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Baroness Ramsay of Cartvale: My Lords, I have more than a passing sense of déjà vu about arguing yet again against the use of interception material as evidence in court with the noble and learned Lord, Lord Lloyd of Berwick, in this House, this time in the form of a Bill. He was kind enough to say that I taught him all he knew about interception. All I can say is that I could not have taught him very well because I think he is so wrong about this.
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As of now arguments against such use remain, in my opinion, overwhelming and I speak from a background of considerable professional experience in this somewhat arcane field. I am very concerned at the growing clamour for the use of this material as court evidence in the UK, which in a large part results from a very imperfect picture of what intercept entails, what its use in court would reveal and the loss of intelligence capability that would ensue.

The whole area of intercept is much wider and much more complex in scope and type of operations than most people can possibly imagine; and fortunately that includes those who are the targets of intercept operations because, again and again, transcripts show people assuming, wrongly, that they are secure in whatever means they are using to communicate. The slightest revelation of interception risks blowing for ever the techniques involved and in some cases putting at risk human agents. It not only means the end of that particular operation but, by extension, others which will be surmised to be in place on similar types of targets.

The extreme vulnerability of intercept to instant loss if revealed or even hinted at is especially true if the material is encoded or encrypted, where often very sensitive technical means and/or human agents are involved, and the loss of access is usually permanent. It is often said, as the noble and learned Lord did in his introduction, that "other countries use intercept evidence in court, why do not we?". There are actually many reasons for that and I shall touch on just a few.

First, our very sophisticated and extensive expertise in this field is something of which we can all be very proud, but its very sophistication and scope renders it extremely vulnerable. A straightforward police telephone tap on home national territory would likely have little to lose in terms of giving away techniques or endangering sensitive sources and it is that kind of material alone which some other countries permit to be used in court. In some countries that is the only kind of intercept they actually produce and in those others, where more sophisticated techniques are employed by agencies other than the straightforward law enforcement agencies, it is only the more routine product of the law enforcement agencies' warrants that are produced in court.

Like the noble and learned Lord, I have also discussed in Australia and Washington what they do and do not use in court. In our country, and this leads to my second point, there is an almost unique—I say "almost", but I believe it is unique—closely interwoven relationship between our intelligence and security services and our law enforcement agencies. It is, therefore, much more difficult to disentangle the various contributions of intercept material than it is where there are clear divisions. To use material from the services—which, as I said, is not done even in countries where they use law enforcement agency transcripts—would endanger very sophisticated techniques as well as agents and entail much greater loss than most people realise.
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Thirdly, our legal system with its adversarial roles for counsel, where defence counsel can roam far and wide at the discretion of the judge, means that defence counsel can range very widely on evidence or with someone in a witness box and that, in the case of intercept material, would pose an absolutely unacceptable risk of exposure. It also means enormous burdens of transcribing and preserving all related interception material if it is to be available for court evidence. That would certainly mean a considerable diminution of product from the services concerned, because of the sheer volume of what would have to be processed and kept. I do not wish to go into more detail than that on that point.

Countries whose legal systems contain investigative judges or magistrates can manage to handle sensitive material without the risks involved in using it in a British court. Before some noble Lord who is a barrister asks me, as I have been asked before more than once in this House, let me say that I am fully aware of public interest immunity procedures and indeed have had considerable experience of dealing with them in my past life and none of them, in my opinion, provides a satisfactory answer to the points I have raised about the use of intercept material in British courts as envisaged in this Bill.

A further point of difference in our legal system compared to the countries most quoted as using intercept material in court is that we have no statutory obligation on telecommunication companies to co-operate with the intelligence and security services or law enforcement agencies to facilitate interception. That obviously adds another factor of sensitivity about revealing operations.

After a previous debate in this House, I received a lengthy letter—some seven A4 pages—from an American law professor who courteously informed me that he had copied his letter to the noble Lords, Lord Thomas of Gresford and Lord Judd. The noble Lord, Lord Thomas, has previously quoted some of the professor's points in debates in this House. I have to say that nothing in that letter affects my position of complete opposition to this Bill.

I should like to make one other general point. It has been said that there can be nothing in principle against using intercept material as evidence.

I agree with that statement. This is not a matter of principle; it is a question of practicality and the effect of such a move on the efficiency and productivity of the services and agencies engaged in interception. In my opinion, if a list were to be made of any gains from such a move, as against a list of the losses—in productivity, efficiency and security of sources—then the difference in the lengths of those two lists would lead any sensible person to see that the losses far outweighed the gains.

