My Lords, I beg to move that this Bill be now read a second time.
It is only a week since we last discussed intercept in this House, on the first day in Committee on the Serious Crime Bill. Noble Lords might think that nothing new of importance could have happened between then and now but, if they did, they would be wrong. On Monday this week there was a hearing before the Joint Committee on Human Rights at which two witnesses gave very important evidence for today’s debate. One was Sir Swinton Thomas, the retired Interception of Communications Commissioner, and the other Sir Ken Macdonald, the Director of Public Prosecutions.
Sir Swinton made a powerful case for maintaining the status quo, largely on the lines of the report that he published a few weeks ago, which some noble Lords will have seen. To my mind the case made by Sir Ken, the Director of Public Prosecutions, for a change in the law was overwhelming. I shall come back to what he said in a few moments. Sir Ken Macdonald is not the only one to support a change in the law. Last week I gave a long list of others who also support such a change: the noble and learned Lord the Attorney-General, Lord Goldsmith; Sir David Calvert-Smith, a previous Director of Public Prosecutions; Sir Ian Blair; the noble Lord, Lord Carlile, the independent watchdog in these matters appointed by the Government, and so on. I shall quote a former chief constable of the West Midlands and Inspector of Constabulary, the noble Lord, Lord Dear, whom I am very glad to see in his place. He said that he had for 10 years or more been in favour of admitting this evidence and added:
“It is interesting to see the tide not just turning but running strongly in favour of this proposal”.—[Official Report, 7/3/07; col. 305.]
The first question that always arises in these debates is whether admission of intercept evidence would do any good: whether it would increase the number of suspects who can be brought to court and, it is hoped, convicted. Nobody, of course, suggests that it would lead to convictions in every case of serious crime, but it is common ground now that it would lead to more convictions in some cases of serious crime. That has been common ground ever since the Home Office review of February 2005; it is also the Minister’s own view. She has told us on many occasions that she is altogether in favour of admission of intercepts if it can be done safely. She described it last week as,
“a consummation devoutly to be wished”.—[Official Report, 7/3/07; col. 313.]
Sir Swinton Thomas is of the same view, though he expressed that sentiment in slightly more judicious language as becomes a retired judge. The question comes down simply to this: can we or can we not do it safely? Can we find a way of making evidence admissible without prejudicing what we already have? My answer is: yes we can.
Two arguments are always used the other way, and no doubt we shall hear them again today from the noble Baroness, Lady Ramsay, whom I am very glad to see in her place. The first is that if criminals knew that their telephone conversations could be intercepted, they would cease to use the telephone and we would thereby lose a valuable source of intelligence. I do not doubt for one moment that telephone intercept is a very valuable source of intelligence—that, again, is common ground—but I suggest that there is nothing in the argument that we would lose that ability. We are talking here, after all, of serious organised crime committed by sophisticated criminals operating across national boundaries. Of course they know that their conversations can be intercepted; otherwise, they would not talk in the guarded terms in which they speak so often. They know that in every other country that evidence can be used in court against them; yet, they continue to use the telephone for communicating with each other to hatch their conspiracies because they have no other means of communicating with each other. It is fanciful to suppose that the habits of these criminals would change because the evidence was at long last to be made admissible in the United Kingdom as well as in every other country in the world.
The second argument is that if intercept evidence were allowed in court, criminals would soon discover the methods by which it was obtained. This is what worries the security service and GCHQ. I assure your Lordships that I understand their concern, but the courts are not quite so naïve in this respect as some may imagine. In common with every other common-law country, we have developed a means of protecting sensitive information that is thought to be at risk in some way. The principle is called public interest immunity; there is nothing new about it. It is well understood in the courts. I do not say that it is used every day but it is used very frequently. The procedure is set out in Part 25 of the Criminal Procedure Rules 2005. If lawyers for the defence demanded to see documents that might disclose methods of intercept, the application would come before the judge who would hear the case and decide whether the documents should be disclosed. It is inconceivable that a judge would order documents to be disclosed, or information to be discovered, that would reveal methods used by GCHQ and other agencies. If the judge went off his head and did so order, the prosecution would at once appeal to the Court of Appeal, which would put the situation right. If the Court of Appeal went off their collective heads, there would always be an appeal to your Lordships’ House. There is therefore nothing in the two main arguments against allowing intercept, which have been used so often.
If anybody doubted the utility of intercept evidence, or our ability to use it safely, I hope that your Lordships will look at the position in the United States and Australia, on which the evidence of Sir Ken Macdonald is very revealing and important. In September 2004 he visited his opposite numbers in the United States and Australia. He talked to eight agencies in the United States and 12 in Australia. Everywhere he got the same message: it would make an enormous difference. I should like to read out a great deal of his evidence but I cannot; however, I shall read just two or three sentences:
“Colleagues in the Department of Justice in the United States have told us that the majority of their major prosecutions now against terrorist figures and organised crime figures are based upon intercept evidence. I think it is well known that for the first time each of the five New York crime godfathers are in prison, each of them as a result of the use of intercept evidence. In Australia, I was told by the head of the New South Wales Crime Commission that prosecutors who did not rely on intercept evidence were not being ‘serious’ in this area of work”.
That evidence given by Sir Ken is amply borne out in the report by Justice, which refers to an observation of Mr Damian Bugg QC, the Australian federal Director of Public Prosecutions, who says:
“We rarely now have a drug importation prosecution that does not have telephone intercept evidence in it. I can think of any number of prosecutions where we would have real difficulty in prosecuting without it—we just would not get the evidence”.
It is evidence of that kind which makes it difficult to understand the statistics which the Minister gave, as reported at col. 310 of Hansard.
Sir Kenneth was asked about something that the noble Baroness said last week. It was put to him that the noble Baroness had said that,
“the evidential use of intercept would not even add significantly to the number of convictions that can be secured”.—[Official Report, 7/3/07; col. 310.]
When asked whether he agreed with that, he said that he disagreed profoundly. Nowhere in those other jurisdictions has it been suggested that, because of the use of intercept in this way, the methods of those carrying out the interceptions have been revealed. The question then is: if those other countries can do it safely, why cannot we?
Another arguments used by the noble Baroness last week was that, if we use intercept evidence, the prosecution would have to disclose everything, there would be a great mass of material, and that would add greatly to the length and cost of trials. That is not the case. Of course there is an obligation to disclose material that would help the defence or undermine the prosecution, but there is no obligation to disclose material described as neutral. That was the decision of the House of Lords not long ago in R v H, reported in 2004 Appeal Cases. Then there was the argument that we might run into difficulties under the European Convention on Human Rights. There was a reference to the principle of equality of arms. That does not touch on this question. The court of human rights has made it clear that there is no absolute right to disclosure; disclosure is always subject to the overriding interest of national security. That was decided in Rowe and Davis v United Kingdom in 2000.
The noble Baroness said that, in a few years’ time, present methods of intercepting conversations would be out of date and obsolete. Instead, we will have voice over internet protocol, or voice over IP. I am sure she is right that that is the way in which it is moving, but I am not sure how it affects the question that the House is debating now. To find out more about that, if I could, I had a conversation only last night with David Craig, who works for a Scottish company called Agilent Technologies. He was in San Francisco, and I was at home. The conversation took place by means of voice over IP. I could not notice any difference between that conversation and any that I have had over the telephone. He told me that voice over IP can be intercepted; it is more difficult to intercept than mobile phones or landlines, but it can be done. The problems are not insuperable. Indeed, about 150 companies worldwide have the capability of doing that. Whether or not that is so, I cannot see that it really affects this question. If there is to be new technology and we are going to be able to get intercept from it, by all means let us use it in court.
Two other arguments were advanced by the noble Baroness. First, that the admission of intercept in court would in some way imperil the close relationship between the intelligence agencies and the law enforcement agencies. I have heard that argument advanced on numerous occasions, but I have never begun to understand it. She said that the intelligence agencies might not be willing to co-operate with the police once intercept was used evidentially, or at least that co-operation might be endangered. They are both government agencies; surely if the national interest requires the use of intercept to secure convictions, the intelligence agencies can be persuaded to co-operate with the police.
Of course there will be resource implications, but if we are to be serious about convicting criminals, against whom there may be no other evidence, we must not let resource implications stand in the way. In fact, again Sir Ken Macdonald explained in his evidence that the use of intercept would be very cost-effective, because it leads to shorter not longer trials and to more guilty pleas. He gave some very interesting figures to bear out that view. I will leave the last word to Sir Kenneth:
“Everybody without exception told us that this material is of enormous use. It is cheap, it is effective; it drives up the number of guilty pleas and it leads to successful prosecutions. We are convinced, and have been for a number of years, that this material will be of enormous benefit to us in bringing prosecutions against serious criminals, including terrorists”.
