Clause
91
Commencement
Question
proposed, That the clause stand part of the
Bill.
Mr.
Hogg:
I want to refer to a point that I have already made,
namely that the Bill applies to every part of the United Kingdom. The
debate has conducted largely by hon. Members who represent
constituencies in England and Wales, and it is of course true that
those parts of the UK are perhaps the most primarily affected, but I am
uneasy about the fact that so far as I am aware, we have had no
contribution of any kind from the Northern Ireland Office. While I
acknowledge that there is an hon.
Member —[Interruption.]—no, my hon. Friend the
Member for Reigate is not a Northern Ireland spokesman. While I
acknowledge the fact that there is a Scottish member of the Committee,
that hon. Member has not played a huge part in the debate, and I am
uneasy about that. We are legislating without input from other parts of
the United Kingdom. I therefore suggest that as a matter of general
practice, we should invite written evidence from the relevant
Departments—in this case the Scotland Office and the Northern
Ireland Office—with regard to the clauses that bite on Northern
Ireland and Scotland. It is unsatisfactory that the Committee has had
no substantive input from those two Departments, when the Bill affects
them.
Mr.
McNulty:
I certainly do not agree with that in the case of
Scotland. We had, by common consent, a very productive and illuminating
session with the Lord Advocate, who more than adequately covered most
of the Scottish dimension. I am not, on this occasion, offending the
hon. Member for Reigate, but the usual channels were asked by the
Democratic Unionist party, “If your side would give up one place
for the DUP because of the Northern Ireland dimension—”
[Interruption] They were asked, because they made the same
recommendation. It worked for Plaid Cymru, so I ask the right hon. and
learned Gentleman look to the mote in his own eye.
Question put and agreed
to.
Clause 91
ordered to stand part of the Bill.
Clause 92 ordered to stand
part of the Bill.
New Clause
4
Pre-charge
detention: minor
amendments
‘(1) In paragraph
9 of Schedule 8 to the Terrorism Act 2000 (direction that detained
person may consult solicitor only within sight and hearing of qualified
officer), for sub-paragraph (3) (grounds on which direction may be
given)
substitute—
“(3)
A direction under this paragraph may be given only if the officer
giving it has reasonable grounds for
believing—
(a) that,
unless the direction is given, the exercise of the right by the
detained person will have any of the consequences specified in
paragraph 8(4), or
(b) that the
detained person has benefited from his criminal conduct and that,
unless the direction is given, the exercise of the right by the
detained person will hinder the recovery of the value of the property
constituting the
benefit.”.
(2) In
paragraph 29(4) of that Schedule (meaning of “judicial
authority”), in paragraphs (a) and (c) omit “after
consulting the Lord
Chancellor”.’.—[Mr.
McNulty.]
Brought
up, read the First and Second time, and added to the
Bill.
New
Clause
6
Certificate
requiring inquest to be held without a jury: Northern
Ireland
‘(1) In section 13(1)
of the Coroners Act (Northern Ireland) 1959 (c. 15) (power of coroner
to hold inquest) after “sub-section (2)” insert
“and section
18A”.
(2) In section 18
of that Act (requirement to summon jury in certain cases) after
subsection (4)
insert—
“(5) This
section is subject to section 18A (certificate requiring inquest to be
held without a
jury).”.
(3) After that
section
insert—
“18A
Certificate requiring inquest to be held without a
jury
(1) The Secretary of State
may certify in relation to an inquest that, in the opinion of the
Secretary of State, the inquest will involve the consideration of
material that should not be made
public—
(a) in the
interests of national
security,
(b) in the interests
of the relationship between the United Kingdom and another country,
or
(c) otherwise in the public
interest.
(2) A certificate may
be issued—
(a) in
relation to an inquest that has not begun,
or
(b) in relation to an
inquest that has begun, at any time before its
conclusion.
(3) Where a
certificate has effect in relation to an inquest, the inquest must be
held or (as the case may be) continued without a jury, so
that—
(a) if a jury has
not been summoned, the coroner must not cause a jury to be summoned,
and
(b) if a jury has been
summoned, the coroner must discharge the
jury.
(4) Accordingly, the
following do not apply in relation to the inquest whilst the
certificate has
effect—
(a) the power
under subsection (1) of section 13 or subsection (2) of section 18 to
hold the inquest or part of the inquest with a jury,
and
(b) the duty under
subsection (1) of section 18 to hold the inquest with a jury in the
circumstances set out in that
subsection.
(5) A certificate
has effect in relation to an inquest until it is revoked by the
Secretary of State; and the Secretary of State may revoke a certificate
in respect of an inquest—
(a) before it has begun,
or
(b) after it has begun, at
any time before its
conclusion.
(6) Where a
certificate issued in relation to an inquest is
revoked—
(a) if
subsection (1) of section 18 applies in relation to the inquest, the
coroner must cause a jury to be summoned in accordance with that
subsection, and
(b) otherwise,
if it appears to the coroner that it is desirable to summon a jury, the
coroner may cause a jury to be summoned in accordance with that
subsection.