On the suggestion for a Select Committee, I have to say that I do not see what a Select Committee would do that the Interception of Communications Commissioner, who is entrusted with precisely this task of looking at how the interception is working and
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overseeing the agencies which are practising it, is not doing on behalf of the Government, and reporting to Parliament about it.

I should like to conclude by quoting the present Interception of Communication Commissioner's recently published report for 2004, which I am sorry that the noble and learned Lord, Lord Lloyd of Berwick, did not quote from. In dealing precisely with Section 17 of the Regulation of Investigatory Powers Act 2000, which is the object for amendment in this Bill, the right honourable Sir Swinton Thomas says in paragraph 24:

I find myself in complete agreement with that paragraph from the Interception of Communication Commissioner's report. I totally oppose this Bill.

11.32 am

Lord Goodhart: My Lords, let me start with the principle that it is plainly wrong if terrorists, drug dealers or people traffickers cannot be convicted because highly persuasive evidence of their guilt cannot be given in court. This means that dangerous people have to be released, or, at best, if they are terrorists, made subject to control orders. Therefore, I believe that there is a burden—and it is not a light burden—on the security services to justify the exclusion of intercept evidence.

We are not satisfied that the burden has been discharged. There are of course differences of opinion among those who know what goes on. And, why not, at least, as the noble and learned Lord, Lord Lloyd of Berwick, has suggested, set up a committee, whose members will have high-security clearance, which can take evidence in closed hearings, so far as is necessary, and make its report?

The noble Baroness, Lady Ramsay, made a strong case—and one which I personally find convincing—for saying that there are some circumstances in which the use of intercept evidence would damage national security. But, she accepted, there are also some circumstances, such as the ordinary police phone tap, where the use of intercepts would be of no danger to security.

I do not propose that intercept evidence should simply be a matter which is generally admissible, subject only to the public interest immunity procedure, as it now exists. I would certainly agree to reasonable
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steps being taken to prevent damage to national security. We do not want to have anything in the nature of a SIAC procedure here, but I can see no objection to the procedure proposed by the noble and learned Lord, Lord Lloyd, that intercepts should not be disclosed unless the prosecution, who will no doubt have consulted on this with the security services, wishes to use those intercepts.

Alternatively, it might be possible for the security services, if they want to withhold intercepts which would strengthen the prosecution case, to apply to a security-cleared judge for permission to withhold those intercepts. On such an application it would not be necessary for the defence to be represented, because permission to withhold that interest would benefit the defendant in the particular case, and the reasons for withholding the evidence would be possible prejudice to future investigations.

Other steps could be taken to minimise the problem. For example, I have had a letter from the Mobile Broadband Group, asking that employees of mobile operators should be allowed to remain anonymous if they are required to give evidence in court about interceptions because of the threats to them personally. That seems to be, to my mind, a reasonable proposition. This is simply an example of many steps which could be taken to protect national security without maintaining the ban on intercept evidence altogether.

The Bill is topical because in three days' time we will be having the Second Reading debate on the Terrorism Bill. My party has argued that it is important that those who are committing terrorist crimes should be convicted in the ordinary courts of this land, whenever it is possible to do so. Control orders are extremely unsatisfactory alternatives. That is because national security is better protected by convicting terrorists and putting them in prison than by imposing control orders and leaving them outside prison, and also because control orders involve the SIAC procedure, which means that the defendant does not know all the evidence which is relied on by the court against him—something which is inconsistent with the fairness of his trial.

It is important that these issues get debated during the passage of the Terrorism Bill, and, I believe, debates on amendments to the Terrorism Bill will get a much wider coverage than debates in the course of any future progress of this Bill, which has little chance of succeeding in the other place.

If amendments are put into the Terrorism Bill by your Lordships' House, it would, at the very least, put the Government under pressure to agree to set up the kind of committee which the noble and learned Lord wants as a price for buying-off those amendments. Therefore, I hope very much that the noble and learned Lord, Lord Lloyd, will put down the provisions of this Bill as an amendment to the Terrorism Bill. If not, it is likely that we will do so ourselves.

This is an important debate, which is by no means as one-sided as the noble Baroness, Lady Ramsay, suggests. We very strongly support the Bill which the
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noble and learned Lord, Lord Lloyd, has produced, and we hope that the subject of this Bill will be further considered in your Lordships' House because we believe it to be of great importance.

11.39 am

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