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Baroness Park of Monmouth: My Lords, the noble Baroness, Lady Ramsay, has said it all—at least, I thought that she had until I heard the noble Lord, Lord Robertson. I sit in the same corner as them. Although I greatly respect the noble and learned Lord, Lord Lloyd, for the brilliance with which he conducted the Gulf War inquiry, I cannot support the Bill.
I am not alone in resisting any proposal that could risk compromising intelligence collection and its methods. The Privy Counsellor Review Committee, which is clearly concerned that intercepted communications can never, at present, be used evidentially, recognises:
"It is important that making intelligence available for prosecution does not compromise the collection and use of intercepted communications for intelligence services".
The Interception of Communications Commissioner, who has been widely cited—including by the noble and learned Lord, Lord Lloyd—the right honourable Sir Swinton Thomas, stated categorically in his 2004 report that he is,
"left in no doubt that the balance falls firmly against any change in the present law and that any amendment . . . would, overall, be damaging to the work of the security, intelligence and law enforcement agencies".
"interception played a vital part in the battle against terrorism and serious crime, and one that would not have been achieved by other means".
We cannot afford to lose that means.
Further, both the commissioner and the Privy Council believe that the disclosure of the number of the warrants issued in the interests of national security
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would be against the national interest if it helped agencies hostile to the state to estimate even approximately the extent of the interception of communications for security purposes. Sir Swinton Thomas agreed with his predecessor, the noble and learned Lord, Lord Nolan, that disclosures in that area would be prejudicial to the public interest. If they are as worried as that about disclosing only the number of warrants and the extent of the coverage, how much more must we be concerned about the content?
The Intelligence Services Commissioner in his 2004 report, is equally opposed to public disclosure of the number of warrants issued to the agencies because that would,
"assist the operation of those hostile to the state if they were able to estimate even approximately the extent of the work of the Security Service, SIS and GCHQ in fulfilling their functions".
We already have several well informed and serious bodies studying the issue that are able to make a just balance. Of course there is a degree of concern that probably motivates the wish of the noble and learned Lord to make that delicate and hard-won material evidential for the sake of the human rights of the defendant. Sir Swinton Thomas cites the Investigatory Powers Tribunal as follows:
"Everyone has the right to respect for his private and family life, his home and his correspondence . . . There shall be no interference by a public authority with the exercise of this right except such as it is in accordance with the law and is necessary in a democratic society in the interests of national security . . . or for the protection of the rights and freedoms of others".
Let us remember that there are a number of issues involving human rights, not only the human rights of the man or woman on trial.
Lord Goodhart: My Lords, I am grateful to the noble Baroness for giving way. Does she not appreciate that the defendant's human rights are not affected? The rights of the defendant are in no way affected by evidence against him being withheld. This is not a question of the human rights of the defendant, it is the efficacy of the prosecution with which we are concerned.
We want a more effective prosecution here, not an improvement of the defendant's human rights.
Baroness Park of Monmouth: My Lords, I thank the noble Lord for that intervention and am very glad to hear that that is the reason for his position. However, many people's argument has been, and will be, that the defendant has a right to know everything that exists in evidence against him so that he may defend himself. That is the issue and it is also an issue of law.
My concern is, as the ruling that I have just quoted says, the protection of the rights and freedoms of others, among whom I count the human agent, who in at least some of those cases will have been the means of securing access to the plans and communications of those planning or executing terrorism. As Sir Swinton Thomas says:
"The task of the agencies working in this field has become more difficult and complex as a result of the proliferation of mobile telephones and the greater sophistication of criminals and terrorists".
Things have moved so far since I knew anything about it that I do not even know what "IB" means. That may indicate that things have moved on. The hostile intelligence use of encryption is a great problem. There will be times when the key to that can be secured only by the penetration of a group by an agent. I assure noble Lords that, if we have that type of evidence, the defence will very soon be able to identify who was present at a particular meeting in Hamburg on a particular day and to identify the person who was slightly unlike the rest of them.
In this complex world of a fast-moving communications industry and an increasing number of targets who develop highly sophisticated expertise in inventing counter-interception measures, we cannot afford to use intercepted communication in court, even in camera. A good defence lawyer and a sophisticated defendant could very soon set in motion enquiries that could, if a human source were involved, lead to the identification of that source, the end of that intelligence product and, probably, of the agent. Sources take years to infiltrate hostile terrorist groups. We have to be blunt and point out that at least some of those groups will speak esoteric, very unusual languages. It takes a lot of time, not only to acquire the languages but to acquire the approach, the access and the ability to move in that particular world. Sources cannot be replaced for many months, if at all. Coming back to the judgment that I quoted from the Investigatory Powers Tribunal, agents as well as defendants have human rights. The defendant will have the whole majesty of the law there to protect his rights—the agent will not; and, not least, the public will lose vital protection.
