Clause
4
Involvement
in serious crime:
evidence
Question
proposed, That the clause stand part of the
Bill.
5.45
pm
Mr.
Coaker:
On a point of order, Mr. Benton. The
Government wish to oppose the inclusion of clause 4 and schedule 13.
For the benefit——to be honest——of myself
and perhaps that of the Committee, could you advise me on the
procedure?
The
Chairman:
Clause 4 is now under discussion. If the
Minister wishes to withdraw it, now is the appropriate
time.
Mr.
Coaker:
It might be helpful to the Committee if I gave
some opening remarks. It is the Government’s intention that
clause 4 and schedule 13 be opposed.
The Government want to support
the efforts of the security services and law enforcement in their fight
against terrorism and serious crime. No one on this
Committee will disagree with that aim, I am sure, but whether or not it
is possible to increase the effectiveness of interception, attempting
to do so by extending its use to the evidential arena is difficult, not
least because, as the agencies have made clear, interception is one of
their most effective tools and there is a danger that its evidential
use would seriously hamper the fight by undermining its use and
effectiveness and seriously impact effort
elsewhere. Why do they
say that? What have they to protect? Is the police view on intercept
evidence not different from that of the intelligence agencies, and how
is it that our agencies cannot do what every other country using
interception does? Those points have been raised repeatedly in recent
discussions, so I shall address some of them
now.
There is no
difference in view between the law enforcement and intelligence
communities on intercept as evidence. Close scrutiny of what key
figures have said on the subject shows that they support what the
Government have been saying—the laws should be changed to allow
intercept evidence if safeguards can be put in place to protect
sensitive capabilities, techniques and resources, and the benefits of
changing the law outweigh the risks of doing
so.
The
Attorney-General, whose office has been working closely with the Home
Office; the Director of Public Prosecutions, who recently gave evidence
before the Joint Committee on Human Rights; and the Metropolitan Police
Commissioner, who is often misrepresented as an unqualified supporter
of intercept as evidence, believe that safeguards are essential.
Without safeguards, there can be no benefits.
Let us consider Lord
Lloyd’s proposal. Where are the additional safeguards required?
The model before us has none. What have UK intercepting agencies to
protect that is not dealt with perfectly adequately in the overseas
jurisdictions using intercept evidence? The answer is the very thing
that sets the UK apart and, I would say, ahead of overseas
jurisdictions.
Jeremy
Wright:
Will the Minister give
way?
Mr.
Coaker:
Let me develop this point, and then of course I
will. The UK’s model is intelligence-led policing, in which
intelligence agencies and law enforcement often work hand in hand. That
is not replicated anywhere else. Nowhere else in the world can one find
law enforcement tasking intelligence officers on interception matters.
In contrast, overseas jurisdictions protect advanced intelligence
capabilities from exposure in court simply by not sharing them with law
enforcement. That leaves overseas law enforcement with perfectly
serviceable but more basic
capabilities.
Jeremy
Wright:
I understand the point that the Minister is
making. It is welcome that the Government are at least considering
introducing intercept evidence, but I ask him this. Schedule 13
provides for the admissibility of intercept and metering evidence. He
says rightly that it does not include safeguards, but is there any
reason why schedule 13 cannot be agreed to with a view to the
Government’s developing the safeguards elsewhere and, if
necessary, later?
Mr.
Coaker:
In answer to the point made by the hon. Gentleman,
the Government want to look at all of this in the round, which is why
we wish to take out both the clause and schedule 13. We want to ensure
that we have a model that works and is agreed, and that the
intelligence and law enforcement agencies feel it is acceptable. At the
present time, we do not have that
model.
Jeremy
Wright:
I understand the Minister’s point, but we
have just been through a series of arguments in which he has said that
it is necessary to have provisions in the Bill that will enable changes
to be made later if circumstances change. Surely, he cannot have it
both ways. In this case, we could have the schedule and provisions
ready for a situation in which circumstances do
change.
Mr.
Coaker:
We do not know whether the law enforcement or
intelligence agencies are satisfied with schedule 13 or whether there
are additional safeguards that they want included. Those things are not
worked out by Lord Lloyd’s amendment or by the inclusion of
clause 4 or schedule 13. There are still a number of unanswered
questions.
I thank
the hon. Gentleman for recognising that the Government want to discuss
the issue and are prepared to do so. He knows that there will be a
review on Privy Council terms to consider the use of intercept as
evidence. The details of the review are yet to be worked out, but it
will be a serious review about how to introduce something that is
workable and practicable, which is better than leaving something in the
Bill, about which we are not totally sure. With the best of intentions,
he cannot be sure that our intelligence and law enforcement agencies
are absolutely satisfied with every bit of the schedule or whether they
would like to see other things included. At the present time, we think
that it is appropriate to take the clause and schedule out of the Bill
so that the review has a clean slate, can look at the issue in its
totality and can propose something that we hope and expect to be
included in a Bill in the
autumn.
Mr.
Hogg:
Will the Minister forgive me if I build on the point
that my hon. Friend the Member for Rugby and Kenilworth made? As far as
I can see, schedule 13 will be commenced by a commencement order under
clause 84 of the Bill. That lies within the sole discretion of the
Secretary of State, so the provisions under schedule 13 will not come
into force unless and until a commencement order is made, which can be
done only by the Secretary of
Sate.
Mr.
Coaker:
As I said, it may be that it can be commenced
under the clause to which the right hon. and learned Gentleman
referred. What he failed to mention was the point that I made to his
hon. Friend: we do not know, and neither does the Committee, whether
all our intelligence and law enforcement agencies are absolutely
satisfied that the provisions under schedule 13 are appropriate to the
model that they want. As I have said, our intention is to take out the
schedule.