(7) If a jury is
summoned—
(a) the
coroner must proceed in all respects as if the inquest had not
previously begun, and
(b) the
provisions of this Act apply accordingly as if that were the
case.”.
(4) This section
has effect in relation to inquests that have begun, but have not been
concluded, before the day on which it comes into force as well as to
inquests beginning on or after that
day.’.—[Mr.
McNulty.]
Brought
up, read the First time and Second time, and added to the
Bill.
New
Clause
1
Offences
related to terrorism:
evidence
‘(1) In considering
whether a person is involved in terrorism, the Court may take account
of any evidence admissible under the Regulation of Investigatory Powers
Act 2000 (c. 23).
(2) Schedule
[Intercept evidence] (which makes provision for the admissibility of
intercept evidence in cases involving terrorism) has
effect.’.—[Mr.
Heath.]
Brought
up, and read the First
time.
Mr.
Heath:
I beg to move, That the clause be read a Second
time.
The
Chairman:
With this it will be convenient to discuss the
following: New clause 12— Intercept evidence:
regulations
—
‘(1)
The Secretary of State must, by 31st July 2010, make regulations which
make provision for the use of “intercept evidence” and
“metering evidence” in criminal
proceedings.
(2) The
regulations made under subsection (1) shall be made by statutory
instrument which are subject to the affirmative resolution
procedure.’.
New
schedule 1—Intercept
evidence
—
Admissibility
of intercept and metering
evidence
1 (1)
Notwithstanding section 17 of the Regulation of Investigatory Powers
Act 2000 (c. 23) (“RIPA”), evidence
of—
(a) the contents of
an intercepted communication (“intercept evidence”),
and
(b) communications data
(“metering
evidence”),
shall be
admissible in criminal proceedings to which this paragraph
applies.
(2) This paragraph
applies to—
(a)
proceedings in respect of serious crime,
and
(b) proceedings in respect
of an offence or offences relating to
terrorism.
(3) An application
for permission to introduce intercept evidence or metering evidence, or
both, may be made by the prosecution for the purpose of conducting a
criminal prosecution to which this paragraph applies, and not
otherwise.
(4) Unless and until
an application has been made by the prosecution in any such proceedings
the provisions of section 17
of RIPA (exclusion of matters from legal proceedings) shall continue to
apply in connection with those
proceedings.
Considerations
for allowing intercept or metering
evidence
2 In deciding
whether to admit intercept or metering evidence the court shall take
account of all relevant considerations, including in
particular—
(a) 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, and
(b)
any submission that the evidence was obtained
unlawfully.
Interpretation
3
In this
Schedule—
“communications
data” has the same meaning as in section 21(4) of
RIPA;
“intercepted
communication” has the same meaning as in section 4 of
RIPA;
“RIPA”
means the Regulation of Investigatory Powers Act 2000 (c.
23);
“serious
crime” has the same meaning as in section 81(2)(b) of
RIPA;
“terrorism”
has the same meaning as in the Terrorism Act 2000 (c.
11).
Minor and consequential
amendments
4 In
section 5(3)(b) of RIPA, for the words “or detecting”
substitute “, detecting or
prosecuting”.’.
New
schedule 4—Intercept evidence (No.
2)—
Admissibility of
intercept and metering
evidence
5 (1)
Notwithstanding section 17 of the Regulation of Investigatory Powers
Act 2000 (c. 23) (“RIPA”), evidence
of—
(a) the contents of
an intercepted communication (“intercept evidence”),
and
(b) communications data
(“metering
evidence”),
shall be
admissible in criminal proceedings commenced on or after 31st July 2010
to which this paragraph
applies.
(2) This paragraph
applies to proceedings in respect of an offence or offences relating to
terrorism.
(3) An application
for permission to introduce intercept evidence or metering evidence, or
both, may be made by the prosecution for the purpose of conducting a
criminal prosecution to which this paragraph applies, and not
otherwise.
(4) Unless and until
an application has been made by the prosecution in any such proceedings
the provisions of section 17 of RIPA (exclusion of matters from legal
proceedings) shall continue to apply in connection with those
proceedings.
Considerations
for allowing intercept or metering
evidence
6 In deciding
whether to admit intercept or metering evidence the court shall take
account of all relevant considerations, including in
particular—
(a) 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, and
(b)
any submission that the evidence was obtained
unlawfully.
Interpretation
7
In this
Schedule—
“communications
data” has the same meaning as in section 21(4) of
RIPA;
“intercepted communication” has the
same meaning as in section 4 of
RIPA;
“RIPA”
means the Regulation of Investigatory Powers Act 2000 (c.
23);
“serious
crime” has the same meaning as in section 81(2)(b) of
RIPA;
“terrorism”
has the same meaning as in the Terrorism Act 2000 (c.
