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Lord Ackner: My Lords, it is a matter of great regret to me that I find I am speaking on the opposite side to that of my noble and learned friend Lord Lloyd, for whom I have particular respect. We have known the current Interception Commissioner for many years. He has already been referred to—the right honourable Sir Swinton Thomas—and he is one of the most respected former judges of the Court of Appeal. I have known him for more than 40 years as we were in chambers together. My noble and learned friend Lord Lloyd also knows him well as they are both Benchers of the Inner Temple. Sir Swinton has discussed with both of us his views on the proposal of my noble and learned friend Lord Lloyd, and he is strongly against it. He told us that the communications world and technology have changed out of all recognition in the past 15 years, and have done so in the six years that he has been Interception Commissioner. He told us that in the course of the next couple of years change will be even greater and faster as we move away from telephone to IP, virtually—

Lord Lloyd of Berwick: My Lords, I should tell the House that Sir Swinton Thomas, to whom the noble and learned Lord has just referred, wrote a letter to me in which he set out and expanded the views contained in his published document. I spoke to Sir Swinton this morning and he clearly said that he does not want the views that he expressed in his letter to be made public, directly or indirectly. I understand why he, as an Interception Commissioner, took that line. I hope that the contents of the letter written to me will not be made available to the House in this indirect way, contrary to the wishes of its writer.

Lord Ackner: My Lords, I spoke to Sir Swinton Thomas after—I stress that—he spoke to my noble and learned friend and he is happy for the substance of what he said to be made known to the House. In fact, I believe I have a duty to the House to inform it about what his views are, which my noble and learned friend has refrained from doing. Sir Swinton is the current Interception Commissioner and has made his views fully and strongly known to both of us. I propose to continue from where I was stopped.

Sir Swinton went on to inform us that whereas it is accepted that it is now virtually impossible to prove that "A" is talking to "B" on a mobile phone, which is what terrorists and criminals use, with IP interception itself will become much more difficult and proof impossible. He told both of us that that renders the Bill sterile. With regard to the extract from his annual report, he again informed us of the nature of the terms of the statement in paragraph 17, which has been read out. He also said that the bland words he used in the statement represent the results of lengthy and painstaking investigations and inquiries, particularly
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by law enforcement and intelligence agencies. We were both informed that the unanimous conclusion was that the abolition of the exclusion rules would be damaging to their work and, even if the material could be proved, its evidential value would be minimal, if it had any. He added that his view is that the disclosure that is now sought would do untold damage, especially to law enforcement and intelligence, and substantially increase the risk to us all.

I therefore deemed it essential that this House should know of the harm that this information might result in if it was disclosed. For that reason, and with distinct sadness, I have risen to resist what my noble and learned friend seeks to do.

11.46 am

Lord Robertson of Port Ellen: My Lords, although I intend to speak from my past, not current, experience, I should say, whether relevant or not, that I am deputy chairman of Cable & Wireless, a telecommunications company in the United Kingdom. I am delighted to follow the noble and learned Lord, Lord Ackner, who has made a devastating contribution to the proceedings here today. He has allowed me to be briefer than I intended to be. The words of the Interception Commissioner, as expanded upon in his letter to the noble and learned Lord, Lord Ackner, should be read carefully by all who are interested in this subject.

The proposition is superficially attractive. It seems to some people to be self-evident that it will facilitate the conviction of some evil and dangerous people, whether terrorists or organised criminals. To the outside eye, it can look sensible if we can, through some sophisticated supervised sieve, make available in court what can appear on the face of it to be damning evidence of wrongdoing. But that is a superficial attraction. The issue is much more complex and the downside of this proposal outweighs the benefits that it might bring. Indeed, the proposal is mistaken, misguided and, in certain circumstances, dangerous.

Those of us who have held the highest offices of state—I was Secretary of State for Defence—become part of a unique and tight intelligence community. We therefore become privy to knowledge of, and responsibility for, a wide range of methods for collecting sensitive and secret information. I found that a sobering and onerous burden to accept at the time and to carry it to the end of my life. From my experience, I pay tribute to the professionalism, tenacity, ingenuity and, very often, sheer gut courage of so many of those in British intelligence services who safeguard our security. They deserve, and should get, our gratitude and commendation, and when, as in this case, they have a unanimous opinion, we should pay careful attention to what they say.

I take seriously my obligation to protect both what I have come to know in the Ministry of Defence in the British Government and the other information and intelligence, including that from foreign sources, to which I had access while serving as Secretary-General of NATO. I shall share no secrets with the House
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today, although from my long years in the House of Commons, I recall that it was usually quite safe to disclose the most sensitive information in Parliament, because you could be absolutely sure that no one was listening to you.

I just wanted to make a couple of points to the House and to the noble and learned Lord, Lord Lloyd, in particular, who also knows more than he can share with the House today, to show that this is a profoundly misguided and possibly counterproductive route to go down. The methods used to intercept communications are varied and many of them ingenious. All are legal, but many are very sensitive indeed. If those methods were to become known, however restricted the audience was that got to know of them, those sources would be compromised and, in many cases, probably ended. Not only that, but the lives and safety of those involved in such communications methods might be compromised or threatened.

I am not an expert in English law, but the principle of discovery is built into that law and our interrogative and confrontational system. If one element of evidence is put into court, it will be simply a matter of time, logic or even fairness that all the intercepted information is placed outside the protected world where it had previously resided.

Lord Goodhart: My Lords, the rule of discovery is not absolute and written in stone, never to be changed. Why should not the rules about what discovery must be given be modified as they apply to security-sensitive material?

Lord Robertson of Port Ellen: My Lords, I am sure that clever lawyers could draw up a precise framework and even cleverer lawyers will be able to find their way round it. That is the point made by my noble friend Lady Ramsay. Depending on the discretion of the judge—at the end of the day, that is what we would be depending on—the defence can range far and wide, as it has done in the past, and compromise material that should not be compromised.

Lord Thomas of Gresford: My Lords, what case does the noble Lord have in mind where the defence has ranged far and wide and introduced matters that have national security implications?

Lord Robertson of Port Ellen: My Lords, I am not in a position to give a precise answer to that, but I recollect that recently there was a case where some form of intercept material was put into court and the judge decided that all the material, not simply the extract that was relevant, had to be transcribed and be part of the court's evidence. I am merely postulating what might happen if the current restrictions were lifted. The words of the Intercept Commissioner should be listened to carefully, because he is also an eminent lawyer. We would open a Pandora's box.

Lord Lloyd of Berwick: My Lords, the answer to that problem is that if the judge decides the point in favour
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of admitting evidence that would be embarrassing, the prosecution can always withdraw the case. That has happened many times. There is no difficulty there.

Lord Robertson of Port Ellen: My Lords, frankly, I can think of nothing worse than withdrawing the case halfway through. We are here discussing the effectiveness and deterrent value of the law. I accept that cases will not proceed to court and that bad people will not be prosecuted in certain circumstances. That is the price we pay for ensuring that the information is available. It is a fact that terrorist outrages have been prevented during the past few years, major channels of communication have been blocked and major criminal operations have been stopped because of information gained that cannot be put into court. Those people may not have been found guilty in court, but the public have been protected as a consequence of the procedures that are already in place.

So although we pay a price and will have to pay a price in not having those people on trial and convicted, I believe that the price is acceptable for society, given the balance posed against it by the material being available. If the public think about it carefully, listen to the evidence of the consequences and are directed away from the superficial attractions of what is offered, they will come to the conclusion that we are best served by leaving well alone.

11.56 am

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