the issue and the need to present it to the public in the most appropriate way. I thank him for his comment.

I apologise to the hon. Member for Arundel and South Downs if the Government have made a commitment to do something and have not done it. I will check that and reply to him. I can only apologise if it is the case. We will check the commitment, see what has not been done and try as far as possible, although we cannot rewind the clock, to see what we can do.

I shall make a couple of remarks. The hon. Gentleman raised all sorts of issues, as did his hon. Friend the Member for Rugby and Kenilworth and other Members. The Government are absolutely committed to a review of the use of intercept. We are also committed to using intercept as evidence if we can find a workable model and the necessary safeguards can be put in place. That is the Government’s position. It is clear, and there is no rowing back from it. As the  Prime Minister-designate and others have said, we will pursue that review on Privy Councillors’ terms.

I cannot say what form the review will take, what the membership will be or any of the other things that have yet to be resolved—as I understand it, those discussions are still going on—but I make in this Committee the commitment, to be recorded in Hansard, that that review will take place. We expect and hope that it will not take too long. If the review concludes that the use of intercept evidence is appropriate, a working model can be identified and the necessary safeguards can be put in place, it might be possible to include it in a counter-terrorism Bill in the autumn. Those commitments have been made. That is what we have said, and that is what we are trying to achieve. We cannot guarantee that it will happen, but that is how we propose to take the matter forward.

I shall share a couple of points with the Committee to identify the difficulty. To be fair, the hon. and learned Member for Torridge and West Devon, as well as his right hon. and learned Friend the Member for Sleaford and North Hykeham, raised issues about the drafting of clause 4 and schedule 13 that will need to be overcome. Many hon. Members’ questions involve the very issues that need to be resolved if we are to find a workable model built on consensus that allows us to use intercept as evidence. That will include Parliament, as the hon. Member for Reigate said; it will include law enforcement, the intelligence services and everyone else involved, but issues still remain to be resolved. We would be deluding ourselves as a Committee if we did not appreciate that.

The hon. Member for Arundel and South Downs said—I know that he did not mean it—“a police officer said”. It was not a police officer. I shall repeat it, because it is very important. It was not a police officer; it was a deputy chief constable speaking on behalf of the Association of Chief Police Officers in evidence to the Joint Committee on Human Rights. Not 10 years ago but a couple of months ago, in March 2007, he said:

“If we reduce our capacity in order to serve the evidential regime, there is a possibility...that we will lose that capability to disrupt some potentially catastrophic scenarios.”

If the Government were to ignore that and say, “We will proceed irrespective of what one of the most senior police officers has told us”, I do not think that the Committee would be saying, “Why are you not using this intercept as evidence?” If, as a consequence of doing that, some catastrophic event was not prevented, which could have been prevented, Parliament and hon. Members on both sides would rightly ask, “Why did you not take any notice of what the senior officer said?”

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

The Minister is not dealing here with a provision that would allow the interception of communication evidence to be admissible in every burglary, theft, shoplifting or even drug dealing case, but with a specific provision—it might apply only to three or even one case a year—that would allow the prosecution to choose its own territory and to say, “This case is so important, and it is so important that we bring a conviction, that we will bring this   application and choose to put to the judge the way in which we propose to adduce the evidence, and ask him to approve it. And if he won’t, we won’t do it.” Now what on earth is wrong with that?

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

The Government are searching for such a model that will allow that to happen, so that we do not have senior police officers telling us that the consequences of taking forward a model that they do not believe has the necessary safeguards in it could be catastrophic. We often quote senior people such asthe Information Commissioner. Now let me read another quote, this time from the interception of communications commissioner—another senior figure. He said, again, not 10 years ago, but in his last published annual report in February 2007,

“in my judgment, the introduction of intercept material in the criminal process in this country...would put at risk the effectiveness of the agencies on whom we rely in the fight against terrorists and serious criminals, might well result in less convictions and more acquittals and, most important of all, the ability of the intelligence and law enforcement agencies to detect and disrupt terrorism and serious crime and so protect the public of the country would be severely handicapped”.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Will the Minister not recognise that the two statements that he has read out were made by people addressing the issue at large, not in the context of the Bill? My hon. and learned Friend the Member for Torridge and West Devon made it plain that the provisions in the Bill provide precisely the kind of protection that the two gentlemen quoted by the Minister were seeking.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

With respect to the right hon. and learned Gentleman, the point that I am trying to make is that senior figures in the police, interception world and intelligence services have serious concerns about the use of intercept as evidence and the way in which it has been included in the Bill. The Government have said that, notwithstanding those concerns and objections, if we can find a workable model and a way in which to ensure the necessary safeguards, we will look to introduce into the counter-terrorism Bill in the autumn the necessary legal changes so that we can use intercept as evidence.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

I do not think that any of us have tried to do anything other than concede that there are concerns in the intelligence services about the use of intercept. In fact, I said that specifically. That is why surely it makes sense to examine those matters properly.

