1.53 pm

Penny Mordaunt (Portsmouth North) (Con): I draw the House’s attention to my interest as a member of the reserve forces. I apologise for not being here at the start of the debate because I have been serving on a Bill Committee, and will consequently keep my comments short.

I thank my hon. Friend the Member for Basildon and Billericay (Mr Baron) and the Backbench Business Committee for making this debate possible. It allows us not only to air and scrutinise the nitty-gritty of Army 2020, its objectives and processes, but to show that there are many of us in this place—Back Benchers and those on the Front Bench too—who understand why this process is so difficult and painful. I am sure that will be

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cold comfort to members and veterans of 2nd Battalion the Royal Regiment of Fusiliers, but I hope that today brings them some comfort.

Change—any change—is hard, but it is doubly so for our armed forces. Why? Because from the moment a person begins their training, in whichever service it is, everything they do is connected to the core values, philosophy, history, achievements and sacrifices of their unit or battalion and regiment. The deep emotional connection that such training creates has a very rational purpose—to produce soldiers, sailors and airmen with the courage to fight and win. Members of the Defence Committee and other hon. Members have monitored and are monitoring that process and the data underlying those decisions. In doing so, I have asked myself three key questions.

First, are the reforms needed and is their scale justified? We all know, and often talk about the massive budget deficit that Ministers have had to deal with, but we do not often discuss its consequences. Poor financial management at the Ministry of Defence costs lives. The reforms are required, to ensure that our armed forces are never again short-changed in the kit or training that we provide, or in their pay, terms and conditions or support for their families.

Secondly, how would I like these reforms to be done? I would want the services themselves to be in the driving seat, and it is my understanding that that has been the case. Thirdly, do I agree with the criteria against which the decisions have been made? The motion clearly does not, particularly the criteria that only one battalion should be lost per regiment and that there should be no deletion of cap badges. For the reasons that I gave at the start of my speech, and because I want a wide geographical presence for our armed forces in the United Kingdom, I am in favour of those criteria. However, despite disagreeing with that technical point in the motion, I am glad that it was tabled and that it has enabled this debate, and I hope that the House will not divide on it.

We do not talk enough in this place about defence. I am grateful that today we have been able to remind this House and the country of the unique difficulty of the reforms to our armed forces, and that the debate has also enabled us to pay tribute, which I wholeheartedly do, to 2nd Battalion the Royal Regiment of Fusiliers.

1.56 pm

Stephen Barclay (North East Cambridgeshire) (Con): I had the privilege to serve, albeit briefly, with 2nd Battalion the Royal Regiment of Fusiliers. As a Lancastrian I am well aware of the high regard in which the regiment is held by the local community, which is reflected in its successful levels of recruitment. I fully support the campaign of my hon. Friend the Member for Basildon and Billericay (Mr Baron) and I will not detain the House by repeating the points that he skilfully made in highlighting the many flaws in the Government’s case. I want to address not the criteria, which my hon. Friend tackled, but the wider decision-making rationale that underpins the Government’s measure and that was at the heart of the intervention by my hon. Friend the Member for Aldershot (Sir Gerald Howarth), who is a distinguished former Ministry of Defence Minister, when he sought to justify why this cut is being made.

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First, if a measure such as this is to be positioned on the grounds of cost savings, the first thing one might expect is clarity on how much is being saved. However, when I asked the House of Commons Library that question this morning, answer came there none—it could not tell me. A rough estimate might put the figure at £25 million a year, but the least we might expect from the Minister’s closing remarks is some certainty, if the measure is being justified on cost grounds, as to how much is being saved.

Secondly, the MOD suggests that this cut, which is out of step with the criteria applied to other battalions, is needed to address the defence overspend; but the saving is puny in the context of overall MOD spending, when one considers the reputational impact, the history and the esteem of the front-line service that is being cut.

Let me put this in context and draw the House’s attention to some recent National Audit Office reports. Last year the MOD increased its defence inventory at the same time as it was cutting the size of its armed forces, so we are buying more kit for fewer troops, even though we already had, for example, 10 years’ supply of overalls. We have 54 years’ worth of equipment for Nimrod, even though the plane has already been scrapped. The sums of money being wasted are not insignificant. The MOD spent £2.4 billion on non-explosive inventory, even though it already had five years’ worth of such items in stock—we spent £2.4 billion buying things when we already had five years’ worth of supplies. We are now trying to get rid of some—£1.4 billion-worth—of the stock that we bought by mistake. It is costing £277 million a year just to store the stock that we do not want, and which we should never have bought. That puts the saving that is being made by the decision on 2nd Battalion the Royal Regiment of Fusiliers in context.

My second question to the Minister is therefore why, when the National Audit Office report in June—the very time when this cut was being proposed—could identify savings of that order, officials in the Department could not do more to avoid the necessity of cutting this battalion.

Mr Robathan: My hon. Friend is making a good point about overstocking. We are bearing down on that enormously. He will understand that, not having been in government between 1997 and 2010, we did not order most of this kit. We are selling off the kit so that we have to spend less money on storage, and we are spending less money on unnecessary kit; but he will also understand that the armed forces need good equipment, especially given the ongoing situation in Afghanistan.

Stephen Barclay: I am willing to recognise the big strides that the Government have taken in making those savings. However, we are spending vast sums of money on kit of which we have five years of supplies. The Minister says that this is about equipping our troops better, but we are not addressing that point by buying a higher specification of kit if we are buying things that we do not need. That was one of the key findings of the National Audit Office report.

If Ministers are not convinced that more could be done on logistics and supplies, perhaps I could put this saving of about £25 million in the wider context of our defence procurement. Again, I am willing to acknowledge the huge strides that have been taken by Ministers to get

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to grips with procurement. However, the 15 largest defence projects have overspent their initial budgets by £6 billion. The saving from this cut is a fraction of 1% of that, although we cannot know exactly how much it is because we have not had the figure. It is a tiny amount, and yet it is hitting the front line—our fighting units.

The case that I put to colleagues today is that surely more could be done, notwithstanding the efforts that are being made, to increase the scale, intensity and speed of implementation of the savings in logistics, supply and procurement. This decision does not provide value for money. It is too modest, it uses flawed criteria and the scope of delivering savings elsewhere means that it would be a mistake for the Government to go ahead with it. That is reflected in the comments from Members from all parts of the House today.

I have never voted against my Government, but I support my hon. Friend the Member for Basildon and Billericay (Mr Baron) and will do so if the motion is put to a vote. I hope that Ministers will listen to the strength of the arguments, look at the findings of the National Audit Office and deliver the required savings from other areas of the defence budget.

2.3 pm

Richard Drax (South Dorset) (Con): It is a pleasure to follow my hon. Friend the Member for North East Cambridgeshire (Stephen Barclay). I would also like to sing the praises of my hon. Friend the Member for Basildon and Billericay (Mr Baron) for bringing this topic before the Chamber.

Seldom has this Chamber—I mean the Chamber in its entirety—been so full of so many gentlemen of such distinction.

Mr Kevan Jones: And women.

Richard Drax: And women, of course, but I am talking about those in the Gallery, whom I am not allowed to mention, although I just have. It is a great pleasure to be here today.

First, I am angry at the Opposition, because of their years of profligacy, their spending on social experiments and their continual reduction in spending on defence.

Mr Jones: Will the hon. Gentleman give way?

Richard Drax: No, I will not.

As a consequence of that spending, when the cuts have come, the defence of this country has not been on a level playing field.

As Members can imagine, I am not exactly happy with the Government, either. It is our solemn duty in this place to protect our country, her people and our dependants, and to meet all our commitments, not least our NATO ones. Our ability to do that is now seriously in doubt. It is clear to me, and to many others, that the defence spending review was carried out by accountants, not according to military logic. For example, we are now preparing to have a higher proportion of Territorial Army personnel. I have the highest respect for the TA, but if we are to reduce our forces, we need a higher, not lower proportion of regulars. Consequently, we now find ourselves making decisions for political expediency. As a former soldier, I find that shameful.

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This is all about priorities. As I said, the priority should be to defend our country and her people. Our priorities are wrong. We have plenty of scope to cut state expenditure, which the Government have said continually that they will do. We have started down that road, but we have a long way to go. Throwing money at the Soviet-style bureaucracy that some people call the EU, and at foreign aid to states that practise genocide, is utter madness at a time when we are cutting our armed services, and it has put us in the terrible situation that we are in today.

I have been in this political game, if that is what it is, for two and a half years, and I am tired of our selling out on integrity, honesty and the defence of our country. We have to wake up, all of us, and defend our country in this House with every ounce of our being. If we do not, we betray our people and regiments that are sadly under threat today. That cannot go on. The people of this country will not accept it, and nor will I. Nor, I know, will many colleagues on both sides of the House. We have to face our responsibilities seriously, put politics to one side and look at the future of our country—our country, our country, our country—and not at our careers and whether we will be re-elected in five years’ time or whenever. Our country comes first, our careers come second.

We must reverse the Government’s decision. I will vote against the Government today, as I have on many occasions already. I take no pride in doing that, but I am not necessarily here to support the Government. I am here to support my constituents and what I believe in—my country.

2.8 pm

Mark Pawsey (Rugby) (Con): It is a great pleasure to follow my hon. Friend the Member for South Dorset (Richard Drax) and to be part of the Warwickshire tail-end to this debate. There is clearly strong support for the motion throughout the House, and I add my congratulations to those that colleagues have paid to my hon. Friend the Member for Basildon and Billericay (Mr Baron) for the diligence that he has shown in the campaign, the way he has brought people together and the convincing case that he has made for reconsidering the decision to disband the battalion.

I wish to speak about two matters. The first is the impact of the decision on my constituency, and the second, which we cannot avoid, is why we are in the position that we face today. Unlike many gallant colleagues who have spoken today, before my arrival in Westminster two and a half years ago I knew little of our armed services. My background had not given me that contact, so I was keen to join the armed forces parliamentary scheme to learn more. I have become attached to the Army. Through briefings on the state of our forces, visits to military establishments and, above all, the opportunity to speak to servicemen of all ranks, I have, thanks to that scheme, come to understand the bonds of loyalty and shared history between servicemen that were mentioned by my hon. Friends the Members for Reigate (Mr Blunt) and for Portsmouth North (Penny Mordaunt). I have also come to understand why these issues are so important to so many of those who are involved in the services.

Of course, these issues are important to my constituents, too, as the regiment was formed when the Royal Warwickshire Regiment joined with others in 1968.

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Rugby has many connections between the town and the regiment. Rugby is a two-tier local authority and my constituency is covered by two district councils, both of which, along with the county council, have passed motions in full council to call for the decision to be reprieved. I am sure that other local authorities in areas covered by the regiment have done the same.

The mayor of Rugby, Councillor Miss Kathryn Lawrence, wrote to the Defence Secretary on 26 September and advised him that the council had unanimously passed the following notice of motion:

“Rugby Borough Council calls upon the Ministry of Defence to reconsider its proposals to disband the 2nd Battalion of the Royal Regiment of Fusiliers and to continue to support the success and leadership shown by the Regiment in recruiting, training and retaining loyal soldiers in the County of Warwickshire.”

The council stressed the high regard in which the people of Rugby held the regiment. As a former member of the authority, I echo that and endorse those comments.

My constituency includes the village of Bulkington, which has strong connections to the armed forces and falls under Nuneaton and Bedworth borough council. That council passed a resolution on 16 October opposing the abolition of the regiment and calling on MPs in Warwickshire, including myself, to oppose the proposal in the House of Commons, which I know we will do.

Warwickshire county council passed its resolution on 25 September, drawing attention to the signing of the armed forces community covenant in Warwick earlier this year. The connection between my constituency and those of my colleagues and the regiment is strong, as it is in Northumberland, the broader west midlands, London, south Lancashire and greater Manchester. We all have families who are linked to its survival.

Bob Stewart: I remind the House that the Royal Warwickshire Fusiliers, the 2nd Battalion the Royal Regiment of Fusiliers, was also the parent regiment of Field Marshal Montgomery. Perhaps he will be spinning in his grave.

Mark Pawsey: I thank my hon. Friend for reminding us all of the role of such a distinguished member of the armed forces.

In Warwickshire, we were proud to host the regiment on its homecoming parade when it returned to the UK after its tour of Afghanistan in 2009. It marched through Coventry, Nuneaton, Leamington Spa and Stratford-on-Avon, as well as my constituency and home town of Rugby. On Friday 1 May, I was proud to be in the crowds outside Rugby town hall, applauding its achievements while on active service.

