New Clause 1

Counter-Terrorism Bill – in a Public Bill Committee at 1:30 pm on 15th May 2008.

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Offences related to terrorism: evidence

‘(1) In considering whether a person is involved in terrorism, the Court may take account of any evidence admissible under the Regulation of Investigatory Powers Act 2000 (c. 23).

(2) Schedule [Intercept evidence] (which makes provision for the admissibility of intercept evidence in cases involving terrorism) has effect.’.—[Mr. Heath.]

Brought up, and read the First time.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I beg to move, That the clause be read a Second time.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss the following: New clause 12—Intercept evidence: regulations —

‘(1) The Secretary of State must, by 31st July 2010, make regulations which make provision for the use of “intercept evidence” and “metering evidence” in criminal proceedings.

(2) The regulations made under subsection (1) shall be made by statutory instrument which are subject to the affirmative resolution procedure.’.

New schedule 1—Intercept evidence

Admissibility of intercept and metering evidence

1 (1) Notwithstanding section 17 of the Regulation of Investigatory Powers Act 2000 (c. 23) (“RIPA”), evidence of—

(a) the contents of an intercepted communication (“intercept evidence”), and

(b) communications data (“metering evidence”),

shall be admissible in criminal proceedings to which this paragraph applies.

(2) This paragraph applies to—

(a) proceedings in respect of serious crime, and

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

(3) An application for permission to introduce intercept evidence or metering evidence, or both, may be made by the prosecution for the purpose of conducting a criminal prosecution to which this paragraph 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  of RIPA (exclusion of matters from legal proceedings) shall continue to apply in connection with those proceedings.

Considerations for allowing intercept or metering evidence

2 In deciding whether to admit intercept or metering evidence 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 ground 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.

Interpretation

3 In this Schedule—

“communications data” has the same meaning as in section 21(4) of RIPA;

“intercepted communication” has the same meaning as in section 4 of RIPA;

“RIPA” means the Regulation of Investigatory Powers Act 2000 (c. 23);

“serious crime” has the same meaning as in section 81(2)(b) of RIPA;

“terrorism” has the same meaning as in the Terrorism Act 2000 (c. 11).

Minor and consequential amendments

4 In section 5(3)(b) of RIPA, for the words “or detecting” substitute “, detecting or prosecuting”.’.

New schedule 4—Intercept evidence (No. 2)—

Admissibility of intercept and metering evidence

5 (1) Notwithstanding section 17 of the Regulation of Investigatory Powers Act 2000 (c. 23) (“RIPA”), evidence of—

(a) the contents of an intercepted communication (“intercept evidence”), and

(b) communications data (“metering evidence”),

shall be admissible in criminal proceedings commenced on or after 31st July 2010 to which this paragraph applies.

(2) This paragraph applies to proceedings in respect of an offence or offences relating to terrorism.

(3) An application for permission to introduce intercept evidence or metering evidence, or both, may be made by the prosecution for the purpose of conducting a criminal prosecution to which this paragraph 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 of RIPA (exclusion of matters from legal proceedings) shall continue to apply in connection with those proceedings.

Considerations for allowing intercept or metering evidence

6 In deciding whether to admit intercept or metering evidence 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 ground 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.

Interpretation

7 In this Schedule—

“communications data” has the same meaning as in section 21(4) of RIPA;

“intercepted communication” has the same meaning as in section 4 of RIPA;

“RIPA” means the Regulation of Investigatory Powers Act 2000 (c. 23);

“serious crime” has the same meaning as in section 81(2)(b) of RIPA;

“terrorism” has the same meaning as in the Terrorism Act 2000 (c. 11).

Minor and consequential amendments

8 In section 5(3)(b) of RIPA, for the words “or detecting” substitute “, detecting or prosecuting”.’.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

We now come to the big missing segment of the Bill—the use in criminal trials of intercept evidence and the admissibility of such evidence. This is a matter which has been raised repeatedly over the years and which many of us feel very strongly ought to be part of the apparatus available to prosecutors in order to bring successful prosecutions. That certainly applies in terrorism cases where there is a strong argument for it, but I also believe that it would make a significant contribution to the fight against organised crime.