I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Lloyd of Berwick.)
My Lords, the Justice report, to which the noble and learned Lord made reference, tells us that one of the early examples of the use of intercept evidence was the trial of Mary, Queen of Scots, in 1586. She was convicted in the October of treason, following the interception of letters that revealed her knowledge of Babington’s plot. She was subsequently beheaded at Fotheringay Castle in 1588. If it is thought that the citation of that triumph of English justice would persuade me of the merits of this legislation, I am afraid that is mistaken.
This issue has been debated many times in your Lordships House over a number of years. While I am new to the public debate, I am not new to the argument, which I followed for some time while I was in government. While others who have had experience and responsibility in this area have spoken publicly, so far I have kept my own counsel. I want today to set out why I think that the position adopted by the Government is correct and why I believe that it would be premature at this stage to lift the ban on the use of intercept evidence in court.
When I was first called on to consider this matter in detail in 2001 or 2002, my instinctive reaction was that anything that assisted in the prosecution of serious crime and of terrorist offences was greatly to be welcomed. That remains my instinctive reaction. If we can devise a system that would meet the legitimate concerns of those in the intelligence community who have expressed their views and meet the considerable burden on the criminal justice system, I would welcome that. However, at present we are right to be sceptical, and we are right to accept the Government’s position.
In the first place, doubts were expressed about the number of occasions when intercept evidence would be useful in bringing prosecutions. I was aware of the review being undertaken in government, which was reported in January 2005. It was referred to in the Minister’s speech last week and today by the noble and learned Lord, Lord Lloyd of Berwick. It concluded that there would be a modest increase in the conviction rate of some lower-and medium-level criminals, but not terrorists. When I left office, I was not aware of any change in that situation, although, to be fair, I had not checked that in the month before I left office. However, any change would clearly be a material factor.
The report also pointed out associated serious risks to the effectiveness of the agencies and the development of new technology which would cause a fresh difficulty. I could find no fault with the conclusions of that review. In fairness, I was informed of Sir Ken Macdonald’s work in support of his publicly stated view that intercept evidence should be admissible in court. On two occasions, I was promised sight of that work, but I never saw it, so I am not aware of the evidence that has been reported to us today in the speech of the noble and learned Lord, Lord Lloyd. The benchmark must be the comprehensive review that took account of all of the factors from all parts of government and the law enforcement and security agencies.
I draw some support from the conclusions of the report, cited in Committee on the Serious Crime Bill, as to the effectiveness of the use of intercept evidence in other jurisdictions. The noble and learned Lord, Lord Lloyd, referred to them today. At that stage, the noble Baroness, Lady Scotland, said that Australia’s latest figures on interception,
“show that in 2003-04 there were no convictions in the five terrorism trials which used intercept evidence. The Canadian 2004 Annual Report on the Use of Electronic Surveillance shows that there were 84 interception authorisations in that year but that none ended with a conviction. In the United States … 1,710 law enforcement interceptions … resulted in 634 convictions”.—[Official Report, 7/3/07; col. 310.]
The evidence is that there may very well be benefits in allowing intercept evidence, but they would be modest. Many will say that that is sufficient—that modest increases in the conviction rate of serious criminals and terrorists is greatly to be welcomed; but that ignores the other difficulties.
I am particularly concerned at the effect on the resources of the intelligence, law enforcement, prosecution and criminal justice systems generally. An intercept may and often does run for a considerable time. As I understand it, once used for intelligence purposes, the product is not retained or further analysed. We would now be imposing a burden of retention and analysis not for intelligence purposes, but for evidential purposes—which is very different. In doing so, the analysis will have to decide whether there might be within the product material that might, if it were released, be contrary to the public interest—for example, putting at risk the life or safety of an intelligence officer or participating informer. Get that wrong and the consequences can be fatal.
Sir Swinton Thomas noted in his report at page 11, subparagraph iv that there was a burden of interpretation and translation. Translation is an obvious problem. It is already placing a huge burden on the system. Interpretation is different. We will no doubt hear from others about the difficulties encountered about what is said and when that is said—perhaps in code or some other method that is designed to throw off any possible eavesdropper. That requires real expertise and the disclosure of that expertise may in itself be damaging to the public interest.
That job cannot be done by anyone other than intelligence officers. At a time when Britain is facing a huge threat from international terrorism and with our security services under great pressure, I for one would prefer to see our intelligence officers acting as intelligence officers rather than as disclosure officers.
Then there is the problem of placing the material before the court and, if necessary, disclosing it to the defence. I am of course aware of the strictures on judges—the noble and learned Lord referred to the case of R v H—relating to the way in which they should approach the matter to limit the disclosure and the consequent burden to that which is strictly necessary. The role of the judge in our system is not to protect the Security Service or to minimise cost or inconvenience; the role of the judge is to secure a fair trial. We want nothing less and will accept nothing less.
My Lords, the noble Lord raises an interesting point. If there is exculpatory material, that is important. He will no doubt draw in his speech on the system in other countries, where, I understand, there is a strict division between intelligence material and evidential material. Does he expect intelligence material to be analysed with that in mind? If the material involves a statement in the person’s own favour, there are limitations, at least in Scotland, on the introduction of that material; it would be introduced only if it were supportive of the reliability and credibility of that witness.
We should not be surprised when we find a judge ordering the transcription and disclosure of 16,000 hours of the product of electronic surveillance at a cost of £1.9 million. Again, we find reference to that in Sir Swinton Thomas's report. That would clearly impose a huge burden on our services.
I have some knowledge of the case in Canada against those accused of responsibility for the Air India bombing over the Atlantic in 1986. The trial concluded in Vancouver last year. In discussing the case with the Canadians, I was made aware that there was a large quantity of intercept material. Dealing with it, transcribing it and disclosing it placed a huge burden on them. The case was adjourned for considerable periods before coming to trial so that the defence could prepare—that includes preparation of that material. I forget how many hundreds of hours were involved but it was a very large number. That trial ended in the acquittal of those accused.
These burdens on intelligence, law enforcement, prosecution and the criminal justice process are real and not imaginary. They force us to face the real issue of where best to put scarce and limited resources at a time when all parts of the system are under enormous pressure and the threat to the security of this country from international terrorism is real and not imaginary. It is not simply a question of increasing the amount of resources; it is a question of increasing the capacity of our intelligence services, prosecution and others, and of getting in expertise to do that. As I said earlier, I should prefer it if our intelligence services dealt with the prevention of serious crime. When the potential benefits are modest, we should be very cautious about adding to the burden on the system and potentially undermining the effectiveness of our intelligence services. Others more knowledgeable than me will no doubt speak at greater length from the intelligence perspective. But I have learnt that very often it is not simply a question of one piece of information being damaging; it is the cumulative effective of various pieces of information, disclosed at various times, that may, in the hands of the wrong person, be damaging to the criminal justice system and to our intelligence services.
I accept that it is possible to create a PII regime that will, so far as possible in the criminal justice process, go a long way to protect sensitive material. It is not, however, without its difficulties, given that the primary goal of the process must be to secure a fair trial. As I said, it cannot deal with the cumulative effect, and a balancing exercise sometimes poses real problems when the primary goal is a fair trial. Once before a judge, there is often pressure to disclose more to give just that further inch in order to comply with the reasons for a fair trial.
In the debate on 7 March in relation to dealing with secrets, the noble Lord, Lord Thomas of Gresford, said that,
“if someone says, ‘This is secret, you’re being told this in secret’, he has a certain power over everybody else. It is a secret that he does not want to tell anybody; he is holding it to his bosom and will not disclose it.
Frequently, a court will go in camera and one hears evidence that the public would not generally hear. My experience is that people involved in the security services and in this sort of work are very proud of the fact that they know things that other people do not know. Their whole purpose in life is to know things that other people do not know. I often wonder whether that is the reason why there is such reluctance to divulge it. The usual suspects in your Lordships’ House are not here tonight to put the other side of the case. We all know who they are”.—[Official Report, 7/3/07; col. 304.]
No doubt we will hear from them in due course. But I say to the noble and learned Lord in all seriousness that it is very easy to poke fun at the security services; I have done it myself. However, I think we all know that, if it were not for their activities, very many more people in our country would have been killed, maimed or injured over the past few years, and, in my submission, their views demand respect.
I am very sorry that on this occasion I shall not be supporting the Bill of the noble and learned Lord, Lord Lloyd. I acknowledge the great contribution that he makes to the work of this House and also his tenacity in pursuing this issue. I hope that one day I can, with a clear and good conscience, support him but, for the moment, I think that the Government have it right.