We must not forget why the Government have been faced with difficult decisions. When we came to office, the new Government were confronted with not only a £38 billion black hole in the defence budget but the fact that no review of defence had taken place over the previous 12 years. That delay and the putting off of key decisions for so long has led to a much more severe adjustment than would otherwise have been necessary.

I fully understand that the structural changes necessary within the Army have been made to ensure we continue to have a force admired throughout the world that is

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properly funded. I believe the long-term future of our armed forces is far safer in the hands of this Government than it was in those of the previous Government.

This is an important debate and for the sake of my constituents and this battalion, I urge the Minister to reconsider this decision and to join colleagues from both sides of the House.

2 14 pm

Chris White (Warwick and Leamington) (Con): It is a privilege to follow a Warwickshire colleague, my hon. Friend the Member for Rugby (Mark Pawsey), and I endorse his comments. I also pay tribute to my hon. Friend the Member for Basildon and Billericay (Mr Baron) for his work in securing both this debate and such cross-party support for what we are trying to achieve.

The Royal Regiment of Fusiliers has deep roots in my constituency, as in many constituencies across the country. I am reluctant to mention Montgomery again, but Warwick is certainly a place of which he would have had fond memories. Over the centuries, the regiment has served with honour and courage across the world, fighting to preserve our freedom and security against the greatest of odds. I was a cadet although not a soldier, and I understand that my hon. Friend the Member for North Warwickshire (Dan Byles) was also a cadet in my constituency. The British Army has been so successful because of its regimental structure. Soldiers not only serve their Queen and country, but are part of a community and family and feel an attachment to that. No matter where in the world they are serving, they can feel a piece of home.

As a Member of Parliament, I have been privileged to meet serving soldiers in Afghanistan, and I know how much pride they take in their regimental duties and identities back at home. From speaking to veterans, I also know that that bond spreads across the generations, and that it is felt not just by soldiers, but among civilians. Tens of thousands of people across Warwickshire have signed petitions in the regiment’s recruiting areas to save the 2nd Battalion. The regiment is part of our community and way of life, and that emotional tie is important to a modern, voluntary Army.

At the weekend, I was particularly moved to hear a local vicar, Reverend Brown, speak about the “golden thread” of the Fusiliers’ regimental history, which he called a “true community” that is timeless and binds generations of service personnel together. It is something I have heard repeatedly in many representations received from constituents.

I know that we are facing difficult economic times, and that as a consequence the Government must look carefully at the structure of our armed forces. I believe, however, that there has been no adequate explanation for why the 2nd Battalion of the Royal Regiment of Fusiliers must be removed from the order of battle, and that the Ministry of Defence should look again at the proposals.

We should be basing these decisions not on historical issues but on the future, and at present, the 2nd Battalion is not one of the worst recruiting units but one of the best. Out of a maximum strength of 532, it has 523 trained men and women, and many more are waiting to join. Moreover, it is recruiting out of some of the fastest growing populations in the country. Warwickshire grew

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at 8% a year during the decade between 2001 and 2011—above the average for England and Wales—and Greater London’s population increased by 14% between 2001 and 2011. The 2nd Battalion is not recruiting from parts of the country that are in terminal demographic decline, but from areas where population growth is likely to be at its strongest. I understand that the Government want to give all parts of the country a chance to serve in our armed forces, and that is why it is so confusing that they have chosen to reduce opportunities for service in areas with the fastest population growth where demand is likely to be highest.

There is also a real concern that by paring back the 2nd Battalion, the regiment as a whole may wither. Once the damage has been done to local morale and the community behind a regiment, there is danger that the whole future of the regiment may be affected. That would be a damaging blow to our armed forces as a whole.

I believe there is a clear military case to be made to keep the 2nd Battalion, but there is also an emotional one. My constituents want the 2nd Battalion to remain, as I am sure the constituents of many hon. Members on both sides of the House do. They want that important part of our community to be preserved, and I have a duty to represent their very strongly held feelings.

2.19 pm

Mr Marcus Jones (Nuneaton) (Con): It gives me great pleasure to follow my hon. Friend the Member for Warwick and Leamington (Chris White) in this important debate, and it gives me great pride to be one of four Warwickshire MPs on the Government Benches in the debate. Warwickshire is one of the smallest counties in our country, but we make strong representations for it with great pride. I congratulate my hon. Friend the Member for Basildon and Billericay (Mr Baron) on a tremendous campaign. He should be very proud of his efforts.

When the Secretary of State made his initial statement, I said that my constituents would be deeply concerned over the announcement to disband 2nd Battalion, the Royal Regiment of Fusiliers. I also said that my constituents would welcome the retention of the Gurkha regiments. I stand by those comments, but since the initial statement, I have spoken to many of my constituents. They are not just deeply concerned, but absolutely devastated that 2RRF is to be disbanded.

My constituents have a deep affection for the regiment, which they demonstrated in September 2010, when the regiment was given the rare honour of freedom of our borough. Thousands of local people lined the streets proudly to welcome home 200 brave soldiers from the 2nd Battalion. Not even an unsavoury element from the English Defence League could dampen the enthusiasm and pride of my constituents on that day. It was with that same degree of pride that I felt humbled recently when I marched through Nuneaton town centre shoulder to shoulder with Fusilier veterans in support of their campaign to save the 2nd Battalion. It is with pleasure and pride that I am wearing the regiment’s tie, which I have been asked by veterans to wear.

The passion and pride of my constituents stems from the long history of people from Nuneaton joining that proud regiment of Fusiliers. My constituents were pained

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when two brave young Fusiliers, Fusilier Louis Carter and Sergeant Simon Valentine, were taken from us recently in the conflict in Afghanistan. The proud mothers of both Louis Carter and Simon Valentine are strong supporters of this campaign. Mrs Carter and Mrs Valentine, along with many of my constituents, will be watching this debate with great interest.

I stress that I understand the challenges that the Secretary of State and his predecessor, my right hon. Friend the Member for North Somerset (Dr Fox), have faced since coming to office. I understand and agree that changes to our armed forces are inevitable given the deficit, the debt and the black hole in the defence budget that we faced when we came to office. I have supported many of those changes, however unpalatable they were.

That said, many of the changes were made using the principle of evidence-based policy. The decision to disband 2RRF follows that principle to an extent, but the evidence-based approach is skewed by what seems to be a more political criterion overlying it. I fully agree that the main criterion and determinant in the decision-making process should be military capability and sustainability. It seems somewhat strange, particularly on the point of sustainability, that 2RRF can fall on the basis of that criterion when five less sustainable regiments are being maintained. By adding the criterion of allowing a single regiment to lose a maximum of one battalion and the principle of losing no cap badges, the Government have moved from evidence-based policy that depends on military grounds to a policy that looks like a political fix. That has muddied the waters.

The only conclusion to be drawn is that the political will goes beyond the Government’s headline policy. I fully appreciate the assertion, in view of the facts presented thus far, that 2RRF is the fall guy for the Scottish regiments, which have a far poorer recruiting record. With the Scottish independence question before us, this is a persuasive theory which is hard not to believe. That said, I do not advocate abandoning the Scottish regiments. On the contrary, we need to be more imaginative. That seems to have been the case with previous reorganisations. I would be interested in the Minister’s explaining why regimental troop numbers across the review cannot be considered to see whether 2RRF can be retained. That approach would help with the sustainability of other regiments that are probably far less successful at recruiting.

Whatever method we use to resolve the impasse, today’s debate shows the strength of feeling across the country among Members representing constituencies such as mine. The 2nd Battalion deserves a far better hearing than it is getting, not only on the grounds of sentiment but on factual grounds of capability and sustainability. I appeal to the Secretary of State to reconsider how the decision was arrived at and to support 2RRF.

2.26 pm

Mr Tobias Ellwood (Bournemouth East) (Con): It is a pleasure to be the tail-end Charlie in the debate, other than the Minister, of course.

Like others, I begin by paying tribute to my hon. and gallant Friend the Member for Basildon and Billericay (Mr Baron) for securing the debate. It has prompted a wonderful outburst of regimental ties, which cannot be

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a bad thing, and has resulted in probably the smartest turnout in the Public Gallery that we have seen for years. Although we are not allowed to mention the Public Gallery, the whole House pays tribute to the service and gallantry of those seated up there. [Hon. Members: “You’ve done it twice now!”] I mentioned it twice, but I think I got away with it.

Madam Deputy Speaker (Dawn Primarolo): Order. The hon. Gentleman has got away with it twice, but he knows the rules, and I am sure he will not test the patience of the House any further but instead make his excellent contribution to the debate.

Mr Ellwood: I have been punished with time taken away from me as well.

This debate has been a healthy and valuable reminder of the important role that our armed forces play not only in meeting our national and international obligations but in maintaining links with society and community, which my hon. Friend the Member for Warwick and Leamington (Chris White) also stressed. The armed forces are also the force of last resort to which we turn when there are problems with, for example, flooding, foot and mouth and, most recently, the Olympics—let us remember their last-minute contribution there.

Sadly, the Opposition did not recognise, register or apologise for the dire financial situation that led to these tough decisions having to be made and the fact that there was a specific funding gap of £38 billion.

Mr Kevan Jones indicated dissent.

Mr Ellwood: I am happy to show the hon. Gentleman the National Audit Office report specifying that exact figure and showing that the Opposition stole money from future budgets.

Mr Jones: The NAO report does not state that. It states that the only way to get to a £36 billion figure on the procurement budget is with flat cash. Without it, the figure would be about £6 billion. I suggest he read the report first.

Mr Ellwood: We have read the report carefully. It is true that the last Government took money from future budgets, and of course that money cannot be spent twice. It is also true that in the good times prior to 2007 the then Government cut the defence budget in real terms, while other budgets across the board went up.

Mr Jones: Yes, but I remember the hon. Gentleman and other Conservative Members at the general election calling for a larger Army and Navy, but what have they done in power? They have cut, cut, cut.

Mr Ellwood: We did not call for a larger armed forces at the election itself. It was our intention. It is where we would like to go. When we made these announcements, we were not expecting Labour to have ruined the Treasury numbers, as it did.

As has been repeated again and again, Labour made a mess of something else. I refer to the madness of its procurement strategy, which wasted billions of pounds

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in overruns. The worst of it was delaying the carrier build by one year, which cost £1 billion alone. Given that the capitation cost of a brigade is £100 million, let us think how many battalions we could have saved. To take an operational perspective, for years our troops in Afghanistan were forced to use Snatch Land Rovers, but suddenly the last Government woke up to the fact that they were not adequate and there was a flurry of buying off the shelf. The Cougar, the Mastiff, the Ridgback—all these vehicles were purchased off the shelf, wasting huge sums of money, while our armed forces suffered on the front line. All those funding issues had a knock-on effect on the decisions we are debating today and the decisions for the future, not only on battalion and brigades, but on the order of battle.

I am an infanteer—I served in the Royal Green Jackets, another regiment that disappeared under the last Government—but I am also a national politician. We are all national politicians, and we must consider the capability of our entire armed forces—the demand to save ships; the demand to save planes, such as the Harrier, which has been debated by this House many times; the demand to save intelligence, surveillance, target acquisition and reconnaissance capability; and, of course, the demand to save regiments, not least my own. As we have heard, the Royal Regiment of Fusiliers has an amazingly proud history, dating back to James II —I am sorry that the Father of the House is not here to confirm that—and it has had an impact not just in its own area, but right across Britain as a whole. When the Royal Regiment of Fusiliers was formed, it was given the most up-to-date weapon of the day, the fusil, which gave it its name, and in the first world war it had a total of 196 battalions in operation. How different the picture is today.

We have heard some powerful arguments, and I look forward to hearing what the Minister says in response to the support we have heard for the Fusiliers. However, I would also say to him—I hope he listens carefully to this proposal—that if it is the Government’s intention to reconfigure the balance of our armed forces between regular forces and the Territorial Army more towards the Australian and American models and to increase the size of Territorial Army units, and if it is also the Minister’s intention to decide to disband the 2nd Battalion, the Royal Regiment of Fusiliers, then why not allow this fine battalion to configure immediately into a Territorial Army unit? I absolutely accept that that is not an ideal solution, but it would prevent that footprint in history and the contribution made by this amazing battalion from disappearing in their entirety.

Mr Robathan: My hon. Friend will know that the Territorial review is continuing. We have had the review and we are now looking at the details, but I assure him that we will look carefully at that proposal as we expand the Territorial Army, or the reserve.

