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Baroness Park of Monmouth: My Lords, I believe that it has been made plain by a number of noble Lords that the issue is not straightforward telephone communication—it is the far more sophisticated mobile telephone and that extension of things that is at issue. Also, if the Germans make a decision and are prepared to let us have the result, that is fine; but it does not alter the risk to our system if we go in that direction.

Lord Thomas of Gresford: My Lords, my point is that it does not really matter what instrument produces the communication. If foreign authorities intercept it, it can be used in this country in a British court of law. So there is nothing wrong in principle with the use of intercept evidence, when it comes to lawyers or the courts. That is not the reason why it is not introduced.

Baroness Ramsay of Cartvale: My Lords, the point is—and the noble Lord is not quite seeing it—that if another country does not mind risking its sources, that is fine. I do not see why he finds it such a paradox, however. We are talking about British intelligence and material, and there is not a lot of relevance in talking about using evidence from another country in a British court.

Lord Thomas of Gresford: My Lords, I entirely follow the noble Baroness's point. Indeed, I propose to
 
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deal with it shortly; I am just leading up to it, and I am making that preliminary point before getting into the argument and grappling with the points that the noble Baroness has raised.

Intercept evidence is not admissible, but directed or intrusive surveillance or the use of covert human intelligence under Part 2 of the Regulation of Investigatory Powers Act 2000, can be. So, for example, there is no problem about a member of the security services breaking into somebody's home and planting a bug there or for the product of that particular piece of covert surveillance being used in court. If a person's car is bugged, there is no problem in producing a record of the conversations that take place within the car. So, on the one hand, there is total prohibition on intercept evidence, and, on the other, you can use foreign intercept evidence and the product of surveillance freely in the courts of this country.

If government agencies intercept your communications legally, not just the content but the very existence of such data cannot be mentioned in a court of law. The interception cannot be used to provide evidence either. There are these drawbacks. A prosecution may not proceed because the only evidence is intercept evidence. It may be very strong, perhaps a confession or an admission. It may be part of a conspiracy that is going ahead, which could be fully proved by intercept evidence. However, because of this absolute prohibition, it cannot be used, and guilty people get away.

There is another aspect. The prosecution may not be able to rebut a plausible defence put forward in a trial. It may have intercept evidence in its possession, such as recorded conversations, but it may not use it. It knows the defendant is lying, and that the jury would be influenced if it could hear what the defendant said on the phone or on the Internet, but it cannot use it. People can be acquitted for that reason.

There is this aspect: the defence does not know of material that undermines the prosecution and supports its case. It does not even know that its conversations have been intercepted and recorded. There could well be material that would acquit it, but it is not admissible and anyway it does not know it exists. Defendants may be convicted quite unfairly.

Arguments against admissibility have been put forward in this debate. Some of them seem to be founded on a mistaken stereotype, one that causes amusement in this House, as happened yesterday: that of the defence counsel who conducts his case in a malign and dishonest way regardless of the public interest. As the noble Baroness herself said, the defence counsel may range far and wide in an adversarial contest. There could be unacceptable disclosure of techniques by reason of the way he conducts his case. The noble Lord, Lord Robertson, said that "clever lawyers will find a way" around anything put in their way that would protect sources, and so on.

As I have said on previous occasions, that is a total distortion of what actually happens in court. When I asked the noble Lord, Lord Robertson, whether he could tell me of a case where defence counsel has
 
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extracted information that has been to the detriment of the security of this country, he was unable to do so. These are stereotypes that have no foundation in reality.

It is said that the use of the material will disclose interception techniques and capabilities and may give rise to counter-measures by criminals or terrorists, which might greatly reduce the utility of that resource. For centuries, though, the courts have been quick to protect informers, and to ensure that the names of informers are not revealed in court. We are in a different world and technology has developed, but the court still has complete power, through the use of public interest immunity applications, to protect from disclosure information that is not in the public interest. If the judge were to hear it being put forward by a prosecuting counsel that, "If this information goes in, it will damage the security services", he can say: "It will not go in". He has control.

The Earl of Erroll: My Lords, I speak from the IT point of view. IP telephony was mentioned earlier as being difficult. I will not make any public comments on that, but a non-technical person might not realise that it would technically be possible to work out from what was presented in court where someone intercepted that communication from, because there are only certain points at which it could be intercepted. The very revelation that it was possible to get that information would then awaken one to what was going on behind the scenes. It is a technological process that lawyers would not realise was happening.

Lord Thomas of Gresford: My Lords, I am grateful to the noble Earl for his intervention because it allows me to make this point. If prosecuting counsel goes before the judge, he is not giving his own opinion, but telling the judge what he is instructed to say, not just by the CPS or whatever prosecuting authority is behind him, but also, behind it, the security services. I have appeared for the prosecution with one solicitor from the CPS and one from the security services sitting behind me to give the very sort of advice in that particular case to which the noble Earl refers. That is common practice. So, if there is an objection, the judge will know what that objection is and how these matters may come to light if the evidence is given.

Another objection to admissibility is that it does not matter very much; it is not very probative. I think the noble Baroness, Lady Taylor of Bolton, made that point. From her own experience on the committee, she thought that not a great deal of value would emerge. Sometimes, it is said, there would be difficulties in identifying a speaker. I have had experience of this quite recently in a case in Harrow involving the importation of a large quantity of heroin, some £50 million-worth, the second largest importation into this country. There we had foreign intercepts, buggings of cars and of conversations and so on, and it was highly probative. As for difficulties in identifying who was speaking, they simply did not arise. Even though some of the conspirators were
 
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speaking in Turkish, some in Albanian and some in English, there was no problem in identifying who was speaking at a particular time.