11).
Minor and consequential
amendments
8 In
section 5(3)(b) of RIPA, for the words “or detecting”
substitute “, detecting or
prosecuting”.’.
Mr.
Heath:
We now come to the big missing segment of the
Bill—the use in criminal trials of intercept evidence and the
admissibility of such evidence. This is a matter which has been raised
repeatedly over the years and which many of us feel very strongly ought
to be part of the apparatus available to prosecutors in order to bring
successful prosecutions. That certainly applies in terrorism cases
where there is a strong argument for it, but I also believe that it
would make a significant contribution to the fight against organised
crime.
Hitherto,
Governments have always been extremely reluctant to accede to such
requests. That reluctance has been because of strongly held views from
the security services about the effect on the operability of their
systems in the event of disclosure. I understand those concerns and the
reservations that have been expressed but I have always felt that it is
not impossible to create a legal architecture that would allow for the
admissibility of evidence in some cases that would be of benefit to the
prosecution of those offences. Although it is always very comforting to
look at the experience of other jurisdictions and to say that if they
can do it we can do it, I recognise that that is not necessarily as
simple as it seems. Very few jurisdictions approach such subjects
identically. Nevertheless, my party’s view, and I believe that
of the Conservative party, has been for some time that that is
something for which we must make arrangements for the security of our
country and to ensure that the police, the intelligence services and
our prosecutors can do their jobs in the most effective
way.
1.45
pm
The new clauses
are not of my own construction but are taken from new clauses or
amendments tabled by Lord Lloyd of Berwick and debated in another place
in the context of previous Bills. I thought that they would be a useful
platform on which we could hold this debate. Since I tabled the new
clauses we have had an extremely useful seminar. Can I say again how
grateful I am to the Minister for arranging that seminar and for the
clarity and openness of the senior officials who attended and spoke to
us about the issues that they face? I found it illuminating as, I
suspect, did other members of the Committee.
We also have the new clause and
schedule in the name of the hon. and learned Member
for Beaconsfield. There is a substantive difference between his and
mine in that he seeks to provide a timetable for the implementation of
the admissibility. That has a lot to commend it. I will not steal his
thunder by speaking to his new clause before he has the opportunity to
do so but, when I look at his proposal and my proposal, I
think that his has more merit, in that it means that the Government
stick to the assurances given. The difference between the
situation now and the situation when these or similar new clauses and
amendments were first tabled is that we have had the Chilcot review,
which was extremely useful because it addressed these issues seriously.
For the record, that was the Privy Council review of intercept as
evidence under the chairmanship of Sir John Chilcot with his colleagues
Lord Archer of Sandwell, Lord Hurd of Westwell and my right hon. Friend
the Member for Berwick-upon-Tweed (Mr. Beith). They looked
in considerable depth at the operational and legislative obstacles to
the adoption of new procedures which the Prime Minister has now
indicated that he wishes to see.
I
remind the Committee that when the Chilcot review considered the matter
in detail it came to the conclusion that there were risks to the
strategic capability of the UK’s intelligence agencies but that
they could be overcome by appropriate legislative and operational
measures. It set out in very clear terms the requirements for intercept
as evidence to be operationally workable, not why it could not be
implemented but how it could be implemented and how the difficulties
which they recognised could be circumvented. It set out:
“The intercepting agency
shall decide whether a prosecution involving their intercepted material
shall
proceed”—
not
whether the prosecution should proceed but whether a prosecution
involving their intercepted material should proceed.
Secondly, it said:
“Intercepted
material originating from the intelligence agencies shall not be
disclosed beyond cleared judges, prosecutors, or special (defence)
advocates, except in a form agreed by the
originator”—
a
proposal that one would expect in that context.
“Material intercepted (by
any agency) through the use of sensitive Sigint techniques shall not be
disclosed unless the Secretary of State is satisfied that disclosure
will not put the capability and techniques at
risk.”
That is an
important safeguard for the operational integrity of some of the
processes used.
“No intelligence or law
enforcement agency shall be required to retain raw intercepted material
for significantly more or less time than needed for operational
purposes (which may include using the material as
evidence).”
That
recognises the huge churning, the turnover of this sort of material,
and the fact that the intelligence agencies have a specific purpose in
looking at that intercept material. It is not for some archiving
purpose; it is to see whether there is evidence of criminal activity,
either now or envisaged in the future. Therefore, it is not normally
retained, and nor should we expect vast quantities of material to be
retained.
The next
point is:
“No
intelligence or law enforcement agency shall be required to examine,
transcribe or make notes of intercepted material to a substantially
higher standard than it believes is required to meet its objectives
(which may include, but are not limited to, using material as
evidence)”—
again,
a practical point to ensure that we do not put a bureaucratic burden on
our intelligence services that they cannot possibly meet.