Hitherto, Governments have always been extremely reluctant to accede to such requests. That reluctance has been because of strongly held views from the security services about the effect on the operability of their systems in the event of disclosure. I understand those concerns and the reservations that have been expressed but I have always felt that it is not impossible to create a legal architecture that would allow for the admissibility of evidence in some cases that would be of benefit to the prosecution of those offences. Although it is always very comforting to look at the experience of other jurisdictions and to say that if they can do it we can do it, I recognise that that is not necessarily as simple as it seems. Very few jurisdictions approach such subjects identically. Nevertheless, my party’s view, and I believe that of the Conservative party, has been for some time that that is something for which we must make arrangements for the security of our country and to ensure that the police, the intelligence services and our prosecutors can do their jobs in the most effective way.

The new clauses are not of my own construction but are taken from new clauses or amendments tabled by Lord Lloyd of Berwick and debated in another place in the context of previous Bills. I thought that they would be a useful platform on which we could hold this debate. Since I tabled the new clauses we have had an extremely useful seminar. Can I say again how grateful I am to the Minister for arranging that seminar and for the clarity and openness of the senior officials who attended and spoke to us about the issues that they face? I found it illuminating as, I suspect, did other members of the Committee.

We also have the new clause and schedule in the name of the hon. and learned Member for Beaconsfield. There is a substantive difference between his and mine in that he seeks to provide a timetable for the implementation of the admissibility. That has a lot to commend it. I will not steal his thunder by speaking to his new clause before he has the opportunity to do so but, when I look at his proposal and my proposal, I  think that his has more merit, in that it means that the Government stick to the assurances given.

The difference between the situation now and the situation when these or similar new clauses and amendments were first tabled is that we have had the Chilcot review, which was extremely useful because it addressed these issues seriously. For the record, that was the Privy Council review of intercept as evidence under the chairmanship of Sir John Chilcot with his colleagues Lord Archer of Sandwell, Lord Hurd of Westwell and my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith). They looked in considerable depth at the operational and legislative obstacles to the adoption of new procedures which the Prime Minister has now indicated that he wishes to see.

I remind the Committee that when the Chilcot review considered the matter in detail it came to the conclusion that there were risks to the strategic capability of the UK’s intelligence agencies but that they could be overcome by appropriate legislative and operational measures. It set out in very clear terms the requirements for intercept as evidence to be operationally workable, not why it could not be implemented but how it could be implemented and how the difficulties which they recognised could be circumvented. It set out:

“The intercepting agency shall decide whether a prosecution involving their intercepted material shall proceed”— not whether the prosecution should proceed but whether a prosecution involving their intercepted material should proceed.

Secondly, it said:

“Intercepted material originating from the intelligence agencies shall not be disclosed beyond cleared judges, prosecutors, or special (defence) advocates, except in a form agreed by the originator”— a proposal that one would expect in that context.

“Material intercepted (by any agency) through the use of sensitive Sigint techniques shall not be disclosed unless the Secretary of State is satisfied that disclosure will not put the capability and techniques at risk.”

That is an important safeguard for the operational integrity of some of the processes used.

“No intelligence or law enforcement agency shall be required to retain raw intercepted material for significantly more or less time than needed for operational purposes (which may include using the material as evidence).”

That recognises the huge churning, the turnover of this sort of material, and the fact that the intelligence agencies have a specific purpose in looking at that intercept material. It is not for some archiving purpose; it is to see whether there is evidence of criminal activity, either now or envisaged in the future. Therefore, it is not normally retained, and nor should we expect vast quantities of material to be retained.