Mr Ellwood: I am grateful to the Minister. I appreciate that that is not the solution that many hon. Members, on both sides of the House, are looking for, but if it is the Government’s intention to reduce the size of our battalions, my proposal would seem to be one way of maintaining the future prosperity and history of this wonderful regiment.

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Bob Stewart: That is a very good idea. The regiment can go into purdah—that is, it can go into the reserve Army for a while—and if we need it, it can come back. That has happened in the past and it can happen again, and it is an extremely good way to proceed.

Mr Ellwood: I thank my hon. Friend for that intervention; I am grateful. I now look forward, as we all do, to hearing what the Minister has to say about this important subject.

2.33 pm

The Minister for the Armed Forces (Mr Andrew Robathan): We have heard some very heartfelt, passionate and emotional contributions today. I do not criticise hon. Members for that emotion in any way; indeed, I have a great deal of sympathy for many of the points that have been raised.

I would like first to congratulate my hon. Friend the Member for Basildon and Billericay (Mr Baron) on securing this debate, which has allowed so many people to contribute and make their points, which is very important in this House of Commons. I welcome this opportunity to explain the situation. We have come to these decisions, as has the Army, after a great deal of consideration and analysis. The British Army and the regiments concerned are now looking to get on with the difficult task of implementing the decisions, which, frankly, have not been palatable.

In May 2010, when we entered government, we faced a dire financial situation. A £38 billion black hole, possibly a great deal more—

Mr Kevan Jones: Will the right hon. Gentleman give way?

Mr Robathan: Of course I will give way, although I must point out that the hon. Gentleman had the opportunity to give way to me and would not do so, even though he had been told, on a piece of paper that I saw being slipped to him, that he could take as many interventions as he wanted.

Mr Jones: That is not what I said at all. It is interesting to hear what the Minister is saying. He talks about the £38 billion, which he has never explained before at the Dispatch Box, and he is now telling the House that the figure could be bigger. How much bigger?

Mr Robathan: The hon. Gentleman did not explain at all; he just said that he would not take any interventions. I can see the piece of paper there. Perhaps he would like to read what it says—

Madam Deputy Speaker (Dawn Primarolo): Order. I can probably help the Minister on this. The hon. Member for North Durham (Mr Jones) was under the impression that he was time-limited, which of course was not the case. That was not down to any information that he had at the time; it was while he was speaking that he believed he was time-limited. The Minister will have a slightly longer time. Perhaps we can sort this out across the Dispatch Box.

Mr Robathan: Of course, Madam Deputy Speaker.

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The hon. Gentleman knows that the previous Chief Secretary to the Treasury, the right hon. Member for Birmingham, Hodge Hill (Mr Byrne), left a note saying that there was no money, and there is no money. We are working on producing a detailed analysis of the money, which will be made available to the Defence Committee at some stage. I am not quite sure where we have got to on that.

Mr Jones: Will the Minister give way?

Mr Robathan: Not for a third time. He would not give way even once. Can we crack on?

We have to deal with that hole in the budget, and the hole in the defence budget, if we want to put the defence of this nation on a sound and sustainable footing—[Interruption.] The hon. Member for North Durham (Mr Jones) chunters away, but we cannot spend money that we do not have.

Mr Jones: You don’t even know how much money you’ve got.

Mr Robathan: As hon. Members will know from statements made by the Secretary of State for Defence—

Mr Jones: You’re making it up.

Mr Robathan: Have you finished?

As hon. Members will know from statements made by the Secretary of State for Defence, the Ministry of Defence is now—for the first time I can remember—living within its means, and we can plan for the future with a much greater degree of certainty than was previously the case.

Mr Jones: I find what the Minister is saying completely remarkable. He has just told us that he cannot explain the £38 billion. He has also told us that the figure could be bigger, and he is now saying that the defence budget is in balance. If he did not know how big the hole was in the first place, how the hell can he now claim that the budget is in balance? That is complete, incoherent nonsense.

Mr Robathan: I do not think that this debate should be argued on party political grounds—

Mr Jones: You started it.

Mr Robathan: I regret very much the attitude of the hon. Gentleman. Others will look at the debate and decide whether he started it, or whether we did. Frankly, it is pathetic and childish to argue in such a way.

Graham Stringer: I sympathise with the Minister; as an ex-military person, he must be in an uncomfortable and lonely position. However, rather than having a debate about the nation’s finances, which would be more appropriate at another time, will he respond to the points that have been made on both sides of the House? What is his argument against the fact that the decision to get rid of the battalion was made on political grounds, and not on military grounds? That is the substantial point of the debate.

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Mr Robathan: I am grateful to the hon. Gentleman. As it happens, I have a great regard for him, and I do not wish this to be a party political debate. I wish to talk about the future of the 2nd Battalion, the Royal Regiment of Fusiliers, which has a very proud history.

We are now living within our means, and we have a fully funded equipment programme and affordable armed forces. Reaching that position has required us to make hard, painful choices, which have included reducing the size of the regular Army. I have always said—I have heard it repeated two or three times in this debate—that the first duty of Government is the defence of the realm. Our mission endures, and it is to protect our country and its values and interests abroad and at home. To do this, we must meet the complex range of threats and challenges in a rapidly changing world. We must adapt to stay ahead and ensure that our people have what they need in order to do what we ask of them.

Mr Baron: I am pleased that the debate is returning to the substance of the motion about the 2nd Battalion the Royal Regiment of Fusiliers. The Minister said that detailed analysis was undertaken to come to the basic decision to axe 2RRF. Will he explain the basis of that analysis, as the Secretary of State’s answers to written parliamentary questions make it very clear that other battalions had far worse recruitment and retention figures than the 2nd Battalion the Royal Regiment of Fusiliers? On what basis, then, was this analysis undertaken?

Mr Robathan: If I may, I will cover my hon. Friend’s points as they were made in his speech. My responses are written down here, and it is better that I give him a detailed analysis rather than provide one off the top of my head.

While our armed forces might be smaller than before, they will still be able to reach across the world and operate across the full range of capabilities. We are reducing the size of the regular armed forces, but we are increasing the reserves, including an integrated element of the total land force of 120,000, with an extra £1.8 billion of investment in reserves, training and equipment.

The Army has been both pragmatic and imaginative in responding to this very real challenge. The blueprint was decided upon by the Army and announced by the Defence Secretary on 5 July. This project we call Army 2020. For the first time, this provides a pathway to a fully integrated Army of regular and reserve forces that will be configured for high-end conflict, rapid reaction, UK engagement and upstream conflict prevention.

Stephen Barclay: Will my right hon. Friend address the point that the value of the defence inventory is currently £40.3 billion? Just this June, the National Audit Office said:

“the Department is spending money on unnecessary levels of stock, which could be spent elsewhere in government.”

We are talking about such a modest sum of money; can it not be found elsewhere?

Mr Robathan: I have to confess to my hon. Friend that I do not deal with procurement measures. We have a defence reform project going on, which I think he will find addresses his point. I will ensure that he receives a letter from the Minister for Defence Equipment, Support and Technology, setting out a proper response.

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I think it would be better if we stuck with the 2nd Battalion the Royal Regiment of Fusiliers, because that is what people have come to speak about. Today, we have heard arguments about the withdrawal of 2RRF from the Army’s order of battle. Neither my right hon. Friend the Secretary of State nor I take any pleasure in the removal of any unit from the Army. I can assure hon. Members that we did not come into politics to reduce our armed forces. There is not a battalion or regiment in the current order of battle that does not have a proud history and significant battle honours. If, however, we are to create an affordable and balanced Army offering serious military capability into the future, a small number of those proud units and battalions will have to be withdrawn from the line.

My hon. Friend the Member for Basildon and Billericay has been made aware of the reasons behind the Army Board’s decisions—and they were Army Board decisions, endorsed by Ministers. I would like to take this opportunity to reiterate these reasons for the benefit of the House.

Mr Baron: Will the Minister give way?

Mr Robathan: I am about to answer my hon. Friend’s questions; he might like to intervene again later.

In redesigning the future Army, it was decided that five fewer regular infantry battalions were required than are currently in the order of battle. In deciding which of the current 36 battalions to withdraw, the Army—I repeat, the Army—applied a number of criteria. The first was to maintain a regimental system that was largely regionally aligned. The second was to ensure the sustainability of regiments according to the projected regional supply of recruits in the 2020 time frame. The third was to ensure proportionality of outcome across the infantry, with no cap badge deletions and with no regiment losing more than one battalion.

Another key criterion, which Members who have served in the Army will understand, was to balance the whole infantry structure to maintain a variety of roles and parity of opportunity of experience for officers and soldiers. It was also important to take account of previous decisions on mergers and deletions, as well as historical manning performance. Finally, the Army wanted those who are currently serving to see this as fair and equitable. After all, it is those who are serving now, and those who are seeking to join the Army, who will make the change happen.

Those criteria were determined by the Chief of the General Staff and by General Carter, who has led the Army 2020 review. After a period of consultation with Ministers, they constructed an objective, fair and transparent process that included the criteria, applying the military logic to which my hon. Friend referred.

Mr Baron: I appreciate the Minister’s generosity in giving way. Let me make it clear for the record that I know him well enough to be aware that he takes no pleasure in announcing these cuts. I do not doubt that at all: it is not what we are questioning. However, if there have to be cuts—and I personally think that the Government’s priorities are wrong; I think that such cuts should be made outside the MOD budget—they should be based on military logic, not on political calculation that is designed to save more poorly recruited Scottish battalions north of the border.

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In answers given to me by the Secretary of State and in answers to written parliamentary questions, it has been confirmed—confirmed in writing by the Secretary of State—that the five least sustainable battalions will be two from the Royal Regiment of Scotland, one from the Yorkshire Regiment, one from the Mercian Regiment and one from the Royal Welsh Regiment. That is military logic, as applied in a letter to me from the Secretary of State.

Mr Robathan: As I have said, one of the criteria was that no regiment should lose more than one battalion. I shall explain shortly why the Royal Regiment of Fusiliers came into the frame.

Dan Byles: The Minister is an old military hand himself, so he will know the phrase “situating the estimate”. Let me explain for the benefit of those who are not military that it means setting the parameters deliberately in order to achieve the desired outcome. Does the Minister not recognise that there is a great deal of concern among Members in all parts of the House who believe that that is what has happened in this instance?

Mr Robathan: I do recall the phrase, and that is not what has happened.

Let me now explain in some detail how the application of the criteria that I listed earlier led us to the outcome announced on 5 July. Some of this may sound a little dry, but it is important for the House to understand the care that was taken in reaching these decisions.

Drawing on demographic data for the age cohort across the United Kingdom from which infantry recruits are drawn—the 15-to-29 age group, according to the way in which the Office for National Statistics segments the population—and taking account of historical trends in terms of the percentage of that cohort who were likely to join the Army, an assessment was made of which regiments were likely to be the least sustainable in the future in their current configuration. That work also included a comparison of each regiment’s historical outflow so that the likely recruiting requirement could be determined. On that basis, the Army’s analysis showed that the regiments likely to be the least sustainable in future were the Royal Regiment of Scotland, the Yorkshire Regiment, the Mercian Regiment, and the Royal Welsh Regiment. It was therefore decided to move one battalion from each of those regiments.

After the removal of the four battalions, and given the criterion that there should be no cap badge deletions and no regiment should lose more than one battalion, the method of predicting future sustainability, and therefore which battalion should be added to the four whose future had already been decided, became less statistically discerning. To put it another way, it was impossible to distinguish between a number of regiments on the basis of the future sustainability criterion alone.

Sir Alan Beith: In his letter to me, the Minister used those figures and there was a prediction that the Royal Regiment of Scotland would be one and three quarter battalions short on sustainability in the future. When we compare the risk to operability of that level of difficulty with the predictions for the Royal Regiment of Fusiliers, do we not find that the military logic is overpowering?

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Mr Robathan: The right hon. Gentleman makes a very good point. However, in these difficult decisions, certain criteria were applied, one of which was that there should be only one battalion taken away from each regiment. That is what, I fear, trumped the good point that he makes.

Patrick Mercer: I am conscious that the Minister finds this an exceedingly painful process, but can he explain something? We were told a few years ago that it was deeply undesirable for regiments to continue as one-battalion organisations, for reasons relating to the career structures and all sorts of military logic, which I did not necessarily agree with. How was it that just a few years ago new regiments were invented and curious names were developed, yet now, a short time later, all of that is being stood on its head?