The strength of our system is
illustrated by the creation of the Serious Organised Crime Agency last
year, which combines intelligence with enforcement, and by police
forces across the country that call on the security services to help
with their investigations. The UK’s approach has produced
outstanding results. Where is the evidence that overseas countries do
better than the UK in fighting terrorism and serious crime? As Baroness
Scotland mentioned recently in another place, we can point to figures
that show that intercept evidence is not always used as extensively or
as effectively overseas as is sometimes claimed.
What is important is what would
happen in the UK if we had intercept as evidence. Would we improve on
the results that we get now? The Government have said before that
intercept as evidence is not a magic bullet against terrorism, which
was one of the conclusions of the 2003-04 review. The prospect of
improvement always needs to be taken seriously, particularly in the
current climate where the stakes are raised and where there are
strongly opposing views on how to go forward, as was evidenced in the
House of Lords. That is why, earlier this month, the Government agreed
to commission a review of intercept as evidence on Privy Council
terms.
To rebut Lord
Lloyd’s proposals vigorously might give the impression that we
are prejudging the outcome of the new review, which would not be
helpful and I certainly do not wish to do so. I do not wish to leave
anyone in any doubt that Lord Lloyd’s proposals do not provide a
sound basis to progress the issue of intercept as evidence. As we
stated on Second Reading, we believe that they are unworkable and,
indeed, defective—so much so, that it is not possible, nor,
given the seriousness of the subject, appropriate, to make such
amendments during the passage of the Bill. Any sensible person involved
in this complex subject will recognise the need for the appropriate
safeguards and to develop a workable, legal model for change. To do
otherwise, as would happen if we retained Lord Lloyd’s
amendment, would undermine the effectiveness of our intelligence and
law enforcement agencies. That could have damaging
results.
Mr.
Hogg:
I do not want to be pedantic, but I would like a
clear understanding of what the Minister means by intercept evidence,
because various classes of evidence could fall under that definition
such as that intercepted by telephone, bugging and e-mails. I need to
know exactly, as I think the Committee does, what class or classes of
evidence will fall under that definition in the
Bill.
Mr.
Coaker:
That is one of the very points that the review
needs to debate—what we mean by intercept evidence. What sorts
of intercept evidence do we believe would be appropriate in court were
we to allow it? The right hon. and learned Gentleman’s point is
one of the important questions for the review: whether the examples
that he gave are the sorts of evidence that should be admissible in
court. I think that he makes a valid point. Intercept evidence would be
a huge catch-all for a range of different types of evidence. His
question identifies very clearly the need for the review,
because, of course, one of the questions for it would be: what counts as
intercept evidence and what is admissible in
court?
Changing the
law on the basis of what works is the way in which to proceed, and we
do not believe that Lord Lloyd’s amendment would give us that
certainty. The Government have signalled their intention to proceed on
a responsible basis by commissioning the review on Privy Council terms.
I hope that the Committee will support that approach. I propose,
therefore, that clause 4 and schedule 13 do not stand part of the
Bill.
The
Chairman:
Order. In accordance with the Order Paper, the
two items will be presented to the Committee and voted
upon.
Mr.
Coaker:
On a point of order, Mr. Benton, that
is very helpful, but I was ensuring that I do not get that particularly
important amendment
wrong.
Nick
Herbert:
We are unhappy about the Government’s
approach. On Second Reading, I made it clear that we wanted to retain
Lord Lloyd’s amendment—now clause 4—until we were
clear about the terms on which the Privy Councillor review of the use
of intercept evidence in court was being conducted. In response to me,
the Minister for Security, Counter Terrorism and Police
said:
“It is my
understanding that discussions between the Prime Minister and the
Leader of the Opposition are continuing and that matters such as those
raised by the hon.
Gentleman”—
that
is me—
“will be
resolved, at least in outline, by the time we are in Committee. If that
is not the case, I will write to the hon. Gentleman to make that
clear.”
He
continued:
“It
is right and proper that such issues are cleared up before the
Committee stage”.—[Official Report, 12 June 2007;
Vol. 461, c. 681.]
I have to
tell the Minister that no such undertaking has been received—to
coin a phrase. However, my right hon. Friend the Leader of the
Opposition, wrote to the Prime Minister on 5 June setting out his
proposed terms for co-operating with the Privy Councillor review. On
Second Reading, in the House, I repeated some of those terms and our
proposals for the review. I
said:
“The
committee of Privy Councillors that looks at this issue should be a
cross-party
committee”—
one
that is balanced. I
continued:
“No one
serving in Government should be on the
committee”,
and that
the
“committee must
report well before November, in advance of First Reading of the new
counter-terrorism Bill, to allow time for provisions to be incorporated
in it”—
[Interruption.]
The
Chairman:
Order. I am sorry to interrupt the hon.
Gentleman, but the noise level is getting high. Will members of the
Committee please keep their voices down? We all want to hear what
individual speakers have to say.
6
pm
Nick
Herbert:
I am grateful for your support as I make this
very important speech, Mr. Benton. The fourth point that we
put to the Prime Minister was that, crucially,
“there must be a presumption that
the Government will accept the recommendations the committee makes once
it has examined all the evidence”.—[Official
Report, 12 June 2007; Vol. 461,c. 680.]
In summary, we sought
assurances that the review would be truly independent. I made it clear
on Second Reading that we could not possibly accept the removal of Lord
Lloyd’s amendment until we understood the basis on which the
Privy Councillor review was proceeding. The Minister for Security,
Counter Terrorism and Police appeared to understand that concern and
committed to tell me what progress had been made, but that has not
happened. Given those circumstances, we cannot possibly go along with
the Government and accept the clause’s withdrawal.