The next point is:

“No intelligence or law enforcement agency shall be required to examine, transcribe or make notes of intercepted material to a substantially higher standard than it believes is required to meet its objectives (which may include, but are not limited to, using material as evidence)”— again, a practical point to ensure that we do not put a bureaucratic burden on our intelligence services that they cannot possibly meet.

“Intelligence and law enforcement agencies shall be able to carry out real time tactical interception in order to disrupt, interdict or prevent terrorist and criminal activity, as effectively as they do now.”

We would all hope that that is the case, as it is essential that the security services are able to do their work, particularly when it is possible to prevent a catastrophic event happening. We do not want them looking over their shoulder to consider what we have passed in this Committee, or elsewhere, and that getting in the way of their work.

“Law enforcement agencies shall be able to use interception to provide strategic intelligence on criminal enterprises, and retain the intelligence sometimes for a number of years, regardless of the progress of specific criminal cases. Interception from the same lines may serve both tactical and strategic purposes; if it does, it shall be handled in a manner appropriate to both.”

Again, that is perfectly sensible.

“Intelligence agencies must be able to support law enforcement by carrying out interception, for “serious crime” purposes, of targets nominated by law enforcement, and to provide the product or reports on it to those agencies. Anything so provided shall be subject to the same disclosure obligations as other intelligence intercept.”

Again, that goes beyond the activities of a limited number of people who are engaged in terrorism, into a wider field of serious crime.

Lastly, the review stated:

“At trials (whether or not intercept is adduced as evidence) the defence shall not be able conduct successful ‘fishing expeditions’ against intercept alleged to be held by any agency.”

That is a major concern for the security services, but it is one that can be prevented by appropriate rules for the use and disclosure of the material in court.

The Chilcot review set out clearly the parameters in which the work should go forward. In the seminar, we heard that that work is going forward, and I was encouraged by that. I take what we were told at face value: that very serious consideration has been given to find an appropriate legal model, and that having designed such a legal model, it would be tested, and provided that it was tested and found to be appropriate, it would be implemented through the legislation.

We are well down the road, both in terms of intention and the work that has already been commissioned, in achieving our objective to ensure that intercept evidence is available as a further tool for investigation and prosecution. What remains to be determined is the time scale in which that work will proceed, and the legislative vehicle which will be used and whether that involves further delay.

The glib comment would be that we have a criminal justice Bill every year so there is certainly no problem in finding the legislative vehicle. It is a very rare year indeed when we do not have an array of Home Office and Ministry of Justice Bills to deal with, so I am certainly confident that there will be legislative vehicles. But I do need assurances from the Minister that a time scale is both envisaged and will be kept to for this. This is a very serious matter for many Members on both sides of the House, who really cannot understand why we should forgo such an effective evidential tool if there are ways of getting around the undoubted operational difficulties.

We need a very clear understanding that that work is not only proceeding but will reach a rapid conclusion,  and that it is the clear intention of Ministers to make sure that that does happen rather than find ways for it not to happen—I am reassured on that. We need to be clear that there are no agencies who effectively have the veto on this process and can stymie what has been recommended, not just by those who consider it from the point of view of securing convictions, but those who are directly involved in gathering criminal intelligence—certainly on the police side—and can see the advantage of it. We need to set aside the reservations apparently expressed by the Metropolitan Police Commissioner, and his view that this was going to be years hence, which, I have to say, was a very discouraging statement, and not in keeping with what we heard from the Home Office.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 1:45 pm, 15th May 2008

I would say that it is mystifying when one compares it with the briefing we then had at the Home Office. It left me slightly with the sense that the Metropolitan Police Commissioner sometimes seems to say whatever comes into his head at the time.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I must say that it is not the first time that I have been puzzled by evidence provided by the Metropolitan Police Commissioner. He does seem to occasionally shoot from the hip and make comments which have not been fully considered. It worries me that he is not party to the work that is going ahead—at high speed—and that he is not aware that Ministers’ clear intention is to proceed in that way. If he is not party to that, then someone should take him aside and say “This is what is going on, Commissioner. Perhaps next time you make a public utterance on this issue, you might be a little more helpful to our processes, rather than suggesting quite the reverse of what we were told was the case in the seminar we attended.”