My Lords, the noble and learned Lord, Lord Lloyd of Berwick, knows how much I admire him for his splendid work in relation to the Gulf War veterans. I bow very sincerely to his tenacity, determination and brilliance. I have to respect the fact that we see those qualities again today, although, unfortunately on this occasion, I am not entirely at one with him, as he will know.
When considering the Security Service Bill in 1996, the noble Lord, Lord McIntosh of Haringey, proposed an amendment to insert a new clause laying down the rule that,
“the means of investigation must be proportionate to the gravity of the threat”.
I opposed his amendment as a whole but I agree with that provision, as I agreed with the Government’s position that, where techniques were involved that required serious intrusion into the privacy of members of the public, the rules were already sufficiently robust. Among them is oversight by a commissioner. That is still true today, and the right honourable Sir Swinton Thomas, the Interception of Communications Commissioner, reports regularly. He has been quoted many times today and on earlier occasions.
Noble Lords will know that even the Intelligence and Security Committee has no access to the confidential annexes to the reports of either Sir Swinton Thomas or the noble Lord, Lord Carlile of Berriew, to the Intelligence Services Commissioner. That, in itself, to my mind makes it deeply inappropriate to consider, as the noble and learned Lord wishes us to do, making records of such highly secret intercepts available, however truncated and disguised, in a court of law. It is worth remembering that Article 8(2) of the European Convention on Human Rights, cited in the commissioner’s report of 2004, justified such interception in the interests of national security and the protection of the rights and freedoms of others.
When the noble and learned Lord last brought his Bill forward, I argued that we must also consider the human rights of live agents playing a critical part in securing access to highly sophisticated communications, and the rights of the innocent public under threat from a presumed terrorist organisation. The noble Lord, Lord Thomas of Gresford, is likely to take me up on that issue, as he did last time; it is nevertheless relevant.
The Privy Councillor Review Committee recognises that,
“It is important that making intelligence available for prosecution does not compromise the collection and use of intercepted communications for intelligence services”.
In 2004, Sir Swinton Thomas reported that the Birkett committee felt strongly that it would be wrong even to disclose figures on the extent of intercept because,
“It would greatly aid the operation of agencies hostile to the state if they were able to estimate even approximately the extent of the interceptions of communications for security purposes”.
Although my own, strongly held, concern is largely for the live agent whose reports and activities in this field may enable the target to identify him, we must be quite as concerned about the danger of compromise of intelligence methods used to intercept communications. I am not talking about straightforward telephone taps: the material used in some courts abroad and based on police taps. The Minister has recently made the distinction between data-related interception and communications data. The world of encryption is becoming daily more sophisticated. Even during our debate in 2005, the noble Earl, Lord Erroll, made the point, speaking of the IT world, that it would be technically possible for an interception to be identified and recognised by the target. That very revelation, he said, would alert the targets to what was going on. Very small clues, given the extreme sophistication of some terrorist groups, will ring alarm bells and help them to identify either a live source or an encryption clue.
Through the agencies, working with law enforcement officers and with the invaluable help of the communications service providers, the Government are able to penetrate enemy communications and, by identifying one technique, gain access to several networks. The targets feel safe. As the noble Baroness, Lady Scotland of Asthal, said on 7 March, when it is a case of planting microphones—and it is the output of those operations which some other countries use in court—the investigative agency chooses the medium. With interception it is the criminal, and the crucial distinction is that the criminal believes he is safe, so he continues to provide intelligence on his intentions and preparations. That is why it is crucial he should never become aware of the degree to which he is vulnerable to penetration, even in the very sophisticated IT world in which he operates today.
Many targets are capable of developing highly successful counter-interception measures. With the amazing expansion of sophisticated technology in this new communications world, it is all the more vital that we should retain the initiative, continue to develop our knowledge of new techniques and always stay one step ahead. We know from a recent trial, for instance, that the defendant had successfully concealed a series of files and records pertinent to his réseau beneath several layers of encrypted material, hidden like Russian dolls within a computer. It is worth remembering that the police, with such knowledge, are able to identify sleepers as other members of réseaux and observe them, even if they cannot bring them to court. Thus the less our targets are aware of the degree of access our services have to ever more sophisticated methods of communication in this age of IT, the better the chances of defending the realm. The introduction of new technologies will raise by several notches the protections required to protect interception techniques and capabilities in the future.
I have a further and very real concern, and it is not only for the live agent whose access here or overseas procures the clues to how a sophisticated international or domestic communications network operates, what technology it obtains and so forth. That agent often represents years of investment—linguistic, technological, and professional—and that is true of those who handle the material. He lives a dangerous life as he attempts to infiltrate and be accepted by a very closed ring, and he knows it. We do not have the right to put him at risk, and if we do, and he is lost—either dead or discredited so far as a target is concerned—the whole process of selection, training and infiltration has to begin again, and it can take years.
We should not forget that, given the increasing number of identified suspects who may prove to have large quantities of material requiring urgent and accurate decryption, there are relatively few sufficiently highly trained and skilled people available to do that work, whether as linguists or technological experts or as men and women able to understand the working of the target’s mind. All this is a far cry from wartime experience when the instructor who had trained an agent in wireless telegraphy could and did recognise the agent’s signature, habits and methods of sending and could tell when it was the Gestapo, not the agent on the line; that is, whether the agent was under control. Nevertheless, I suspect that cryptographers and transcribers today develop a not-dissimilar feel for the target, and we should do nothing to put that valuable access to the minds of targets and the threat they pose to our way of life at risk by showing our hand.
In short, I can only reiterate the view I have expressed in earlier debates on this subject: we should do nothing to endanger our capacity to penetrate increasingly sophisticated communication networks through blowing the agent or making the target aware of our capacity to decrypt his communications. The man who should know, Sir Swinton Thomas, is in no doubt about the risk posed to our security. We should not disregard his view or those of others who should know: the noble Baronesses, Lady Ramsay and Lady Taylor, the noble Lord, Lord Robertson of Port Ellen, and, not least, the Minister. I found the statement she made during the debate on the Serious Crime Bill on 7 March compelling. She told the Committee that Home Office work on the impact of new technology in communications and their interception was going on. She said:
“The priority must be to ensure that we maintain our interception capabilities in the face of this change”.—[Official Report, 7/3/07; col. 311.]
There is no time to move to the use of intercepts in a court of law, whatever the safeguards, especially in the face of the resistance and anxiety of all the experts. Should the noble and learned Lord nevertheless succeed in securing the agreement of this House to a re-examination of policy, I must record my continued opposition to a Select Committee. There is already a cadre of parliamentarians who are cleared for access to delicate intelligence and security material: the Intelligence and Security Committee. They are privy to all the issues and are best placed to understand the risks. We should not forget Sir Swinton Thomas’s dictum that,
“interception has played a vital part in the battle against terrorism … and one which would not have been achieved by other means”.
My Lords, I support the Bill. However, I have some sympathy for and understanding of the stance that has been taken for several years by the security services and those who advise them. I congratulate the noble and learned Lord, Lord Lloyd of Berwick, on introducing this short and economically written Bill. If it were enacted, it would punch well above its weight in the field of law enforcement. The Bill is so small in compass that I feel I am dancing on a pinhead because the issues, although weighty, are relatively easy to determine. However, I shall try. I shall not repeat in detail the wealth of examples that were given by the noble and learned Lord, Lord Lloyd, in his introduction.
Section 17 of the Regulation of Investigatory Powers Act 2000 protects police and security services surveillance activities from disclosure. In effect, it provides an impenetrable shield behind which some highly sophisticated techniques can flourish. However, as we have heard, it can also result in some serious crimes and terrorist offences going unprosecuted when evidence of intercepted communications is not adduced. That can lead not only to convictions not following in those cases but result in some suspected terrorists being released without charge or made subject to control orders, detention and so on.
The noble and learned Lord, Lord Lloyd, touched on the support for the change. It is worth labouring that point a little. The list is long and weighty—in my opinion it is a very heavyweight list. In no order of priority it lists the Commissioner of Police of the Metropolis, his counter-terrorist co-ordinator, pretty well the whole of the Association of Chief Police Officers—ACPO—the Attorney-General, the noble Lord, Lord Carlile, obviously the noble and learned Lord, Lord Lloyd, the present Director of Public Prosecutions and his immediate past predecessor, the Bar Council, the Law Society, the Human Rights Centre at the University of Essex, and, even closer to home, the Joint Committee on Human Rights in the Palace of Westminster. For what it is worth, I have supported this for the past 10 years or so with growing conviction.
The opposition comes from one branch of the security services and those who support it. It is, understandably perhaps, very sensitive to the risk of exposing techniques—very highly sophisticated techniques that go way beyond telephone communication—to criminals and terrorists, either directly or through inadvertent leaks. Its fear, which I recognise, is that public interest immunity is not sufficiently robust or predictable to give it the necessary guarantee if a case is taken to court that relies on the use of that evidence.