Mr Robathan: I do not think that I made that point, because I was not the person involved at the time. Since my hon. Friend’s time in the armed forces, and mine, people have moved a great deal more between divisions and between larger regiments. Where we are talking about a one-battalion regiment in a division, people cross over between the regiments in the division. That is certainly happening much more than it used to.

Determining the fifth battalion to be withdrawn required the application of criteria that went wider than demographics. Remembering the imperative of having no regiment losing more than one battalion, the Army discounted those regiments that were already losing a battalion, such as the Royal Scots, and those which were single-battalion regiments. That meant that the choice came down to a battalion from the Princess of Wales’s Royal Regiment, the Duke of Lancaster’s Regiment, the Royal Regiment of Fusiliers, the Royal Anglian Regiment or The Rifles—the Parachute Regiment was excluded on the grounds of its specific role. Taking account of the need to maintain equity of opportunity across the infantry divisions, the Army decided—I stress that it was the Army that decided this—that it should be the Queen’s Division that lost a battalion. That was because it had six battalions whereas other divisions would be left with only four or five. Taking account of historical manning performance—since the previous reorganisation of the infantry, in 2007, the Royal Regiment of Fusiliers has had average undermanning of 13.3%—and the fact that the Fusiliers is a regiment with two battalions, it was considered the most appropriate from within the Queen’s Division from which to withdraw a battalion.

I would like to pay tribute to the Royal Regiment of Fusiliers. It has a proud history and it will continue as a regiment with a proud history. It has served in every major campaign since 1674, up to and including Afghanistan. I have visited the regimental museum and the headquarters in the Tower of London with my hon. Friend the Member for Basildon and Billericay—in fact, I went back only last month. I know the history of this proud regiment.

As some in this Chamber may know, in Northern Ireland Second Lieutenant Winthrop devised a clever way of finding hidden caches. I remember being taught this in Northern Ireland, and it allowed us to find hidden IRA weapons. He was a Fusilier, and that is someone more recently who influenced military thinking. I served with the Royal Regiment of Fusiliers in the first

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Gulf war, and my mother’s uncle was killed in 1916 while serving in the Fusiliers. I mention that because we all hugely respect the past and present members of the Royal Regiment of Fusiliers. I fully understand that this decision came as a great disappointment to those serving with the regiment and those, such as my hon. Friend the Member for Basildon and Billericay, with connections to it.

Mr Baron: I welcome the Minister’s warm words, but I suggest to him that we do not just want warm words—we want action. Clearly he is basing his whole argument on the idea that regimental losses should be limited to one battalion. That is exceptionally questionable, and it is a complete about-turn on the thinking of the reorganisation that took place only six years ago, when four cap badges and six battalions were amalgamated into larger regiments. Can he not understand that it is far more disruptive for a two-battalion regiment—a well-recruited one—to lose one battalion than it is for a five-battalion regiment that has trouble sustaining two battalions, as has been admitted by the MOD, to maintain those two battalions? Can he not see the logic here? Can he not see why the MOD’s limitation of one battalion loss per regiment is so illogical?

Mr Robathan: My hon. Friend is an intelligent person, but I have made the point several times that the Army decided that it wanted to withdraw only one battalion from each regiment, and that is why this decision was reached.

I know that the decision is a great disappointment to many people, but it was simply not possible to save every unit, given the financial situation in which we found ourselves. I hope that what I have explained is a fair, transparent and equitable process, which produced the right outcome, in difficult circumstances, for the Army. The MOD has now placed in the Library of the House the detailed data the Army used in reaching its decision on which battalions to remove from the order of battle.

I think I have dealt with the question of Scotland. We did not take another battalion out of the Royal Scots, because that would have been to the detriment of the criterion that only one battalion should be taken from each regiment. My hon. Friend and others have suggested that the decisions were not taken on wholly military grounds and that a degree of political influence was brought to bear that has resulted in English regiments “losing out”—their words—to the Royal Regiment of Scotland, but the advice from the Chief of the General Staff and his Army 2020 team was clear: the effect on the regimental structure and the wider community of losing more than one battalion would magnify the impact of any change and thus impact on the subsequent healing process. I hope that that advice and the rest of the objective criteria the Army applied to the review will put minds at rest. As the Government have made clear on a number of occasions, we are making no plans on the basis of an independent Scotland, as we firmly believe—a belief that I know is shared on both sides of the House—that the majority of Scottish people will continue to support the Union in any referendum.

Cap badges and uniforms are important, but hon. Members should realise that they evolve and change over the years, and indeed have done so during our

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lifetimes. I have worn many different cap badges and I believe that people adapt very quickly and are proud of the regiments and the units in which they serve. I assure all hon. Members here today that we are aware of the justifiably fierce pride and loyalty felt by local communities to their locally recruited battalions, wherever that might be across the UK.

I come back to the real reason behind the reductions, which is the fiscal mess we inherited in 2010. The process has been painful for the Government. I reiterate: no Defence Minister came into government to reduce our armed forces. However, balancing the black hole inherited from the previous Government required difficult decisions to reach our current more balanced and affordable position. The Army—and it is the Army—has played an intelligent and constructive part in the exercise and has had to make some very tough decisions, but it is never possible to make such significant changes without causing some pain somewhere. The plan that has been announced, while difficult for some to accept, offers a balanced and fair way to maintain a robust regimental system into the future.

I reiterate that the Fusiliers—the proud Royal Regiment of Fusiliers—will go on as a regiment. We are not abolishing the Fusiliers, as some seem to have implied. I know that the Army as a whole understands that and is now getting on with implementing the new structures in the positive and pragmatic way that anybody who knows the Army would expect. My sincere hope is that hon. Members, and in particular my hon. Friend the Member for Basildon and Billericay, who instigated this debate, can now allow the Army to do so.

2.59 pm

Mr Baron: Perhaps we should make it absolutely clear that no one really wants to make cuts to the armed forces, particularly in these increasingly dangerous times. However, if cuts have to be made, our contention is that military logic should prevail rather than political calculation about saving more poorly recruited Scottish battalions ahead of the Scottish referendum. I have made it clear that I do not believe that any battalion should be cut, Scottish or otherwise, but the Government’s decision is a bad one.

The decision is a bad one, not because we say so but because it is clear from responses to letters and inquiries to the MOD and from written parliamentary answers—the evidence is there for all to see—that 2RRF should not be in this position because its recruitment and retention record is excellent. The original five battalions, which were the least sustainable ones, did not include 2RRF. I cannot help but conclude that this rather silly rule that regimental losses should be limited to one battalion is a political fix ahead of the Scottish referendum, because only six years ago four cap badges and six battalions were amalgamated into one regiment. All the talk then was about how larger regiments were the way forward because they provided a varied career structure and sustainability. That is the right way to go about it.

The sudden introduction, out of the blue, of the rule about limiting regimental losses to one battalion is utter nonsense, and it is just by coincidence that it has happened to save both Scottish battalions that there were earmarked for closure. The MOD admits that the Royal Regiment of Scotland should be two battalions short. It is two

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battalions down. It is illogical for the Government to say that they will maintain them when they cannot help themselves. As for the Government’s claim that only one battalion, the Scottish battalion, will be lost, that is also untrue, as the Minister very well knows, because it will only be downsized. No Scottish battalions will be lost.

I repeat that I do not want any battalions to be lost in these cuts. I think that we should be prioritising our spending outside the MOD budget better. I have questioned aid to India, unfashionable though that may be, and the billions we are pouring into the European Union. This is a bad decision. It is based not on military logic but on political calculation. It is my intention, with your permission, Madam Deputy Speaker, to do what I can to divide the House on the issue.

Question put.

The House divided:

Ayes 57, Noes 3.

Division No. 83]

[3.2 pm


Anderson, Mr David

Bacon, Mr Richard

Barclay, Stephen

Baron, Mr John

Beith, rh Sir Alan

Blackman, Bob

Blunt, Mr Crispin

Bottomley, Sir Peter

Brown, rh Mr Nicholas

Byles, Dan

Cash, Mr William

Chope, Mr Christopher

Cunningham, Mr Jim

Danczuk, Simon

Davies, David T. C.


de Bois, Nick

Dobbin, Jim

Ellison, Jane

Esterson, Bill

Field, Mark

Glindon, Mrs Mary

Goggins, rh Paul

Gray, Mr James

Griffiths, Andrew

Hemming, John

Hoey, Kate

Hollobone, Mr Philip

Hughes, rh Simon

Jenkin, Mr Bernard

Jones, Mr Marcus

Kaufman, rh Sir Gerald

Keeley, Barbara

Lammy, rh Mr David

Lefroy, Jeremy

Leigh, Mr Edward

Liddell-Grainger, Mr Ian

Lopresti, Jack

Mearns, Ian

Miller, Andrew

Mills, Nigel

Morris, Grahame M.


Murphy, rh Paul

Pawsey, Mark

Percy, Andrew

Reynolds, Jonathan

Rogerson, Dan

Rosindell, Andrew

Russell, Sir Bob

Skinner, Mr Dennis

Smith, Henry

Stewart, Bob

Stringer, Graham

Sutcliffe, Mr Gerry

Vickers, Martin

Walker, Mr Charles

Walley, Joan

White, Chris

Tellers for the Ayes:

Mr David Nuttall and

Richard Drax


Leadsom, Andrea

Phillips, Stephen

Rees-Mogg, Jacob

Tellers for the Noes:

Patrick Mercer and

Philip Davies

Question accordingly agreed to.


That this House opposes the disbandment of the 2nd Battalion, the Royal Regiment of Fusiliers (2RRF); notes that 2RRF is the only infantry battalion being cut that was not initially due for disbandment on military grounds; further notes that 2RRF was instead caught by the Government’s additional criteria of only one battalion loss per regiment and no deletion of cap-badges, which has resulted in more poorly-recruited Scottish battalions being saved; further notes the social and economic costs of disbandment; and urges the Government to reverse its decision.

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Intercept Evidence

3.14 pm

Mr David Lammy (Tottenham) (Lab): I beg to move,

That this House notes with concern that the inquest into the death of Mark Duggan may never commence under the current arrangements for the use of intercept evidence in courts and inquests; and calls on the Government to review its approach to open justice, in particular the use of intercept evidence in courts and inquests.

As a rule, when someone dies in questionable circumstances an inquest is held in order to establish the cause of death and set out the events that led up to it. In a society that prides itself on being fair and just, it is inconceivable that the circumstances of such a death should leave questions unanswered. Moreover, establishing the events that lead to death at the hands of the state in particular is integral to maintaining a relationship between state and citizens. That has been the case in our country since 1194, when the precedent for coroners’ inquests began. Whereas an inquiry considers broader issues of public concern, the role of an inquest is to provide a detailed account of how an individual came to die in suspicious circumstances or at the hands of the state. An inquest is an invaluable tool in both answering questions and, importantly, learning lessons.

On its own, a public inquiry is insufficient in helping us piece together the circumstances in which an individual has died at the hands of the state. We witnessed that following the Hillsborough tragedy and I am afraid that we are witnessing it again, this time in my constituency of Tottenham, where the family of a man shot by police await a public inquest into his death. As the law stands, they cannot even be told why an inquest cannot take place.

The riots that followed the shooting of Mark Duggan on 6 August 2011 portrayed most vividly and, indeed, violently the frustration caused by questions left unanswered. Not everyone who rioted in the days following Mark Duggan’s death was motivated by a sense of injustice, but if we look back at those events we will see that it is clear that the shooting was a touch paper—a spark that began the rioting.

More than one year on, the denial of an inquest is an affront to the families of those who have lost a relative in circumstances that remain unexplained, confining them to a lifetime of uncertainty. This is not the first time that an inquest has been denied following a fatal shooting. I refer hon. Members to the case of Azelle Rodney, a young man shot by the police in 2005. It has been suggested that the inquest into Mr Rodney’s death was withdrawn from court as a direct consequence of section 17 of the Regulation of Investigatory Powers Act 2000. Crucial material detailing the events leading up to Azelle Rodney being shot was deemed inadmissible in court and key evidence was redacted into meaningless fragments. A public inquiry headed by a High Court judge began just last month. Mr Rodney’s mother has been excluded from hearings on more than one occasion and the inquiry chair has ruled that her legal team cannot be shown surveillance video footage. His family’s questions about his death remain unanswered to this day.

