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Mr. Mitchell: But they can be.
Caroline Flint: I said rarely, which implies that they can be. Of course, the disclosure of foreign intercepts raises none of the difficulties of exposure that the disclosure of domestic intercepts would raise.
Intercept material provided by the UK is not disclosed to foreign jurisdictions for use as evidence. I wanted to clarify that because some hon. Members have suggested that we provide domestic intercepts for use as evidence in foreign courts, and that certainly is not the case.
My hon. and learned Friend the Member for Redcar mentioned Sir Stephen Lander's views on the issue. He has made it clear that intercepts may be used as evidence only if the risk can be mitigated, and that is one of the key issues considered by the review.
As an intelligence tool, interception is already extremely valuable in helping to disrupt terrorism and organised crime. It also helps the agencies concerned to gather evidence to support the arrests and convictions of those involved in serious crime and/or terrorism. However, there are important issues—I am not suggesting that hon. Members are not mindful of them—about the risk of jeopardising the effectiveness of this intelligence tool, which is one of the most effective weapons in the fight against organised crime and terrorism. The consequences of getting our approach wrong would therefore be extremely grave.
One of the key factors that the review has been considering, therefore, is how an evidential regime might provide safeguards to prevent the disclosure of particularly sensitive techniques—an issue touched on by the hon. Member for Beaconsfield (Mr. Grieve). A huge amount of work has been done on developing a legal model that might allow us to use intercept as evidence while protecting those techniques. One of the main difficulties with that work has been the need to future-proof that legal model to take account of major changes in communications technology, now and over the next few years. I am afraid that the new clause provides no such protection for today or the future. It would not only give the prosecution discretion to use intercepts, but inevitably lead to the defence gaining access to any such material through the use of disclosure requests. As I said, the review has been considering that.
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The issues are far more complex than they initially appear, because of the need to develop a legal model that protects capabilities and relationships, to minimise the initial resources inevitably required of an evidential regime and to take account of future technological developments. That is why the review has taken its time. It is extremely important that we get the right answer, rather than risk the consequences of a quick one.
Mr. Mitchell: The Minister is very generously giving way again, but may I pin her down on the date for publication of the review? I am not asking her to name the day on which it will be published, but she said that it would appear shortly. Will she give us a commitment—I think that we have a right to ask for one—that it will be available before Report?
Caroline Flint: All I can do at this stage is to repeat my original answer: the review conclusion will be reported shortly.
Mr. Grieve: As I said earlier, it is fairly common knowledge, although we know this only anecdotally, that the Special Immigration Appeals Commission decision on the detention of the Belmarsh detainees appears to have been based on a mixture of things; some may have been overseas intelligence sources, but there is a suggestion that much of the decision was based on intercepted communications. I am sure that the Minister can see that, in those circumstances, there really is a degree of urgency about these issues. If we are, indeed, basing detention on the scrutiny in secret of intercepted evidence—I suspect that we are—and that the evidence could be used in a court of law if we could find a way through the difficulties, it is imperative to come to a speedy conclusion. How are Members of Parliament to be kept informed about the review and the issues that it identifies in a way that provides us with proper information, rather than our being left in the dark?
Caroline Flint: I agree that following the Law Lords' announcement we must consider the hon. Gentleman's first point as a matter of urgency. The Home Secretary made that clear in his first week in post; it is important. Intercept evidence is not necessarily the key to the successful prosecution of serious or terrorist cases. If there is sufficient admissible evidence to enable any detainee to be prosecuted, it will be acted on. Indeed, two individuals have been convicted of criminal offences following their initial certification and detention.
However, the evidence held in relation to the detainees comes from a variety of sources. While some is technically admissible, it could be problematic: it affects national security; it would damage our intelligence-gathering capability; or it might put the lives of third parties at risk. I know that the hon. Gentleman would agree that to deal with the terrorist threat a balance has to be found. Where we can, we will pursue successful prosecutions, while being mindful of other parties and of threats to our ability to gather intelligence. Like so many of the matters that we have discussed, this is complex. SIAC does not deal with
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criminal proceedings, so the model of closed proceedings that it uses could not be adopted for criminal trials. I am sure that hon. Members are aware of that.
