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Mr. Robert Marshall-Andrews (Medway) (Lab): Will the Minister address two related questions? First, will the judicial oversight or review to which she referred be based on matters of fact as well as law? Secondly, is it proposed that judicial review by the High Court be excluded, as it has been in the past?

Ms Blears: I am sorry to disappoint my hon. and learned Friend, but I am not in a position to make proposals on those matters of detail, which need to be finalised. What is the standard of proof required? What is the extent of judicial oversight? Should there be a judicial review or an appeal? Is the process based on fact and law? Those are all perfectly legitimate questions, but I am not in a position today to give the House the information requested by my hon. and learned Friend. Those matters, including whether judicial oversight will be as robust as we want it, will be properly and fully explored.
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Simon Hughes : The Minister has admitted that this is a really important matter. Would it not be far more acceptable, and better meet the Home Secretary's objectives, if the police were able to arrest someone if they believed that they were conspiring to commit an offence related to terrorism? That is what happens now, and as long as the police officer has a reasonable suspicion, it is not necessary to go to the courts every time the police want to arrest someone. Why cannot we have the same process, which would be open to judicial oversight if the police overstepped the mark?

Ms Blears: I understand the hon. Gentleman's point, but I have already said that I am not in a position to provide a final view on the matter. The debate about the right process will continue. My main point is about who initiates and who makes the orders, and we seem to take different views on that. We are happy to discuss these matters as the debate develops on how the process should work.

I want to explain our approach more fully. It has been said several times that the most appropriate way to proceed is to prosecute. I want to put on record the fact that we absolutely share that view. Whenever we can, we want to prosecute, bring people to trial, adduce the evidence and let the court decide. It is only when we cannot prosecute because parts of the evidence are inadmissible or would reveal the capabilities of the Security Service that we find ourselves in the position of requiring some mechanism and machinery to enable us to protect the people of this country through a series of orders, while at the same time ensuring that we comply with the rule of law as much as possible. We always prefer to prosecute when we can. A number of prosecutions have already been launched and hon. Members may be aware of the comments of the new Metropolitan Police Commissioner, who expressed his frustration at how little detail we have been able to provide because these matters are sub judice. The public do not know the extent of the arrests, operations and work that have been carried out in order to bring people to trial. Prosecuting is, as I said, always our preferred option.

Some people are highly exercised about why we decided not to allow intercept to be used as evidence. It is right for me to provide hon. Members with some of our detailed thoughts on that matter. First, it is not a magic bullet. We have said time and again that the review examined whether we would be able to bring more serious criminals and terrorists to trial if we used intercept as evidence. The review found that that would not be the case and it examined the cases of individual detainees. As I understand it, it would not have been possible to bring any of those cases to a formal trial by using intercept evidence.

This country has a unique system of co-operation between our intelligence agencies and the police. It does not exist in many other countries. The sharing of intelligence product with our law enforcement agencies is second to none and there is a genuine worry that if we were to allow intercept to be used as evidence, that unique and close working relationship could be jeopardised. Some of the intelligence product might not be able to be shared with law enforcement in any case. I would be seriously concerned if the excellent disruptive work that currently takes place were to be put at risk
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because intelligence agencies felt it impossible to share their intelligence product with the police service. Indeed, if we allowed that to happen, as some have proposed, we would be taking a retrograde step. Once again, these are matters of fine balance and our decision is that, on balance, the benefits do not outweigh the costs at this time.

David Davis: I want to question the Minister on the sensitivity of our allies in the war against terror. Most of them allow intercept evidence, so it seems strange that those who use it themselves should object to our using it. I have always found the argument unpersuasive since the time when I worked in the Foreign Office.

Ms Blears: The right hon. Gentleman may find the arguments unpersuasive, but I find them quite persuasive as they are put to me at the moment. Clearly, we all have to make our own judgment about where the balance is drawn. We have a unique system of very close co-operation, and I am worried that we would jeopardise it if we used intercept as evidence. Secondly, we have an adversarial legal system, in which the defence has the right of full disclosure. If the security services were to use those parts of intercept that supported their case, they could be accused of cherry-picking the evidence. Quite rightly, the defence would seek to follow the whole chain of events in respect of the intercept that had been obtained.

Our adversarial system complies with the European convention on human rights and contains a number of hurdles that make it very difficult to use intercept as evidence. Moreover, technology is changing very fast indeed. We have been working to develop a legal model containing a system of checks and balances that would enable us to use intercept as both intelligence and evidence. However, the speed of technological change means that any model that we might develop would not be robust enough to interact with our legal system.

Other hon. Members have asked whether public interest immunity certificates would suffice to enable us to keep sensitive information about the security services' capabilities outwith disclosure. Again, the risk is that the courts would not support the PII certificate. If that happens, a capability that is disclosed is disclosed for all time. That is a major difficulty with using intercepted evidence.

I am not saying that the Government will not keep under review a matter that has been reviewed five times in the past 10 years. On each occasion, it was decided that intercepted evidence should not be used. I appreciate that people argue the other side of the case firmly, but the Government are not convinced that intercepted evidence could be used to fight terrorism more effectively than is the case at present.

David Davis: I thank the Minister for giving way yet again; she has been very generous. I want to ask a question about the use of PII. Other nations, particularly America, have very formal structures to arbitrate between the interests of the state and of the defendant, and they work well. If the Minister is so doubtful about using PII certificates, why can this country not adopt such a structure?

Ms Blears: All these matters have been examined. We have looked at other legal systems and protection
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mechanisms, as we are keen to find a way forward. However, we cannot simply transplant other systems into our law, as it operates in a different way. We are not convinced that we could achieve a system that was robust enough to protect the security services and at the same time allow us to use useful product.

In some countries that use intercept as evidence, the product is fairly minimal. Because it is used as evidence, other people are unwilling to share their product. That is a real concern for the Government. At the moment, we get excellent product because we are able to use it in surveillance and other activities that enable us to disrupt much of what might otherwise happen. The whole House will agree that the record of our intelligence agencies and police force in disrupting some of what might have happened in this country is second to none.

I apologise to the House for dealing with intercept at length, but the matter has been raised in a number of debates recently, and it was important to go through the issues associated with it.

The hon. Member for Winchester asked whether we would consider the Newton committee's recommendations in respect of looking at other offences committed preparatory to the commission of terrorism. We are actively looking at those recommendations. Control orders are our priority at the moment, as we want to have something in place before the part 4 powers expire. However, if there are other steps that we can take to make our judicial system more effective in fighting the threat of terrorism, we will of course look at all of them.

Mr. Deputy Speaker, I think that I have dealt with most of the issues raised by the hon. Member for Winchester. With your leave, I shall try at the end of the debate to cover any other matters that come up. I am pleased by the tone of the debate so far, and I am sure that all hon. Members will continue to co-operate in the search for solutions to the very difficult problems with which we are faced.

4.53 pm

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