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Terrorism Bill

I find myself yet again at complete loggerheads with the noble and learned Lord, Lord Lloyd of Berwick, on the subject of the use of intercept material as evidence. If it did not have very unfortunate connotations, I would be tempted to say that I admired his indefatigability on the subject. In my mind, this is not a debate between those who know about law and court procedure and those who do not, as the noble Lord, Lord Thomas of Gresford, said; it is really a debate between those who understand what we are talking about in the full, complex world of interception of communications and all that it entails, and those who do not. As I have said before, the rising clamour for the use of the material in British courts arises, to a large extent, from at best a very imperfect picture of what intercept actually entails and its scope, what its use in a British court would reveal, and the loss of intelligence capability that would ensue. The whole area of intercept is much wider and more complex in scope than most people can imagine. Luckily, that includes the targets for the operations. Dare I say that even noble Lords eminent in the law reveal by their comments that they do not realise what intercepted communications mean? They mean much more than tapping telephones. Even a hint at a type of technique risks losing that capability for ever and instantly, as cases have unfortunately proved in the past. A constant refrain—we have heard it again tonight—is, ““Other countries use intercept to give evidence in court. Why do we not?””. As I have said before, there are many reasons. Tonight, due to brevity and the lateness of the hour, I shall speak about only three. I make no apology for reiterating the reasons, as their significance bears repetition. I went through them all at Second Reading, but I shall do it again. First, we should all be very proud of sophisticated and extensive British expertise in interception and transcription. But its very sophistication and scope render it extremely vulnerable. I have said before, a straightforward police telephone tap on home national territory would have little to lose in revealing techniques or sensitive services, and it is that kind of material that other countries use in court. In some countries it is the only kind of intercept that they use, and in those countries where more sophisticated techniques are used by agencies other than the straightforward law enforcement agencies, it is the more routine product of the law enforcement agencies’ warrants that is produced in court, to which the noble and learned Lord, Lord Lloyd, referred—the fact that there are different kinds of warrants in some countries. We do not operate like that, as he knows. Secondly, we have a uniquely close, interwoven relationship between our intelligence and security services and our law enforcement agencies. It is therefore much more difficult to disentangle the various contributions of intercept material. Time prevents me from expanding on that, but it is a real difficulty of enormous complexity. Thirdly, our adversarial legal system, where defence counsel can roam widely at the discretion of the judge, produces in the case of intercept material an unacceptable risk of exposure. It also means enormous burdens of transcribing and preserving all related intercept material if it is to be available for court evidence, which would certainly mean a considerable diminution of product from the services concerned, because of the sheer volume that would have to be processed. Countries whose legal systems have investigative judges or magistrates can manage to handle sensitive material without the risks that would be involved in using such material in a British court. A further difference in our legal system, compared with the oft-quoted other countries, is that we have no statutory obligation on telecommunication companies to facilitate interception by our services or law enforcement agencies, which obviously adds another factor of sensitivity about revealing operations. To deal with the point raised by the noble Viscount, Lord Brookeborough, and other noble Lords, there is nothing in principle against using intercept material as evidence. I agree with my right honourable friend the Prime Minister, who the noble and learned Lord, Lord Lloyd of Berwick, quoted. This is not a matter of principle, it is a question of practicability and the effect of such a move on the efficiency and productivity of the services and agencies involved in interception. Talented legal minds in Whitehall have wrestled with this issue for a long time and under different governments. With rapidly-evolving technology, fresh solutions may be arrived at. But, as my noble friend Lady Symons so rightly said, we are where we are now, and as of today I am sure that if a list were to be made of any gains from such a move—which would be much fewer than people imagine because of the nature of intercept material, whose value is enormous but is not usually of an evidential nature—against a list of the losses in productivity, efficiency and security of sources, the only sensible conclusion would be that the losses far outweighed the gains. That is the view of the Interception of Communications Commissioner, the distinguished lawyer, Sir Swinton Thomas, who has been much quoted here tonight—quite rightly. He is the current Interception of Communications Commissioner and knows what the situation is now, on the ground. And he also, along with the noble Lord, Lord Thomas of Gresford, presumably, knows what happens in a British court. In his report, printed on 3 November, he states:"““The question of the admission of intercept material in criminal proceedings has been discussed at some length in the course of 2004 between myself and Ministers, the Security and Intelligence Co-ordinator, the security, intelligence and law enforcement agencies and communications service providers. The aim of all concerned is, of course to use this material to the best advantage to prevent terrorism and crime and to apprehend terrorists and criminals. The subject is a complex one, much more complex than at first sight might appear””." He says:"““I have the considerable advantage in my position of having an overall picture of all those engaged in this work””." He goes on with the words that other noble Lords have quoted tonight:"““I am left in no doubt that the balance falls firmly against any change in the present law and that any amendment of Section 17 of the Act would, overall, be damaging to the work of the security, intelligence and law enforcement agencies””." I could not agree more with that. I think that the noble Lord, Lord Thomas of Gresford, does a great disservice to people like Sir Swinton Thomas, as he did in his Second Reading speech when he spoke about Sir Swinton Thomas and the noble Lord, Lord Carlile of Berriew, straying into the intelligence community. I take exception to that, much as my noble friend Lady Symons took exception to the earlier remark. It does not do credit to any of us, tackling what is a very serious and complex problem, to insinuate that people who have knowledge of, and experience in, the intelligence and security agencies are somehow suspect in their judgment. In my opinion, that is what he is implying. I completely oppose this amendment.