My second concern is that the
review should be truly independent and not pre-judged. The Minister
knows that we are concerned about that, but his remarks about concerns
regarding the use of intercept evidence did not give me great
confidence that the Government have an open mind on this issue. He
talked about the real dangers of the use of intercept evidence and
about Britain’s unique form of policing, which I shall discuss,
but I must first question the extent to which there is a consistent
Government view on this matter. The incoming Prime Minister made clear
his support for the use of intercept evidence in a briefing to the
Sunday papers on 3 June. He also said recently that he never believed
that presentation should be a substitute for policy, and that we are
about to enter an age in which spin would no longer be a feature of
government, and yet he made that announcement, typically, by way of a
briefing to the Sunday papers and not to this House. One of the
relevant articles, in The Sunday Times of3 June,
said:
“Gordon
Brown will this week put his personal authority behind a move to allow
evidence from telephone taps to be used in court to ensure terrorist
suspects do not escape the
law.”
It went
on:
“A source
close to
Brown”—
—of
course, it would be a source in this new age of no
spin—
“said:
‘Personally, Gordon believes the weight of argument points to
using intercept evidence in court, but we want this review to build a
nonpartisan consensus on the best balance between obtaining convictions
of people plotting terrorist acts and preserving our sources of
intelligence for the future. It is vital that the security services are
closely consulted and happy with the
outcome.’”
Mr.
Blunt:
Can my hon. Friend confirm my recollection that
that briefing was given on the condition that no position on the matter
could be sought from Her Majesty’s Opposition before the story
hit the Sunday
newspapers?
Nick
Herbert:
Yes, I am happy to confirm to my hon. Friend, in
so far as I am aware of the position, that in this new era of no spin
and of accountable and transparent government, to which we all look
forward immensely, the way in which the briefing was given
disallowed any of the relevant journalists from seeking an alternative
view to the story that was handed to them. So much for the glorious new
age that is to be ushered in
tomorrow.
The
Chairman:
Order. Before Mr. Hogg intervenes,
may I point out that we are dealing with clause 4. The hon. Gentleman
is making very interesting observations, but will he come back to the
clause?
Mr.
Hogg:
May I suggest to my hon. Friend that the answer to
the anxiety expressed by the Minister on behalf of the intelligence and
other services lies in paragraph 1(4) of schedule 13. Under that
measure, intercept evidence is admissible only when the prosecution
makes an application. The prosecution will, of course, reflect the
wishes of the law enforcement agencies when determining whether to make
such an
application.
Nick
Herbert:
I could not agree more, and I shall speak about
the various safeguards that could easily be introduced to the operation
and use of intercept
evidence.
That leads
me to my next point. The Government complain about the absence of
safeguards in Lord Lloyd’s amendment, but they could have come
forward with proposed safeguards of their own. Instead, they choose to
strike down the measure so that the House of Commons has no long stop
on the Privy Councillor
review.
Before leaving
the issue of the extent to which the Government are united on the
matter, the Attorney-General, who will resign in the next 24 hours or
so, told the “Today” programme on 21 September last
year:
“We do
have a need to use intercept in court if we’re going to give
ourselves the chance of convicting some of the most dangerous and
prolific criminals in the country. It is a vital tool therefore for
organised serious crime - this is what I’ve been told
particularly by colleagues in the United States - and for
terrorism.”
It would
appear that there is a difference of views within the Government, so it
is probably wise for them to seek a Privy Councillor review of the
issue. That way, the concerns that have been expressed by the
intelligence services can be
addressed.
It should
be noted that the intelligence services alone continue to have
concerns. I have not heard that directly——it has been
reported by the Prime Minister and the Home
Secretary.
Mr.
Coaker:
The hon. Gentleman said that only the
intelligence services are worried about the use of intercept evidence.
Deputy Chief Constable Jon Murphy spoke on behalf of the Association of
Chief Police Officers when giving evidence to the JCHR in March. He
said:
“If we
reduce our capacity in order to serve the evidential regime, there is a
possibility...that we will
lose”——
the
capacity——
“to
disrupt some potentially catastrophic scenarios.”
The intelligence services are not the only
ones with concerns.
Nick
Herbert:
I am grateful for the Minister’s
interesting intervention, but it is my understanding that both the
Metropolitan Police Commissioner and his assistant, Andy
Hayman—I shall say more about his views—who lead on the
issue of terrorism, believe that intercept evidence should be
considered. I accept that other individual officers have concerns and
that those need to be investigated by the Privy Council committee. I am
asking for the assurance, which I have been given, that that committee
will go ahead on the terms requested by the Leader of the
Opposition.
The
Minister seemed to dispute the potential benefits of the use of
intercept evidence and suggested that Britain has a kind of unique
system to which we should hang on. Let us examine that claim. First, it
is clear that other countries use intercept evidence successfully. If
we look at cases that brought the conviction of al-Qaeda members in the
United States following 9/11, mafia godfathers in New York and war
criminals in The Hague, we will see that intercept evidence was used. I
agree that Britain is different in this respect: we have increasingly
been urged by the Government to accept measures that are more and more
draconian and restrictive of civil liberties on the ground that
insufficient evidence can be assembled to pursue prosecutions of
terrorists.
One
consequence of the failure to use intercept evidence as our peer group
countries have done is that Government proposals for the indefinite
detention without trial of terrorist suspects have been struck down,
while the control orders that they introduced are ineffective. Those
were serious incursions into civil liberties. The extension of
pre-charge detention in relation to terrorist suspects was agreed by
the House, but the Government now propose a further extension. All
those matters demonstrate the price of the Government apparently having
a closed mind on the use of intercept evidence.
The Minister says that Britain
is different. It is different in one important respect: we have chosen
not to use a procedure that is used everywhere else but have instead
embarked upon measures that will cause a serious reduction in civil
liberties. The serious crime prevention orders are very much in the
same vein.
The
Minister managed to find a police officer who has expressed concern
about the use of intercept evidence. Perhaps he will find another.
