Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Lucas: As a point of interest, listening to the Minister's explanation, why not just phrase a Clause

19 Jun 2000 : Column 105

8(1) warrant to include, in the terms of Clause 72, everybody in the world, in which case we would not need Clause 8(3)?

Lord Bassam of Brighton: I suspect that the answer to that is that it would probably be a rather wide way of achieving the objective. My suspicion is that there would probably be considerable objections to the breadth of that.

Lord Lucas: From whom?

Lord Phillips of Sudbury: I am grateful to the Minister for his reply. He has very kindly offered to provide a written response to the questions that I raised. I entirely accept that that is an appropriate way of dealing with it and I very much look forward to receiving those replies, which will, of course, be shared with other members of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 64 to 67A not moved.]

On Question, Whether Clause 15 shall stand part of the Bill?

Lord Lucas: I thought this matter was to be debated. Hence my slowness in rising to my feet. I should point out again that this clause is not subject to any oversight. There are no provisions for oversight of the Secretary of State's actions under Clause 15 by any of the commissioners involved in the Bill. I should very much like to know why.

Lord Cope of Berkeley: My noble friend asks a shrewd question. I thought from the way that the Minister was speaking that there had been a certain amount of oversight of these matters in the past--in fact, it was clear that there has been. It seems highly desirable that, as in other parts of the Bill, this matter should be subject to oversight in the future. We have already discovered how complicated and difficult is this matter; oversight is essential.

Lord Bassam of Brighton: I congratulate the noble Lord, Lord Lucas, on raising a point that we should fairly consider. I shall take it away, reflect on it and come back to it on Report. I shall perhaps take the opportunity before then to write to the noble Lord with some further thoughts.

Clause 15 agreed to.

Clause 16 [Exclusion of matters from legal proceedings]:

The Earl of Northesk moved Amendment No. 67B:

    Page 18, line 45, at end insert--

("( ) For the purposes of this section, section 2(3) applies.").

The noble Earl said: Whether or not intentional, a persistent theme of the Bill is that, at its most charitable, there is a difference of interpretation between its critics and the Government on how wide its scope is. This ranges from issues such as the definition

19 Jun 2000 : Column 106

of communications data to, as we have seen today, the vast sums of money involved in terms of regulatory compliance with its provisions.

In the context of Clause 16, this gives rise to a number of problems. In particular, I return to the packet-switching nature of the Internet. In the event that the communications data of a law-abiding individual were to be inadvertently or erroneously intercepted as a function of a legitimate but too widely executed intercept, it is unreasonable to suppose that that individual should be denied any form of legal redress. I may have misread the Bill entirely but, to my mind, it is not simply a matter of whether the intercepted data could be inappropriately used; the mere fact that one's data have been the subject of the interception regime is sufficient unto itself to cause significant harm. The potential here for damage to reputation is enormous and, in the vast majority of cases, the individual would be left with the unenviable difficulty of having to prove a negative--namely, that, despite the existence of the intercept, he had done nothing wrong. Much the same point applies to businesses involved in e-commerce.

Accordingly, I should be grateful if the Minister could explain how the Government perceive that the Bill is structured to address this problem. I beg to move.

Lord Bach: Amendment No. 67B seeks to ensure that for the purposes of Clause 16 references to an "intercepted communication" do not include references to any communication which has been broadcast for general reception. However, we believe that the wording of Clause 2(3) already achieves this. It states that its application extends across the whole Bill when it begins with the words, "References in this Act".

Although the phrase "intercepted communication" has a free-standing meaning in Clause 16(4), I am advised that all the matters listed in Clause 16(2) refer back, directly or indirectly, to the phrase "interception of a communication" in Clause 2. Hence the phrase "intercepted communication" does not include references to the interception of any communication broadcast for general reception, and the noble Earl's intention is achieved.

The Earl of Northesk: I am grateful to the Minister for that reply; I shall of course study it. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

On Question, Whether Clause 16 shall stand part of the Bill?

