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Baroness Taylor of Bolton: My Lords, I am pleased to be able to participate in this very well informed debate. I am happy that such issues should be raised from time to time, although perhaps not on an annual basis, as seems to be suggested in some quarters. It is right to examine and re-examine these complex issues in a Chamber such as this where their complexities can be brought out rather than highlighting the simpler and more sensational attitudes which we sometimes read about even in the so-called serious press.
My reason for wanting to speak is that for four years, until the last election, I chaired the Intelligence and Security Committee. We followed the discussions on this matter with great interest and discussed it with Ministers and with agency heads on many occasions. I reassure the noble Earl, Lord Erroll, that discussions about intercept do not take place simply with the intention of scaring the criminals—they work on many occasions. The ISC followed through some of the operations that had taken place and saw the importance of intercept in, for example, illicit drugs cases and financial crime and the numerous arrests that resulted.
It has been said several times this morning that the use of intercept material as evidence has an obvious, significant and superficial appeal. If it was as simple as just using evidence with no consequences, there might be a very strong case for it. People have looked at what
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happens elsewhere. Noble Lords have quoted examples of what happens in other countries, where there are significant differences in the legal system.
People have assumed that there will be more convictions if we use intercept material in court. The case against that, which was argued by my noble friend Lady Ramsay and the noble Baroness, Lady Park, is very strong indeed. When the Intelligence and Security Committee looked at this issue, we did not come to conclusions, because that was not our role then. We had to understand that there was a significant downside to going down this path. In fact, I would go so far as to say that the use of intercept material in court could be counter-productive in getting convictions and pursuing certain cases, for reasons that I shall give later.
The noble and learned Lord, Lord Lloyd, said that there had been five reviews in 10 years. The latest and most in-depth review, carried out by the noble Lord, Lord Newton, was very important. It included members of the Intelligence and Security Committee so that we could dovetail our work with that of the noble Lord's committee. The outcome demonstrated just how complex these issues are, which means that we should not rush to a judgment or complain that this issue has been around for so long. The message from the fact that we have had five inquiries in 10 years is that this is an incredibly complex subject.
Ministers have spent a great deal of time on this issue. My noble friend Lord Judd quoted the approach of the Prime Minister, which is that if we can use intercept in court and it can be productive, then let us use it. Those colleagues who are in favour of the use of intercept should ask themselves why it has not been used yet. The reason that we do not use intercept in court as evidence is not because people want to block it or preserve secrecy for its own sake but because of the very real downside of taking that path. People have to understand that. The Newton committee brought that out to a certain extent.
My noble friend Lord Brennan asked why we could not treat serious crime and terrorism differently when it comes to the use of intercept material as evidence. Part of the problem is that you cannot compartmentalise the methodology that is used in one area and not in another. Disclosing intercept as evidence in court can lead to disclosure of methodology which is then transferable knowledge to a different area. That is why I emphasise how complex the issue is; with the best will in the world, we cannot simply say that we must move along that track and the consequences would always be beneficial. We could end up losing more than we gain. My noble friend Lord Robertson said that certain criminals might not be prosecuted because we could not use intercept and that we would have to face that consequence. My noble friend Lord Brennan questioned whether that was wise; it is a genuine moral dilemma.
If the consequence of disclosing our methodology is that the agencies cannot detect and apprehend, and therefore cannot possibly prosecute, a wider range of criminals or terrorists, then we have lost out. It is a
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moral dilemma which we should be realistic about and face. The dangers of going down the road proposed are very significant.
Other aspects of this issue have not been dwelt on today. I am not sure what lawyers will think about one which was raised in the Newton report. It was also recently raised by the noble Lord, Lord Carlile; as well as making interesting but somewhat belated comments about the proposed 90-day period he has spoken of using some form of investigatory magistrate. I am not sure whether Ministers are still considering that, but it could lead to some hope that something could be used in certain circumstances. I am not sure that it is the way forward, but so far as I have been able to judge, it might be the most likely way of making some progress on certain issues.
I am less convinced about the proposals on safeguards, such as the idea that only the prosecution should introduce such evidence. I am not sure to what extent our lawyers would allow that to remain the situation, given our human rights legislation. Other issues such as having two or three different types of warrant could also create real problems for the agencies. How do they know at the beginning of an inquiry what will be needed in evidence? They may apply for one type of warrant and if the inquiry takes a different turn, they are left high and dry, unable to produce that as evidence.