However, he will know that the Home Affairs Committee concluded that
there was “universal support” for the use of intercept
evidence. Indeed, the call for its use has been supported by the
Chancellor of the Exchequer—tomorrow’s Prime
Minister—and the Attorney-General, by the present Director of
Public Prosecutions and his predecessor, by Andy Hayman, Assistant
Commissioner of the Metropolitan police and the Commissioner, and by
the Government’s adviser on terrorism Lord Carlile, who, with
caveats, has said that it should be considered by the Joint Committee
on Human Rights. An overwhelming consensus is emerging that the issue
should be looked at. A case can be made for the use of intercept
evidence. The question is why the Government have stood in the way of a
proper review for so long.
Earlier, in response to my right
hon. and learned Friend, who spoke well on the subject, I referred to
the potential safeguards that could be introduced. Those safeguards
operate perfectly acceptably in other countries. The use of such
evidence could be authorised by a judge, as happens in the United
States, and those proceedings could be heard in camera. As he said, it
is highly unlikely that prosecutions would rely on intercept evidence
about which the state was unhappy. However, the defence could be given
the right to challenge the use of such evidence; clearance could be
given for defence lawyers and judges to ensure that it was appropriate
for them to make judgments about the use of such evidence; and the
evidence itself could be edited or summarised. That is important,
because some of the objections to the use of intercept evidence that
the Government rehearsed on Second
Reading—
Mr.
Hogg:
May I caution my hon. Friend against arguing a case
to the effect that counsel instructed by the defendant may have
information that he cannot communicate to the defendant? That is
something that I could not
support.
Nick
Herbert:
I understand my right hon. and learned
Friend’s concern about breaching the privileged relationship
that must exist. Nevertheless, the principal objection levelled against
the use of intercept evidence is that its disclosure would reveal to
our enemies——to those who are being
surveyed——the methods being deployed in that surveillance
by the intelligence services and others.
Assistant Commissioner Hayman
dealt with that when he gave evidence to the Home Affairs Committee. He
said that he was initially unsupportive of the use of intercept
evidence, but that he had now moved. He felt that the other side were
well aware of the methodologies, and he described the argument as
lightweight. He went on to deal with the next objection to the use of
intercept evidence. None of the objections is trivial. The next
objection is that a tremendous logistical burden would be placed on the
authorities if vast amounts of evidence had to be transcribed, but he
said that if an investigation was focused and precise, that need not be
the
case.
6.15
pm
All the issues
will be examined in the committee of Privy Councillors, assuming that
it goes ahead. Will the Minister tell us whether it will, and the
reason for the delay? I do not know whether the delay is because of the
change in regime, or because the Government are having difficulty
accepting the suggestions from the Leader of the Opposition about the
committee’s composition. It is important that we understand
those concerns and receive the reassurance that the committee will be
open-minded about the way in which it reviews the evidence.
In the circumstances, it is
unreasonable to expect us to accept the withdrawal of the provision
rather than its amendment, with all the safeguards that we could
discuss today, before we know even whether the review is going ahead or
on what basis.
Several
hon. Members
rose—
Mr.
Browne:
Thank you, Mr Benton, for giving me an opportunity
to speak about the matter more briefly than the previous
speaker.
Ever since
the right hon. Member for Witney (Mr. Cameron) became leader
of the Conservative party, drifting leftwards on policy, he has sought
a clause IV moment. I always thought that the Conservative
party’s adoption of clause IV would be that moment, and although
we have not gone quite that far, we have—to some
extent—got to the point where the Conservatives are adopting
clause IV. We share their opinion in Committee this
afternoon.
The reason
why we share their opinion is that when I expressed to the Home
Secretary in the House my view that it was desirable to allow intercept
evidence in court, he was absolutely scathing to the point of rudeness
in his dismissal of that position. The Leader of the House, the right
hon. Member for Blackburn (Mr. Straw), supported him in that
opinion and assertion, not orally, but with vehemently expressed body
language, and although we do not know, there is speculation that the
Leader of the House may become Home Secretary again tomorrow, having
previously held the post. It was none the less clear to me and to other
Members, some of whom are in Committee this afternoon, that the
Government had dismissed out of hand the case for allowing intercept
evidence.
The
Government have made their case by seeking to portray members of the
Liberal Democrat and Conservative parties as hopelessly irresponsible
and out of touch for thinking that intercept evidence had a role to
play. We were left in that position, until suddenly—low and
behold—and magically, the man who will be Prime Minister
tomorrow announced, as we have heard, through the Sunday newspapers
thatthe position had been stood on its head. Suddenly, the
Labour Government, far from being dismissive of the use of intercept
evidence in court cases, were inclined towards it being used.
The situation is obviously a
humiliation for the Home Secretary, but he is shortly to depart in any
case. It also gives us all in Committee good reason to doubt that the
Government will follow through with the consistency and focus that we
might like on allowing intercept evidence subject to the considerations
and recommendations of the Privy Councillors.
It is worth recalling that we
are not saying that intercept evidence should be compulsory in court
cases. We are not claiming, as the Minister rightly said, that it is a
silver bullet. It is merely one of the tools at the disposal of those
who wish to prosecute serious crimes. We share the view expressed by
the Conservative Front Bench spokesman and many others beyond the House
that it is legitimate and sensible to allow intercept evidence to be
used. We are minded to support both the clause and the schedule on the
basis that they are before us and we have no firm and consistent reason
for believing that the Government are committed to going down that path
were they to remove them from the
Bill.
Jeremy
Wright:
It is a pleasure to serve under your chairmanship,
Mr. Benton.
I want to speak in favour of
retention of clause 4 and schedule 13, and I confess that I am still a
little mystified as to the Government’s profound reluctance to
accept the provisions as part of the Bill. I am grateful for, and
recognise the Government’s movement, to which the Minister
referred this afternoon. It is good to know that they are moving slowly
in the direction of admissibility of intercept evidence, but I fear
that that movement is too slow, and it seems anyway, for reasons that
have been given, that there is no reason why we could not have the
provisions in the Bill, and that all the necessary safeguards that the
Minister believes should come could
follow.