Lord Lloyd of Berwick: I should like to apologise for having missed the debate on Second Reading. I wished to give a warm welcome to the Bill in general terms. It brings together for the first time all the various provisions relating to interception of communications, intrusive surveillance and so forth, currently spread

19 Jun 2000 : Column 107

over three separate Acts. The only point of detail I wish to make is on Clause 16. As my views on Clause 16 are very well known to the Home Office--I explained them at great length in chapter 7 of my report on terrorism--nothing that I shall say will take the Minister by surprise.

Clause 16 replaces the old and--I think I can call it--notorious Section 9 of the Interception of Communications Act 1985. It was notorious because the drafting was so oblique that it took three, perhaps even four, decisions of the House of Lords before the meaning was made clear. Clause 16, which replaces Section 9, is in comparison relatively clear, although it needs to be read several times before its meaning springs to the eye. The purpose is exactly the same in both cases; namely, to prohibit the disclosure of the contents of an interception in proceedings in a court of law. That means that the intercept can be used to catch the criminal, but the intercept cannot be used to convict the criminal.

I confess that I have never understood the logic of that--and I have been involved in matters concerning the interception of communications for, I am sorry to say, 15 or more years. Perhaps I may take a case where the police or the Security Service are hot on the trail of a terrorist gang or international conspiracy for the importation of a hard drug such as heroin. The authorities will apply for a warrant under the old Section 9 for the interception of one or more telephone lines. Under the new Bill, the warrant will specify the person whose communications are to be intercepted rather than the telephone line. That is a great improvement upon the old Act. I am afraid to say that under the old legislation, for one reason or another the authorities quite often got the wrong line. It is hoped that, under this procedure, they will at least get the correct name. As I said, that is definitely an improvement.

Having secured their warrant, let us say that the interception proves successful. The officer overhears a conversation in which a proposed importation of drugs is discussed and those who are to take part in it are named. If we suppose that the importation cannot be prevented, in due course it takes place but, happily, the importers are arrested. They are then put up for trial.

Obviously, the tape recording used in the interception would be highly relevant and cogent evidence to convict those who had been arrested. In law, all relevant evidence is prima facie admissible evidence. Given that, why should the tape recording of such a telephone conversation, which would secure the conviction of the drug importers, not be used in court? It simply does not make sense.

Unlike the noble Viscount who was in the Chamber earlier, I cannot pretend to be--as he put it--as far from being a lawyer as any human being could possibly be. But I hope that does not deprive me of having at least a measure of common sense. I cannot see the sense in allowing that evidence to be used to catch criminals and then saying, "Oh no, we can catch them, but we cannot use the evidence to convict them".

19 Jun 2000 : Column 108

I think I can anticipate the Minister's reply. Before I come to that, perhaps I may make two brief points. The first is that evidence of telephone communications of that kind is admissible in court in every country in the world as I am aware. The countries I visited during my inquiry into terrorism--France, Germany, the United States and Canada--regard such evidence as indispensable. They were astonished to hear that we do not use it in this country.

Secondly, let us suppose that, instead of applying for a telephone intercept under Part I of the Bill, the police decide to go for an authorisation under Part II to enable them to place some intrusive device, a bug, in some convenient spot, perhaps even in the very telephone from which the telephone conversation is made. Let us suppose that, as a result, there is a tape-recording of the same conversation as might have been recorded by the telephone intercept. The tape-recording obtained by means of a bug is admissible in evidence. At once that poses the question: why should the tape-recording be admissible when it is obtained by means of a bug and not admissible when it has been obtained by a telephone intercept? It simply does not make sense.

That that is intended to be the position is clear from the fact that in Part II of the Bill there is nothing that corresponds to Clause 16 in Part I. Again, I ask the question: why should the evidence be admissible in the one case but not in the other? It cannot have anything to do with the Human Rights Act--in case that is the suggestion. There is no difference from a human rights point of view whether the bug is placed in the terrorist's room or whether the terrorist has his telephone conversation intercepted. Indeed, if I were a terrorist, I should be more concerned at the thought of the police or the Security Service intruding in my home than I should be if they listened to my telephone conversations. I hope that, in due course, the Minister will be able to explain why there is this difference between Part I and Part II of the Bill.