I do not think that the Minister should be allowed to get away with the suggestion that there is some sort of universal expression of concern among the police. I do not dismiss the concerns of the officer who warned about the impact on capacity, but the fact is that the Metropolitan Police Commissioner, who is the most senior police officer in the country, and his assistant, who is tasked with tackling terrorism, have both made it clear that they favour the use of intercept evidence and want the issue to be considered.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

My understanding is that the Metropolitan Police Commissioner’s view is exactly the same as the Government’s; that is, that intercept evidence is perfectly acceptable, provided we can find   the necessary safeguards and put together a workable legal model. As I said, that is the intention of the review. That is how we want to go forward, and I believe that it is a sensible way of proceeding.

The hon. Member for Arundel and South Downs referred to resource implications. I raise with him the example that Sir Swinton Thomas, the interception of communications commissioner, gave in his last annual report. It illustrates the problem of an increased resource burden on the interception agencies. He quoted a recent case in which a trial judge orderedthe prosecution to transcribe some 16,000 hours of eavesdropping material at a cost of just under £2 million.

Indeed, when I visited the Serious Organised Crime Agency to see some of its capability and capacity, one of the concerns that was raised with me was the use of intercept as evidence. Apart from the philosophical debate that may take place, there are practicalities to be considered. If a piece of intercept evidence has to be of an evidential standard instead of just something to be used to inform some law enforcement activity, the transcribing of huge amounts of data is required rather than just the securing of a particular place. The only point that was made to me was that, notwithstanding the philosophical points and points of principle that need to be made about the use of intercept evidence, there are practical consequences for the agencies as well.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

Does the Minister not understand that the provision circumvents that problem? It allows the prosecution to go to the judge with a certain amount of information, but a certain amount of information only, and ask him to admit it on that basis. If the judge says no, the prosecution withdraws. It can say to the judge, “We want to introduce evidence that is particularly devastating and compelling. This is the conversation and context in which it took place, but we will give no further details. If you will not admit it on that basis, we shall withdraw the application.” The judge can say yes or no.

There is no risk that a judge will order massive disclosure to the defence of hundreds of conversations tape-recorded over many hours—much of the material would be unused—because the prosecution will be able to get a ruling from the judge beforehand as to what he will and will not permit. That is what the provision means. That is how I would interpret it, and I have spent 25 years practising in the courts at a level that would involve precisely such applications. I cannot see the problem.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

I gave an example from the commissioner’s last report of a judge who said that it was necessary to transcribe 16,000 hours of eavesdropping material. Concerns are being raised by the agencies that are responsible for law enforcement, for tackling serious crime and for running our intelligence services.

In conclusion, it is not a matter of shutting down the debate or closing our minds to the use of intercept as evidence. We have made a serious commitment to the review. I note again the point made by the hon. Member for Reigate, but we will take the review forward and we would be foolish to proceed by   ignoring what the intelligence services, senior police officers and the Serious Organised Crime Agency tell us. We want to find a workable model and a way in which intercept evidence can be used, provided that the necessary safeguards are in place, and we want to find a way forward that is built on consensus and has the confidence of those whom we employ to protect our country.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs) 7:00, 26 June 2007

Before the Minister concludes, I accept his apology for the failure to deliver what the Minister for Security, Counter Terrorism and Police promised on Second Reading—that we would be updated as to the progress of the Privy Councillor committee before we came to consider this matter. I am grateful for the Minister’s apology, but we still have not received that explanation and we have no idea of the basis on which the committee is going forward. Does the Minister understand that we cannot therefore simply accept the withdrawal of the clause? As he has apologised, would not it be proper to—

Photo of Joe Benton Joe Benton Labour, Bootle

Order. This is becoming a contribution.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

May I simply finish my point, Mr. Benton?

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

As the Minister has apologised, would it not be proper to return to this matter on Report after those undertakings have been fulfilled as was promised to the official Opposition?

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

I do not think that would be appropriate. I have apologised to the hon. Gentleman regarding any commitment that has not been met and I have tried to reassure him and the Committee that the Government are undertaking a review, the exact composition and terms of reference of which are, I understand, the subject of discussions between the Leader of the Opposition and the Prime Minister. I expect those discussions to continue and I hope that they will reach a satisfactory conclusion from which the review can proceed. If a way can be found that takes into account the concerns of the intelligence and law enforcement agencies, we might be able to introduce the use of intercept evidence in the not-too-distant future.

Question put, that the clause stand part of the Bill:—

The Committee divided: Ayes 7, Noes 8.

Division number 10 Nimrod Review — Statement — Clause 4

Aye: 7 MPs

No: 8 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Clause 4 disagreed to.