Then it is said that disclosure would be an intolerable burden—keeping records of all the conversations that take place, and so on. In the case to which I referred, I asked prosecuting counsel to ask the judge whether there was anything in the intercepts that would assist the defence case. He said to me, "No. I know my duties under the Act. I am fulfilling my duties". And that was it. There was nothing I could do about it. I had to rely on him. I trusted him to do his job, and still do. Lawyers have a considerable degree of professionalism, and act in accordance with the rules and traditions of their profession.

I think I am going on too long, so I will bring my remarks to an end. We support the Select Committee's idea. We think that decisions in this difficult field should be evidence-based, and should be based upon a consideration of all the issues, not just the single views of the intelligence services.

1.9 pm

Lord Cope of Berkeley : My Lords, once again the noble and learned Lord, Lord Lloyd of Berwick, has raised a most interesting debate, even if he has chosen the slightly unusual vehicle of a Private Member's Bill in which to put it before your Lordships' House.

When I previously debated this matter with the noble and learned Lord and others five years ago on the Regulation of Investigatory Powers Bill—which is now an Act, of course—it was clear that there was a serious case to answer. The noble and learned Lord has expressed it again today with his usual clarity and forcefulness. However, it is also clear that there is a very considerable body of well informed opinion which takes the opposite view and which we should also respect, and which was expressed most clearly today by the noble Baroness, Lady Ramsay, the noble Lord, Lord Robertson, and my noble friend Lady Park of Monmouth. The background to what is an apparently simple question is very complex, both legally and technically.

We all know that technical progress regarding mobile phones and communications more generally races ahead. That has been referred to by several noble Lords in the course of this debate. Sometimes these changes no doubt help the security services but sometimes the reverse is the case. We can be sure that, like the security services, criminals and terrorists devote a great deal of expert time and effort to getting and staying a jump ahead. I do not know whether there are at present effective methods of tapping communications on the Internet, which seems to be the coming method of communicating. If such methods exist, I do not know whether they will count as intercepts or "bugs" for evidential purposes. They could fall either side of the line. There is, after all, a distinction between evidence obtained from telephone intercepts and that obtained from telephone bugs, as the noble Lord, Lord Thomas, said. The difference between the two is very slight but the difference
 
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regarding how they can be used in court is total. Much more difficult problems will arise in regard to e-mails, BlackBerries and all the other latest devices. I do not know whether the Minister will be able to give us more information about how those newer methods of communication will be affected by the measure, and perhaps it would be best not to publicise that, but the answer affects whether the Bill has any value because if the newer methods of communication are not open to the same problems, the Bill will not be of much value.

As has emerged clearly in the debate, the balance that we have to assess is whether there are many cases of serious criminals and terrorists who avoid conviction because of the restrictions on the use of this evidence on the one hand and whether the disclosure of the methods which would result from the use of such evidence would damage the ability of those who protect us to go on doing so as effectively as they do. Neither of those questions can really be judged by outsiders in public. Those involved in prosecutions can judge whether many prosecutions will fail on those grounds—we have not heard much evidence on that today one way or the other—but only those involved in the security services and the intelligence world can judge whether the effectiveness of protection would be damaged.

I echo the tribute that the noble Lord, Lord Robertson, paid to those who work in the security and intelligence services and the whole of that world. They are immensely brave, have high expertise, and we rely on them a very great deal. In considering their objections to the measure, such contacts as I have had with them leads me to make the following point.

I do not believe for one moment that anyone involved in the intelligence and security world would wish to do anything that would prevent terrorists and, for that matter, serious criminals, being convicted. On the contrary, their whole lives and expertise are devoted to trying to get people into court and to stop them doing the things they are attempting to do. They have no interest in prosecutions not succeeding for whatever reason. They spend their lives trying to ensure that they succeed, and that the terrible things, whether resulting from crime or terrorism, which might otherwise happen, do not do so. They are not on a different side regarding whether or not people should or could be prosecuted successfully. As I say, the legal matter and that of potential damage to the effectiveness of protection cannot really be judged by outsiders. I am certainly an outsider these days. I was a bit of an insider a decade and a half ago when I was a security Minister in Northern Ireland and dealt with these matters, but whatever I was at that point, time and technical progress certainly make me an outsider now. My provisional opinion is that we should consider very carefully the views of those involved in the intelligence world.

My other point concerns the vehicle of a Private Member's Bill. It is certainly an unusual vehicle. We shall no doubt discuss the issue again on other occasions. The noble Lord, Lord Goodhart, has
 
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promised to discuss the matter next week when we debate the Terrorism Bill. I am sure that on that occasion we shall discuss the measure in terms of the terrorist connection. There is a problem with Lords' Private Member's Bills generally. They are virtually always sterile anyway. I have to be careful not to criticise Commons' procedure. However, it is a fact that no Private Member's Bill starting in the Lords can succeed unless there is not a single word of discussion on it in another place. It is most unsatisfactory that any Bill should pass into law without a word of discussion in the elected House. However, that is an issue between the two Houses which would repay examination and is to a certain degree incidental to today's debate. The purpose of the noble and learned Lord, Lord Lloyd of Berwick, in proposing a Private Member's Bill is to get it into a special Select Committee. However, as has been pointed out, notably by the noble Baroness, Lady Taylor, it has already been considered—and can, indeed, be considered again in the wider context—by the Select Committee of another place. Therefore, we should hesitate before setting up such a committee. In any case that is a matter which will in due course come before the Liaison Committee if it is to be pursued.

The whole issue of the use of intercept evidence is a matter that we have debated before. It is clearly a matter that we shall debate again, and it is a matter of importance. However, it is not one that we should rush into. It is a much more technical and deeper matter than it first appears. I await the Minister's reply with the greatest interest.

1.19 pm

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