“Intelligence and law
enforcement agencies shall be able to carry out real time tactical
interception in order to disrupt, interdict or prevent terrorist and
criminal activity, as effectively as they do now.”
We would all hope that that is the case,
as it is essential that the security services are able to do their
work, particularly when it is possible to prevent a
catastrophic event happening. We do not want them looking over their
shoulder to consider what we have passed in this Committee, or
elsewhere, and that getting in the way of their work.
“Law enforcement agencies
shall be able to use interception to provide strategic intelligence on
criminal enterprises, and retain the intelligence sometimes for a
number of years, regardless of the progress of specific criminal cases.
Interception from the same lines may serve both tactical and strategic
purposes; if it does, it shall be handled in a manner appropriate to
both.”
Again, that is
perfectly sensible.
“Intelligence agencies
must be able to support law enforcement by carrying out interception,
for “serious crime” purposes, of targets nominated by law
enforcement, and to provide the product or reports on it to those
agencies. Anything so provided shall be subject to the same disclosure
obligations as other intelligence intercept.”
Again, that goes beyond the activities of
a limited number of people who are engaged in terrorism, into a wider
field of serious crime.
Lastly, the review
stated:
“At
trials (whether or not intercept is adduced as evidence) the defence
shall not be able conduct successful ‘fishing
expeditions’ against intercept alleged to be held by any
agency.”
That is a major
concern for the security services, but it is one that can be prevented
by appropriate rules for the use and disclosure of the material in
court.
The Chilcot
review set out clearly the parameters in which the work should go
forward. In the seminar, we heard that that work is going forward, and
I was encouraged by that. I take what we were told at face value: that
very serious consideration has been given to find an appropriate legal
model, and that having designed such a legal model, it would be tested,
and provided that it was tested and found to be appropriate, it would
be implemented through the legislation.
We are well
down the road, both in terms of intention and the work that has already
been commissioned, in achieving our objective to ensure that intercept
evidence is available as a further tool for investigation and
prosecution. What remains to be determined is the time scale in which
that work will proceed, and the legislative vehicle which will be used
and whether that involves further delay.
The glib comment would be that
we have a criminal justice Bill every year so there is certainly no
problem in finding the legislative vehicle. It is a very rare year
indeed when we do not have an array of Home Office and Ministry of
Justice Bills to deal with, so I am certainly confident that there will
be legislative vehicles. But I do need assurances from the Minister
that a time scale is both envisaged and will be kept to for this. This
is a very serious matter for many Members on both sides of the House,
who really cannot understand why we should forgo such an effective
evidential tool if there are ways of getting around the undoubted
operational
difficulties.
We need a
very clear understanding that that work is not only proceeding but will
reach a rapid conclusion,
and that it is the clear intention of Ministers to make sure that that
does happen rather than find ways for it not to happen—I am
reassured on that. We need to be clear that there are no agencies who
effectively have the veto on this process and can stymie what has been
recommended, not just by those who consider it from the point of view
of securing convictions, but those who are directly involved in
gathering criminal intelligence—certainly on the police
side—and can see the advantage of it. We need to set
aside the reservations apparently expressed by the Metropolitan Police
Commissioner, and his view that this was going to be years hence,
which, I have to say, was a very discouraging statement, and not in
keeping with what we heard from the Home
Office.
Mr.
Grieve:
I would say that it is mystifying when one
compares it with the briefing we then had at the Home Office. It left
me slightly with the sense that the Metropolitan Police Commissioner
sometimes seems to say whatever comes into his head at the
time.
Mr.
Heath:
I must say that it is not the first time that I
have been puzzled by evidence provided by the Metropolitan Police
Commissioner. He does seem to occasionally shoot from the hip and make
comments which have not been fully considered. It worries me that he is
not party to the work that is going ahead—at high
speed—and that he is not aware that Ministers’ clear
intention is to proceed in that way. If he is not party to that, then
someone should take him aside and say “This is what is going on,
Commissioner. Perhaps next time you make a public utterance on this
issue, you might be a little more helpful to our processes, rather than
suggesting quite the reverse of what we were told was the case in the
seminar we attended.”
I do not want to go through the
arguments in support of intercept evidence because both sides of the
House have already agreed that this is where we intend to go. What
remains are the legislative hurdles and the architecture of rules that
need to be developed, tested and implemented. Our concern is that there
is not yet any clarity about the
timetable—thrown into sharp relief by the words of the
Metropolitan Police Commissioner. I therefore hope that we will hear
clear assurances from the Minister in that respect.
If those assurances are not
forthcoming, I will be tempted to support not my own new clause, which
I do not intend to press to a Division, but the proposal from the hon.
and learned Member for Beaconsfield, which provides a clear timetable
for implementation, which is what everybody wants to
see.
2
pm
Mr.
