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Intercept as Evidence

Volume 502: debated on Thursday 10 December 2009

The Government have no higher duty than to protect the public. A critical tool in this is the warranted interception of communications that allows law enforcement and intelligence agencies to gather intelligence about those individuals who seek to do us harm.

Intercept material obtained under a RIPA warrant cannot currently be used as evidence in criminal trials. It has been, and remains, the Government’s objective to find a way to make this possible. In February 2008, the Prime Minister accepted the findings of a Privy Council review, chaired by Sir John Chilcot, which recommended that intercept should be admissible as evidence subject to meeting nine operational requirements, which the review judged to be necessary to protect the public and national security. He set in train the necessary implementation process and established an advisory group, comprising the right hon. Sir John Chilcot, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), and my right hon. And noble Friend Lord Archer of Sandwell, in order to help safeguard intelligence capability and protect the public.

In my written ministerial statement to the House of 16 July I provided an update on the progress of the implementation programme. I said that I would make a formal report to Parliament on the results and conclusions after end of the summer recess.

I am today publishing a Command Paper setting out the work programme’s findings and conclusions. Copies will be available in the Vote Office. I am also placing in the Libraries of both Houses copies of a separate report to my right hon. Friend the Prime Minister by the advisory group. The Prime Minister and I are grateful to the advisory group for its work. I echo their recognition both of the complexity and sensitivity of the work programme and the commitment and thoroughness of officials in undertaking it.

Any implementation of intercept as evidence must, as set out in the original Privy Council review, ensure that trials continue to be fair and that the operational requirements to protect current capabilities are met. As noted in the advisory group’s interim report to the Prime Minister, reported in my predecessor’s written ministerial statement of 12 February and placed in the Libraries of both Houses, there is an intrinsic tension between these legal and operational requirements.

The work programme set out to develop a model for intercept as evidence that successfully reconciled these requirements, based on the approach recommended by the Privy Council review. This model has been subject to extensive practical testing, with the close involvement of senior independent legal practitioners. This testing has demonstrated that the model, if fully funded, would be broadly consistent with the operational requirements. However, it would not be legally viable, in that it would not ensure continued fairness at court. This has been confirmed by a recent European Court of Human Rights case (Natunen v Finland). The result would be to damage rather than enhance our ability to bring terrorists and other serious criminals to justice.

These findings are disappointing. In the light of them, the Government conclude, as does the advisory group, that the model does not represent a viable basis for implementation. However, the Government also share the advisory group’s view that the potential gains from a workable intercept as evidence regime justifies further work. We therefore welcome the group’s suggestion of three areas of analysis, beyond the scope of the original work programme, intended to establish whether the problems identified are capable of being resolved. These areas are to examine:

Further enhancing the judicial oversight available.

Full retention of intercept material alongside alternative review requirements.

Advances in technology which might make full retention and review more manageable.

The Government agree with the advisory group that while continuing to seek innovative and imaginative approaches, these should not be at the cost of the operational requirements, and hence national security or public protection. I am grateful for the advisory group’s agreement to continue in its current invaluable role and for agreeing to be similarly engaged on interception related matters that have arisen in the context of the Coroners and Justice Bill.

The Government will report the results of this activity to Parliament before the Easter recess.