There is a more general point that I should mention which leads to absurdities in practice. A case has recently been before the courts involving a conspiracy to import cocaine from Holland. There are two alleged conspirators, to whom I must refer as "A" and "B". A is a Dutch national, and he has already been convicted in Holland--in accordance with Dutch law, on the strength of an intercepted telephone conversation between A and B. For some of the telephone conversations, A was in Holland and B was in the United Kingdom, but some of the telephone conversations took place when A and B were both in the United Kingdom. Use of the taped evidence became possible only because the Dutch interception system enabled them to intercept A's mobile phone in England which he used to have a conversation with his fellow conspirator here. That comes quite near the point as to the difference between external and internal communications to which the noble Lord, Lord Phillips, referred a moment or two ago.

19 Jun 2000 : Column 109

The question has now arisen in England whether those same tapes should be admissible in criminal proceedings brought against B. The judge before whom this matter came said that if the tapes were not put before the jury it would,

    "almost certainly result in a miscarriage of justice".

Those were his very strong words. He held that the tapes should be admitted in the circumstances despite any argument against it based on the Human Rights Act or Section 9 of the old Act.

That decision was upheld in the Court of Appeal and very recently in your Lordships' House. Perhaps I may read the short question which the Law Lords were asked to answer:

    "Is evidence obtained as a result of a telephone intercept made in a European jurisdiction in accordance with the law of that jurisdiction in respect of a call in which one or both parties make or receive such call within the United Kingdom, admissible in criminal proceedings in the United Kingdom?"

The Law Lords have said that it is admissible and will give their reasons later.

The position now is that if a telephone conversation takes place in England, evidence of that telephone conversation will be admissible in court if the interception takes place in Holland but not if the interception takes place in England. I suggest that that is not only absurd but unjust. Justice is as much concerned with the conviction of criminals as with the protection of human rights.

I now come to the reasons that the Minister will give. He will say that the police and Customs services have always been opposed to the repeal of Section 9. I shall be very surprised if the noble Lord says that the Security Service is opposed to the repeal, because I know for a fact that it is not. The reason given by the police for wanting to continue with Section 9 is their fear that if criminals realise for the first time that their conversations may be tape-recorded, they will cease to use the telephone for hatching their plans. I regard that objection as utterly unrealistic.

Terrorists and international drug dealers are not simple souls who have never heard of telephone tapping; they are hardened, sophisticated, professional criminals who know every bit as much about telephone tapping as anybody in this Committee--probably a great deal more. I suggest that the notion that they will give up using the telephone to hatch their schemes because evidence of what they say in a telephone conversation will be admitted in a court of law is fanciful. They must communicate with each other in some way. As I said in my report, they cannot communicate by pigeon post and have no alternative but to use the telephone. They will continue to use the telephone. If the police believe otherwise, they are, with all respect, wrong.

We have here a valuable source of evidence to convict criminals. It is especially valuable for convicting terrorist offenders because in cases involving terrorist crime it is very difficult to get any other evidence which can be adduced in court, for reasons with which we are all familiar. We know who

19 Jun 2000 : Column 110

the terrorists are, but we exclude the only evidence which has any chance of getting them convicted; and we are the only country in the world to do so.

I know that there are other difficulties to which the Minister may refer. There is said to be a difficulty in relation to the disclosure of what is called unused material. But with good will and a measure of ingenuity I do not doubt that those difficulties could be overcome.

I do not expect the Government at this stage to agree with a point that I have been putting forward fairly consistently, I hope, for many years. I oppose the Question that this clause stand part of the Bill because people should know that so long as Clause 16 remains on the statute book we shall be fighting organised crime with one arm tied behind our backs. It is the terrorists and the international drug dealers who will have the loudest laugh.

Next Section Back to Table of Contents Lords Hansard Home Page