Grieve:
As the hon. Member for Somerton and Frome
rightly said, there is in reality very little difference between his
amendment and my own. In its scope, it is to all intents and purposes
identical on the schedule, and the only difference is the question
whether it should be implemented now or later. I am on record on
numerous occasions as saying that I wish to see intercept evidence
introduced as soon as possible in terrorist cases. I agree with him
that using it in cases of serious crime might also be beneficial. Even
confining my remarks to the question of terrorism and terrorist
cases, I see a powerful argument for wanting to have it introduced
immediately, particularly because I have this sense of silence from the
Government’s side about whether there was a serious intent to
implement the Chilcot report.
In fairness to the Minister and
to the Government, I found the briefing we received at the Home Office
both illuminating and heartening. It seemed to me we had a clear
indication that there was a strong desire to implement the
recommendations, that work was taking place to bring about
implementation and that we were dealing with a time frame rather than
anything else. I recollect—I hope I remember this
properly—that at one stage of the briefing we were told that a
time frame of about a year to 18 months was being worked
to.
For that reason, I
selected 31 July 2010 as the date by which the regulations ought to
come into force to implement the use of intercept evidence. I toyed
with the idea of deferring it until 1 January 2011, but thought that
that was probably too far away and wanted at least to stimulate debate
on the feasibility of moving forward at a reasonable
pace.
We are in danger
of missing an opportunity in the passage of this legislation if we do
not do something about this area. After all, the Government have
already, in the legislation, done something about inquiries and
inquests in relation to the use of intercept evidence. As the Minister
acknowledged, that is in many ways a major step forward in the use of
intercept material.
I
accept that the problems associated with using intercept material in
inquiries and inquests in the new form wanted by the Government are
rather different from those that arise in the context of a criminal
trial. However, I remain firmly of the view that the
difficulties that undoubtedly exist are not insurmountable, and I have
a compelling feeling of regret that this was not tackled properly four,
five or six years ago when it became clear that the rise of a new kind
of terrorism was going to require us to take sensible steps to try to
ensure that we can bring to justice the perpetrators of outrages and
those who are planning appalling offences.
The longer we delay doing it,
the more we are forced to rely on administrative
sanctions, whether it be control orders or the Belmarsh detention
regime—all of which, as I think the Minister acknowledges, are
flawed and unsatisfactory even if they may be necessary. That necessity
should not blind us to the equal necessity of trying to do everything
to get rid of those systems.
I am the first to accept that
intercept evidence is not a panacea, because human
intelligence—which is of course a very separate thing from
intercept evidence—may often be the source of information that
tells the Government what is going on. It remains a very difficult area
to adduce in court, and therefore there may still remain cases where
intercept evidence does not solve the problem. But the Government
would be on much stronger ground in arguing for the
administrative alternatives that they have put forward over the last
five or six years if they were in a position to say that they had done
everything in their power to bring within the umbrella of the criminal
justice system powers to get convictions and there still remained a
problem rather than the current position where they are unable to give
that reassurance to the public or
Parliament. For that reason, I strongly commend the introduction of
intercept
evidence. There are
very few western democracies where intercept evidence is not used.
There are other common law jurisdictions where it is used. There is no
compelling evidence from those countries that the use of that material
is leading to serious problems for the intelligence and security
services in collating and obtaining material. We live in a
sophisticated age. If one wants to understand how intercept is carried
out, there are all sort of places on the internet where one will find a
mine of information. Some of it will be inaccurate, but some will be
accurate. My feeling has always been that those who dabble in the
fields of terrorism and serious crime are probably very well aware of
where their communications are likely to be intercepted. Doubtless, as
technology advances, there is always a hope from the intelligence
services that they will keep one step ahead of their
quarry.
We need to move
forward and I hope that the Minister can give us some positive
responses this afternoon so that we are in a better position on Report
to evaluate some of the other difficult areas that the Government are
arguing about. Whether or not we go down the road of 42-day pre-charge
detention, to which I remain utterly opposed, the sooner intercept
evidence can be used in court, the
better.
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): The first rule
of advocacy is that one should not put a question to the witness unless
one knows what answer will be received. When I put a question to Sir
Ian Blair, I was flabbergasted at the response, not just at its
content, but because it was delivered almost as if I was wasting
everybody’s time in talking about intercept evidence. That
contrasted dramatically with the Home Office briefing. I add my thanks
for that facility having being made available to us. We had a candid
and full exchange about the progress and the difficulties that need to
be dealt with.
Like
other Committee members, I feel that intercept evidence is vital. I,
too, find it difficult to comprehend why other common law countries can
use it without compromising sources. That is an important matter, which
I have no doubt is uppermost in the minds of Home Office officials. I
appended my name to new schedule 1 before we had the briefing and I
take it that the hon. Member for Somerton and Frome will not
press it to a vote because I would be slightly embarrassed, having
heard from the Home Office
officials.
The
preferable proposal might be new schedule 4, which would impose a time
frame. I echo what the hon. and learned Member for Beaconsfield said on
that. Lord Carlile in effect said that this is not a silver bullet, but
part of the armoury. It will help in many cases, but not in all. We
should have it in the armoury because of the seriousness of the threat.
