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The noble Lord, Thomas of Gresford, said that if it is vital to protect sensitive capabilities and techniques from disclosure you should devise a way of separating the two out. I remind the Committee that, frankly, that is easier said than done. The Home Office has been leading work to assess the impact of new technology on communications and their interception. That work, which has had a substantial input from a cross-section of communications service providers, has highlighted that the United Kingdom, before anywhere else in the world, is to undergo the biggest change in communications technologies since the invention of the telephone. Within just a couple of years voice communications in the UK, like e-mails or video streams, will be computer data signals carried over the internet. The old-fashioned voice signals carried down lines and through telephone exchanges will go for ever. The priority must be to ensure that we maintain our interception capabilities in the face of this change. And we cannot look to see how others are doing it because we will be the first. We have already made it clear that the ongoing work is also looking at what evidential opportunities there might be with the new technologies. That is why I have continually said we keep on looking at it. It is not that we have closed our minds or that we do not want to do it. We are looking at it to see how and if it could be done, and done safely.
Noble Lords said this evening that overseas jurisdictions do not seem to have any problem with using intercept evidentially. They also asked: “Why do we think we are different?”. The answer is that our system is different. We have a rigorous disclosure regime within an adversarial justice system in which evidence is probed in court to an extent that does not occur in the inquisitorial or examining magistrates’ systems. In addition, the co-operation between our intelligence and law enforcement agencies is unparalleled. We need to protect this partnership. Overseas jurisdictions do not. Because their intelligence and law enforcement agencies work separately they can have evidential intercept use for law enforcement and intelligence use for intelligence. We need to protect our co-operative and collaborative approach because we think that that model is more successful. It has delivered us outstanding results on terrorism and organised crime that we believe is second to none.
I repeat that there is no evidence that other countries do better than we and it simply does not make sense to dismantle our system in favour of an alternative approach unless we are sure that the benefits of doing so will outweigh the risks.
It has also been said that overseas jurisdictions do that and that we should also. It remains to be seen how those other countries that allow intercept will fare in the new world of computer technology. Will they be able to continue to intercept communications and will they be able to make what material they gather stick in a court of law? Our work suggests that they will not. I
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Let me turn last, I hope, to the legal model set out in the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick. His amendment would give the prosecution alone the right to choose when to apply evidential intercept and when to withhold it. We have grave doubts that such a system would be consistent with Article 6 of the European Convention on Human Rights, which requires there to be equality of arms between the prosecution and the defence and which prohibits cherry-picking by the state. Even if the judicial discretion accorded by the scheme proposed by the noble Lord might theoretically go part of the way to meet those concerns, the Article 6 considerations are likely to render the scheme redundant in practice.
Finding a way to limit the exposure of sensitive material imports is extremely difficult because our disclosure rules rightly—I emphasise “rightly”—seek to provide the defence with all the information necessary to ensure a fair trial. Therefore, we can justify withholding information only when it is strictly necessary and proportionate. Our previous efforts to devise a workable legal model have shown that the increased burdens on the intercepting agencies of devising systems to meet the Article 6 requirements would be crippling and undermine their capacity to undertake crucial interception.
We must ensure that intercepting agencies, especially the Security Services, are able to combat terrorism and serious crime effectively and continue to have the flexibility to deploy resources to keep us safe. I know that all noble Lords agree with that. It has also been said that past prosecutions have been dropped—we could not proceed with them. We do not think that that is very helpful.
There are specific issues about the Prevention of Terrorism Act. I could entertain your Lordships for some time about them. Suffice it to say that during debates on intercept being used evidentially to help to prosecute terrorists, including those on the Prevention of Terrorism Act, it was asserted that that would have rendered certain approaches to counter-terrorism, such as control orders, unnecessary. That was repeated again this evening.
It was suggested that intercept could have enabled those previously detained under Part 4 of the Anti-terrorism Crime and Security Act 2001 to be prosecuted. I can confirm that that is simply not the case. A detailed analysis of all the material in those cases, including available intercept material showed that intercept would not—I emphasise, not—have enabled those individuals to be prosecuted, even if we had been able safely to adduce it. During the most extensive review of the possible impact of intercept as evidence, that conclusion was replicated with regard to terrorist cases generally. Clearly it is a priority of the Government to ensure the conviction of those
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9.45 pm
The noble and learned Lord, Lord Lloyd of Berwick, in the Lords debates on the private Peer’s Bill in November 2005 and on the preamble to the amendments proposed for the Terrorism Bill in December 2005, intimated that his proposals needed further work and consideration. I am sure that he would say the same for these. These are merely a stalking horse for us to come back to the issue. I honour him for coming back to the issue but I assure him that our refusal so far to accept his proposal is not intransigence, blindness or obdurate refusal to consider change. Each issue is being considered very carefully because it would be a consummation devoutly to be wished if it could safely be used. Neither we nor anyone else have found a way of enabling us to use the material safely. If we could, we would.
I have tried to answer far more fully than I have previously, not to dissuade noble Lords from bringing back judicious interventions, but in the hope that the noble and learned Lord will be at least convinced that the provision has been rigorously examined. It will continue to be rigorously examined during the continuing review. I assure the noble and learned Lord that, if we can find a way to do as he proposes, he will be the first to hear. I hope that his passion for the subject may at least be sated for this evening and I invite him to withdraw his amendment.
Lord Thomas of Gresford: I congratulate the Minister on giving us the fullest explanation that I have ever heard on this topic. We are obviously moving forward. I hope that she will convey the contents of her speech, the statistics and so on, to the Attorney-General and the Director of Public Prosecutions in the hope that they may change the attitude that they have taken. Perhaps the noble Baroness will convey it also to the Commissioner for the Metropolitan Police and all the other people who, one presumes, know a little about the criminal justice system, so that they too will realise the error of their ways—she has most certainly told us the error of our ways tonight.
The Minister must appreciate that, if the technology is improving, that must mean that you can hear it better. One of the problems of intercept
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It is not just a question of the prosecution always benefiting. If there is nothing in the intercept evidence or if there are indications that the defendant is innocent, that evidence should be released to the defence. But the defence is not allowed to know that. A completely innocent conversation may take place in intercept evidence which supports the defence, but it will not be released. I just do not understand where the Government are coming from.
Baroness Scotland of Asthal: I can assure the noble Lord that consideration across the Government is of the most comprehensive kind, and that consideration continues.
Lord Lloyd of Berwick: Of course I accept that the Government have been and still are considering this matter. My complaint is that they have now been considering it for 10 years and still have not come to a decision. At this late hour, and I certainly have no intention of playing out the time until 10 o’clock, all I want to do is to congratulate the Minister on her reply and to thank her for it. As the noble Lord, Lord Thomas, has said, it was the fullest reply we have yet had. I am afraid to say that I did not find it convincing. She said that there was passion on my side, but I thought I was advancing an argument in the cold light of reason. It seems to me that the passion was more on her side than on mine. Whatever it may be, I hope she will not be disappointed if I bring the matter back yet again. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
- House adjourned at 9.52 pm.
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