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Baroness Park of Monmouth: I warmly endorse and support everything that the noble Baroness, Lady Ramsay, has said. I will, however, add two points. One is that we are also obliged to think about the rights of the agent who takes the risk, by working—probably for many years—in a highly dangerous environment, knowing that his life is at stake. That would be so in the kind of case we are discussing. Frankly, if such agents see this sort of thing happening in courts, and defence counsel—quite properly, given the interests of their client—revealing what should not be revealed, then we shall not have any agents. That would be a pretty serious situation.

It is also one of the more serious aspects of terrorism that it is extremely difficult to find people with access, courage, determination and lasting power. We should not overlook the fact that they too have rights. They need to be protected—and need that protection more, I fear, than the person who would be on trial.

The Earl of Onslow: I would surmise that the problem outlined by the noble Baroness, Lady Ramsay, and my noble friend Lady Park is not new. I assume that throughout the Irish Troubles we had agents deep within the IRA. We knew that we did not have to compromise them and we knew how not to compromise them.

On intercept evidence, I go back to the 1914 war. That may sound rather odd, but I refer to the famous Zimmermann telegram. Because we had broken the German diplomatic code, we could read all the German diplomatic exchanges within the United States. It was absolutely essential that we did not allow the Germans to know that we had broken their code—exactly the point made by the noble Baroness, Lady Ramsay.

Noble Lords will know that Zimmermann was the German Foreign Minister. He sent a telegram to the German ambassador in Mexico asking him to please stir up a war between the United States and Mexico. Mexico could then have Arizona, Texas and New Mexico back. That drove the United States up the wall. It was a really important piece of information. We had to convince the Americans that it was genuine—Woodrow Wilson was being difficult—and we had to convince the Germans that we had not broken their code.

The point is that there is nothing new in this problem and therefore we can deal with it in the old ways. We must be very careful not to compromise our sources of intelligence. Al'Qaeda knows perfectly well, because it has been all over the American newspapers, that when one of Osama bin Laden's people uses a satellite television in a cave in Afghanistan, almost immediately a drone aeroplane zaps in from on high, having picked up the signal. Those people know that we have very high
 
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quality interception. These problems can be overcome, as they have been in countless previous court cases, whether they concern the IRA or spies for the Soviet Union during the Cold War.

On the subject of torture, the noble Lord, Lord Judd, makes a good point in saying that the Home Secretary complains that he cannot prove a negative. If he gets a tip or information from the Uzbek intelligence community, it is almost a racing cert, because that is how those people function, that it has been obtained through torture. Equally, I suggest that the Egyptian anti-terrorist intelligence services are not exactly members of a Liberal Democrat parish council.

All these problems are knowable; there is nothing new in them and there is no reason why we cannot deal with them in complete conformity with a view to human rights and according to our own standards. That is what we are in this House to maintain.

Baroness Park of Monmouth: I cannot refrain from saying, with the greatest respect to my noble friend, that he is talking absolute nonsense. This is a totally different situation, one that involves far more sophisticated people and much greater danger. Thank God we did have people within the IRA, but we would not have had them if they had been exposed in this way. That will happen again. We are not talking about the Zimmermann telegram, although that was an important issue; we are talking about human beings—and human beings we will be putting at risk. I submit that that is not the same as putting systems at risk, although they are very important.

Lord Falconer of Thoroton: These are important provisions about the rules of procedure and it is incumbent on the Committee to consider the material put before us by those who have engaged in the debate. I am extraordinarily impressed by what has been said by both my noble friend Lady Ramsay and the noble Baroness, Lady Park. Indeed, their words are wholly reflected by those with any experience of what has gone on within SIAC. I refer to three authorities in that respect. First, the committee chaired by the noble Lord, Lord Newton, made it absolutely clear that certain material could not be disclosed either to the suspect who was the subject of the orders or to his lawyers. Secondly, the noble Lord, Lord Carlile of Berriew, made exactly the same points as the noble Baroness, Lady Park, in his report. He referred specifically to the fact that free disclosure would put human intelligence sources at risk. Thirdly, the judges in SIAC supported the non-disclosure of material to the suspect for precisely the reasons that the noble Baronesses, Lady Ramsay and Lady Park, put to this Committee this evening.

With respect to the noble Earl, Lord Onslow, he delivered an entertaining speech, although I prefer the epithet of the noble Baroness, Lady Park. It sounded absolute nonsense. One should look to see what methods had been crafted in the context of the present
 
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situation and accept that the people who had been working it may know better than us. We should accept those provisions.

I also draw attention to the fact that, as far as lawyers are concerned—in a sense, lawyers should follow a problem, rather than think they can impose a template—the European Court of Human Rights adopted the approach whereby it was not disclosed to the suspect or his or her lawyer. Instead, they indicated that the use of a special advocate was the right procedure, which is SIAC. As I indicated during earlier submissions, the approach that SIAC has taken was explicitly approved on two separate occasions by the Court of Appeal as being a just process. The Court of Appeal looked at it and said that it is the right way to deal with it.

In the case of M, the noble and learned Lord, Lord Woolf, the Lord Chief Justice, explained:

which means that some material has not been disclosed to the suspect—

He concluded:

That is somebody who has looked at it on a number of occasions. Everybody who has looked at it thinks that that is the right way to deal with it.

I shall go through the provisions about rules very quickly to satisfy the noble Lord, Lord Kingsland. Paragraph 4(1)(a) states:

We delete the words "and burden" to deal with his point. I cannot believe that he objects to rules being made which talk about the mode of proof,

Paragraph 4(1)(b) states:

I cannot believe that the noble Lord, Lord Kingsland, wants it to be necessary for there to be a hearing even where there is a consent order or for some minor matter. Of course not. Therefore, paragraph 4(1)(b) is not the horror that the noble Lord sought to suggest it was.

Paragraph 4(1)(c) states:

That was put in so that the court can allow somebody who would otherwise not have rights of audience to have rights of audience. I do not know whether or not the noble Lord would wish that to be removed.
 
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Paragraph 4(2)(a) states:

That is the problem in relation to not disclosing material to the suspect or his lawyer. If he has one is a matter for him to decide, because I made clear previously that he would be entitled to legal aid without a means test.

Paragraph 4(2)(b) states:

Again, that is exactly the same point.

Paragraph 4(2)(c) states:

That is the special advocate procedure.

Paragraph 4(2)(d) states:

Again, this allows him to be told certain things, but not others.

The provisions in paragraph 4(2)(a) to (d) raise four square the balance between protecting human intelligence and intercept material, which is method, and the right to try to give as fair as possible a trial to the suspect. We put them in so that it is clear that we can adopt the SIAC rules. I am surprised that the noble Lord, Lord Kingsland, objects.

Paragraph 4(3)(c) has also been referred to. It states:

We make it clear that any exculpatory material has to be disclosed. The practice at the moment is that the Secretary of State gets his counsel to check through all of the material to see whether there is any exculpatory material. That is then disclosed to the court and to the special advocate acting in the context of the suspect, who does not see all of the material.

If there is any material that the Secretary of State objects to the suspect or his legal representative seeing, then, as long as the court agrees—and it has hitherto—it will not be shown to the suspect or his legal representative. So both the court and the special advocate definitely see the exculpatory material and, if there is no objection, then so does the suspect and his legal representative.


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