I was encouraged by what I heard in the Home Office and I have no
reason to doubt what was said. I hope that in applying what the
officials candidly described to us, the Minister will look favourably
on new schedule 4. It allows a longer period than was anticipated by
officials, within which pilot schemes and the necessary investigations
will have been
concluded. I support the idea advanced by the hon. Member for Somerton
and Frome, but it has been somewhat overtaken by events. I encourage
the Minister to look carefully at new schedule
4.
Mr.
McNulty:
I am grateful to hon. Members for their
appreciation of the seminar, which was clearly illuminating. I shall be
having words later with officials. If they were far too candid and
open, they will not be doing it again. In all seriousness, I am
grateful to them for making it so open and candid that people could
understand what is happening. None the less, I should make clear where
we are.
A cross-party
group deliberated extensively on the matter and reported to the House
last summer. The Prime Minister fully accepted what the Chilcot report
said. As hon. Members will have heard, fairly soon thereafter an
implementation group, or whatever it is called, was set to work on the
not inconsiderable barriers to which Chilcot referred. It was a long
and daunting list, but the starting premise was that if we could get
there, we should.
I
cannot accept the reheated amendment of Lord Lloyd of
Berwick tabled by the hon. Member for Somerton and Frome because,
counter to Chilcot, it relies upon public interest immunity. Chilcot
clearly said that he was not convinced—actually, he went much
further—that PII in its current form was appropriate. He spoke
of a PII-plus system, which is part of what is being worked upon. There
must be something about Berwick: we had the right hon. Member for
Berwick-upon-Tweed (Mr. Beith) on the Committee and Lord
Lloyd of Berwick in the other place. The amendment is premature, to say
the least, and it should be resisted. If permitted and implemented, it
would result in a far worse position than that which Chilcot, the right
hon. Member for Berwick-upon-Tweed and others have suggested is the
position that we need to get to. In that context, I would also resist
the new schedule.
I
hope that it was made clear at the Home Office seminar that, in
discussion with Chilcot, the 2009-10 Session is precisely when we hope
to legislate on the matter. However, that rather presumes that all the
work will have been done and that all the areas that we hope to have
dispatched, and all the road blocks and obstacles that we need to have
overcome are overcome and dispatched. I do not know when that will be;
nor, with respect, does the hon. and learned Member for Beaconsfield. I
do not want to hold the Government to a date, as I simply do not know
whether it can be met.
I am not entirely sure
what formulation will be put in place to ensure that the House is kept
broadly up to date with the progress of the Chilcot advisory group. I
shall certainly take that matter away and explore it. It is a sensitive
and serious issue. The Prime Minister has made a significant statement
on it. We have set up the group. It is not necessary to let the House
know every nook and cranny, every detail, of its work and
deliberations, but it is only fair to have a system in place to tell
the House what level of progress is being
made.
Martin
Salter (Reading, West) (Lab): Does the Minister agree that
there is a danger of hon. Members appearing churlish, given the growing
consensus about
intercept evidence in the House and the Committee?
The Home Affairs Committee recommended it, and in evidence to that
Committee, Assistant Commissioner Hayman said that he believed that
there is a case for its use. We do not need to overcomplicate the
matter. Policy is moving precisely in the right
direction.
Mr.
McNulty:
I entirely agree. I have never known my hon.
Friend to be churlish, so there was no need for him to make that
qualification at the start of his
intervention.
2.15
pm
We are on
course. As I said—I happily repeat it—the work programme
now under way will be consistent with legislation if the operational
tests can be met. I do not diminish the seriousness of those
operational and legal tests, but we expect to debate the matter during
the 2009-10 Session. We believe that the issues raised by Chilcot
should be capable of resolution, but there is no guarantee that they
will be met without a significant further reworking of the
model—or met at all. As my hon. Friend the Member for Reading,
West implied, the new clause would completely pre-empt that, being
inconsistent not only with the Government’s position or that of
the respective select committees, but also with the cross-party Chilcot
report itself. It is unnecessary either to lock us into a date that no
one in this House or Committee knows whether we can
keep——I repeat the assurance that we seek to achieve it
by 2009-10, all going well—or into what is clearly, according to
Lord Lloyd of Berwick, an inferior model that relies on a PII system
that Lord Chilcot has traduced himself.
Mr.
McNulty:
Oops—maybe I have given something away
there.
It is not a
sufficient legal framework to build such a process on, if all the
operational matters do come to fruition. But let us be very clear: the
points—not made churlishly—about Blair were relevant.
Actually, Blair has been one of the loudest and most vociferous
proponents of intercept as evidence, as in his Berlin speech about six
to nine months ago, which at the time was much to my annoyance, but
with which now, of course, I wholeheartedly agree. If he was confused
at our session, then that was a lack, but an
uncharacteristic lack. He has made very clear, as did Andy Hayman, the
previous head of anti-terrorism, as my hon. Friend the Member for
Reading, West pointed out, that they favour intercept
evidence.
