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Interception of Communications (Admissibility of Evidence) Bill [HL]

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—and, 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 render their use 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, when he 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.