I do not want to go through the arguments in support of intercept evidence because both sides of the House have already agreed that this is where we intend to go. What remains are the legislative hurdles and the architecture of rules that need to be developed, tested and implemented. Our concern is that there is not yet any clarity about the timetable—thrown into sharp relief by the words of the Metropolitan Police Commissioner. I therefore hope that we will hear clear assurances from the Minister in that respect.

If those assurances are not forthcoming, I will be tempted to support not my own new clause, which I do not intend to press to a Division, but the proposal from the hon. and learned Member for Beaconsfield, which provides a clear timetable for implementation, which is what everybody wants to see.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 2:00 pm, 15th May 2008

As the hon. Member for Somerton and Frome rightly said, there is in reality very little difference between his amendment and my own. In its scope, it is to all intents and purposes identical on the schedule, and the only difference is the question whether it should be implemented now or later. I am on record on numerous occasions as saying that I wish to see intercept evidence introduced as soon as possible in terrorist cases. I agree with him that using it in cases of serious crime might also be beneficial. Even confining my remarks to the question of terrorism and terrorist  cases, I see a powerful argument for wanting to have it introduced immediately, particularly because I have this sense of silence from the Government’s side about whether there was a serious intent to implement the Chilcot report.

In fairness to the Minister and to the Government, I found the briefing we received at the Home Office both illuminating and heartening. It seemed to me we had a clear indication that there was a strong desire to implement the recommendations, that work was taking place to bring about implementation and that we were dealing with a time frame rather than anything else. I recollect—I hope I remember this properly—that at one stage of the briefing we were told that a time frame of about a year to 18 months was being worked to.

For that reason, I selected 31 July 2010 as the date by which the regulations ought to come into force to implement the use of intercept evidence. I toyed with the idea of deferring it until 1 January 2011, but thought that that was probably too far away and wanted at least to stimulate debate on the feasibility of moving forward at a reasonable pace.

We are in danger of missing an opportunity in the passage of this legislation if we do not do something about this area. After all, the Government have already, in the legislation, done something about inquiries and inquests in relation to the use of intercept evidence. As the Minister acknowledged, that is in many ways a major step forward in the use of intercept material.

I accept that the problems associated with using intercept material in inquiries and inquests in the new form wanted by the Government are rather different from those that arise in the context of a criminal trial. However, I remain firmly of the view that the difficulties that undoubtedly exist are not insurmountable, and I have a compelling feeling of regret that this was not tackled properly four, five or six years ago when it became clear that the rise of a new kind of terrorism was going to require us to take sensible steps to try to ensure that we can bring to justice the perpetrators of outrages and those who are planning appalling offences.

The longer we delay doing it, the more we are forced to rely on administrative sanctions, whether it be control orders or the Belmarsh detention regime—all of which, as I think the Minister acknowledges, are flawed and unsatisfactory even if they may be necessary. That necessity should not blind us to the equal necessity of trying to do everything to get rid of those systems.

I am the first to accept that intercept evidence is not a panacea, because human intelligence—which is of course a very separate thing from intercept evidence—may often be the source of information that tells the Government what is going on. It remains a very difficult area to adduce in court, and therefore there may still remain cases where intercept evidence does not solve the problem. But the Government would be on much stronger ground in arguing for the administrative alternatives that they have put forward over the last five or six years if they were in a position to say that they had done everything in their power to bring within the umbrella of the criminal justice system powers to get convictions and there still remained a problem rather than the current position where they are unable to give that reassurance to the public or  Parliament. For that reason, I strongly commend the introduction of intercept evidence.