My sympathy for the opposition comes from my experience not exactly on these grounds, but of a parallel example in the late 1980s and early 1990s when I was at the forefront in many ways in using police officers and watching in parallel the use of customs officers in undercover operations against serious criminals. We developed those techniques as we went along. Some of the techniques for constructing false identities for operatives or for penetrating criminal organisations were things we wanted to keep to ourselves as not only would disclosure compromise the case in hand but it would also risk the physical safety of other operators in other ongoing investigations. The defence understandably would resist very strongly applications for PII. It would go on fishing expeditions, and often we found ourselves withdrawing prosecutions altogether rather than expose the sources and the techniques we were using. That is not altogether dissimilar from what we see today, although the magnitude of what we are discussing puts it in a very much higher league.
As we have heard, other countries have been very successful. I think that we are the only common law country in the world that continues to exclude this evidence in the way we are describing. Those countries include Holland, Austria, Italy and Belgium, and there are others. I repeat: I recognise the extreme sophistication of the techniques that once disclosed would almost certainly in some instances be near useless in the future. We have the protection not only of disclosure of material where it is not in the public interest—the Criminal Procedure and Investigations Act 1996 comes to mind—but also now the Bill would suggest additional safeguards. They are found in Clauses 1 and 2. On my reading, those clauses would preclude fishing expeditions by the defence and no evidence of interception could be adduced until the judge had agreed to a prosecution application. So I am sensitive and sympathetic to the security services.
I take heed of the overwhelming pressure for change. It is a change that I have said is long overdue. I disagree with the noble and learned Lord, Lord Boyd, who said that the gains would be modest. On occasion, I think that they could be quite considerable. I would like the Bill to be debated in detail in Committee. I believe that we can produce something that would be watertight for the security services. That would be a considerable step forward in combating serious threats to both our national security and our national tranquillity.
My Lords, this Bill is much the same as the one that the noble and learned Lord, Lord Lloyd of Berwick, presented to us in 2005. In addition to that Bill, he has tabled many amendments to Home Office Bills, the last of which was debated on Wednesday, 7 March. They are all dedicated to the same end: to have intercept material used in court as evidence. It is not surprising, therefore, that one has more than a passing sense of déjà-vu in this debate.
I have seen reports of the evidence given last Monday to which the noble and learned Lord referred. He will not be surprised to hear that I do not agree with him that the argument went “overwhelmingly”—as I think he said—against Sir Swinton Thomas and in favour of Sir Ken Macdonald. As the subject has been before us so many times, I make no apology for having to repeat most of the arguments against the Bill that I have made before. They are as valid now as they were on all the other occasions on which I have made them. I agree with the points made by the noble Baroness, Lady Park, and my noble and learned friend Lord Boyd.
The demand for the use of intercept material in British courts to a large extent arises from, at best, a very imperfect picture of what interception entails and its scope; what its use in a British court would reveal; and the loss of intelligence capability and productivity that would ensue. In the words of the former interception commissioner, Sir Swinton Thomas, in his report printed in February 2007:
“Various, in my view sometimes misguided, and often ill-informed, though no doubt well-motivated people continue to re-open this complex question ... Amongst those who advocate changes are some lawyers, indeed, some distinguished lawyers ... Those who advocate a change in the present law would be wise to discuss the issue with those who are knowledgeable on this subject. They do, after all, know what they are talking about”.
Interception is much wider and more complex than most people could imagine; happily, that includes the targets of intercept operations. Transcripts often show people assuming, wrongly, that they are secure in whatever manner they are communicating. The slightest hint of interception risks revealing the techniques involved on that particular target and similar targets will be immediately assumed vulnerable. The loss of access is instant and usually permanent. That is even more true if the material is encoded or encrypted, where often very sensitive technical means and/or human agents are involved. It is often said, as the noble and learned Lord did again today, that other countries use intercept evidence in court, so why cannot we? There are many reasons, but today I shall try to explain just three of them.
First, we can rightly be very proud of British sophistication and extensive expertise in the field of interception and transcription, but its very sophistication and achievements render it extremely vulnerable. As I have said before, a straightforward telephone tap on home national territory would have very little to lose in revealing techniques or sensitive services. It is that kind of material that other countries use in court. In some countries, it is the only kind of intercept they produce. In others, where more sophisticated techniques are employed by agencies other than law enforcement agencies, it is the more routine product of the law enforcement agencies’ warrants that is produced in court. When one is discussing this in the United States or Australia, as I have done, it is vital to know what kind of intercept, warrant and agency is involved and is being discussed and from where the statistics are produced.
Secondly—I choose my words deliberately—there is a uniquely close, interwoven relationship between our intelligence and security services and our law enforcement agencies. That, and our warrantry system, makes it much more difficult to disentangle the various contributions to an interception operation. I shall not expand on that, but it is a real difficulty of enormous complexity.
Thirdly, our adversarial legal system, in which the defence counsel can range widely at the discretion of the judge, produces in the case of intercept material an unacceptable risk of exposure. Public interest immunity, with which I am familiar, is not a complete solution to this for various reasons, some of which were enumerated by my noble and learned friend Lord Boyd. It would also impose the crippling burden of transcribing and preserving an enormous amount of related intercept material. According to press accounts of the very recent Adams trial, the transcription of the eavesdropping material done at the request of the defence cost £1.9 million. It is not reported how many hours had to be spent to produce that but it shows what is involved. Because of the sheer volume of the material that would have to be processed, there would be a serious diminution of product from the services concerned—all at a time when wider and greater sweeps of coverage are needed in the kind of targeting required in counter-terrorism work.
Intercept as a valuable intelligence tool does not have to be processed and preserved as potential evidence would in court. I should say in parenthesis that there is a misconception among those who do not have much professional experience of handling intercept material that it would be widely useful as evidence. In fact, it is not. It is a valuable intelligence tool with which one can make judgments and assessments and take action, but it is rarely of evidential use. Even less is it a magic bullet. I should add that countries whose legal systems have investigating judges or magistrates can handle sensitive material without the risks involved in using it in a British court.
A further point of difference between us and countries that are often quoted as using intercept in court is that our telecommunication companies have no statutory obligation to facilitate interception by our intelligence and security services, which obviously adds to the concern about sensitivity in revealing operations. It is not simply a question of protecting the safety of their staff as witnesses, a point that was made in the debate on Wednesday 7 March. As a general point, I have never heard anyone say that using intercept material as evidence is wrong in principle. It is a question of practicality and the effect of such a move on the efficiency and productivity of the agencies involved. Talented legal minds all over Whitehall have wrestled with this issue over a long period and under different Governments. It may be that with technological developments such as voice over internet protocol, there may have to be new legislation, but whether that will make it possible or, as seems much more likely to me, impossible for intercept material to be used as evidence cannot at this moment, I think, be completely clear.
In his report, published in February 2007, Sir Swinton Thomas says of the problems with the criminal process:
“These problems are going to increase in the future because of the huge changes taking place in telecommunications technology as Communications Service Providers … change to internet protocol networks. There is a real danger of criminal trials being aborted. I know that work has been done in an attempt to surmount these problems and the problems relating to the European Community and Human Rights law, but I have not seen any system proposed which would successfully overcome these problems. The problems are very great and should not be underestimated”.
Sir Swinton Thomas, a distinguished legal figure, was interception commissioner from April 2000 until March 2006. In his last report, he sets out at some length in Section 17, which I commend to your Lordships in its entirety, his views on the admission of intercept material in criminal proceedings. He repeats his conclusion from his previous report:
“I concluded by saying that I had no doubt that the balance of argument fell firmly against any change in the law, and that any change in the law, would, overall, be damaging to the work of the security, intelligence and law enforcement agencies ... I am still of that view, and it has been reinforced, and strengthened, by the events surrounding the London bombings and attempted bombings of 7th and 21st July 2005, and other terrorist enterprises, in respect of which I have had the opportunity and considerable advantage of seeing much material and having discussions with those involved”.
As of today, I am sure—speaking from a background of considerable professional experience in this field—that if a balance sheet is drawn up of the gains from using intercept as evidence against a list of the losses in productivity, efficiency and security of sources, the only possible conclusion would be that the losses far outweigh the gains. Sir Swinton Thomas concludes:
“In conclusion, in my judgment, the introduction of intercept material in the criminal process in this country (other countries have different systems) 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”.
I agree entirely with that and I rest my case, I am afraid, against this Bill.
My Lords, I hesitate to speak on this Bill. I am not a lawyer, a policeman, a Minister or even an ex-Minister, and I have not worked in the security services. I have been on the fringes of listening to this debate as the noble and learned Lord has again and again put his case for intercept evidence to be allowed in courts. I speak now only because, as an ordinary citizen who takes an interest in terrorism, I think that a benefit-cost balance must be struck. In March 2005, I said in the debate on the Terrorism Bill that, on the one hand, we had to protect against the probability of an innocent person being incarcerated, but, on the other hand, we had to minimise the probability of a likely terrorist escaping.