Be that as it
may, I want to make several general points about why intercept evidence
is so important. I agree entirely with the hon. Member for Taunton that
we are not suggesting that intercept evidence is the only weapon to
defeat the serious crimes that the Bill is designed to counter, but it
can be one. I agree with my hon. Friend the Member for Arundel and
South Downs that there are safeguards that can be put in place to
provide the necessary
reassurance.
I am not
setting myself up as a better expert on intelligence than the
intelligence officers who advise the Minister, but if they are worried
that there would be a release of information about sources that would
damage ongoing operations, that is similar in many ways to the concerns
that the police have always had about criminal operations in which
surveillance is involved where we have developed adequate safeguards
that have worked
well.
I should declare
an interest as a criminal barrister. I am not currently practising, but
when I was I came across many instances of police operations in which
surveillance was carried out. Someone’s home would be used for
the surveillance, but the owners of the house were not keen for those
involved in the criminal activity to know where the surveillance was
placed, so that information was not disclosed in open court, nor was it
made available to the defence. The judge would make a decision on the
ground of public interest immunity that that information should not be
vouchsafed to the court or to the defence. That system has worked
admirably for many years, and there is no real difference between that
situation and the situation regarding intelligence that we now
confront.
Indeed, the
Minister properly referred a number of times to the independence and
trustworthiness of the judiciary, and the reliance that can be placed
on the good sense of the judges. If that is true, we can also rely on
that good sense and trustworthiness when deciding what information
should and should not be made available in intelligence-related
cases.
It seems to me
that we should have the provisions in the Bill because we should have
wider availability of intercept evidence to allow us to defeat
precisely the sort of criminals that the Minister set out as the target
for this
legislation.
Mr.
Hogg:
It is a pleasure to follow my hon. Friend. I
entirely agree with what he says about PII applications. At the end of
last week, I finished a long case in which much of the evidence was the
result of bugging conversations in cars. A number of PII applications
were made along the lines indicated by my
hon. Friend, I think to protect the methods by which bugs were put into
a vehicle, although I was for the defendant and therefore did not know.
That is by the
way.
The first
question that one must ask is where the prima facie argument lies. It
seems to me that as a matter of principle it lies in favour of
admitting intercept evidence. Is it probative? Very often. Is it
relevant? Very often. If it is both relevant and probative, it should
in principle be admissible. Would it enable one to prosecute in cases
that are not presently prosecuted? The answer is probably yes. It would
be good for the point made by my hon. Friend the Member for Arundel and
South Downs, in that it would enable us to move away from control
orders and towards more
prosecution.
What are
the serious arguments against it? There are two, and here I speak with
a degree of knowledge. It is old knowledge, as from 1990 to 1995 I was
the Foreign Office Minister responsible for working with Government
Communications Headquarters and the Secret Intelligence Service. I saw
all the intelligence product coming to the Foreign Secretary’s
desk and my own and was familiar with the methods and targets adopted
by the Foreign Office and the intelligence services.
It seems to me that two issues
of technique need to be addressed. The first is targets. It is
obviously thoroughly undesirable that prospective or actual targets
know that they are they are the targets of intercepted communications.
I accept that. Secondly there is a point that is somewhat less strong
now: the method used. When I was in the Foreign Office, methods were
unquestionably used that were not generally known. I suspect that they
are now. So there are serious questions to be considered on both
targeting and
methodology.
Another,
different matter is the copying of material for ultimate disclosure to
defendants. The prosecution is under a duty to disclose to the
defendant any material that might undermine the prosecution’s
case or reinforce the defence’s. It will be argued that the
intelligence services are therefore under the duty to copy and make
available bodies of the intercept evidence that they are accumulating
for a trial. The question is whether those arguments, which are real
and not derisory, should stand in the way of the admission of intercept
evidence. In my view they should manifestly not.
The Bill itself provides the
answer, although there may be other answers. As I said in my
intervention on my hon. Friend the Member for Rugby and Kenilworth,
paragraph 4(1) of schedule 13 makes it plain that intercept evidence
will be admitted only on the application of the prosecution. For that
purpose the prosecution is largely the spokesman of the intelligence
services. If for one reason or another the intelligence services do not
want the intercept evidence to be communicated, either because it
reveals methodology or targets or because it involves too much
transcribing input, a prosecution will not take place. The prosecution
counsel will not make the application. That is the
safeguard.
In some
cases the prosecution will go ahead because the intelligence services
are not concerned. If they are
concerned, there will not a prosecution. That is probably a sufficient
safeguard.
Jeremy
Wright:
My right hon. and learned Friend will know well
that in a PII application, if the judge were to determine that
information should be disclosed to the defendants, and if the
prosecution, presumably in consultation with intelligence authorities,
were to determine that that price was simply too high, they could
always discontinue the prosecution at that
point.
Mr.
Hogg:
That is entirely right, and it does in fact happen.
It reinforces the point that the safeguard that is already in the Bill
will protect the interests of the security services on both methodology
and targeting and the cost and burden of transcribing.
I hope that we will keep the
provision in the Bill. I accept that it may require further discussion
with the intelligence services to provide reassurance. However, we should be moving towards the admissibility of
intercept evidence in
principle.
6.30
pm
Mr.
Geoffrey Cox (Torridge and West Devon) (Con): It is a
pleasure to serve under you, Mr. Benton. I want to make only
two or three short points.
I am also uncertain about why
the Government are behaving so much like a bashful maiden about this
category of evidence. I understand to some extent that the Minister
wants to ensure that the provisions are brought in a way that perfectly
satisfies the concerns of people who frequently have to risk their
lives in circumstances of great danger, and I quite understand their
concern that any legislation should be thoroughly researched and have a
proper basis.
However, I am still troubled by
some of what the Minister said. I was considerably puzzled by his
statement that nowhere in the world other than the United Kingdom did
the police and intelligence agencies work together on the interception
of communications. If that is his information, it is wrong.