There are very few western democracies where intercept evidence is not used. There are other common law jurisdictions where it is used. There is no compelling evidence from those countries that the use of that material is leading to serious problems for the intelligence and security services in collating and obtaining material. We live in a sophisticated age. If one wants to understand how intercept is carried out, there are all sort of places on the internet where one will find a mine of information. Some of it will be inaccurate, but some will be accurate. My feeling has always been that those who dabble in the fields of terrorism and serious crime are probably very well aware of where their communications are likely to be intercepted. Doubtless, as technology advances, there is always a hope from the intelligence services that they will keep one step ahead of their quarry.

We need to move forward and I hope that the Minister can give us some positive responses this afternoon so that we are in a better position on Report to evaluate some of the other difficult areas that the Government are arguing about. Whether or not we go down the road of 42-day pre-charge detention, to which I remain utterly opposed, the sooner intercept evidence can be used in court, the better.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

The first rule of advocacy is that one should not put a question to the witness unless one knows what answer will be received. When I put a question to Sir Ian Blair, I was flabbergasted at the response, not just at its content, but because it was delivered almost as if I was wasting everybody’s time in talking about intercept evidence. That contrasted dramatically with the Home Office briefing. I add my thanks for that facility having being made available to us. We had a candid and full exchange about the progress and the difficulties that need to be dealt with.

Like other Committee members, I feel that intercept evidence is vital. I, too, find it difficult to comprehend why other common law countries can use it without compromising sources. That is an important matter, which I have no doubt is uppermost in the minds of Home Office officials. I appended my name to new schedule 1 before we had the briefing and I take it that the hon. Member for Somerton and Frome will not press it to a vote because I would be slightly embarrassed, having heard from the Home Office officials.

The preferable proposal might be new schedule 4, which would impose a time frame. I echo what the hon. and learned Member for Beaconsfield said on that. Lord Carlile in effect said that this is not a silver bullet, but part of the armoury. It will help in many cases, but not in all. We should have it in the armoury because of the seriousness of the threat. I was encouraged by what I heard in the Home Office and I have no reason to doubt what was said. I hope that in applying what the officials candidly described to us, the Minister will look favourably on new schedule 4. It allows a longer period than was anticipated by officials, within which pilot schemes and the necessary investigations will have been  concluded. I support the idea advanced by the hon. Member for Somerton and Frome, but it has been somewhat overtaken by events. I encourage the Minister to look carefully at new schedule 4.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I am grateful to hon. Members for their appreciation of the seminar, which was clearly illuminating. I shall be having words later with officials. If they were far too candid and open, they will not be doing it again. In all seriousness, I am grateful to them for making it so open and candid that people could understand what is happening. None the less, I should make clear where we are.

A cross-party group deliberated extensively on the matter and reported to the House last summer. The Prime Minister fully accepted what the Chilcot report said. As hon. Members will have heard, fairly soon thereafter an implementation group, or whatever it is called, was set to work on the not inconsiderable barriers to which Chilcot referred. It was a long and daunting list, but the starting premise was that if we could get there, we should.

I cannot accept the reheated amendment of Lord Lloyd of Berwick tabled by the hon. Member for Somerton and Frome because, counter to Chilcot, it relies upon public interest immunity. Chilcot clearly said that he was not convinced—actually, he went much further—that PII in its current form was appropriate. He spoke of a PII-plus system, which is part of what is being worked upon. There must be something about Berwick: we had the right hon. Member for Berwick-upon-Tweed (Mr. Beith) on the Committee and Lord Lloyd of Berwick in the other place. The amendment is premature, to say the least, and it should be resisted. If permitted and implemented, it would result in a far worse position than that which Chilcot, the right hon. Member for Berwick-upon-Tweed and others have suggested is the position that we need to get to. In that context, I would also resist the new schedule.