Last August and this February the police swept in on people, made lots of arrests and detained some for many days. My impression is that very few cases are brought to court, although I may be wrong. Most of those people are Muslim men and women. When the police arrest people, hold them and then have no case against them, the Muslim community has a clear impression that this is pure and simple harassment, although I do not know whether it is. If there is any possibility that some people who are not at present convicted could be convicted with the use of intercept evidence, the balance of profit and loss has to be struck anew.
On the one hand, we are told that intercept is immensely valuable evidence gathered by skilled people and that lives are at stake, but it is like a nuclear weapon: it is very powerful but it cannot be used. On the other hand, we are told by the noble Baroness, Lady Ramsay, whom I respect very much, that this material is of little evidential use. It is not a magic bullet and therefore it does not really matter. I am genuinely puzzled.
I came across a pamphlet published by Democratic Audit in which I read something which struck me, at least, as true:
“the refusal to allow this evidence to be used in court means that some serious criminals go free, and that some terrorist suspects are or will be detained without charge. A ‘shadow’ system of criminal justice, by which terrorist suspects are detained without trial by special courts, has been created which subverts the basic principles of British justice and violates human rights. This process arguably contributes to the essential argument of the extremist elements within the British Muslim communities that the United Kingdom persecutes Muslim people at home and abroad”.
I know that this impression exists because I come across it again and again. I only want to say that, if we change the balance of probabilities and perhaps bring more people to court, the courts could then decide whether to convict them. By doing that, at least we may save lives that would otherwise be lost.
My Lords, I wish to intervene only briefly so I shall not be tempted to comment on all the points made by my noble friend Lord Desai, but I would point out to him that, whenever there has been a problem with the kind of arrests he mentioned, there is a great deal of publicity, but when our intelligence and security agencies are successful, very often and for good reason we never hear about the disruption of threats to our society because those things cannot be publicised. I hope that my noble friend will take those factors into account in his cost-benefit analysis.
I join colleagues in congratulating the noble and learned Lord, Lord Lloyd, on yet again securing a slot for a debate of this kind. One of the first debates in this House in which I participated was on this issue. The noble and learned Lord is either very fortunate or very clever in having managed to raise this issue so often. It is an important issue and one that we have to discuss carefully from time to time, but I am afraid that I am not yet convinced by his arguments, strong though they are. He anticipated that those of us who take part in these debates would ask the very simple question: what has happened since the last time to make us change our minds? I do not agree that anything of significance has happened, including the information that was used so well by my noble friend Lady Ramsay about the exchanges last week. A substantial case has been made against going down this track.
However, I think we all agree with the noble and learned Lord, Lord Lloyd, on one point. In principle, no one, I think, has any objection to the use of evidence of any kind in court that helps to secure the conviction of criminals, such as terrorists and anyone against whom we need to take action. The noble and learned Lord quoted several people, but we can all see the record showing that the Prime Minister, the Home Secretary and many others have said that they would like to go down this route if it is ever possible to do so. If anything would secure more convictions, we would all want to help in achieving that, but we ought to take on board what the noble and learned Lord, Lord Boyd, said about the situation in Australia, and particularly in Canada, where the use of intercept evidence has not helped in any clear way in the fight against terrorism.
I have said that the Prime Minister, the Home Secretary and others have made clear their starting point: that in principle they would like to use intercept as evidence. Ministers have taken large steps in trying to make that possible. We have had many inquiries and what are called the “best brains in Whitehall” looking at this dilemma. There has been a presumption by Ministers that, if it is possible to use this evidence safely, that is what we should do, hence the many inquiries, papers and committees on the subject. It is significant that none of them, despite that basic presumption in favour of going down this path, has been able to come up with a formula that would safeguard the interests of us all and the agencies.
Why can they not come up with such a formula? I do not believe that it is because of some petulant or short-sighted resistance on the part of the agencies or anyone else. I think it is because none of the inquiries has been able to come up with watertight solutions to the practical problems faced. Any solutions have to be watertight, because the cost of this going wrong could be devastating, restricting the abilities of our intelligence and security agencies to do the work that protects every single one of us.
I do not want to repeat the arguments that my noble friend Lady Ramsay or the noble Baroness, Lady Park, have made, but they should be listened to carefully and be given considerable thought. I shall mention three concerns I have about the practical consequences of moving in this direction. These have been touched on, so I shall be brief.
The first concerns the disclosure of the capabilities of the agencies themselves, and the extent to which the use of intercept evidence could reveal information about the techniques that those agencies use. We have probably all seen in films and heard from trials that criminals have over the years learnt that they should use mobile phones rather than fixed lines; we know that they are now using throwaway phones, and that they work out how long they can keep those phones before they can be monitored—and that is only at the simple end of the criminal spectrum. At the other end—the end that includes very sophisticated criminals, be they drug barons, money launderers or indeed terrorists—the problem our agencies often have is keeping one step ahead of the criminals so far as technology is concerned.
The noble and learned Lord, Lord Lloyd, talked about his interesting conversation over the internet and pointed out that there were about 150 companies working out how to intercept that kind of communication. Not all the companies that are doing that can be watertight, and none of the information they get about resistance or hacking would stay with the ones that are not.
The noble Lord, Lord Dear, talked about inadvertent leaks from information that becomes available in court, but the problem is bigger than that. We have to guard against anything that could help criminal or terrorist elements complete the jigsaw about how certain information could be obtained. They are trying to take pieces of information from lots of different areas, and the growing counter-interception business is probably for their benefit as well as others’, so the agencies’ main task here is keeping ahead of the game. Anything that undermined that could have very serious consequences.
My second concern is about the methodology of our agencies. Our security and intelligence agencies are not police bodies. We do not have an FBI or the equivalent of many other similar organisations around the world. They do not work on the basis of the evidential rules required for the police or for court hearings. Some Members might say that such evidence as intercept would be used in court only in a minority of cases, but when the agencies are starting out on an investigation how do they know that this is the one case where they have to tick all the evidential boxes? And if one lead in an investigation results in a case going off at a totally unexpected tangent, the evidential hurdles may not be cleared because of their not being relevant to the original case. We have to be realistic and understand the strain that such requirements could put on our intelligence agencies.
My third concern is about court procedures. We have been told again today that certain safeguards could be introduced if we allowed the use of intercept as evidence in court. We could, for example, restrict full disclosure to the defence, although I see that that was questioned earlier today. Maybe I am too cynical, but I wonder how such procedures would stand the tests of the challenges that we see so often in our courts on grounds of human rights. In that respect, I share the concerns of my noble friend Lady Ramsay about the limitations and, indeed, unpredictability of the public immunity approach on which we have been asked to rely.
I do not think that we should resist this issue simply because the intelligence and security agencies advise us to do so. Of course they should be challenged and questioned, and, through Ministers, I know that this happens. We have a problem, however; the only people who can ask the right questions and get the full answers are those operating within the ring of secrecy. Those of us outside it cannot question in a direct way and get all the information. That is why I believe that, if any further progress is to be made, it can only be with the help of the Intelligence and Security Committee. Rather than have a Bill of this kind go into Committee in this House, with all the restrictions about the information that could be available because of its sensitive nature, using the Intelligence and Security Committee and having confidence in it would be the way forward if—I do not think that we are there yet—we reached a stage where we thought we could accept all the safeguards being put in place and could move in that direction. The will is there; people want to move in that direction, but the hurdles and safeguards that need to be introduced are significant. For that reason, I cannot support the Bill.
My Lords, I am grateful for the opportunity to speak in the gap, and I intend to be brief. I had come here intending to listen to the debate, with a point of view that accorded with that of the noble and learned Lord, Lord Lloyd. However, having sat through the debate, I am more confused than I was when I came to the House.
I listened with great attention to the noble and learned Lord, Lord Lloyd, and the noble Baronesses, Lady Ramsay and Lady Park. Having had a very modest role in Northern Ireland during the terrorist campaign, I have some passing knowledge of the matter, and I have considerable sympathy for the views of those noble Lords. The noble Baroness, Lady Ramsay, spoke about the interaction between the police, the military and other services. I fully appreciate her point. However, my reason for speaking is to ask the Government how they can oppose this Bill on the basis of protecting the integrity of our intelligence services and the relationship between the various arms and branches of our intelligence services, when we have had created a police ombudsman system which allows the Police Ombudsman to trawl back through the history of police activity—to the extent not just of clarifying issues but of revealing the intelligence methodology in the minutest detail. The integrity of the relationships between the various branches of the security services is revealed in the minutest detail.