The denial of an inquest is an affront not just to the families concerned, but to everybody who lost relatives in last year’s riots; to everybody whose businesses and

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homes were destroyed and who remain without a home or a livelihood; and to every one of us who believes in the need for open justice—for justice to be done and for it to be seen to be done. This country has experience of difficult cases that require inquests, such as the 7/7 bombings, the Marchioness and, most recently, the deaths of Ian Tomlinson and Jean Charles de Menezes. All of those cases required inquests not just to get to the truth of what happened, but to learn lessons on behalf of the state and those who act for it.

Just yesterday it was revealed that the trial of Kevin Hutchinson-Foster—the man charged with supplying Mark Duggan with a handgun 15 minutes before he was shot by police—has ended without verdict. Now more than ever we must ensure that there is an open, judge-led inquest into the death of Mark Duggan.

The denial of a public inquest not only damages the outcome of this case, but casts a shadow over our entire judicial system. Under RIPA, we cannot know whether it is the inadmissibility of intercept evidence that prevents an inquest from being held. Mark Duggan’s family will have to accept that an inquest may not take place, but they cannot be told why it has been denied. What sort of climate of suspicion—of cloaks and daggers—do we create when evidence of vital importance is presented not in an open court in front of a jury, coroner or judge, but behind closed doors? What message does that send, not just to the family of Mark Duggan, but to the riot victims who lost their homes, businesses and livelihoods in the wake of the riots? If an open inquiry cannot be held into the events leading up to Mark Duggan’s death, closed justice is not really justice at all.

I remind the House that, despite £2 million-worth of damage being caused by last year’s riots, not a single inquiry has or will be held. A paltry sum of less than £150,000 was spent on the Riots Communities and Victims Panel. That contrasts with the staggering £6 million and counting that has been spent on the Leveson inquiry. What hope is there of reaching an accurate and comprehensive account of the events that led to the riots, when it has been made clear that an inquiry, let alone an inquest, is simply not on the coalition Government’s list of priorities?

Securing justice is not always about finding an answer; it can be about asking the questions. When evidence is withheld from the public for no good reason, we cannot claim that justice has been sought. An honest, open and fair society seeks to overcome obstacles in the path of finding justice for its citizens. When justice is obstructed due to misguided legislation, as in this case, it falls to politicians to clear the way. No political party has a monopoly on justice. Finding out what caused an individual to die in suspicious circumstances is not a partisan issue. That is why I am grateful for the support of hon. Members and in particular the right hon. Member for Haltemprice and Howden (Mr Davis), who is in his place. That this debate is taking place is testimony to the cross-party will to ensure that public inquests remain a pillar of the British judicial system.

There is a principle in our justice system known as the rule of admissibility. It means that any evidence deemed relevant to a trial should be presented in court. That eminently reasonable legal principle forms the basis not just of fully informed trials, but of the open, fair and impartial judicial system that we, as British citizens, are entitled to expect. We cannot claim that we

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operate such a judicial system when existing legislation means that crucial bits of evidence remain inadmissible in court.

We certainly cannot claim judicial superiority when we are the only country in the world that does not permit the use in court of material gathered by interception. In the United States, intercept evidence has secured the conviction of al-Qaeda plotters and the most slippery of New York Mafia dons. At an international level, intercept evidence has allowed the International Criminal Tribunal for the Former Yugoslavia to convict Yugoslav war criminals.

The ban on intercept material in British courts contradicts not just our notions of judicial fairness, but our common sense. We are repeatedly reminded of the importance of intercept evidence, most often in the context of terrorism and national security, but increasingly in tackling domestic crime. It is staggering that when hours and weeks of time and great resources are put into gathering this evidence, particularly by our intelligence services, resulting in the detection of crime and the arrest of a criminal, most of the incriminating evidence has to remain hidden. Cases that involve intercept material are invariably complex. How many terrorists, drug dealers, paedophiles and other criminals have eluded conviction not because of a lack of evidence but because that evidence could not be heard in a court?

That cases should fall at the last hurdle is an immense frustration to anyone who has a desire to see justice achieved, not least police forces themselves. It was with that sense of frustration that I wanted to bring the matter to the House. I am, however, far from the first individual to do so. Since as far back as 2005, MPs, Lords, lawyers and even Attorneys-General have bravely stepped up and asked for the ban to be lifted, yet the sword in the stone of section 17 of RIPA stands stuck fast.

Between 2005 and 2008, no fewer than seven reports on the issue were submitted to Ministers. It reared its head in 2008 in the counter-terrorism debate, and again in debates on the Coroners and Justice Act 2009. In a display of remarkable consensus, the Metropolitan police, the Independent Police Complaints Commission, the Crown Prosecution Service, Governments and Home Secretaries have expressed a desire to amend section 17. Indeed, the issue has united the most stubborn of bedfellows, as the coalition agreement commits to finding

“a practical way to allow the use of intercept evidence in court.”

I remind the House of the Privy Council review also known as the Chilcot report, commissioned in 2007 to review the use of intercept evidence. A welcome step, we might say, but unfortunately not a bold enough one. A series of reports have confirmed what any Member can tell us—that there is political consensus in favour of permitting the use of intercept evidence in court. On receiving the initial inquiry report in 2009, the then Home Secretary, my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), stated:

“The issues involved are complex and difficult, and addressing them commensurately challenging. But the importance of our interception capabilities to national security and public protection means that there can be no short cuts.”

With all due respect to him, after seven years in a three-year period, I think we can say that no short cuts had been taken at all.

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Yet here we are again, debating in “Groundhog Day” fashion an issue that already has cross-party support. The Prime Minister himself has declared that he would prefer to use intercept evidence than not use it. On visiting New York following the conviction of John Gotti, the former Attorney-General Lord Goldsmith hailed the use of intercept evidence as a “vital tool”. Eminent Law Lords such as Lord Lloyd of Berwick have challenged the ban as well. If the use of intercept material promotes national security, combats domestic crime and maintains faith in public expressions of justice, why does its use in court remain prohibited?

Although our attention today is focused on section 17 of RIPA, it was that Act’s predecessor, the Interception of Communications Act 1985, that implemented the statutory ban on the use of intercept material in court. In 1985, the UK found herself condemned by the European Court of Human Rights in Strasbourg for permitting the tapping of phone calls. The use of intercept evidence to convict an antiques dealer selling goods of dubious origin led to the use of such evidence being deemed to fall short of the European convention on human rights. Without the cloak of a legal or administrative framework, the UK found herself exposed. Chastised by Strasbourg, the then Prime Minister, Thatcher, passed the 1985 Act, which contained the provision that evidence obtained by interception was inadmissible in court.

Section 17 of RIPA superseded the 1985 Act, ensuring that the exclusion of intercept material from legal proceedings was maintained. So strongly worded was that Act that it went even further, banning not just the use of intercept material but the disclosure that any sort of interception may have taken place. The passing of those successive Acts is the legislative equivalent of using a sledgehammer to crack a nut: unwieldy in the hands of its users, undiscriminating in its target and wholly unsuited to the job. All I ask is for us to allow exceptions to section 17, but for them to be enshrined in legislation.

If we really want to secure and maintain open justice, the ability to use intercept material in court must become more than an exception that results from hours of detailed and all-too-painful legal wrangling. Unless the legislation changes, we will find ourselves in a similar situation in the Mark Duggan case, still waiting for a public inquest years after the shooting took place. We will be in a judicial environment in which a public inquiry is seen as nothing more than a sop or an exercise in appeasement. I need to underline the question of why an inquiry of that nature following such a death—it led to four days of rioting—cannot be appropriate. The creep into major domestic cases must be of great concern to our country. Unless we legislate to ensure the admissibility of intercept evidence in court, our instruments of justice will remain insufficiently sharp to penetrate to the core of the most challenging of cases.

Members of the intelligence service and section 17 defenders, such as Baroness Ramsay of Cartvale, herself a distinguished officer in the intelligence services, have expressed a fear that the use of intercept evidence could jeopardise interception techniques. It is claimed that by sharing intercept material with the public during an inquest we risk arming the jihadist, the drug smuggler and the people trafficker with the foreknowledge of how we intend to get them into court in the first place.

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As has been noted, one does not exactly need high level disclosure to know that the police monitor phone lines as a surveillance method. Does that mean that potential criminals no longer communicate by phone, however? Of course not. The most rookie burglar knows of fingerprint detection, but does that mean that criminals are no longer caught in that way, even in the age of gloves? Of course it does not.

It is claimed that 21st century spookery is so developed that no one except a select few can fully grasp the complexity of interception techniques. That might be true and of course I do not doubt the advances made by or the skills of our intelligence services and I certainly do not want to compromise the hugely important work done by GCHQ in particular. I emphasise, however, that permitting the use of intercept material in court will in no way contradict the hard work done by those services. By making a distinction between domestic crimes and terrorism, we can ensure that the British judicial system can make use of intercept evidence without compromising national security. I refer to America, where different procedures determine how intercept evidence is used in court depending on whether the material was gathered by law enforcement agencies or intelligence agencies.

Jim Fitzpatrick (Poplar and Limehouse) (Lab): I am very interested in my right hon. Friend’s last point and he is making a powerful case for allowing intercept evidence to be used in court. However, he says that there might be exceptions for counter-terrorism. Might there be exceptions in serious and organised crime cases so that they can be exempt from automatic disclosure? There is a difference between evidence that should be allowable and used in court and cases when authorities need to prevent the source of their evidence from being disclosed to prevent the exposure of how it is obtained.

Mr Lammy: My hon. Friend raises a very important point. Of course, serious and organised crime is dealt with by a particular agency and it would be for a Home Secretary to determine whether it would fall within the scope of any provisions.

Let me move on to the other steps that can be taken to ensure that we do not compromise and that we separate the material from the means. Successive Home Secretaries have been concerned about the means, when there is really a need to separate the means from the material provided.

Sir Alan Beith (Berwick-upon-Tweed) (LD): I have great respect for the right hon. Gentleman and for the particular problem that has led him to take this position. I hope, however, that he does not underestimate the complexity of the task—something I have also been engaged in—of finding a way to achieve what we all agree is desirable. A combination of the disclosure requirements that operate in English courts, and article 6 of the European convention on human rights, could lead to massive requirements for retention and transcribing, and that could impair the operating efficiency of our security and intelligence services.

Mr Lammy: I am grateful to the right hon. Gentleman who I know has huge experience in these matters. Inquests have been with us since shortly after the Domesday

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Book, and if other major jurisdictions can crack this complexity, surely we in our developed democracy should be able to do the same.

Surveillance evidence has long been admissible in court. The police can eavesdrop on a conversation in a pub, and use the evidence in court. Someone’s phone conversation can be recorded on a microphone hidden under a desk and played back in court. If something is recorded, it is fine. There is only a problem if the conversation is contemporaneous, which seems strange.

If someone’s call is intercepted in a foreign country where intercept evidence is admissible—that is the case in every country other than the United Kingdom—that material can come before the courts. That is absurd. If sensitive material gathered by any other means can be heard in court, from transcripts of telephone surveillance to the account of an informant—informants are obviously important in this context—why can we not find a way to make contemporaneous intercept evidence admissible, handling the sensitivity of that material with due care?

We must dispose of the notion that intercept evidence is categorically more sensitive than evidence gathered by other means such as surveillance or informants. Evidence of any other kind is handled based on the sensitivity of the material, but that is not so with intercept evidence, which is the only evidence that has a blanket, categorical ban. In practice, it means that evidence from a phone interception of a conversation detailing a planned robbery is categorically inadmissible in court. At the same time, detection of a human trafficking ring through highly sensitive material provided by an informant faces no such categorical ban.

Of course, no hon. Member would wish to compromise the gathering of intelligence, but I wish to put to one side the notion that because maintaining records of intercept evidence may require logistical consideration, it is not worth doing. If intercept evidence recorded in another country is good enough for the eyes and ears of the British public, how can we maintain the position that evidence intercepted on our soil is not? If America, Canada and Australia allow intercept material to be used in court, one might suppose that the logistical hurdles are not insurmountable.

It simply does not hold true that removing the ban imposed by section 17 of RIPA would hamper the secret services from developing interception technology without exposing their methods to the public. Admitting intercept evidence in court would not restrict the way such evidence is collected any more than existing legislation. The British justice system already has a system that allows prosecutors to disclose material without disclosing its source. Given the strong similarity between admissible surveillance evidence and inadmissible intercept evidence, surely a similar system of disclosure could be applied. Indeed, a framework for making intercept evidence permissible in court already exists in public interest immunity plus. Public interest immunity is already used in cases where admissible surveillance data are heard. I see no reason why a similar safeguard cannot be applied to intercept evidence that has been made admissible in court. As with all difficult tasks, implementing a comprehensive safeguard will not be straightforward, but we cannot afford to give up on challenging the ban.