I hope that it was made clear at the Home Office seminar that, in discussion with Chilcot, the 2009-10 Session is precisely when we hope to legislate on the matter. However, that rather presumes that all the work will have been done and that all the areas that we hope to have dispatched, and all the road blocks and obstacles that we need to have overcome are overcome and dispatched. I do not know when that will be; nor, with respect, does the hon. and learned Member for Beaconsfield. I do not want to hold the Government to a date, as I simply do not know whether it can be met.

I am not entirely sure what formulation will be put in place to ensure that the House is kept broadly up to date with the progress of the Chilcot advisory group. I shall certainly take that matter away and explore it. It is a sensitive and serious issue. The Prime Minister has made a significant statement on it. We have set up the group. It is not necessary to let the House know every nook and cranny, every detail, of its work and deliberations, but it is only fair to have a system in place to tell the House what level of progress is being made.

Photo of Martin Salter Martin Salter Labour, Reading West

Does the Minister agree that there is a danger of hon. Members appearing churlish, given the growing consensus about  intercept evidence in the House and the Committee? The Home Affairs Committee recommended it, and in evidence to that Committee, Assistant Commissioner Hayman said that he believed that there is a case for its use. We do not need to overcomplicate the matter. Policy is moving precisely in the right direction.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I entirely agree. I have never known my hon. Friend to be churlish, so there was no need for him to make that qualification at the start of his intervention.

We are on course. As I said—I happily repeat it—the work programme now under way will be consistent with legislation if the operational tests can be met. I do not diminish the seriousness of those operational and legal tests, but we expect to debate the matter during the 2009-10 Session. We believe that the issues raised by Chilcot should be capable of resolution, but there is no guarantee that they will be met without a significant further reworking of the model—or met at all. As my hon. Friend the Member for Reading, West implied, the new clause would completely pre-empt that, being inconsistent not only with the Government’s position or that of the respective select committees, but also with the cross-party Chilcot report itself. It is unnecessary either to lock us into a date that no one in this House or Committee knows whether we can keep——I repeat the assurance that we seek to achieve it by 2009-10, all going well—or into what is clearly, according to Lord Lloyd of Berwick, an inferior model that relies on a PII system that Lord Chilcot has traduced himself.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Oops—maybe I have given something away there.

It is not a sufficient legal framework to build such a process on, if all the operational matters do come to fruition. But let us be very clear: the points—not made churlishly—about Blair were relevant. Actually, Blair has been one of the loudest and most vociferous proponents of intercept as evidence, as in his Berlin speech about six to nine months ago, which at the time was much to my annoyance, but with which now, of course, I wholeheartedly agree. If he was confused at our session, then that was a lack, but an uncharacteristic lack. He has made very clear, as did Andy Hayman, the previous head of anti-terrorism, as my hon. Friend the Member for Reading, West pointed out, that they favour intercept evidence.

Let us be very clear. It is not the panacea. On the closest parallel we have had, and I think Lord Chilcot referred to this, in US and UK cases that were roughly comparable in their use of intercept, the highest arrest to conviction rate as a result of interception between 1996 and 2006 in the US was 56.4 per cent. In the UK, a Metropolitan police study of operations carried out in 2006-07 involving intercept intelligence only, found there was an 88 per cent. charge to conviction rate of completed cases.

The argument put that somehow we are lacking in our prosecutorial system because we do not use intercept as evidence is not as black and white as people imagine. Because we do not use intercept as evidence, there is far,  far more that our intelligence and law enforcement people do together in the pursuit of crime, and terrorist crime in particular, that they would not do if intercept as evidence were introduced. I am not offering that as an objection to bringing intercept evidence in; I am simply saying it is not the black and white position people imply.

