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Lord Ackner: My Lords, I think I made it clear that I was not putting forward my interpretation. I thought it was quite wrong for Sir Swinton Thomas's views to be suppressed. They were being suppressed and, accordingly, I rose to my feet to make sure that they were put before the House. That was the function I sought to perform.

Lord Lloyd of Berwick: My Lords, perhaps I may answer the point since it involves me. The reason I did not refer to Sir Swinton Thomas's views is the very reason which he explained to me this morning: that he did not want those views repeated in this House. That is exactly what my noble and learned friend has done.

Lord Judd: My Lords, I am not a lawyer, but after those two interventions I am close to saying, "I rest my case". It appears that two deeply respected Members of our House have had a conversation with the same person and have come to different conclusions regarding what that person has said.

If this can happen on such a crucial issue, how important is it to the whole sphere that we should have a sober examination in depth of the propositions and issues before us?

Let me conclude with a few observations. The noble Lord, Lord Goodhart, emphasised—I thought a little defensively; I hope he was not being defensive—the importance of strengthening the effectiveness of prosecution. I agree with him on that. It is totally wrong that people who may be guilty of the most heinous offences should have any chance of going free because of the limitations on what can be considered in court.

But there is another side to the argument. We are living in the real world in terribly dangerous times, and the battle for hearts and minds is crucial. It has always been central to the acceptance and endorsement of the British system of justice that we strive to ensure that justice is not only done but is seen to be done. As soon as one moves into the realm of security, there are, of
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course, compromises. I am a realist and I know that compromises will always be there if you accept the importance of security. The issue is where the compromise is struck—which compromises are acceptable and which are not; what safeguards there are; what arrangements there are. Those matters need to be tested and, I suspect, periodically examined in the Select Committee, to make absolutely certain that the compromises are as good and wholesome as possible. If there is any danger that justice is unnecessarily not being seen to be done and is unduly secretive—exclusive, if you like—in the way it is administered, that will play into the hands of the cynical manipulators of the young and others whom they wish to recruit to their extremist causes. That would be an own goal of very serious dimensions.

By his proposals, the noble and learned Lord, Lord Lloyd, has presented the House with a wonderful opportunity to take forward a dispassionate, measured examination of where we stand and whether where we stand is the best way to confront the issues of the future. In doing so, it would be foolish not to take into account the concerns that have been honestly and repeatedly expressed by the noble Baroness, Lady Park, and my noble friend Lady Ramsay. But we must also take into account the reality of the context in which we are operating and the need to ensure that we do not inadvertently strengthen the position of the extremists.

12.33 pm

The Earl of Erroll: My Lords, I rise to speak in this debate because I have spoken on RIPA and given consideration to the proposals for data retention, about which I am being lobbied. I am interested in ICT—information and communications technology—and I sit on the advisory board of ISTA, the Information Systems Security Association. So this is an area in which I am interested.

When I first saw the proposals in the Bill my first thought was "Why not?" I have often wondered why such information is not available to the courts and not used to prosecute criminals in order to protect us. I then thought that it may be to cover up the fact that the intelligence services do not receive as much information as we think they receive and that it may be a way of scaring criminals. I then thought a bit harder and came to the conclusion that that is probably not so, particularly as I know something about technology.

The next question that arose in my mind was: how often are intelligence sources not given enough information to trap suspects in some other action or something else that they are doing? In other words, why can they not use the intelligence to catch them for something else? It must be fairly rare that you have to rely only on intercept evidence to trap someone. The only case I can think of is where I was involved in considering some fraud issues about 15 years ago and we were trying to find where Mr Big might have slipped up and communicated with some of his underlings. Of course, such people try to cut themselves out of the picture—you see this in stories
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about the Mafia and so on—and so you try to trace that one piece of communication that they made to someone in the field because they do not want to get their own hands dirty. So I can see these proposals may be useful in that kind of situation.

But then we come to the next issue—which really worries me—and that is the question of what evidence is presented in court if some of it is protected. This could lead to selected presentation. It is rather like advertising the review of a play, where the good bits are printed, the bad bits are cut out and you end up with a highly selective presentation. Sooner or later someone will manufacture or twist evidence in order to present too good a case. Something will come out of the woodwork, there will be a scandal and the judges, quite rightly, will say, "We need to know more. You will have to reveal more about this evidence". The point has been made by several noble Lords that this could be the thin end of the wedge and will slowly open up—probably because one of the agencies will make a mistake.

I am also concerned that we start off in law with great barriers and extreme confidentiality and then something comes into fashion—anti-money-laundering, for example—and suddenly the protected client-lawyer relationships and communications are completely destroyed overnight by a government who think it is a good idea to do so. Knowing that Parliament will suddenly take these rather extreme views over a short-term issue, we have to be very aware and careful to ensure that we are not opening up a can of worms.

Some people who wish to enhance their careers—this is not particularly concerned with those who work in the intelligence services, but they are no different from other human beings—may use information that they should not use to push their career forward, even though they have the power to do so. We have to be very careful that that should not happen and we need to put in very strong protections.

We know—you cannot get away from the fact—that there are inter-agency rivalries. The reason for all these agencies is to ensure that there is some rivalry, to ensure that there are silos and to ensure that all the information does not leap across them. But this can lead to mistakes being made and, once you start making mistakes you have the problem of reverse engineering in the way people think. Having written software programmes, I am aware of this problem. I have always enjoyed looking at a programme and working out the thoughts of the person who had written it. Given a system, I am very interested in how to get into it or around it. It is not hacking, particularly, but a consideration of where its vulnerabilities are and so on. Once you are aware of the concept that it is possible, you can then work out how it can be done. So that is one of the dangers.

You can work in two ways: either on an analysis of what has happened or an analysis of what has not happened—in other words, you work on the cases that have been brought to court and wonder why the other ones have not been brought, or the other way round. It
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is amazing what inadvertent information you can give away by your behaviour and by what you reveal. So that is another issue that needs to be looked at extremely carefully.

I am aware that some other countries do not receive the intelligence information that we receive. I do not particularly want to know why or why not—I ought not to because I am not cleared to that level of security—but it is a known fact that has been quietly revealed in the speeches that have gone before me. But would it be all right to reveal some information at the lower end of the scale? We open people's letters, we can photograph letters and written information and so on, so why, when prosecuting the smaller criminals, can we not use telephone tapping information? Or can we? I am not sure where the lines are drawn in intercepting communications.

Information obtained under Clause 1(1)(b) of the Bill, which relates to the admissibility of intercept and metering evidence, is retained under RIPA and is available to a plethora of government agencies. As that is well known, why can we not use that kind of information? I think it would be perfectly all right to use information that is obviously and effectively in the public domain, although with restricted access. If the police have tapped a telephone or carried out some interception that is above board, I cannot see the problem in using any of that information. But I can see a problem with high-level intelligence information, about which we have to be very careful.

12.39 pm

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