I ask noble Lords to look, for example, at the report of the Police Ombudsman for Northern Ireland on the Restorick case, where one of our soldiers was very sadly killed by a single sniper’s bullet. The extent to which the activities of our security services were revealed in that report from our police ombudsman indicates to me that we could not carry out a similar security operation in South Armagh if we returned—and we all hope that we do not—to the situation that prevailed at that time.
I am grateful for the opportunity to intervene. This is the time to lay down the challenge. If the arguments of the three speakers whom I have mentioned are to have any validity and any effect on how we move forward, we cannot ignore the extent to which we give police ombudsmen a clean, unaccountable sheet to probe the very heart of intelligence, as is happening now.
My Lords, this is a very short Bill on a very important subject. As the noble Baroness, Lady Taylor of Bolton, said, we have been down this track many times; indeed, one might say that the noble and learned Lord, Lord Lloyd, has kept right on to the end of the road and he is to be congratulated on it. I know that the way has been weary, but he still carries on.
I was glad to hear from the noble and learned Lord, Lord Boyd, who is unfortunately not in his place, and I welcome him to the debate. It is unfortunate that there was a lack of communication between him and the DPP. He told us that he was unable to obtain from the DPP’s office the evidence on which the DPP had formed his view. Similarly, he took a directly opposite view from that expressed by the noble and learned Lord the Attorney-General—who for the second time today I am sorry not to see in his place, so that I could share with him his support for the principles behind the Bill.
I suppose that I should welcome the noble and learned Lord, Lord Boyd, to the distinguished band of those who, with some temerity, I called “the usual suspects” on 7 March. I am glad that we have had their participation today in a debate on a matter which we have so frequently discussed together.
On the use of intercept evidence, the Government, in their reply to the 24th report from the Joint Committee on Human Rights, said:
“There is ongoing work to re-examine the case for, and the likely benefits of, using intercept as evidence to secure more convictions, primarily against organised criminals and terrorists, particularly those liable to removal from the United Kingdom”.
The response went on to say that the Government,
“concluded that was not the right time to change the law”,
and that there was,
“a clear commitment to this work but also recognition of the need to protect our intercept capability. We are committed to find, if possible, a legal model that would provide the necessary safeguards to allow intercept to be used as evidence. In addition to the work on examining magistrates, we are looking at a PII (Public Interest Immunity) plus model. This work is due to report to Ministers in due course”.
That was last September but, so far, we have not heard of such a report or review. We very much look forward to it.
Having listened so many times to the Government’s response to this issue, I have come to the conclusion that the Government’s basic objection is based on the Security Service’s desire to avoid regulation. In every common-law country where intercept evidence is allowed, it is subject to control—usually, judicial control. Warrants have to be obtained from judges and give reasons why a particular type of intercept is sought. That is a system that is resisted in this country.
I refer, too, to some of the objections and arguments that have been advanced, not least by the noble Baroness, Lady Scotland, on 7 March. First, are criminals and terrorists highly alert to the possibility that their phone calls and mail will be intercepted? Well, yes, of course they are—but that has not, in common experience, stopped them talking to each other. As was said earlier, that is very often the only way that they have of communicating. The assistant commissioner of the Metropolitan Police, Mr Andy Hayman, in evidence to the Home Affairs Committee in February 2006, said that this was a,
“well and truly worn-out … lightweight argument”.
Of course, it has no impact on the use in our courts of foreign intercepts.
Those who have no experience, as I declare I have, of the use of the PII machinery, regard it with some suspicion. In January 1993, 14 years ago, I on behalf of the prosecution sought what must have been the very first public interest immunity hearing in a terrorist case. I say that it was the first because we waited a week for the decision of the Court of Appeal in a certain case to ensure that the machinery could be properly used. It has been used, both then and since, regularly to prevent disclosure of covert methods of surveillance and human intelligence sources. As the noble and learned Lord, Lord Lloyd, said, it has been supported in the European Court of Human Rights in the case of Rowe and Davis. The noble and learned Lord the Attorney-General has issued detailed guidance on how public interest immunity is to be sought and obtained. However, it involves disclosure to the judge of intercept evidence, and how it has been obtained, and it is for the judge to determine when PII applications are made what is the balance of public interest between disclosure and the use of the evidence. As far as I am aware, at no point in the 14 years that have elapsed has it ever appeared that sensitive material and methods used by the Security Service in terrorist cases and otherwise have been disclosed. So it is a tried and tested mechanism.
It is said that the use of intercept evidence would cause a lack of co-operation between the police and the intelligence services. The noble Baroness, Lady Scotland, said:
“It cannot be disputed that no other country in the world—none—enjoys the huge benefits which the United Kingdom derives from the close relationship, including in terms of interception, between law enforcement and the intelligence agencies and with the communications service providers. Yet there are those who still propose that we adopt the interception regimes used in other countries—consequently undermining or severing those relationships”.—[Official Report, 7/3/07; col. 310.]
What does “consequently” mean there? Why should it cause a severance of the relationship and lead to a lack of co-operation between the police and intelligence services? Perhaps that is a question that the noble Baroness may have time to address.
It is also said that the use of intercept evidence will hamper our ability to adapt to changes in technology and that new forms of communication are coming forward. Those new forms of communication will affect intellectual property law, data protection and telecommunications in general and they may cause difficulties in intercepting calls between two people. But what has that to do with the admissibility in court of any product that is obtained from such calls? I fail to understand that. I can see that new technology may make it more difficult to get the product of telephone calls between criminals, but why should it not be admissible for that reason?
My Lords, I certainly do not want to go into any detail on this, but does the noble Lord not realise that we are talking about the problem of technology? The problems of how to intercept it is another question, but I have great confidence in our forces to grapple with that. Evidentially, however, if you have a system where you cannot really establish the two ends of a conversation, you will have trouble bringing that to court. I just leave that with the noble Lord to think about. Then he should speak to people who know a great deal about voice over internet protocol and what it all means.
My Lords, I am very grateful for that small chink of light into a rather dark quarter, but I do not understand it because that could be said of any telephone conversation. It is not necessary normally to prove in court by visual identification that X is on one telephone and Y is on another. It does happen occasionally when surveillance is used, but the context almost inevitably shows who the two people speaking are because they are talking about where they have been, what they have done and what they intend to do.
Resources are given as a reason. That was a concern of the noble and learned Lord, Lord Boyd. Again, I refer to Mr Andy Hayman’s evidence to the committee in which he said that,
“you can be very selective about the things you are going to transcribe if you are very precise on your investigation and focused”.
We need to think about that. It is a question of being able to target what exactly is needed from the product of intercepts that have been carried out. I emphasise again that it is not a requirement to disclose material which neither helps the defence nor undermines the prosecution to the defence. A lot of talk goes on about adversarial proceedings and the bogey of the defence counsel who is able to cross-examine people into revealing their surveillance techniques, but that is just not the case.
Adversarial proceedings are used in the United States, New Zealand, Canada and Australia. Very nearly the same principles of evidence in criminal procedure are used in those jurisdictions. There is no unacceptable risk of exposure merely by the adversarial system.
Finally, the argument is that it will not tell you very much and it does not reveal very much. It certainly can reveal a great deal. I recall a case a year or two ago when something like £45 million-worth of heroin was imported into this country as cat litter. It was one tonne among about 180 tonnes of cat litter. In the telephone intercepts that were obtained abroad and used, no one ever referred to it as heroin. It was referred to as “stuff”, but it was certainly quite clear what the conspirators were talking about. When they did not want the driver of the vehicle in which they were travelling to understand what they were saying, they spoke in Albanian. Intercept evidence was used in that case. Why? Because they had travelled abroad. In an English court, you have the ability to listen to or to read the transcribed conversations of conspirators if they are abroad and bugs have been placed in their car, but you cannot listen to what they might say to each other over the telephone in this country. There is really no good reason of principle behind that.
Is it a question of legal regulation? Is it that the security services would not want to go to a judge to obtain a warrant for intercepts when they were required? They have to do that to use other surveillance techniques, such as bugging a car or bugging a flat. Do they simply not want to have to bother with all that, and justification for it, when it comes to telephone calls? The noble Baroness, Lady Ramsay, said that it is wider than that—wider than anyone can imagine. When she said that, I was reminded of what was said in the Canadian supreme court by a very highly respected judge, Mr Justice La Forest:
“Electronic surveillance plays an indispensable role in the detection of sophisticated criminal enterprises. Its utility in the investigation of drug-related crimes, for example, has been proven time and again. But … it is unacceptable in a free society that the agencies of the state be free to use this technology at their sole discretion”.
Consequently, in Canada it is necessary to obtain the consent of a judge before such evidence can be obtained.