The Chilcot report itself highlighted that, in a review of nine current or former control order cases conducted by independent senior criminal counsel, the ability to use intercept material in evidence would not have enabled a criminal prosecution to be brought in any of the case studies. I am not saying this of the hon. and learned Member for Beaconsfield or the hon. Member for Somerton and Frome—though there are plenty in his ranks—but there are those who have said that, with intercept evidence and post-charge questioning, there would in an instant be no need for pre-charge detention or control orders. That is simply far too simplistic. I do not want to cast aspersions on anyone in particular in the hon. Gentleman’s ranks, but he need look no further than his right hon. Friend the Member for Sheffield, Hallam (Mr. Clegg), who has made that point on a number of occasions. It completely misconstrues the import of what we are discussing. Will it help? It may. I would put it no stronger than that.

People need to understand very clearly the distinction between communication data, bugging and the use of intercept evidence, which I am sure everyone here does. I do not think the distinction between those is quite so clear-cut out in the real world, and that adds to the confusion.

Let us take a simple bug put in a car or in somebody’s room. All of a sudden, when the court case comes, we get the transcript and hear the tape, and people will say “I thought we did not use intercept evidence.” It goes to the provenance of the location of the intelligence. A bug in a car is easily dealt with in terms of going back to the source, but some elements of intercept, and how we got it, will not be. That will not be fixed by Chilcot either, by the way.

Communications data are used all the time as well. In court cases, we see the police have gone through people’s phone records and everything else, linking who people have been talking to—not the substance or detail of any of the conversations, but simply the traffic. The same applies to e-mail.

The closer we get to the implementation of Chilcot——not on the back of this Bill, I hasten to add—the more there needs to be further discussion about what we mean by intercept as evidence. I would not want to diminish what especially US law enforcement can do but while more often than not, they are very enthusiastic about it, they tell you in the next breath that in most of the serious crime cases—terrorism, less so—they have cracked using intercept as evidence have involved intercepted evidence right from the beginning of the process. This is why cases are run increasingly on a sting basis and why much of what gets through the Racketeer Influenced and Corrupt Organisations Act and other legislation uses intercept as part of the investigatory process rather than simply as part of the discovery.

The Chilcot review discussed all that. I say that to reinforce the point that it is not the panacea that people suggest. Cases have been studied—including the one referred to by the hon. and learned Gentleman—as  part of a review of intercept as evidence. I cannot say, hand on heart, in every significant case of terrorism over the last five to eight years intercept as evidence would not have been of use. Intercept has been of enormous use but it is not fair to imply that we have fought and disrupted those plots in a deficient way because of the absence of intercept as evidence. One cannot claim that causality given what has come to court and the success we have had through the courts.

Will it, like all the other elements of this Bill, add to the array of devices and activities we have in the fight against terrorism? It will. The sooner we get there, the better. At the very least, the sooner we get to see whether all that Chilcot describes as impediments can be overcome and then legislate, the better. We are at one with that.

These new clauses and schedules are premature given the processes that are unfolding and I ask that they be resisted.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

This is an important issue. The Minister is right that this is one element among a range of tools that should be available. No one has ever suggested that it is the one tool which is going to be efficacious when nothing else is. It is part of an array which we have been assembling in order to fight terrorism effectively. It is reasonable that we argue that when we have all the elements in place we can question whether other less satisfactory suggestions are required. That is the basis of the argument on 42 days or any other extension of pre-charge questioning but that is a debate we have had and will have and not the one we are engaged in now.

The Minister is also right to say there is widespread confusion about what we mean by intercept evidence. That is one reason people are very confused; not because they think all intercept evidence is not admissible but because they know that some is. They question why when one bit of electronic kit picks up evidence it can be put in front of a court but when another bit of electronic kit picks up the same conversation it cannot be. That has added to the confusion and the sense that this is not a sensible position to be in.