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Yes, the Government have received legal advice against public interest immunity plus in the light of European Court of Human Rights rulings on similar cases from Finland in 2008, and public interest immunity may need refining, but to take the ECHR rulings as a definitive rejection of the principle of a Home Secretary or senior judge assessing the material and deciding which bit is relevant would go too far.

The alternative in amending the Regulation of Investigatory Powers Act 2000 would allow a coroner to fulfil their role in determining the cause of death in mysterious circumstances. Such amendments were proposed in the Lords to the Coroners and Justice Act 2009. They proposed that the coroner nominated by the chief coroner should be able to see the intercept material and make a decision on its disclosure. Material would only be redacted when strictly necessary and in proportion to the public interest. If we wanted to go further, we could confine the role to the senior coroner in such cases.

I am not concerned with the question whether the state should intercept private communications between individuals. My concern lies with the ludicrous situation that there is a statutory ban on using material gathered through interception in court, despite a clear legal case for admitting it. That is a bizarre situation that leaves a family in my constituency without a full inquest into the death of their son more than a year since he was killed. That stubbornness might prevent there ever being an inquest into the death of Mark Duggan. That is unconscionable following the scenes of last August.

As it stands, section 17 represents legislation that obstructs, restricts and obfuscates—bad legislation. It is the House’s duty to return to the matter. Will the Minister say when Chilcot will end the reviewing period—it seems to have gone on for ever? The arrangements are small but necessary, and I hope we can make them. I do not want to compromise the important interception work that is done in cases throughout the country, but we should at least allow a senior coroner or judge, or the Home Secretary, through the use of public interest immunity, to look at the material and redact what is necessary to ensure that the means are not compromised.

Several hon. Members rose—

Mr Deputy Speaker (Mr Nigel Evans): Order. I intend to call the winding-up speeches at 4.30 pm. Will hon. Members therefore be conscious that other Members wish to take part in the debate?

3.42 pm

Mr David Davis (Haltemprice and Howden) (Con): It is a privilege to follow the right hon. Member for Tottenham (Mr Lammy), who has done a sterling job of making the basic case, and, perhaps in some ways more importantly, of defending the interests and rights of his constituents, some of whom feel very aggrieved after the events of last year. I shall speak more briefly than he did and try to wrap around his argument, but hon. Members should forgive me if I repeat one or two things he has said.

The primary distinction between the great democracies of modern times and the totalitarian states is how they treat their citizens. We believe we treat our citizens in a civilised way compared with the totalitarian states—they

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will imprison, torture and, in the final analysis, kill without trail, whether they are Soviet or Nazi states, or any of the other species or flavours of totalitarian state that we have been unfortunate to see in past decades.

Emotionally, we might believe that we do not do those things because we are nicer people than they are, but the reason for the distinction—between totalitarian states and our state and similar ones such as America—is simply the rule of law. If colleagues want to test that, I suggest they consider the operations of the British state when it has operated outside the constraints of the rule of law, such as in Kenya during the Mau Mau rebellion, when well brought up, well educated, and no doubt expensively educated, men—it is always men—acted with a brutality that would have done justice to some of the totalitarian states to which I have referred. The rule of law prevents that by exposing acts of the state to judicial challenge and questioning, and that process is never more important than when a citizen of the state dies at the hands of an agency of the state. Since the 1997 general election, 38 people have been killed in Britain by police forces. In most cases, the inquest gave a verdict of lawful killing. In one that I am aware of, the Jean Charles de Menezes case, there was an open verdict, and some, of course, are still outstanding.

Although I will be critical of agencies of the state, I want to make one point: I am not criticising police officers operating on the front line as parts of the armed response units. Their job is sometimes terrifying. I was critical of what happened in the Jean Charles de Menezes case, but the policemen involved went on to a tube train not knowing whether the man they were seeking to apprehend was carrying a bomb that would have killed everybody on the tube train, including themselves. In other circumstances, the armed response units are deployed when they do not know whether the people they are seeking to apprehend or stop will shoot them or use armed force against them. It is easy in the cold environment of the Chamber not to understand the terror, fear and pressure on people in those circumstances. What I am about to say, therefore, is not a criticism of them.

That is not an excuse, however, for not knowing the full facts after the event or for pulling our legal punches. It is an absolute requirement that the killing of a British citizen by an agency of the state be properly and publicly reviewed, with access to all key data. That is the case for all sorts of reasons, some of which the right hon. Gentleman listed: to ensure that it is never done improperly and that there is never a deliberate killing by the state; to ensure that errors and accidents are never repeated; and to ensure that systemic failures are not repeated—very much an issue in the Jean Charles de Menezes case, and possibly an issue in the two cases to which he referred, the Rodney and Duggan cases.

Also, not equally important but still massively important, it is necessary to ensure that the public, the families and the communities from which the people come have confidence in the system. The mother of a young man who has been shot should never feel that her son has been judicially—or, indeed, extra-judicially—executed. I am afraid that, in at least one case, that appears to be the situation. It is essential, therefore, that we have an open and fully informed inquest after every single fatal operation of the state against an individual, because that is what keeps us a civilised state. As the right hon. Gentleman said, in two cases that is either not possible

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or likely not to be possible: the Azelle Rodney case, which has already gone to a judicial inquiry, and potentially in the Mark Duggan case.

As outlined, the Regulation of Investigatory Powers Act 2000

“specifically bars any evidence in court, or any question, assertion or disclosure in legal proceedings, which results from warranted interception or would reveal that warranted interception had taken place.”

As the right hon. Gentleman said, that is an incredibly draconian restriction. That quotation came from the Chilcot committee’s summary. As a result, the Azelle Rodney case has gone to judicial inquiry, and, as I said, the Duggan case might well follow suit. This is a massive problem for the families and communities involved, but it is also a massive problem for open justice and a handicap for our national security.

Some years ago, my hon. Friend the Member for Esher and Walton (Mr Raab) and I went to the United States to talk to people about the whole question of the use of intercept. We talked to the National Security Agency, to the FBI—I think—to the Department of Justice and to the National Counterterrorism Centre. I have probably forgotten some of the other organisations, but every one of them said exactly the same thing: in summary, they could not do their jobs without the use of intercept in court. If I can quote him approximately correctly, the Department of Justice representative said, “If we go to a case”—either a major gang case, a major gangsterism or organised crime case, or a terrorism case—“and there is not intercept, the jury wonder what’s happened. They wonder why we have not got the intercept.” The idea that the criminals involved do not know that intercept technology is being used is therefore laughable—I use that word carefully. I will come back to that point.

Incidentally, the Department of Homeland Security is another place we went to. The homeland security gentleman we spoke to—I cannot remember whether he was the deputy director or the head, but he was one or the other—said he could not understand why the British took the stance they took. It was quite clear that, for the Americans, intercept was not just a marginal advantage; it was a massive advantage in the fight against organised crime and terror. Similarly, the Australian evidence—we did not go to Australia—is much the same. There are some categories of case that simply cannot proceed without intercept—in particular, cases involving the importation of drugs. Again, the Australians said that anybody who does not use intercept is not acting seriously—that was the phrase of, I think, the director of public prosecutions federally in Australia.

We are the only major democracy to have such a bar to the use of intercept evidence. The arguments are essentially twofold. First, if criminals knew they were being intercepted, they would cease to use the telephone or whatever medium was being intercepted, and that would lead to the loss of valuable intelligence. The right hon. Member for Tottenham made suitably short work of that viewpoint in his argument. Secondly, criminals might be able to work out the methods by which the intercept evidence had been obtained if it were used in court.

In a minute I shall quote at some length from Lord Lloyd of Berwick; I should remind the House that he was a senior Law Lord and head of the Security Commission for most of the ’90s. He was the man

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whom the last Conservative Government asked to review the entire sweep of terrorist legislation and to revise it for them, and the last Labour Government implemented everything he recommended. That is how authoritative this man is. He is the man who knows more about this subject than anybody else in Britain—full stop—and he has tabled a Bill in the Lords to try to bring forward the change in the restriction that we are debating.

Lord Lloyd of Berwick said the following about the legal position:

“In common with every other common-law country, we have developed a means of protecting sensitive information that is thought to be at risk in some way. The principle is called public interest immunity; there is nothing new about it. It is well understood in the courts. I do not say that it is used every day but it is used very frequently.”

He then set out where it came from and said:

“It is inconceivable that a judge would order documents to be disclosed, or information to be discovered, that would reveal methods used by GCHQ and other agencies. If the judge went off his head and did so order, the prosecution would at once appeal to the Court of Appeal, which would put the situation right.”—[Official Report, House of Lords, 16 March 2007; Vol. 690, c. 967.]

That is clear and it is clearly correct. In fact, throughout the entire period, over decades, when we faced the Soviet threat, which, I have to say to the House, was much bigger than the al-Qaeda threat—it was more sophisticated, more dangerous and more existential—never once was what Lord Lloyd of Berwick described broken. Never once did a judge release into the public domain the sorts of the things that we are concerning ourselves with in this debate.

Those who support the current ban then say, “But the European Court of Human Rights can overrule us and release this information to the criminals and the terrorists.” Actually, that is not the case. Using British criminal cases alone, we have clear direction and precedent. In Rowe and Davies v. United Kingdom 2000, the ECHR clearly stated that

“as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.”

I have not seen that put any clearer in any British court—that was the Strasbourg Court’s view—and that was not the only case. Almost exactly the same words were repeated in a subsequent case, Botmeh and Alami v. United Kingdom 2007. As Lord Lloyd said,

“there is no absolute right to disclosure: disclosure is always subject to the overriding interest of national security.”

Before I go on to outline the other inconsistencies, I want to point out that I think it highly unlikely that the ECHR would ever instruct us to release information. I know of cases in which it has admonished Governments for the destruction of information, but I know of no case in which it has instructed them to release it. Even if it did so, we demonstrated pretty clearly in a Backbench Business Committee debate on prisoners’ votes some time ago that, if the House so decides, it can defy an ECHR judgment if it thinks that it is against the

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national interest. At the end of the day, that is our final recourse. I cannot imagine the House doing anything other than voting against disclosure, if we were instructed to release such information. There has been a tendency for the agencies, which are understandably nervous of exposure to the courts, to overstate the risk. That was the one weakness in the otherwise powerful Chilcot report.

It is an astonishing inconsistency, as the right hon. Member for Tottenham pointed out, that we can use foreign intercept evidence but not our own. A stark and, frankly, embarrassing example of that came to light after the Heathrow bomb plot, when the agencies had to obtain from Yahoo in California parallel intercept evidence to the evidence that I suspect they had in their own files. I cannot say that they had it, but I suspect that they did. I cannot think of a more laughable demonstration of the stupidity of the policy than our having to go to a foreign country to get evidence that we almost certainly already had.

A second inconsistency is that we can use bugging, as the right hon. Gentleman also pointed out. If my telephone call to my hon. Friend the Member for Esher and Walton were intercepted, that evidence could not be used, but if there were a bug in my phone, the evidence could be used. Is one more secret than the other, or more dangerous to disclose? I think not. We might want to withhold from criminals the knowledge that we were using a laser microphone and interferometry —a high-tech mechanism—but we could use that evidence in court, whereas we could not use intercept evidence. That strikes me as laughable.

There is a third aspect of the matter that is laughable. The right hon. Gentleman said that GCHQ was a competent and capable organisation, and I agree with him. However, in this type of work, which is complex but not incomprehensible, our sophistication, capability, skills, innovations and edge are all a function of the amount of money that is spent. That is why we spend more money on GCHQ than on the other two agencies put together, but that is as nothing—a drop in the ocean—compared with what the American agencies use. They have no problem at all with placing their information in the public domain.

Furthermore, we have the internet. Any terrorist or criminal operating in the UK can look on the internet and find examples of the things that we are supposed to be concealing. Let me provide a topical example. The other day we were told about a particular technique that one of the agencies wanted to protect. For obvious reasons, I cannot talk about it, but just out of curiosity I googled it. Guess what? There is an article about it on an American site, outlining exactly how it happens and how it is used. If our criminals and terrorists want to know about this technique, they need only reach for that fierce weapon of a Google search. This is simply ridiculous; we are hiding things that everywhere else in the world are in open sight, and I do not believe that we have skills so much greater than those of our allies and contemporaries to justify protecting ours above and beyond theirs.