I have experience of
several such jurisdictions; I have been advising a particular
Government, not all that distant from here, in whose jurisdiction
precisely that is taking place—the police and judicial
authorities are working extremely closely with the intelligence
agencies, specifically on the eavesdropping of communications in
respect of some very serious criminals indeed. I invite those who brief
the Minister to look again at the issue. If they would like a word with
me, I can tell them where I am talking about and about the practices
adopted elsewhere.
I,
too, want to mention Lord Lloyd’s amendment. A good deal of
injustice is being done by the Minister in characterising what we have
been discussing as unsatisfactory and unsafe. With respect, it seems to
me that the amendment has been drafted with the elegance of design that
one would expect of the noble Lord. For the precise reasons mentioned
by my right hon. and learned Friend, and for another reason that he may
not yet have perceived—he certainly did not mention it a
moment ago—all the safeguards that any intelligence agency or
police authority could reasonably wish for are contained, in one bold
stroke, in the amendment. Not only does clause 1(4) do
precisely what my right hon. and learned Friend has said—that
is, apply the provisions of section 17 of the Regulation of
Investigatory Powers Act 2000 until an application is made by the
Crown. It also goes much further. In effect, it enables the Crown to
choose whether to make the application, in which case, as my right hon.
and learned Friend said, it would need the approval of the intelligence
services, which would have carried outthe eavesdropping.
Furthermore, clause 1(4) enables the prosecution to tailor and fashion
its application by submitting it on the terms in respect of which it
wishes to have the intercept evidence admitted. Paragraph 2 to schedule
13, “Considerations for allowing intercept or metering
evidence”, makes it plain that in
“deciding whether to admit
intercept or metering evidence, the court shall take account of all
relevant considerations...in particular...any application by
the Secretary of State to withhold the evidence or part of the evidence
on the ground that its disclosure, or the disclosure of facts relating
to the obtaining of the evidence, would be contrary to the public
interest”.
I
can envisage what Lord Lloyd had in mind, and what the inevitable
interpretation of the provision would be in the courts. A prosecutor
would, with the approval of the intelligence agency, put before the
court the terms of the evidence that he wished to be admitted. Such
terms would no doubt omit a whole range of transcripts of other
eavesdropped conversations. They might well omit the circumstances in
which the evidence had been obtained. They would make clear to the
judge the basis on which the Crown sought to have it admitted. If the
judge said, “Well, no, unless you give details of this
particular means of interception”, then the prosecution would
withdraw the application.
Mr.
Hogg:
I put it to my hon. and learned Friend that
subsection (2) is double-locked because what it provides in its
cumulative whole is first, the decision of the prosecuting authority.
But it gives the Secretary of State the right to intervene if he or she
feels that the prosecuting authority has made an
error.
Mr.
Cox:
Yes, it certainly does that. But what I am
concentrating upon is that what this section appears to envisage is
that if one were prosecuting this, one could put a statement before the
court, edited and shorn of all details of how the interception had been
carried out, of all details relating to other conversations or names,
put it before the judge and say, “Will you allow that to be
admitted into evidence?”. Of course, the defence would be able
to make submissions based on that.If the judge said no, they
could withdraw their application.
It seems to me that that is not
only reasonable but that it contains all the safeguards that could be
needed. The Crown and the intelligence agency can decide whether to
make an application, the terms on which that application should be
made, the nature of what should be revealed or disclosed and then, if
the judge decides that he will not admit it on that basis, they can
simply withdraw it.
Those safeguards seem to provide
almost everything it is conceivable that could be wanted. It may be
that only in one case a year would one would make an application and it
would be made on confined terms, which would give little away other
than the fact that they have been eavesdropped. If the judge was
willing to allow that evidence in, and he might very well, then why not
use it in those circumstances? What possible apprehension could there
be, provided one was willing to allow the fact that one had
eavesdropped to have been disclosed in the first place? Of course, the
whole of this argument presupposes that that disclosure is
made.
In my
submission to the Minister, he needs to look again at Lord
Lloyd’s provision. It has been elegantly designed—as one
would expect of the noble Lord, with his enormous amount of
experience—and it needs to be carefully considered. Having said
that, the provisions stand perhaps uncomfortably in this Bill. I am
puzzled by an oddity of drafting which, under clause 4 apparently gives
effect for the purposes of this Bill to schedule 13. It effectively
says that the conditions of admissibility when the High Court is
considering a serious crime prevention order shouldbe those
set out in schedule 13. But scheduleparagraph 1(4) of schedule
13 seems to confine admissibility only to a criminal
prosecution.
I have
some unease. It may be that further discussion with the distinguished
author of the clause would settle my mind, but at the moment I am not
convinced that it stands in the right place in the Bill. But as a
provision of schedule 13 for admitting intercept communication
evidence, I submit to the Minister that this clause has some elegant
advantages. I would be grateful if he enlightened me as to where the
risks lie in that legislative proposal, if the prosecution can choose
when and on what terms to make an application and further, if the judge
declines to admit it on those terms they can then withdraw
it.
Mr.
Blunt:
This an extremely important debate, not least
because of the environment within which it happens. It is important for
the Government’s role to be serious. They should not, in any
sense, be seen to be playing games, but to be addressing the
issue.
Parliament has
been driven in the direction of legislation such as control orders, and
a 28-day period of detention; the Government invited Parliament,
happily unsuccessfully, to agree to a 90-day detention order. We have
been trying to tell the Government that if they bring forward measures
which, by any standard, are repressive and strong, to deal with
terrorism they run the very serious risk of making the position worse.
The laws being put in place make it easier for terrorists to recruit
people to operate against the United
Kingdom.
