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After Clause 6, insert the following new clause--

Exclusion of evidence

(" . In subsection (4) of section 9 of the Interception of Communications Act 1985, after paragraph (b) there shall be inserted--
"(bb) an offence under the Northern Ireland (Emergency Provisions) Act 1996 including a scheduled offence within the meaning of section 1 of that Act;".").

The noble Lord said: My Lords, this matter has been discussed a number of times in this House and in another place. The question before us is whether evidence obtained from tapping telephones should be allowed to be used in court. At present, such evidence cannot be used in court. General bugging evidence can be used, but evidence obtained from telephone tapping cannot.

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In Committee the Government made clear that they are considering the matter. In fact, it has been under consideration since 1976 when it was first recommended to the then government. It has been considered since May by the present Government. Six months ago, we were told to expect a decision before long. Three months ago, we were told that the Government were still thinking about it. The purpose of tabling the amendment is to discover how the Government are getting on with their consideration.

I shall not rehearse the arguments which were made at length in Committee. I beg to move.

Lord Monson: My Lords, the clinching argument in favour of the amendment is that the noble and learned Lord, Lord Lloyd of Berwick, in his report, stated that he could find no other jurisdiction in which evidence obtained by telephone tapping could not be used. Presumably, that is no other jurisdiction in the civilised world. Surely, that is telling.

Of course, there are cases when we are right and every other country is wrong, but I do not believe that this is one of them. I know that the noble Lord, Lord Alderdice, speaking in Committee, took the opposite view; that every other country was out of step. I believe that in this case we are out of step and that this valuable power should not be denied to the forces of justice.

Lord Holme of Cheltenham: My Lords, following the example of the noble Lord, Lord Cope, I shall speak briefly. I have become increasingly sympathetic to the amendment. I wait with the same eagerness to hear how the Minister's consideration is developing.

Lord Molyneaux of Killead: My Lords, for the same reason, and bearing in mind the fact that the Government have given us a slice of prime time, I wish formally to support the amendment.

Viscount Brookeborough: My Lords, I, too, support the amendment. When the proposal was put forward previously, it was argued that the measure would not stop terrorists communicating between each other and that they would find a way around the difficulty. There is a whole raft of measures within the EPA which restrict terrorists from doing certain things and which permit the security forces to counter certain of their actions. For instance, there is a right to stop and search people for illegal items. Certain items, on their own, may not be used as weapons but put together with other items they may be used for munitions. That means that terrorists cannot so easily carry around broken down weapons.

The security forces are also allowed to search houses. That restricts people from keeping illegal items at home, making it more difficult to safeguard them. They must be kept outside. The security forces are also allowed to stop and search cars, making it more difficult for people to transport illegal items. A few years ago legislation was passed giving a right to search documents for communications, information on possible terrorist targets, car numbers and so forth. Although it allowed

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for legal and religious confidentiality, the measures were introduced in order to restrict communication between terrorists.

At present the security forces are allowed to use evidence gained from eavesdropping. That means that terrorists must be careful whom they meet and when they meet. They must check that the room is not bugged. Low and behold and despite all that, we allow them to telephone each other and to have what might be teleconferencing from different locations without meeting.

The proposal, if enacted, would restrict the activities of terrorists. As one sees from incidents which have taken place in Northern Ireland, the more difficult it is to commit acts of terrorism the more likely it is that a terrorist will make a mistake. Terrorists are very sophisticated and therefore the security forces need them to make mistakes. The proposed measure does not infringe human rights. It is used in every other country. People are monitored and it is known who they meet, where they go, what they do and what they carry. Yet we allow them to sit back in their homes and to talk away, no doubt with modern facilities. With video conferencing they can plan their activities and we can do nothing.

In Committee, the noble Lord, Lord Alderdice, said that there was no evidence that information gained from such legislation would be helpful. I am sure that the security forces in this country and in other countries would find it useful. I also believe that the measure should be introduced ahead of other legislation because it is vital to have it in place now, not only to counter acts of terrorism but in order to support the peace process.

Lord Dubs: My Lords, the new clause, if enacted, would have the effect of allowing evidence from intercepted material acquired by virtue of a warrant under the Interception of Communications Act to be adduced in court if it is related to an offence under the Northern Ireland (Emergency Provisions) Act 1996, including any scheduled offence within the terms of the 1996 Act.