Let us be
very clear. It is not the panacea. On the closest parallel we have had,
and I think Lord Chilcot referred to this, in US and UK cases that were
roughly comparable in their use of intercept, the highest arrest to
conviction rate as a result of interception between 1996 and 2006 in
the US was 56.4 per cent. In the UK, a Metropolitan police study of
operations carried out in 2006-07 involving intercept intelligence
only, found there was an 88 per cent. charge to conviction rate of
completed cases.
The
argument put that somehow we are lacking in our
prosecutorial system because we do not use intercept as evidence is not
as black and white as people imagine. Because we do not use intercept
as evidence, there is far,
far more that our intelligence and law enforcement people do together in
the pursuit of crime, and terrorist crime in particular, that they
would not do if intercept as evidence were introduced. I am not
offering that as an objection to bringing intercept evidence in; I am
simply saying it is not the black and white position people
imply. The Chilcot
report itself highlighted that, in a review of nine
current or former control order cases conducted by independent senior
criminal counsel, the ability to use intercept material in evidence
would not have enabled a criminal prosecution to be brought in any of
the case studies. I am not saying this of the hon. and learned Member
for Beaconsfield or the hon. Member for Somerton and
Frome—though there are plenty in his ranks—but there are
those who have said that, with intercept evidence and post-charge
questioning, there would in an instant be no need for pre-charge
detention or control orders. That is simply far too simplistic. I do
not want to cast aspersions on anyone in particular in the hon.
Gentleman’s ranks, but he need look no further than his right
hon. Friend the Member for Sheffield, Hallam (Mr. Clegg),
who has made that point on a number of occasions. It completely
misconstrues the import of what we are discussing. Will it help? It
may. I would put it no stronger than
that.
People
need to understand very clearly the distinction between communication
data, bugging and the use of intercept evidence, which I am sure
everyone here does. I do not think the distinction between those is
quite so clear-cut out in the real world, and that adds to the
confusion.
Let us take a
simple bug put in a car or in somebody’s room. All of a sudden,
when the court case comes, we get the transcript and hear the tape, and
people will say “I thought we did not use intercept
evidence.” It goes to the provenance of the location of the
intelligence. A bug in a car is easily dealt with in terms of going
back to the source, but some elements of intercept, and how we got it,
will not be. That will not be fixed by Chilcot either, by the
way.
Communications
data are used all the time as well. In court cases, we see the police
have gone through people’s phone records and everything else,
linking who people have been talking to—not the substance or
detail of any of the conversations, but simply the traffic. The same
applies to
e-mail.
The
closer we get to the implementation of Chilcot——not on
the back of this Bill, I hasten to add—the more there needs to
be further discussion about what we mean by intercept as evidence. I
would not want to diminish what especially US law enforcement can do
but while more often than not, they are very enthusiastic about it,
they tell you in the next breath that in most of the serious crime
cases—terrorism, less so—they have cracked using
intercept as evidence have involved intercepted evidence right from the
beginning of the process. This is why cases are run increasingly on a
sting basis and why much of what gets through the Racketeer Influenced
and Corrupt Organisations Act and other legislation uses intercept as
part of the investigatory process rather than simply as part of the
discovery.
The Chilcot
review discussed all that. I say that to reinforce the point that it is
not the panacea that people suggest. Cases have been
studied—including the one referred to by the hon. and learned
Gentleman—as
part of a review of intercept as evidence. I cannot say, hand on heart,
in every significant case of terrorism over the last five to eight
years intercept as evidence would not have been of use. Intercept has
been of enormous use but it is not fair to imply that we have fought
and disrupted those plots in a deficient way because of the absence of
intercept as evidence. One cannot claim that causality given what has
come to court and the success we have had through the courts. Will it, like all the other
elements of this Bill, add to the array of devices and activities we
have in the fight against terrorism? It will. The sooner we get there,
the better. At the very least, the sooner we get to see whether all
that Chilcot describes as impediments can be overcome and then
legislate, the better. We are at one with
that.
These new clauses
and schedules are premature given the processes that are unfolding and
I ask that they be
resisted.
Mr.
Heath:
This is an important issue. The Minister is right
that this is one element among a range of tools that should be
available. No one has ever suggested that it is the one tool which is
going to be efficacious when nothing else is. It is part of an array
which we have been assembling in order to fight terrorism effectively.
It is reasonable that we argue that when we have all the elements in
place we can question whether other less satisfactory suggestions are
required. That is the basis of the argument on 42 days or any other
extension of pre-charge questioning but that is a debate we have had
and will have and not the one we are engaged in now.