Finally, where should we go from here? The noble and learned Lord Lloyd, suggested a Second Reading, followed by a Select Committee, and there has been some support for further inquiries by Parliament. I remind the House that the Intelligence and Security Committee is a committee of parliamentarians, who represent us. They have access to the information and have already spent time looking at it. I suggest that if further work needs to be done by parliamentarians, the Intelligence and Security Committee should be doing it and, when its members feel it appropriate, they should be able to go public or say something to the House or to Parliament as a whole. That would be the best way forward. This is a complex issue, to which there are no simple answers, but the Intelligence and Security Committee can be useful to all of us in taking these issues further.
12.49 pm
Lord Mayhew of Twysden: My Lords, having by misfortune missed much of the speech given by my noble and learned friend Lord Lloyd, I thought it only courteous to vacate my place in the list of speakers—fortunately being able, in sufficient time I hope, to notify the noble Lord, Lord Goodhart. Having heard the whole debate, I shall use the gap to make a point that, I do not believe has been alluded to as yet. It is a point of some interest—namely, that we are not the only country in the world, unfortunately, that faces a massive security threat, nor the only one that seeks to protect its safety by the employment of sophisticated covert agencies; yet, apparently, throughout the common-law world, with the sole exception of Ireland, we are the only country to deny ourselves in proceedings to convict offenders the admissibility of
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evidence obtained from intercepted communications. One wonders how countries such as America or Australia, which undoubtedly have sophisticated covert security agencies, manage to accommodate their interests while at the same time admitting that evidence. That seems to me a matter of legitimate and practical inquiry by Parliament—and by this House, in particular.
Baroness Ramsay of Cartvale: My Lords, I am grateful to the noble Lord and am sorry to interrupt, but I shall do so very quickly. I am sorry if I did not make it clear in my own intervention, but Australia and America use the evidence from police intercepts. We have gone into the matter of different warrants, and so on, but that is not the point; the point is that they do not use intercepts from the sophisticated agencies, as the noble and learned Lord put it. In Australia and America, it is the warrants from police intercepts that are used in the courts.
Lord Mayhew of Twysden: My Lords, that is an interesting point and one that might properly be examined by the Select Committee that this Bill, if it gets its Second Reading, will enable to come into place. I am in agreement with what has been said by so many noble Lords, and in particular my noble and learned friend Lord Lyell of Markyate and the noble Lord, Lord Brennan, on this—and I believe that I have more than used up my time in the gap.
12.52 pm
Lord Thomas of Gresford: My Lords, perhaps I may say how much we welcome this important debate and how much we support the idea behind the Bill and the suggestion that has been made that a Select Committee should examine the whole picture, following this Second Reading.
All of us in this House are looking for a balance. On the one hand, there are the ordinary processes of justice that we have in accordance with our traditions sought to export to the whole world: concepts of fairness and fair trial and due process. On the other hand, there is the need for security and the protection of people who are at the moment suffering from a terrorist threat. We shall pursue this matter next week, to some degree, in the debate on the Terrorism Bill, in which we shall consider whether people accused of being terrorists should be tried on evidence before a jury and punished in the ordinary way or whether they should be held without trial and possibly without charge on the basis of inadmissible evidence such as that which intercept evidence produces.
This is not a unique or new debate. In 1994, the noble and learned Lord, Lord Mustill, one of the Lords of Appeal in Ordinary, in the case of Preston said:
"Those who perform the interceptions wish to minimise the dissemination of the fact that they have been performed, since it is believed that this would diminish the value of activities which are by their nature clandestine. We need not consider to what extent this preoccupation with secrecy at all costs is soundly based for it has been treated as axiomatic for decades, if not longer . . . The need for surveillance and the need to keep it secret are
- undeniable. So also is the need to protect to the feasible maximum the privacy of those whose conversations are overheard without their consent. These policies are in flat contradiction to current opinions on the 'transparency' of the trial process. Something has to give way".
That view has been reflected in the content of some of the speeches that we have listened to today.
On the one hand, we have the former Director of Public Prosecutions and the Commissioner of the Metropolitan Police seeking to introduce into the trial process evidence that is currently inadmissible; on the other, we have the views trenchantly expressed of Sir Swinton Thomas, for whom I have the greatest regard. He is no relation to me, but I replaced him on the Criminal Injuries Compensation Board. He and others—possibly including my noble friend Lord Carlile, though I have not had a chance to talk to him—have strayed into the intelligence community. If you do that, and you meet people with such formidable, trenchant and assured views as the noble Baronesses, Lady Ramsay of Cartvale and Lady Park of Monmouth, you meet people whose views no doubt carry considerable weight. But we are all seeking that balance.
What is unique about intercept evidence and the intercept warrants that produce it is that the product cannot be used in a court of law; but the paradox is that foreign intercept evidence can be. The noble Baroness, Lady Park, referred to a person being in Hamburg; if that person was involved in a telephone communication from Hamburg, the German authorities could undoubtedly intercept that conversation and it could be used in a British court.
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