In my opinion we can safely allow intercept evidence in court without jeopardising our intelligence-gathering techniques above and beyond where they are now. However, my opinion is as nothing in comparison with the learned judgments of the most eminent security commission in

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modern times, for a start, and of at least two previous Directors of Public Prosecution, not to mention past Attorneys-General—I was corrected on the language by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips)—previous heads of the Met, previous incumbents of Her Majesty’s inspectorate of constabulary and a whole series of people who have been up close and personal with these issues. All of them want to use such information in court. I take their opinion with at least as much seriousness as I take the opinion of currently operating agencies which might be embarrassed about coming out into the public domain.

These experts, moreover, point to fact that every major country uses such evidence without risk. It allows serious terrorists and criminals to be apprehended and convicted and, as has been intimated, the head of every single one of five mafia families in New York is now in prison. That would not be true without intercept. There are terrorists in prison today who would not be in prison without intercept. That is true in every country from America to Australia.

The previous Government saw this problem as a serious handicap to our system—I give them that credit; I think they were open-minded about this—and set up the Chilcot Privy Council review of intercept evidence, which recommended careful reform of the law to allow the use of such evidence in court. I have some quibbles with it, but I think it is a pretty good report generally. That decision was then derailed by the Government’s and agencies’ over-interpretation of a case, Natunen v. Finland, in which the European Court on Human Rights rebuked the Finnish Government for destroying exculpatory intercept evidence.

The ECHR was right to rebuke the Finnish Government on that. Evidence was not forced into the public domain, because it had already been destroyed. The Finnish Government took it on the chin and changed the basis for treatment pretty much straight away by introducing a judge to decide the process. That is fine. That Government have continued to use intercept. Since then, nothing has happened in Britain. As a result, the inquest over Azelle Rodney has been disallowed, and we now have a judicial inquiry. To remind Members of what happened to Azelle Rodney, he was shot with an assault rifle from a range of only 15 metres about half a dozen times. He died. Guns were found in the car he was in, so there might well have been good reason for the action taken, but we will never know because of this foolish and unwise restriction. As a result, his family is in a permanent state of grief, which will never be allayed by a judicial inquiry. If we do not put this right, the family of Mark Duggan and his community will be in the same position.

It is time to put this matter right, and time we allowed these communities, families and people to know the truth, whatever the truth may be. It is also time that we gave the wider national community the enhanced security that would arise from a reform of the law, and the added protection that intercept evidence gives them—the ability to prosecute and convict serious criminals and terrorists. Finally, it is time we stopped asking our judicial authorities to act with one hand tied behind their back, and gave them the right to operate the law as it should be operated—with full knowledge of, and full insight into, the issues they have to resolve for us.

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4.4 pm

Paul Murphy (Torfaen) (Lab): I am grateful for the opportunity to take part in such an important debate. We have already heard two extremely powerful speeches, from the right hon. Member for Haltemprice and Howden (Mr Davis) and my right hon. Friend the Member for Tottenham (Mr Lammy).

I want to concentrate on the specific issue of the use of intercept evidence in court and other judicial proceedings. Looking around the Chamber, I think that I am probably the only Member present who has had to sign warrants for the tapping of phones. I did it for three years as Secretary of State for Northern Ireland, and it was a very burdensome and awesome task. I knew, when I had to perform that task on every single day of the week, that I was depriving someone of his or liberty, and possibly doing something that was contrary to my better instincts, but I also knew that at the end of the day I was doing it to preserve life, to destroy terrorism, and to prevent criminals from doing the things that they did.

I believe that—certainly in Northern Ireland, although I also had to sign warrants for the Home Office—many hundreds, indeed thousands, of lives were saved by the use of intercept evidence, which enabled us to prevent the sort of outrages to which, unfortunately, we had become accustomed over a period of 30 years. I do not think that this is an easy matter, and I do not think that the right hon. Gentleman or my right hon. Friend gave the impression that it was an easy thing to do. What they were saying was that it was an issue that we ought to address.

The agencies and the police have made points that I think we ought to consider. The problem relating to disclosure in courts is huge, given our legal system. The revealing of technology and methodology has important implications, because criminals and terrorists are becoming more sophisticated by the day when it comes to the use of intercept and how to deal with it. As I have said, the issues are not easy.

Both the right hon. Gentleman and my right hon. Friend made the important point that every other country in the world uses intercept evidence. There is a different legal system in continental Europe. However, Australia, the United States, New Zealand and Canada, our most important allies in these matters, are not burdened—if that is the right word to use—by the European Court of Human Rights, and I think that we should take the right hon. Gentleman’s point about the European Court very seriously.

The other occasion on which I had to deal with the issue was when, as chairman of the Intelligence and Security Committee—wearing a very different hat—I had to oversee the use of intercept. Having done it myself, I had to oversee what Secretaries of State did, with, of course, the enormous help of the Interception of Communications Commissioner.

The Chilcot report made some important points. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) has been a distinguished member of the Chilcot Privy Council committee considering intercept as evidence for some time now. The agencies have produced some powerful arguments in favour of safeguards; the Chilcot inquiry came up with a long list of protections which I think the Government should examine very carefully, and which should be implemented in every single instance.

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However, looking at the intelligence that was given to me over a period of years and which we have used as a consequence of intercept—privately but not in courts—I have felt at times that terrorists and criminals could have been brought to justice and put behind bars had we used intercept evidence in court proceedings, in certain very special circumstances. I have thought very carefully about this, and I can see the arguments from both sides, but I have reached the conclusion that we must continue to think very hard about trying to ensure that we can use intercept evidence, however difficult that might be. As the right hon. Member for Haltemprice and Howden said, when we go abroad and talk to people from other agencies similar to our own, we find that they are incredulous that we cannot use intercept evidence in our courts, given that every other country does. Difficult though this is, I urge the Minister and the Government to keep on trying. The danger in this debate is that we will give up and say, “It is not worth the bother. It is too difficult, so let’s not carry on any more.” There is now an onus on the Minister and his colleagues in government to ensure that we continue the debate and finally find a solution on this difficult issue.

4.10 pm

Mr Dominic Raab (Esher and Walton) (Con): I, too, pay tribute to the right hon. Member for Tottenham (Mr Lammy) for raising this issue and for the way he has done so, particularly in relation to his constituents, but also in respect of the wider issues of justice at stake. Like my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), I wish to discuss the big picture and then address specific issues relating to counter-terrorism and white collar crime.

The big picture is that in this country, particularly since 9/11, we have somehow started to view the justice system as an impediment to fighting crime and to law enforcement, rather than as something that is integral to and part of the solution. My view is that the justice system is a weapon, because without it and its integrity law enforcement will always be subject to flaws, be open to challenge and be fickle and fragile. Over the past 10 years, the prosecutorial edge that we have in this country has, if anything, started to become blunter, because of these prevailing attitudes.

In a cross-party debate that is being conducted in an admirable tone and spirit, I must make some criticism of the previous Government. Nobody doubts the pressures on government, given that the first duty is to protect the public, but since 9/11 and 7/7 we have seen a trend of excessive, hyperactive legislation, coupled with increasing surveillance, not just of terrorists and serious criminals but of the ordinary, average citizen. I am thinking of identity cards; the surveillance of not just terrorist suspects but people responsible for fly-tipping, dog pooping and so on; and the current proposals on the internet and e-mail, and text and BlackBerry messaging, which are really a rehash of earlier proposals under the previous Government.

While we have had this ever-expanding criminal legislative base and net of surveillance, it seems that the one set of characters we are getting worse at tackling and bringing to justice using that surveillance are the terrorists. Between 2006 and 2010 convictions for terrorism offences fell by

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close to three quarters—75% is a massive drop at a time when we supposedly have an ever-increasing threat, a massively expanding criminal base and ever more use of surveillance. Despite all that we cannot address the No. 1 priority, which all in this House would agree is counter-terrorism. Incredibly, the most serious seem to slip through the ever-expanding net of surveillance.

There are various aspects to what I regard as a serious and substantial prosecutorial deficit in this country. I understand the English Bar’s concerns about plea bargaining, but without going the whole hog and adopting the American approach we could make an incremental and stronger use of plea bargaining, particularly in cases of “joint criminal enterprise”, where concentric circles of active criminal participants are involved. We need to look at the issue of plea bargaining.

We also need to have a far more robust prosecutorial policy. We saw with the Abu Hamza case the tendency of the intelligence agencies to sit back and watch, whereas he should have been nailed the minute he did something that crossed the line—the Americans take the latter approach. We saw the same thing at the time of the protests in 2006 against the Danish cartoons: eventually there were four convictions for the clear and flagrant criminal activity of inciting violence and murder but, boy, were we slow to respond. What message does it send if it takes six weeks to arrest people who were advocating murder on the streets of this country? We need to be more robust in the use of prosecution, because it is a weapon.

The real missing piece in the jigsaw puzzle has been intercept evidence. I make no claim that it is the silver bullet or some kind of touchstone panacea, but its law enforcement value is beyond doubt. We are, as others have said, alone in the democratic world in not taking advantage of it.

My right hon. Friend the Member for Haltemprice and Howden discussed the visit that he and I made to Washington in 2007, taking in the White House, the FBI and all the relevant law enforcement agencies. The impact there of intercept evidence is clear in action against kingpin mafia dons and counter-terrorism. An excellent report by Justice in 2007 reviewed 10 US terrorism plots involving 50 suspects since 9/11. The US authorities secured charges and convictions in each case using a 48-hour maximum pre-charge detention limit—bear in mind the debate we had in this country—and in every single case, that was made possible by intercept evidence.

Former US Assistant Attorney General Ken Wainstein argues that intercept evidence is a vital part of the preventive strand of US counter-terrorism strategy—not just the prosecutorial, but the preventive strand—because of the disruption it causes in the concentric circles of terrorist actors. The way the US authorities use it in the joint criminal enterprise approach is to use plea bargaining to turn the minnows against the big fish and then work their way up the ladder, so to speak. Its disruptive impact is not only powerful in and of its own right, but it also has a strong deterrent effect.

The Australian Commonwealth Director of Public Prosecutions, Damian Bugg QC, has highlighted the value of intercept evidence in drug trafficking cases, as well as terrorism cases. When asked about the analogous position in Britain, he says:

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“The use of telephone intercepts in trials for terrorism offences and other serious crimes is now quite common in Australia and I cannot understand why England has not taken the step as well.”

Senior Canadian prosecutors make precisely the same point. We also have the evidence from our own law enforcement officials. The former DPP Sir Ken, now Lord, Macdonald told the Home Affairs Committee in 2009:

“If we had intercept available as an evidential tool and if we were directing intercept capability towards the gathering of evidence, I am absolutely confident that our experience would mirror the experience of other jurisdictions where it is used very frequently to great effect”.

The current DPP has drawn similar conclusions. He told the Committee:

“Evidence obtained by interception would be of benefit to prosecution in this country, particularly in respect of counter-terrorism and organised crime.”

That was not some abstract conclusion. He continued:

“I base that answer on an analysis of the cases where we have been able to use foreign intercept evidence. There have recently been 11 such cases involving organised crime. In eight of those cases, there were pleas of guilty based on foreign intercept evidence.”

We are missing a massive trick in this country. As others have mentioned, the assistant commissioner for counter-terrorism in the very difficult period between 2005 and 2007, Andy Hayman, said that while he began as a sceptic about the value of intercept evidence, he was turned around. Although I respect the Chilcot review and its conclusions, I have to say that in the light of the evidence made available both in this country and abroad by people who have taken a big picture, overarching and strategic view, I cannot accept that intercept is not of serious and substantial law enforcement value.

My right hon. Friend the Member for Esher and Walton—[Hon. Members: “That’s you.”] I am sorry; I meant my right hon. Friend the Member for Haltemprice and Howden. I was confused because he was referring to me.

Stephen Phillips (Sleaford and North Hykeham) (Con): And you made yourself a Privy Counsellor.

Mr Raab: I think it is the only way I will get promotion these days.

It is an anomaly that we have so many other sources of sensitive information that can be used in UK courts. What is so special about intercept evidence? The objections to its use—certainly those from Chilcot and other reviews—cluster around three or four issues. We have heard about article 6, the threat of disclosure of sensitive sources and the inadequacy of public interest immunity, but the truth is that every other jurisdiction that uses intercept evidence has a killer back-stop: if they fear disclosure, they drop the charges. There is zero risk of disclosure because the option of dropping charges and dropping a prosecution is always available.