As I said at the beginning, this is a short Bill. I commend the noble and learned Lord, Lord Lloyd of Berwick, for pursuing this issue with such diligence. I assure him, as before, that we on these Benches will support him.
My Lords, the noble Baroness, Lady Ramsay of Cartvale, referred to a feeling of déjà vu as this Bill came before the House. I am relatively new to the debate, but for me too there is a feeling of déjà vu: I think this is our third outing in five weeks. We discussed it at Second Reading of the Serious Crime Bill; we discussed it when the noble and learned Lord brought forward his amendment to that Bill in Committee, and we then listened to a very lengthy reply from the Minister. I do not know whether today she will want to give us the long answer or the short answer. This has been a very different debate in that the Minister has had considerably more support from the “usual suspects”, as described by the noble Lord, Lord Thomas of Gresford, with his greater experience in these debates. I look forward to listening to the Minister’s response.
Since the noble and learned Lord introduced his Bill in 2005, there have been two major reports: Justice’s well respected and weighty report, Intercept Evidence: Lifting the Ban, which was much referred to in the previous debate, and the publication by Sir Swinton Thomas, the Interception of Communications Commissioner, of his most recent report on 19 February. The noble and learned Lord, Lord Lloyd of Berwick, has successfully destroyed the reasons for maintaining a ban on the use of intercept evidence in court. He has done that largely by asking: why are we not using such evidence? We have heard a number of responses, but they do not address the issue of whether there would be sufficient benefit in allowing that evidence to be used—and that is what the Minister must address.
The noble Lord, Lord Dear, mentioned that the support from across the spectrum—including a large number of eminently qualified people in the police, in Parliament and elsewhere—for lifting the ban on intercept evidence is overwhelming. The noble and learned Lord mentioned today and last week a list of six of the most senior figures in those areas, including four of the most respected independent bodies that have collectively called for the lifting of the ban on intercept evidence being used in court.
The noble Baroness will no doubt want to refer to the fact that we are one of the few countries left in the world to refuse the admittance of such evidence gathered on home soil. We know that the United States benefits in this context from its relationship with our Government. Not only do Her Majesty's Government approve the extradition of British citizens to America without corresponding rights of their own, but the US courts permit the use of evidence gathered in the United Kingdom, while courts in this country are forbidden to do so. However, as was mentioned by the noble Lord, Lord Thomas of Gresford, British courts are permitted to hear evidence gathered abroad.
The value of evidence gathered abroad is not, per se, greater than evidence gathered in this country. Indeed, the noble and learned Lord’s report in 1996 identified at least 20 cases in which the admissibility of evidence would have enabled a prosecution to be brought for serious offences. In support of the value of intercept evidence, the experience of France, as was highlighted in the noble and learned Lord’s report, showed that 80 per cent of the evidence against those suspected of involvement in the 1995 bombing on the Paris Metro was derived from intercept evidence.
The Minister refused to accept what the noble and learned Lord was suggesting last week in his amendment to the Serious Crime Bill—I have carefully read what she described as her “long answer”, for which we are grateful—on the basis of preserving the safety of the communications industry and the secrecy of the intelligence agencies. Were it not for the central body of her speech, I would have been reassured by her words at either end. They are similar to her comments at Second Reading. She stated that:
“Our position remains what it has always been. We see that this would be an advantage if it could be safely deployed … The emphasis has always been on whether it is possible for it to be safely deployed”.—[Official Report, 7/3/07; col. 308.]
It was, therefore, a disappointment that so much of the rest of her speech did not address the serious and constructive possibility of public interest immunity, but instead she chose to provide a comparative explanation of intercept statistics worldwide.
The noble Baroness’s argument was that the use of intercept evidence could undermine the public interest by revealing to terrorists and organised criminals vital operational details deployed by the police and intelligence services. I have to say that that is nonsense, as the noble and learned Lord and others have made clear. A well established and refined system already operates in the criminal courts to ensure the withholding of operational details in circumstances in which disclosure would be detrimental to the public interest.
Moreover, the Minister chose not to address the words of the Attorney-General, which were referred to by the noble Lord, Lord Thomas of Gresford. Five months or so ago, the Attorney-General said—his words were quoted in the Guardian by Clare Dyer, its legal editor—that:
“I’m personally convinced we have to find a way of avoiding the difficulties … I do believe there are ways we can do that”—
he was going considerably further than the Minister did at Second Reading—
“Otherwise we’re depriving ourselves of a key tool to prosecute serious and organised crime and terrorism”.
I underline what the noble Lord, Lord Thomas, said; it might have been desirable if the noble and learned Lord the Attorney-General had been available to assist the Minister on the Bill this afternoon. We are reassured that he can see the merits of improving the quality of evidence in terrorism and serious crime trials.
The Minister offered a second line of defence last week, stating that intercept evidence would not have been an effective substitute for control orders in the case of recent terrorist activity. Yet, so far as I can recall, the Minister was the only person who actually suggested such a straightforward substitution.
I am reminded of the arguments put forward just over two years ago on precisely that matter under the then Serious Organised Crime and Police Bill. The central point to come out of that debate—in the shadow of the introduction of the mechanism of control orders just a few weeks later—was that, regardless of the tools that were used to tackle crime, justice must be implemented on the basic principle of the value of evidence; if it is relevant it is admissible. As one of my colleagues, Andrew Mitchell, said in another place back in February 2005,
“inadmissibility … is a carbuncle on the face of the law of evidence”.—[Official Report, Commons, 7/2/05; col. 1233.]
There is the possibility of double protection—of the principle of the admissibility of evidence and of the function of the public interest immunity. I therefore put it to the Minister that, as I said last week, it is time for the Government to justify what might be described as the poverty of their approach on this issue. She defended the Government’s refusal to address it.
I fully support the noble and learned Lord’s Bill, as my party has done for a number of years. I am reminded of the intervention of the noble Lord, Lord Bassam, who wanted to know when we had changed our mind. As I pointed out to him, it is perfectly legitimate for us to change our mind, and change our mind on this subject we have. I look forward to the Minister’s response and to the Bill’s further stages. I trust that the noble and learned Lord, Lord Lloyd of Berwick, will wish to take it on to its Committee stage and through its remaining stages in this House.
My Lords, I join my voice to all those who have commended the noble and learned Lord for having the tenacity and ingenuity to enable this Bill to appear once more in your Lordships’ House.
I and a number of government colleagues who have been privileged to reply on this issue have seen and commented in detail on these proposals on several occasions in the past two years: in relation to the Serious Organised Crime and Police Bill in spring 2005; the noble and learned Lord’s Private Member’s Bill in November 2005; the Terrorism Bill in January 2006; and, last but not least, last Thursday on the Serious Crime Bill. By virtue of the more expansive and detailed answers that I gave then, I had hoped that I would have sated the noble and learned Lord’s appetite for bringing this matter back, but I am, as ever, an optimist. I anticipate that I shall set out to respond to the noble and learned Lord’s proposals again in the context of the Counter-Terrorism Bill this spring.
I am rather surprised that the noble Lord, Lord Henley, on behalf of Her Majesty’s loyal Opposition, is capable of dismissing the serious concerns raised in relation to this issue not only by the Government but, indeed, by Sir Swinton Thomas, among others. I am surprised that he is so comfortable about dismissing those concerns in a somewhat cavalier manner by describing them as “nonsense”. But, of course, it is a matter for noble Lords opposite if they think that that is an appropriate way to deal with our security.
The proposals under the Bill never change and, if I may respectfully say so, they never take into account any of the points made by the Government in considering them. The arguments for and against have now been very well rehearsed. Everything that I have previously said on the subject continues to apply but, for the purposes of clarity, I shall go through the issues again briefly.
The Government’s position has consistently been that they will change the law to permit intercept evidence if the necessary safeguards can be put in place to protect sensitive techniques and capabilities and if the benefits outweigh the risks. I remind the noble Lord, Lord Thomas of Gresford, that the Attorney-General plays a full part in this Government and, when I speak today, I speak on behalf of us all.
My Lords, this is government policy. In the previous debate, we were talking about the Attorney-General’s role when he gives legal advice as the most senior legal officer. I am sure that the noble Lord is clear about the distinction. I am sad if he finds it strange, but perhaps I give him greater credit than he gives himself.
The Government’s position is that the starting point is a legal model, which has to be fully ECHR-compatible, protect sensitive capabilities and material, take account of new technology and not damage operational capability; for example, by consuming disproportionate resources.