This is an
extremely serious issue. Anyone who has read an account of the run-up
to 9/11 in the United States will know that the CIA and the FBI had a
very different approach to this kind of evidence. The CIA saw it as
intelligence; the FBI tended to want it to be of evidential quality
that they could produce in court. There was a serious difference in
operations between the two agencies and they failed to co-operate
adequately with each other. Had they co-operated properly with each
other, it is likely that the passage of
information between them would have led to the earlier detection and
arrest of the 9/11 bombers, and that appalling tragedy might have been
averted. The Minister
referred earlier to the United Kingdom’s enormous advantage in
having a system in which the agencies co-operate with each other. There
will not be a divergence between the different agencies who are tasked
with getting information and those who have to produce it as evidence
in court. However, the danger in our approach is that the agencies
dictate the agenda.
Parliament and the Government
should be the arbiters of the overall public interest but in order to
address the terrorists directly, because we have not confronted the
issue we are being driven to impose serious, regressive legislation in
order to go after the terrorist threat. By doing so, ironically, we run
the risk of making that threat worse, because the legislation acts as a
recruiting sergeant for the terrorists.
The issue has been around for a
long time. The incoming Prime Minister presented it in a briefing to
which journalists were not invited, or were told that if they took the
briefing, they could not seek a comment from the official Opposition.
It is unfortunate that the Government still seem to be trying to
present Opposition parties as soft on terrorism. The Government should
bear it in mind that the provision suggested by their lordships acts as
a long-stop in the review process on which they are about to
embark.
People would
get the wrong message if the Government were to extract the clause from
the Bill. From now on, they should avoid the presentation issues and
deal with the real issue of co-operation between the agencies, which
includes Parliament and Government. We must all try together to get the
right powers to take on the terrorists effectively without handing them
the tool of repressive legislation that will simply help them to do
their
work.
6.45
pm
Mr.
Coaker:
I thank all hon. Members who have contributed to
debate and discussion of this part of the Bill for their comments. The
hon. Member for Reigate makes the point that this is an extremely
important issue that all of us want to see resolved, and I think that
we all agree. He stressed the importance of the issue and the need to
present it to the public in the most appropriate way. I thank him for
his comment.
I
apologise to the hon. Member for Arundel and South Downs if the
Government have made a commitment to do something and have not done it.
I will check that and reply to him. I can only apologise if it is the
case. We will check the commitment, see what has not been done and try
as far as possible, although we cannot rewind the clock, to see what we
can do.
I shall make a
couple of remarks. The hon. Gentleman raised all sorts of issues, as
did his hon. Friend the Member for Rugby and Kenilworth and other
Members. The Government are absolutely committed to a review of the use
of intercept. We are also committed to using intercept as evidence if
we can find a workable model and the necessary safeguards can be put in
place. That is the Government’s position. It is clear, and there
is no rowing back from it. As the
Prime Minister-designate and others have said, we will pursue that
review on Privy Councillors’ terms. I cannot say what form the
review will take, what the membership will be or any of the other
things that have yet to be resolved—as I understand it, those
discussions are still going on—but I make in this Committee the
commitment, to be recorded in Hansard, that that review will
take place. We expect and hope that it will not take too long. If the
review concludes that the use of intercept evidence is appropriate, a
working model can be identified and the necessary safeguards can be put
in place, it might be possible to include it in a counter-terrorism
Bill in the autumn. Those commitments have been made. That is what we
have said, and that is what we are trying to achieve. We cannot
guarantee that it will happen, but that is how we propose to take the
matter forward.
I
shall share a couple of points with the Committee to identify the
difficulty. To be fair, the hon. and learned Member for Torridge and
West Devon, as well as his right hon. and learned Friend the Member for
Sleaford and North Hykeham, raised issues about the drafting of clause
4 and schedule 13 that will need to be overcome. Many hon.
Members’ questions involve the very issues that need to be
resolved if we are to find a workable model built on consensus that
allows us to use intercept as evidence. That will include Parliament,
as the hon. Member for Reigate said; it will include law enforcement,
the intelligence services and everyone else involved, but issues still
remain to be resolved. We would be deluding ourselves as a Committee if
we did not appreciate
that.
The hon. Member
for Arundel and South Downs said—I know that he did not mean
it—“a police officer said”. It was not a police
officer. I shall repeat it, because it is very important. It was not a
police officer; it was a deputy chief constable speaking on behalf of
the Association of Chief Police Officers in evidence to the Joint
Committee on Human Rights. Not 10 years ago but a couple of months ago,
in March 2007, he
said:
“If we
reduce our capacity in order to serve the evidential regime, there is a
possibility...that we will lose that capability to disrupt some
potentially catastrophic
scenarios.”
If the
Government were to ignore that and say, “We will proceed
irrespective of what one of the most senior police officers has told
us”, I do not think that the Committee would be saying,
“Why are you not using this intercept as evidence?” If,
as a consequence of doing that, some catastrophic event was not
prevented, which could have been prevented, Parliament and hon. Members
on both sides would rightly ask, “Why did you not take any
notice of what the senior officer
said?”
Mr.
Cox:
The Minister is not dealing here with a provision
that would allow the interception of communication evidence to be
admissible in every burglary, theft, shoplifting or even drug dealing
case, but with a specific provision—it might apply only to three
or even one case a year—that would allow the prosecution to
choose its own territory and to say, “This case is so important,
and it is so important that we bring a conviction, that we will bring
this
application and choose to put to the judge the way
in which we propose to adduce the evidence, and ask him to approve it.
And if he won’t, we won’t do it.” Now what on
earth is wrong with
that?
Mr.
Coaker:
The Government are searching for such a model that
will allow that to happen, so that we do not have senior police
officers telling us that the consequences of taking forward a model
that they do not believe has the necessary safeguards in it could be
catastrophic. We often quote senior people such asthe
Information Commissioner. Now let me read another quote, this time from
the interception of communications commissioner—another senior
figure. He said, again, not 10 years ago, but in his last published
annual report in February
2007,
“in my judgment,
the introduction of intercept material in the criminal process in this
country...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”.
Mr.