Mr. Heath: The Minister has been extremely helpful in setting out the position, and we understand the difficulties involved. Is it the Government's view that the Bill is a suitable legislative vehicle for any change, provided that it is possible to derive a satisfactory formulation? Will SOCA be used to bring forward changes in legislation if it is the Government's intention to do so?
Caroline Flint: In a roundabout way, the hon. Gentleman is asking me to pre-empt the outcome of the review. I shall not be drawn down that path, no matter how charmingly he does it. There will be an announcement shortly about review, and I do not want to pursue his point.
In addition to some of the general arguments on the use of intercepted evidence that I have outlined, there are particular issues in relation to new clause 12. The new clause would limit the use of intercepted evidence to prosecutions under SOCA. It could be argued that there is no obvious justification for giving such special treatment to SOCA prosecutions and not to all criminal prosecutions. Indeed, it would be strange if terrorist offences could not be prosecuted using intercept evidence, but SOCA offences could be. Furthermore, the relevant offences listed in section 18(12), which are exempt from the section 17 prohibition on evidential intercept use, are all similar in that they are offences in which interception plays a crucial part, such as offences under interception of communications legislation and the Official Secrets Act.
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It is likely that if intercept material were not admissible in relation to such offences, then no prosecution could be brought. That would seriously undermine the criminal law in areas of important public policy. The offences that SOCA will investigate will not necessarily be in that category. In fact, as I have already said, the use of intercept material to assist law enforcement has produced some good and positive results in terms not only of seizures and disruption, but of arrests of serious criminals.
I hope I have been able to outline to hon. Members how seriously we take the issue. I also hope that I have reassured them that the review has been considering the detail in a host of areas about the use of intercept and what happens overseas, and has been tackling the issues that hon. Members have outlined today.
In response to the question asked by the hon. Member for Beaconsfield, I can say that we will give as much information as possible where it is safe to do so. The Home Secretary will want to share the report with the Intelligence and Security Committee, but it will not be published, as it is a classified document. However,
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we will look at how we can share information in a secure environment while protecting security issues and the safety of those involved.
I hope that the hon. Member for Sutton Coldfield will withdraw the new clause on the basis of what I have said. It has been useful to have this debate, and it is useful to keep in context the fact that intercept, although it is not admissible in court in the way that hon. Members might like it to be, is a valuable tool that is used to its utmost to tackle terrorism and serious crime.
Mr. Mitchell: This has been an interesting debate; I will give the Minister that. I am afraid that it leaves me unsatisfied, however, with the position that the Government have outlined. Before I explain why, I should perhaps say that I meant no disrespect to the hon. Member for Somerton and Frome in selecting the new clause that he had not signed rather than all my other amendments, which he had. Throughout the course of the Bill, it has been clear that he and I have often been of one mind in our critique of the Government's legislation. In these days of newsworthy events, I want him to know that I have in my pocket an application for him to join the Conservative party should he be minded to follow the logic of my earlier remarks, but I meant no disrespect to him. The new clause was narrowly drawn in order to deal with aspects of the Bill, and I hope that I have made it clear that the case I sought to put was far wider than the new clause and dealt with the more general issue of intercept evidence.
The hon. Gentleman said that material derived properly in court under the Regulation of Investigatory Powers Act should be used, and I agree. The hon. and learned Member for Redcar made an enormously compelling contribution, saying that the confusion in the matter is of real detriment to good justice, pointing out the illogicality of the Government's position and, from her direct experience in the courts, using evidence of the value of intercept evidence in court. She gave her opinion that in the case she referred to conviction might not have been secured without the Dutch intercept. The Government would do well to listen to her.
My hon. Friend the Member for Beaconsfield zeroed in, as the excellent lawyer that he is, on court procedure, which I brushed lightly over for two reasons. First, the use of intercept is an issue for SOCA and for the prosecuting authority. They will use it under our subvention if they think that it is appropriate and wish to do so. They will not be compelled to do so. That is a fundamental weakness in the Minister's case. As my hon. Friend pointed out, there are ways in which court procedures have been dealt with around the world, such as in America and Australia. There are issues to do with public immunity certificates, or possibly of a non-trial judge being involved. The hon. Member for Hemel Hempstead also made a cautious and telling intervention in support of our argument.
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