The subject is not easy; it is complex, and it becomes more complex the closer one comes to understanding the issues involved. There is no consensus for changing the law to permit intercept evidence. The experience of the noble and learned Lord, Lord Lloyd, who was Interception of Communications Commissioner in the 1980s, is set against that of the outgoing Interception Commissioner, Sir Swinton Thomas, whose last two annual reports spoke eloquently of the risks involved in changing the law and came down strongly against it, as the noble Baroness, Lady Park, my noble friend Lady Ramsay and my noble and learned friend Lord Boyd made clear. It is also set against the agencies that have been helping us examine the issue, which support the Government’s position and the importance of safeguards, including the interception and law enforcement agencies. But this is neither a headcount of how many support intercept evidence and how many do not, nor of how many big figures each side can wheel out to argue their case. The stakes are much higher than that. If it was a count, of course, we would win on this occasion.
The difficulty is illustrated starkly by the fact that the subject has been under almost continual review for the past 13 years, a point made by my noble friend Lady Taylor. Successive efforts to devise ECHR-compatible legal models with the necessary safeguards to protect sensitive capabilities, techniques and relationships, and which would not put an undue administrative burden on the intercepting agencies, have all failed. It is not for a lack of will or want of trying that we have reached the current position.
The last review in 2003-04 concluded that the benefits of changing the law to allow intercept evidence were outweighed by the risks of doing so, and that the impact of new technology needed to be properly considered and factored into the decision-making process. When my noble and learned friend Lord Boyd made that comment, he was therefore supported by the last review. The outcome of the review was given by the previous Home Secretary, my right honourable friend Charles Clarke, in a Written Statement on 26 January 2005.
Although considerable time and energy have been devoted to this, our deliberations continue. We are currently considering two further legal models—an extended PII system involving closed sessions and an examining magistrates system—and when we come to a conclusion on them, we shall say what it is and why we have come to it. It is sometimes argued that if only we could produce intercept evidence against terrorists we would be able to lock more of them up and avoid measures such as control orders. That is simply untrue. The last review concluded that there would be, I emphasise, very limited utility against terrorists. That was made clear in the Written Statement and amplified recently by Sir Swinton Thomas’s evidence.
One implicit question is why successive models that we have considered have failed. One reason is that the more the prosecution seeks to rely on intercept evidence, the greater the premium of being able allow the defence to probe it. The more robust the safeguards developed to protect sensitive material from disclosure, the less likely it is that the legal model is ECHR compliant. These are difficulties with which we simply must grapple if we are to have a successful system enabling us to use intercept in a way that we would deem proper within our structure.
When I resisted the proposals of the noble and learned Lord, Lord Lloyd of Berwick, last week, I quoted a number of statistics to illustrate why the Government do not accept that other countries do better than we with their evidential use of intercept. The examples I used came from 2004. I am now able update them with the 2005 figures. These are not anecdotal figures from conversations with individuals who happen to have a view on how their system is working; they have been culled from the reports published on each jurisdiction and we must assume that the figures contained therein are correct. In Australia, no intercept material was offered, and therefore no convictions were made on the strength of intercept evidence, in any terrorist trial in 2004-05. That comes from the Telecommunications (Interception) Act 1979 report. In 2005, Canadian statistics—
My Lords, I am happy to write to the noble and learned Lord in relation to those figures. We probably have the report in the Box, so by the time I sit down that figure may come, but I shall certainly write to the noble and learned Lord.
In 2005, Canadian statistics that amended the previously released 2004 figures indicated that the updated figure for 2004 was that of 187 cases in which intercept evidence was adduced in criminal proceedings—not just terrorist proceedings—only three resulted in convictions. In 2005, there were 296 cases in which intercept evidence was adduced, but none resulted in conviction. Those figures are from the Annual Report on the use of Electronic Surveillance.
In the United States of America in 2005, there were 1,710 law enforcement interceptions, which is almost exactly the same number as in the UK, despite America being many times bigger. They resulted in 776 convictions, which is a success rate of under 44 per cent. That is well below the success rate of more than 80 per cent estimated for the United Kingdom in an admittedly relatively small 2004 sampling exercise. Those US figures come from the annual wiretap reports made to Congress, so I assume they are accurate.
However, the use of intercept in prosecution is happily not the only thing that matters. Intercept as an intelligence tool in the United Kingdom has delivered excellent results against terrorism and serious crime, including—crucially—prevention. Protecting life and safeguarding the security of this country must be any Government’s top priority.
We have other strings to our bow. For instance, recently there has been additional investment in the police and the Security Service to increase the use of a wide range of investigative tools and in longer-term approaches to work with communities to counter radicalism and to isolate and challenge those espousing violence.
Let me now spell out again why the proposals of the noble and learned Lord, Lord Lloyd, provide none of the safeguards on which to base an evidential interception system. First, the cherry-picking effect of giving the prosecution alone the right to choose when to deploy evidential intercept is unlikely to be ECHR-compatible. The resulting legal challenge could undermine agencies’ ability to use intercept at all, whether for intelligence or evidential purposes. Secondly, the fact that there are no safeguards over the standard PII procedure for protecting sensitive material would jeopardise the close co-operation that currently exists between intelligence and law enforcement agencies and underpins the excellent results the current regime delivers. My noble friend Lady Ramsay alluded to that. Thirdly—
My Lords, would the Minister extend that argument to the effect that the Police Ombudsman is creating a situation in which intelligence agencies will not in future pass on vital information to constabularies that are to be quizzed systematically and in detail about the very issues that she says need to be protected?
My Lords, the noble Lord, Lord Maginnis, raises a very interesting point. I assure him that we will give it some attention, and I will write to him in due course about it.
We were up to the third point—that proposals take no account of the huge changes now under way in communications technology. It makes no sense to change how our agencies operate until we understand fully what these changes mean for interception. The extent of the change is considerable. Voice over internet protocol creates some very sensitive capabilities and techniques; those have to be created to intercept these very sophisticated new forms. It is far more time-consuming, difficult and costly to do. The key feature of voice over internet protocol is the multiplicity of different ways of communicating through that medium. It is very good for the customer and the consumer, but bad for interception. We must not drive criminals into using ways of communicating which are less susceptible to interception and which therefore deprive us of an invaluable source of intelligence and jeopardise our fight against terrorism and very serious crime.
No solution is proposed for the increased resource burden that would fall on the agencies in intercepting to an evidential standard, another point that was raised by my noble friend Lady Ramsay. This would limit the amount of interception that they could do and seriously impair their effectiveness. I might add that the Bill is also technically deficient: it incorrectly defines the “communications data” that they seek to use evidentially as a type already used as evidence. As such, we believe that the proposals are deficient: they are not thought through properly and they represent potentially very dangerous and very real threats to our ability to maintain our fight against serious crime and terrorism.
I absolutely accept that, in drafting the Bill, the noble and learned Lord did not intend that this would be the final word. I do not suggest that it is simply a stalking horse; it is a way for us to debate these issues properly. We do not see that there is a basis on which we can change our current stance. Indeed, the noble and learned Lord was right to include my name among all the other names of those who believe that, if this could properly and safely be done, the Government’s position is that we would do it.
I commend my noble friend Lord Desai for joining this august company. We do not feel that the current provisions are in any way deficient, but we welcome him. I dare say that we will have his support in due course.
I hope that the noble Lord, Lord Henley, and, indeed, Her Majesty’s loyal Opposition will, on further reflection, consider that the words of Sir Swinton Thomas merit more than a little consideration and that the views expressed on this side of the House—and, indeed, on his side of the House by the noble Baroness, Lady Parks, with her usual wisdom—should prevail. I hope that he, with his party, will be able to see that this is not nonsense but profound good sense, which is keeping our country safe.
My Lords, the noble Baroness, Lady Scotland, was kind enough to refer to my tenacity in raising this matter once again. As she was feeling for that word, I thought that she was going to say “temerity”. She also said that it is not a question of counting heads, but, as I calculate it, if we took a head count of noble Lords and Baronesses who have taken part today, I make it a draw with one abstention, but I may be wrong. Of course, there is no question of considering it in that way.
I was very grateful that the noble Baroness, Lady Taylor, took part in the debate. She seemed to be a new face and voice in these matters. She was clearly concerned about the unpredictability, as she called it, of public interest immunity. I am also deeply grateful for the support of the noble Lord, Lord Dear, who referred to some difficulties that he experienced in the 1980s. During the past 10 years, there have been enormous advances in the protections afforded by public interest immunity, especially since the decision of the House of Lords in R v H and what is now set out in Part 25 of the Criminal Procedure Rules. I would now dare to say that the public interest immunity protection for the sources and techniques that everyone is rightly concerned to protect is now watertight. There is no danger of these procedures coming out in public. If one wants proof that that is so, one has only to look at the United States and Australia, where PII has now been used for many years without the revelation of any secret techniques. If that is taken into account, I suggest that the arguments in favour of the Bill are very strong.
On Question, Bill read a second time, and committed to a Committee of the Whole House.