The Minister is also right to
say there is widespread confusion about what we mean by intercept
evidence. That is one reason people are very
confused; not because they think all intercept evidence is not
admissible but because they know that some is. They question why when
one bit of electronic kit picks up evidence it can be put in front of a
court but when another bit of electronic kit picks up the same
conversation it cannot be. That has added to the confusion and the
sense that this is not a sensible position to be in.
I said earlier
that the matter has ramifications beyond terrorist cases. It is also an
important weapon in fighting serious organised crime. An Italian
Government official recently asked me, unofficially, why on earth we do
not allow intercept evidence, as it is a crucial part of the fight
against organised crime in his country. Of course, they have some
experience of fighting organised crime. There are anomalies, such as
allowing some types of intercept evidence to be admissible in court but
not others, or the fact that other democracies, including those with a
common law jurisdiction, can apparently get round the problems that
prove so difficult for us to deal with. There is a nagging suspicion
that although this is not a panacea or silver bullet—one could
use all the clichÃ(c)s that can be adduced—it is
nevertheless an important tool within the array, and it should be
possible to deploy it. For a long time, all those arguments hit a brick
wall. There was simply no question of the admissibility of intercept
evidence because important and highly placed officials within the
security services advised against it. We are entitled to take that into
account when assessing the present progress, which I agree is entirely
to be welcomed.
Mr.
McNulty:
Lord Goldsmith conducted a
considerable review of that in the not-too-distant past, and although I
cannot remember the names involved, I am pretty sure that there has
been, at least under the Thatcher Government, some exploration of
utilising the two. Even though those have not gone on to fruition or
been as public as the Chilcot review, it is unfair to say that previous
Governments have not explored in some detail the potential use of
intercept
evidence.
Mr.
Heath:
If I gave that impression, I will quickly dispel
it. I know that previous Governments, and indeed this Government, have
looked carefully at that issue in the past, but they have always
concluded that it cannot proceed, and that is why the Chilcot review
and the work that has come from it is now welcome. However, I do not
think that it is entirely right to use that right parliamentary
expression, “churlish”. When do we ever say
“churlish” outside of the House? Never, but when one
expresses the mildest disagreement with any other Member, one is
accused of being churlish. It is not churlish to say that although the
progress is now welcome, it has been a long time coming and we have
been pushing this case hard for a long time. Among those pushing for
that case has been Lord Lloyd of Berwick, along with many noble Members
in another place who have been completely convinced of the merits of
the case but who have so far been repulsed.
I am confident that we are
making progress, and the Minister has said he has a clear timetable in
mind. I understand that he cannot commit to that because it is
a work in progress and new difficulties might be
discovered. Members of the Committee are entitled to ask for those
commitments, and the Minister said earlier that he must find a way of
telling the House how progress is being maintained, which will be very
important. It would reassure many Members who feel strongly about that
if a factual report on progress could be presented to the House in some
form that is yet to be
devised.
Mr.
Hogg:
Might I suggest that a good way for the Minister to
keep us informed would be an undertaking to give an oral statement
before the House rises for the summer
recess?
Mr.
Heath:
I am not sure that it is entirely within the gift
of a Minister of State to give that undertaking, but it would be
extremely helpful. The Minister might want to refer that back to the
Home Secretary as something that would be of value. Given that I
anticipate that we will reach Report stage before the summer recess, we
need to find an opportunity on Report for the sort of report that the
Minister gave today to be updated to take into account work between now
and then. I hope that we are in any way overplaying our hand on this
issue, given the agreement on all sides to try to make progress, if we
find a vehicle through amendment that would enable that report to the
House to be made.
2.30
pm
Tom
Brake (Carshalton and Wallington) (LD): Does my hon.
Friend agree that when the Minister reports, in whatever form he
chooses to do so, he should also update us on cost? That was one of the
factors that the Committee briefing identified as a possible obstacle
to the use of intercept evidence.
Mr.
Heath:
I am grateful to my hon. Friend and I am glad that
he is now freed of the requirement to speak on anti-Semitism in the
Chamber and can rejoin the Committee. He has touched on one of a number
of points that were addressed in the seminar about which it would be
useful to hear progress, but let us do so in the spirit that we are now
making progress and that hon. Members on all sides now wish to see the
measure put in place—at least that is the assumption that I make
from the tenor of today’s debate.
I do not intend to press the new
clause because it has been overtaken by events. The Minister is right
that the formulation used by the Lord Berwick, which was useful and has
served to enable the debate, is likely to be superseded by a more
sophisticated model in the work that he has already indicated is going
ahead. That being the case, I shall seek to withdraw the new clause,
but it is important that we have had this debate and that we commit
ourselves to adding the measure to the armoury of weapons available to
the investigating and prosecuting authorities in terrorism cases. Until
we have it on the statute book, whatever the Minister says about the
limited application, we are deficient in what is available and that is
regrettable. On that basis, I beg to ask leave to withdraw the
motion.
Motion and
clause, by leave, withdrawn.
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