I said earlier that the matter has ramifications beyond terrorist cases. It is also an important weapon in fighting serious organised crime. An Italian Government official recently asked me, unofficially, why on earth we do not allow intercept evidence, as it is a crucial part of the fight against organised crime in his country. Of course, they have some experience of fighting organised crime. There are anomalies, such as allowing some types of intercept evidence to be admissible in court but not others, or the fact that other democracies, including those with a common law jurisdiction, can apparently get round the problems that prove so difficult for us to deal with. There is a nagging suspicion that although this is not a panacea or silver bullet—one could use all the clichÃ(c)s that can be adduced—it is nevertheless an important tool within the array, and it should be possible to deploy it. For a long time, all those arguments hit a brick wall. There was simply no question of the admissibility of intercept evidence because important and highly placed officials within the security services advised against it. We are entitled to take that into account when assessing the present progress, which I agree is entirely to be welcomed.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Lord Goldsmith conducted a considerable review of that in the not-too-distant past, and although I cannot remember the names involved, I am pretty sure that there has been, at least under the Thatcher Government, some exploration of utilising the two. Even though those have not gone on to fruition or been as public as the Chilcot review, it is unfair to say that previous Governments have not explored in some detail the potential use of intercept evidence.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

If I gave that impression, I will quickly dispel it. I know that previous Governments, and indeed this Government, have looked carefully at that issue in the past, but they have always concluded that it cannot proceed, and that is why the Chilcot review and the work that has come from it is now welcome. However, I do not think that it is entirely right to use that right parliamentary expression, “churlish”. When do we ever say “churlish” outside of the House? Never, but when one expresses the mildest disagreement with any other Member, one is accused of being churlish. It is not churlish to say that although the progress is now welcome, it has been a long time coming and we have been pushing this case hard for a long time. Among those pushing for that case has been Lord Lloyd of Berwick, along with many noble Members in another place who have been completely convinced of the merits of the case but who have so far been repulsed.

I am confident that we are making progress, and the Minister has said he has a clear timetable in mind. I understand that he cannot commit to that because it is a work in progress and new difficulties might be discovered. Members of the Committee are entitled to ask for those commitments, and the Minister said earlier that he must find a way of telling the House how progress is being maintained, which will be very important. It would reassure many Members who feel strongly about that if a factual report on progress could be presented to the House in some form that is yet to be devised.

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

Might I suggest that a good way for the Minister to keep us informed would be an undertaking to give an oral statement before the House rises for the summer recess?

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I am not sure that it is entirely within the gift of a Minister of State to give that undertaking, but it would be extremely helpful. The Minister might want to refer that back to the Home Secretary as something that would be of value. Given that I anticipate that we will reach Report stage before the summer recess, we need to find an opportunity on Report for the sort of report that the Minister gave today to be updated to take into account work between now and then. I hope that we are in any way overplaying our hand on this issue, given the agreement on all sides to try to make progress, if we find a vehicle through amendment that would enable that report to the House to be made.

Photo of Tom Brake Tom Brake Shadow Minister (Olympics and London), Liberal Democrat Spokesperson (Olympics and London) 2:30 pm, 15th May 2008

Does my hon. Friend agree that when the Minister reports, in whatever form he chooses to do so, he should also update us on cost? That was one of the factors that the Committee briefing identified as a possible obstacle to the use of intercept evidence.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I am grateful to my hon. Friend and I am glad that he is now freed of the requirement to speak on anti-Semitism in the Chamber and can rejoin the Committee. He has touched on one of a number of points that were addressed in the seminar about which it would be useful to hear progress, but let us do so in the spirit that we are now making progress and that hon. Members on all sides now wish to see the measure put in place—at least that is the assumption that I make from the tenor of today’s debate.

I do not intend to press the new clause because it has been overtaken by events. The Minister is right that the formulation used by the Lord Berwick, which was useful and has served to enable the debate, is likely to be superseded by a more sophisticated model in the work that he has already indicated is going ahead. That being the case, I shall seek to withdraw the new clause, but it is important that we have had this debate and that we commit ourselves to adding the measure to the armoury of weapons available to the investigating and prosecuting authorities in terrorism cases. Until we have it on the statute book, whatever the Minister says about the limited application, we are deficient in what is available and that is regrettable. On that basis, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.