Hogg:
Will the Minister not recognise that the two
statements that he has read out were made by people addressing the
issue at large, not in the context of the Bill? My hon. and learned
Friend the Member for Torridge and West Devon made it plain that the
provisions in the Bill provide precisely the kind of protection that
the two gentlemen quoted by the Minister were
seeking.
Mr.
Coaker:
With respect to the right hon. and learned
Gentleman, the point that I am trying to make is that senior figures in
the police, interception world and intelligence services have serious
concerns about the use of intercept as evidence and the way in which it
has been included in the Bill. The Government have said that,
notwithstanding those concerns and objections, if we can find a
workable model and a way in which to ensure the necessary safeguards,
we will look to introduce into the counter-terrorism Bill in the autumn
the necessary legal changes so that we can use intercept as
evidence.
Nick
Herbert:
I do not think that any of us have tried to do
anything other than concede that there are concerns in the intelligence
services about the use of intercept. In fact, I said that specifically.
That is why surely it makes sense to examine those matters
properly.
I do not
think that the Minister should be allowed to get away with the
suggestion that there is some sort of universal expression of concern
among the police. I do not dismiss the concerns of the officer who
warned about the impact on capacity, but the fact is that the
Metropolitan Police Commissioner, who is the most senior police officer
in the country, and his assistant, who is tasked with tackling
terrorism, have both made it clear that they favour the use of
intercept evidence and want the issue to be
considered.
Mr.
Coaker:
My understanding is that the Metropolitan Police
Commissioner’s view is exactly the same as the
Government’s; that is, that intercept evidence is perfectly
acceptable, provided we can find
the necessary safeguards and put together a workable
legal model. As I said, that is the intention of the review. That is
how we want to go forward, and I believe that it is a sensible way of
proceeding.
The hon.
Member for Arundel and South Downs referred to resource implications. I
raise with him the example that Sir Swinton Thomas, the interception of
communications commissioner, gave in his last annual report. It
illustrates the problem of an increased resource burden on the
interception agencies. He quoted a recent case in which a trial judge
orderedthe prosecution to transcribe some 16,000 hours of
eavesdropping material at a cost of just under
£2
million.
Indeed, when
I visited the Serious Organised Crime Agency to see some of its
capability and capacity, one of the concerns that was raised with me
was the use of intercept as evidence. Apart from the philosophical
debate that may take place, there are practicalities to be considered.
If a piece of intercept evidence has to be of an evidential standard
instead of just something to be used to inform some law enforcement
activity, the transcribing of huge amounts of data is required rather
than just the securing of a particular place. The only point that was
made to me was that, notwithstanding the philosophical points and
points of principle that need to be made about the use of intercept
evidence, there are practical consequences for the agencies as
well.
Mr.
Cox:
Does the Minister not understand that the provision
circumvents that problem? It allows the prosecution to go to the judge
with a certain amount of information, but a certain amount of
information only, and ask him to admit it on that basis. If the judge
says no, the prosecution withdraws. It can say to the judge, “We
want to introduce evidence that is particularly devastating and
compelling. This is the conversation and context in which it took
place, but we will give no further details. If you will not admit it on
that basis, we shall withdraw the application.” The judge can
say yes or no.
There
is no risk that a judge will order massive disclosure to the defence of
hundreds of conversations tape-recorded over many hours—much of
the material would be unused—because the prosecution will be
able to get a ruling from the judge beforehand as to what he will and
will not permit. That is what the provision means. That is how I would
interpret it, and I have spent 25 years practising in the courts at a
level that would involve precisely such applications. I cannot see the
problem.
Mr.
Coaker:
I gave an example from the commissioner’s
last report of a judge who said that it was necessary to transcribe
16,000 hours of eavesdropping material. Concerns are being raised by
the agencies that are responsible for law enforcement, for tackling
serious crime and for running our intelligence
services.
7
pm
In conclusion,
it is not a matter of shutting down the debate or closing our minds to
the use of intercept as evidence. We have made a serious commitment to
the review. I note again the point made by the hon. Member for Reigate,
but we will take the review forward and we would be foolish to proceed
by
ignoring what the intelligence services, senior
police officers and the Serious Organised Crime Agency tell us. We want
to find a workable model and a way in which intercept evidence can be
used, provided that the necessary safeguards are in place, and we want
to find a way forward that is built on consensus and has the confidence
of those whom we employ to protect our
country.
Nick
Herbert:
Before the Minister concludes, I accept his
apology for the failure to deliver what the Minister for Security,
Counter Terrorism and Police promised on Second Reading—that we
would be updated as to the progress of the Privy Councillor committee
before we came to consider this matter. I am grateful for the
Minister’s apology, but we still have not received that
explanation and we have no idea of the basis on which the committee is
going forward. Does the Minister understand that we cannot therefore
simply accept the withdrawal of the clause? As he has apologised, would
not it be proper
to—
The
Chairman:
Order. This is becoming a
contribution.
Nick
Herbert:
May I simply finish my point, Mr.
Benton?
Nick
Herbert:
As the Minister has apologised, would it not be
proper to return to this matter on Report after those undertakings have
been fulfilled as was promised to the official
Opposition?
Mr.
Coaker:
I do not think that would be appropriate. I have
apologised to the hon. Gentleman regarding any commitment that has not
been met and I have tried to reassure him and the Committee that the
Government are undertaking a review, the exact composition and terms of
reference of which are, I understand, the subject of discussions
between the Leader of the Opposition and the Prime Minister. I expect
those discussions to continue and I hope that they will reach a
satisfactory conclusion from which the review can proceed. If a way can
be found that takes into account the concerns of the intelligence and
law enforcement agencies, we might be able to introduce the use of
intercept evidence in the not-too-distant
future.
Question
put, that the clause stand part of the
Bill:—
The
Committee divided: Ayes 7, Noes
8.
Division
No.
10
]
Question
accordingly negatived.
Clause 4
disagreed
to
.
| 