Questions about the use of intercept material in evidence were raised in another place in October last year following an announcement made by my right honourable friend the Home Secretary about the Government's plans for permanent counter-terrorism laws. In response, the Home Secretary said:

    "There is much to be said on both sides of the argument about whether intercept evidence should be adducible in court".--[Official Report, Commons, 30/10/97; col. 1033.]

On the one hand, considerable difficulties exist in obtaining evidence on which to charge and convict terrorists, and many other countries use intercept material to prove guilt and to secure convictions otherwise unobtainable. As was said by the noble Lord, Lord Monson, evesdropping evidence is admissible as evidence in criminal proceedings and this sits awkwardly against the fact that intercept material is not.

On the other hand, if intercept material were used in court, the interception capability would become exposed and as a result criminals--in this case terrorist

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criminals--would find ways to circumvent the interception methods. In this respect, it is relevant to refer to the report in 1957 of the Birkett Committee which states:

    "With regard to the use to be made of information discovered, we feel that that should be confined to the authority empowered by the warrant to discover it, and it should not be disclosed to private persons or to private bodies ... We are told that in practice the Home Office insists that the power should be exercised for the purpose of detection only, primarily on the ground that the use of the information so obtained, if used in court, would make the practice widely known and destroy its efficacy in some degree."

At paragraph 121, the report states:

    "We are strongly of the opinion that it would be wrong for figures [of numbers of interceptions] to be disclosed by the Secretary of State at regular or irregular intervals in the future. It would greatly aid the operation of agencies hostile to the state if they were able to estimate even approximately the extent of the interceptions of communications for security purposes."

Also, the use of intercept material would result in pressure for increased disclosure by the prosecution.

Concluding his remarks in another place on 30th October last year, my right honourable friend the Home Secretary said at col. 1033:

    "I continue to consider the matter carefully and will be happy to take advice from hon Members, particularly those who have experience of the matter."

The Bill has provided the House with further opportunity to debate the issue. Noble Lords have spoken eloquently and persuasively in favour of the change which the new clause would bring about.

In his place, on 5th March, during the Bill's Committee stage, I reassured the House that the matter of the interception of communication, as it applies in the context of the United Kingdom as a whole, remained under active consideration by the Government. Given that, and given the complex nature of the considerations, which it would be very unwise to rush to a conclusion, I explained that it would be premature to proceed with an amendment to the Emergency Provisions Bill. On that basis, at that time the noble Lord, Lord Cope, graciously withdrew the amendment previously tabled. Clearly, as he said in his very brief speech, he is anxious to see evidence of my assurances. That is to be expected.

I have gone into this matter in considerable detail since the Committee stage. I can advise the noble Lord that my right honourable friend the Home Secretary is fully seized of the importance of the matter and is taking a close and personal interest in it. He continues to consider actively the wider issues and, as part of those wider issues, the question of the use of intercept material in evidence.

It is important to underline that this amendment would have consequences not only for Northern Ireland but for the United Kingdom as a whole. That is why it must be considered in that context. One consequence of material gained from interception being used in Northern Ireland would be that interception capabilities within the United Kingdom would be exposed to some degree and ways of avoiding interception would become more obvious. That knowledge of ways to counter interception would be available not only to terrorists but also to others, including major criminals such as drug traffickers. That would have a direct effect on anyone

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making use of intercept material elsewhere in the United Kingdom. Police and Customs would still be unable to make use of the material in evidence, yet obtaining intelligence from interception would become more difficult. Those consequences can be put into perspective by what I say next. On 1st April 1980 the then Home Secretary, the noble Viscount, Lord Whitelaw, in a Statement on the interception of communications, said:

    "It is estimated that in 1978 about 62 per cent. of the seizures of heroin and about 56 per cent. of the seizures of cocaine were due to interceptions, and there are results of a similar nature for 1979. I do not think that anyone can afford to neglect the importance of such seizures to the whole life of the nation".

Your Lordships will understand why the Government do not wish the matter of interception to be dealt with piecemeal. I know that the noble Viscount, Lord Brookeborough, argues that we should proceed but, as I have explained, the Government are not yet ready to draw a conclusion in respect of Section 9. In the circumstances, I prevail upon the noble Lord to withdraw his amendment.

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