In the face of the resistance to the Bill from such distinguished legal authorities as Sir Swinton Thomas, the noble Lord, Lord Carlile of Berriew, and the special committees involved daily in assessing the situation, risks and needs, with their experience of the problems of dispensing justice under threat from terrorists, I do not believe that we should change the law. It is vital that we recognise that this world is not like the criminal world. I fear very much that people will say, "Why don't we start with the criminal world?" but the same problems do not arise. Once you open a door, the door opens wider and wider and precedents are set. Although I deeply respect the noble and learned Lord and his motives, I urge the House to recognise that this is a very dangerous path to tread and we should not require it to be trodden.
12.4 pm
Lord Brennan: My Lords, Parliament has a major role to play in the campaign against terrorism. There are those in this House who are neither totally for the Bill nor totally against it but wish Parliament to have the opportunity to examine whether this state of the law should prevail or be changed. In fulfilling that task, Parliament does no more than its duty, testing political integrity with public responsibility—it tests political integrity by investigating whether the law should stay the same and looking at the evidence, and public responsibility, in deciding after such an inquiry
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whether the public interest is best served by the law staying the same or being changed. I regard that as neither inimical to the intelligence services nor a danger to the realm but as a practical exercise of the parliamentary function.
Should the law remain the same? I ask the question rhetorically because, as yet, I have no confident answer. Let me raise some of the issues that Parliament could properly consider in order for evidence to be given within the proper constraints of security. First, I cannot imagine that the prosecution or the intelligence services would wish to use this opportunity to introduce intercepted evidence if there were other adequate evidence to found the prospects of prosecution being successful. There would be no point; the balance would be completely wrong. But I ask rhetorically, because I do not know the answer as a parliamentarian: what is to be done if the critical evidence in a case is an intercepted communication? Is it then to be said that the balance of interest favours the continuance of secrecy and those guilty go unprosecuted? That is a serious moral question with which Parliament should grapple. If it transpired upon reasonable inquiry that that category of case were so small a prospect as to be discounted, the secrecy argument may prevail, but if there were a sufficient or significant number of possible cases where that evidence is critical, should we maintain the secrecy? The noble and learned Lord, Lord Lloyd, pointed out in a 1996 report that some 20 prosecutions might have been mounted if intercept evidence could have been used. That is a significant figure. But all I am asking for is inquiry.
Secondly, in the modern communications system, do we make a distinction between the telephonic and the electronic? Is an intercepted telephone call to be kept secret but an e-mail, which is simply a printed document, to be used? If so, what are the differences? I find that technically worth investigating. These days, a BlackBerry will accommodate both the telephone call and the written message.
Thirdly, I endorse the concerns raised about disclosure. It is a serious issue that concerns the House. I know from personal experience of a case in Ireland where a limited amount of disclosure led to such a degree of litigation that it finished up in the Supreme Court of Ireland on the extent of disclosure in a terrorist case. That is extremely serious. There is no point in passing the Bill without responsibly addressing that question and producing a just solution.
Despite the reservations of the noble Baroness, Lady Park, I am ready to make a distinction between serious crime and terrorism. Why not? Why should I treat a determined drug runner making millions of pounds as in a similar category to a terrorist who takes life indiscriminately? I am ready to make such a distinction if the facts justify it and if the level of secrecy in that sector is different from the terrorist sector.
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Anticipating Monday's debate, Clause 17 of the Terrorism Bill envisages the prosecution of terrorist offences committed abroad. Are we to have the irony of a prosecution launched from this country which can use interceptive communications taken from the United States or another country, but not communications of a similar kind obtained in this country? I find that a peculiar aspect of a campaign against terrorism, if that is what we can anticipate. The Bill is in skeletal form, and there is plenty of opportunity to discuss the full range of safeguards that might sensibly be considered.
Finally, I beg to differ with the eloquence of the noble Baroness, Lady Ramsay, about the nature of the debate. I do not detect clamour. When I hear the Metropolitan Police Commissioner seek the use of this evidence in court, the recently retired Director of Public Prosecutions in the same vein and the Newton committee with its Privy Counsellors, that is not clamour. It is reasoned argument, which deserves a reasoned response. I admire in equal measure Sir Swinton Thomas, the present Interception Commissioner, the noble Lord, Lord Carlile of Berriew, and those who hold a different view. But the very fact of differing views surely bespeaks the responsibility of Parliament to inquire.
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