Another argument that has been made ad tedium is that a disproportionate part of the resources of the intelligence agencies, particularly GCHQ, would be absorbed, but that argument, which relates to transcription of the evidence, has been made almost totally redundant by modern information and communications technology and the ability to use it to store data and subsequently search it. That argument has therefore fallen by the wayside, but even so, the senior prosecutors I mentioned

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have made the point that the costs, to the extent that there are costs involved, are more than offset by the increasing number of people who plead guilty as a result of the use of intercept evidence.

I will refer briefly to the Natunen case, because there has been a huge amount of misreporting of its impact and what it really means for the use of intercept evidence. The 2009 Home Office report, and other GCHQ sources, point to the Natunen case and claim that it requires

“full retention of all intercepted material”

just in case it might include something that shows a suspect is innocent. That is simply an inaccurate reflection of the Strasbourg case law. In the Natunen case, which concerned a drug dealer who was convicted in Finland using intercept evidence, the Strasbourg Court emphasises that

“disclosure of relevant evidence is not an absolute right”,


“competing interests, such as national security or the need to protect witnesses”.

The Court stated that it was not its role

“to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them.”

Far from requiring “full retention”—this is the key point—the Strasbourg Court required that defence requests for disclosure of sensitive evidence be backed up by “specific and acceptable reasons”. The intelligence agencies would need to retain some relevant material. However, the Court made it clear that that necessitated neither defence access to that evidence nor the wholesale retention of all intercept material. In the Finnish case, it merely required that a judicial body approve the destruction by the intelligence agencies of relevant intercept material, collected over a limited three-week period. Frankly, I think that the Natunen case has been blown out of all proportion.

The real issue—I do not think that the agencies are making this up—is not the Aunt Sally or the false reasons that have been put up and are rebutted by the empirical evidence. The real reason is that GCHQ, which was originally an intercept organisation confined to the military zone, has had its functions broadened to include counter-terrorism and other serious crimes. Its role has increased exponentially. I can see why it worries about lack of focus and the huge competing obligations being placed on it with finite resources, notwithstanding the increases in its budget. I understand that, but that is a strategic issue of tasking intelligence, not a technical issue of viability.

Likewise, the fact is that we face a cultural shift with regard to law enforcement and the division between intelligence and prosecution. It is a shift that has taken place in other countries but that our authorities have not yet to bridge and overcome. There is a cultural aversion in this country to combining intelligence with prosecution, and I think that we have to overcome it.

Mr David Davis: I have long thought, partly as a result of the Northern Ireland experience, that our intelligence agencies are predisposed to go for disruption rather than prosecution. The whole nexus of the things my hon. Friend describes, their attitude to the use of intercept evidence and the problems addressing the exponential increase in GCHQ reinforce that. Does that

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not support the argument that a step change is needed from a disruptive approach to a prosecutorial approach, which is clearly what the Americans do, and with more success than us?

Mr Raab: I thank my right hon. Friend for his intervention and agree entirely. The other point to make is that the disruption model that has previously been used was shown to fail because of the huge increase in the number of terrorism suspects that successive heads of MI5 made clear in the public annual reports.

I am conscious of the time and want to make two points in closing. First, I think that the use of intercept evidence is not just confined to inquests, as important as the points made by the right hon. Member for Tottenham are, and not even just to counter-terrorism. We have seen in relation to the LIBOR scandal an incredible situation in which rate rigging, according to the Government’s proposals, now requires a separate criminal legislative proposal. I find it astonishing that it is not an evidential issue, rather than the lack of a criminal base.

Again, if we probe a little further into the work of the Serious Fraud Office and the Crown Prosecution Service, we find a very sleepy prosecutorial approach. Conviction for fraud by company directors fell by 48% between 2004 and 2010. Convictions for fraudulent accounting, which seem to me to be exactly what the rate rigging scandal was all about, fell by 77%. We need to wake up and stop having this interminable debate, which feels like a legislative version of “Groundhog Day”, about intercept evidence, to get on with lifting the ban and to use that evidence. The justice system is a weapon for, not an impediment to, law enforcement, and intercept evidence in prosecution must lie at its heart.

4.25 pm

Jim Fitzpatrick (Poplar and Limehouse) (Lab): I am grateful for the opportunity to speak briefly in this debate. I confess that I hesitated to contribute, given the authoritative speeches made so far, especially by the right hon. Member for Haltemprice and Howden (Mr Davis), who speaks with great authority, and by the hon. Member for Esher and Walton (Mr Raab), who has a great track record on these matters.

My right hon. Friend the Member for Tottenham (Mr Lammy) and his right hon. ally the Member for Haltemprice and Howden have done a demolition job on the status quo. I have not considered these matters as closely as I should have over the years; I have had other responsibilities and trusted the judgment and advice of colleagues. However, having been on the initial police parliamentary scheme, I am now doing a graduate scheme and looking at these matters more closely. The opportunity to come to this debate and listen to people with great experience has been valuable and of great interest.

My right hon. Friend the Member for Torfaen (Paul Murphy) made a powerful point. He said that we had not got the issue right so far. There have been reasons why we have not changed the rules. The Chilcot inquiry, and the role of the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) in that, have been well documented, but we must keep trying.

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Both parties have been in power and both have decided that we are staying with the status quo; Home Secretaries of the left and right from both parties have stuck with the status quo. I only want to say that I am really looking forward to the comments of my hon. Friend the Member for Kingston upon Hull North (Diana Johnson), the shadow Home Office Minister, and of the Minister; I have a high regard for both. Given how anomalous we are among western democracies in not allowing intercept evidence and that the security and law enforcement agencies have clearly strongly advised against changing our position, I shall be interested to see whether there is any new thinking.

All the speeches have clearly shown that the issue is a major one of human rights, citizenship, democracy and transparency. This has been a very authoritative debate, and I am pleased to have been here to listen to it.

4.27 pm

Stephen Phillips (Sleaford and North Hykeham) (Con): Like the hon. Member for Poplar and Limehouse (Jim Fitzpatrick), I hesitated to rise in this debate; I congratulate the right hon. Member for Tottenham (Mr Lammy) on having secured it. His contribution and those of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Esher and Walton (Mr Raab) have been extraordinary and among the best that I have heard on this subject since I have been in the House.

The debate has been extraordinary not only in its quality but in the fact that the House is having it yet again. I entered the House only in May 2010, yet the issue has been rumbling on not only in this Chamber but among lawyers—including those, such as me, who sit a few weeks a year judging crime—for a considerable period.

My right hon. Friend the Member for Haltemprice and Howden is entirely right in saying that, as the position prevails at present, courts and prosecutorial authorities have one hand tied behind their backs. It is extraordinary that, as our colleagues from not only other democracies but other common law jurisdictions tell us, we are the only country that has never permitted the use of intercept evidence to secure the conviction of the guilty and—almost as importantly—the acquittal of the innocent.

Notwithstanding the powerful speeches from both sides of the House, I want to concentrate on one other point. While we continue to exclude such evidence from our prosecutions in this country, we run the risk of interfering with our civil liberties. It may be, of course, that, as the last Government said during the last Parliament, none of those on control orders could have been prosecuted even if intercept evidence had been capable of being used in the courts. However, that is the sort of thing that Governments always say because they have it on advice from their security advisers.

One of the things that has concerned me about the non-use of intercept evidence, which must compel us to move in the direction not only of looking at this question more closely but of coming to a resolution in favour of using such evidence, is that if we do permit it to be used we may end up with prosecutions in cases where hitherto we have had to use administrative measures that begin to interfere with people’s civil liberties. I hope that that

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is yet another reason why the Minister will be compelled to indicate to the House precisely when we will see the introduction of legislation in this context, in accordance with the recommendations not only of the whole House but of the Privy Counsellors who previously considered the matter.

4.30 pm

Diana Johnson (Kingston upon Hull North) (Lab): I congratulate my right hon. Friend the Member for Tottenham (Mr Lammy) on an excellent speech. He was, as usual, a very powerful advocate for his constituents and his constituency, and for open justice, which is very important. The right hon. Member for Haltemprice and Howden (Mr Davis), a near neighbour of mine, made his usual compelling case for open justice and cogently set out the key issues in this case.

The debate overall has been of an extremely high quality, with excellent contributions from across the House. My right hon. Friend the Member for Torfaen (Paul Murphy) made a very good speech based on his own practical experience and knowledge in a number of roles. It was telling that he said that this is not an easy matter and that we need to keep on looking very hard at the use of intercept evidence. The hon. Member for Esher and Walton (Mr Raab) set out a strong case for the motion and drew on his experience in the US. My hon. Friend the Member for Poplar and Limehouse (Jim Fitzpatrick) asked exactly the right questions, drawn from his practical experience with the police, about why we are not doing this and how we can move it forward. The hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) spoke briefly about civil liberties and, in particular, control orders. I want to return to his comments later.

Over recent years, successive Governments, and particularly Home Secretaries, have grappled with the problems of trying to get intercept evidence into courts, and it has also been considered by the Privy Council review, so it is absolutely right that Parliament is debating the matter. We have heard at length about the benefits that might reasonably be expected to result from the use of intercept evidence in courts and inquests as regards, for example, increases in the number of successful prosecutions in serious organised crime and terrorism cases. However, the debate must cover not only the benefits but the difficulties involved, including the risks, such as exposure of interception capabilities and techniques, the resource implications of any changes in the law, and the implications of new communications technology. While the United Kingdom continues to struggle to find a way of accommodating intercept evidence in court, other countries, as we heard from my right hon. Friend the Member for Tottenham and the right hon. Member for Haltemprice and Howden, allow such evidence, and it is important for us to see what we can learn from those jurisdictions.

This is a very unusual issue. Successive Governments, the Privy Council and leading lawyers have long supported the principle of allowing intercept evidence, but none has been able to come up with a satisfactory model for the admission of such evidence without compromising national security. Labour has long supported the principle of allowing intercept evidence into courts. Indeed, the current push to find a way of doing this was started by my former right hon. Friend and Home Secretary,

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John Reid, the then Member for Airdrie and Shotts, in 2007, and that commitment was reiterated by my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) when he was Home Secretary. In opposition, my right hon. Friends the Members for Morley and Outwood (Ed Balls) and for Normanton, Pontefract and Castleford (Yvette Cooper) have reiterated Labour’s desire to see intercept evidence in court and to work with the Government in a constructive manner to achieve that. I restate that commitment.

It is clear that there would be significant benefits in allowing intercept evidence to be admissible in a wider range of courts than is the case at present. In particular, it would be desirable to allow the use of intercept evidence in criminal proceedings and inquests.

I am sure that we all sympathise with the Duggan family, who, as my right hon. Friend the Member for Tottenham has said, have unanswered questions. Understandably, they and the community in Tottenham want answers as to how Mr Duggan died, but without an inquest those answers cannot be provided. The Government have proposed secret inquests in which intercept evidence would be admissible, but that would not solve the problem—not only do we need justice to be done, but we need it to be seen to be done. I hope that the Minister will update us on the progress that he has made on this particular issue and I look forward to hearing his comments.

Allowing intercept evidence would seem to support two fundamental principles of British justice. The first is that courts should always have the best evidence available to them, and the second is that all crimes should be dealt with by the same legal system and guided by the same principles. We should, wherever possible, ensure that our legal system is able to protect national security and uphold standards of justice.

We would also like the use of intercept evidence to lead to practical outcomes, such as more prosecutions, particularly for serious crimes and terrorism. It is generally accepted that allowing intercept evidence would have a significant impact on some trials, facilitating some prosecutions and making others more likely. Indeed, the Crown Prosecution Service thinks that allowing intercept evidence would result in more prosecutions and more convictions, and it foresees time and money being saved as a result of more guilty pleas. We would particularly like to see the prosecution of cases that could not otherwise be tried, including those in which intercept evidence has led to a prosecution, but not necessarily for the most serious crime committed. It is often cited that allowing intercept evidence would reduce the need for other measures aimed at countering terrorism, namely pre-charge detention and terrorism prevention and investigation measures, or control orders as they were formerly known.

We should not, however, overstate the practical benefits of allowing intercept evidence. I now want to turn to the point that the hon. and learned Member for Sleaford and North Hykeham made about control orders, or TPIMs as they are now known. The noble Lord Carlile, the independent reviewer of terrorism legislation, was unequivocal in saying that he felt that intercept evidence would not have made control orders obsolete. That was backed up by a report by an independent counsel commissioned by the Home Office. It concluded that allowing the use of intercept evidence would not be

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enough to facilitate trials in any of the cases of the nine people who were subject to control orders at the time. Indeed, the Privy Council concluded: