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3.09 pm

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I join my voice to all those who have commended the noble and learned Lord for having the tenacity and ingenuity to enable this Bill to appear once more in your Lordships’ House.

I and a number of government colleagues who have been privileged to reply on this issue have seen and commented in detail on these proposals on several occasions in the past two years: in relation to the Serious Organised Crime and Police Bill in spring 2005; the noble and learned Lord’s Private Member’s Bill in November 2005; the Terrorism Bill in January 2006; and, last but not least, last Thursday on the Serious Crime Bill. By virtue of the more expansive and detailed answers that I gave then, I had hoped that I would have sated the noble and learned Lord’s appetite for bringing this matter back, but I am, as ever, an optimist. I anticipate that I shall set out to respond to the noble and learned Lord’s proposals again in the context of the Counter-Terrorism Bill this spring.

I am rather surprised that the noble Lord, Lord Henley, on behalf of Her Majesty’s loyal Opposition, is capable of dismissing the serious concerns raised in relation to this issue not only by the Government but, indeed, by Sir Swinton Thomas, among others. I am surprised that he is so comfortable about dismissing those concerns in a somewhat cavalier manner by describing them as “nonsense”. But, of course, it is a matter for noble Lords opposite if they think that that is an appropriate way to deal with our security.

The proposals under the Bill never change and, if I may respectfully say so, they never take into account any of the points made by the Government in considering them. The arguments for and against have now been very well rehearsed. Everything that I have previously said on the subject continues to apply but, for the purposes of clarity, I shall go through the issues again briefly.

The Government’s position has consistently been that they will change the law to permit intercept evidence if the necessary safeguards can be put in place to protect sensitive techniques and capabilities and if the benefits outweigh the risks. I remind the noble Lord, Lord Thomas of Gresford, that the Attorney-General plays a full part in this Government and, when I speak today, I speak on behalf of us all.

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Lord Thomas of Gresford: My Lords, the Minister chided me in the earlier debate in relation to the Attorney-General’s independence. Can we have some clarification on this?

Baroness Scotland of Asthal: My Lords, this is government policy. In the previous debate, we were talking about the Attorney-General’s role when he gives legal advice as the most senior legal officer. I am sure that the noble Lord is clear about the distinction. I am sad if he finds it strange, but perhaps I give him greater credit than he gives himself.

The Government’s position is that the starting point is a legal model, which has to be fully ECHR-compatible, protect sensitive capabilities and material, take account of new technology and not damage operational capability; for example, by consuming disproportionate resources.

The subject is not easy; it is complex, and it becomes more complex the closer one comes to understanding the issues involved. There is no consensus for changing the law to permit intercept evidence. The experience of the noble and learned Lord, Lord Lloyd, who was Interception of Communications Commissioner in the 1980s, is set against that of the outgoing Interception Commissioner, Sir Swinton Thomas, whose last two annual reports spoke eloquently of the risks involved in changing the law and came down strongly against it, as the noble Baroness, Lady Park, my noble friend Lady Ramsay and my noble and learned friend Lord Boyd made clear. It is also set against the agencies that have been helping us examine the issue, which support the Government’s position and the importance of safeguards, including the interception and law enforcement agencies. But this is neither a headcount of how many support intercept evidence and how many do not, nor of how many big figures each side can wheel out to argue their case. The stakes are much higher than that. If it was a count, of course, we would win on this occasion.

The difficulty is illustrated starkly by the fact that the subject has been under almost continual review for the past 13 years, a point made by my noble friend Lady Taylor. Successive efforts to devise ECHR-compatible legal models with the necessary safeguards to protect sensitive capabilities, techniques and relationships, and which would not put an undue administrative burden on the intercepting agencies, have all failed. It is not for a lack of will or want of trying that we have reached the current position.

The last review in 2003-04 concluded that the benefits of changing the law to allow intercept evidence were outweighed by the risks of doing so, and that the impact of new technology needed to be properly considered and factored into the decision-making process. When my noble and learned friend Lord Boyd made that comment, he was therefore supported by the last review. The outcome of the review was given by the previous Home Secretary, my right honourable friend Charles Clarke, in a Written Statement on 26 January 2005.

Although considerable time and energy have been devoted to this, our deliberations continue. We are currently considering two further legal models—an extended PII system involving closed sessions and an examining magistrates system—and when we come to a conclusion on them, we shall say what it is and why we have come to it. It is sometimes argued that if only

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we could produce intercept evidence against terrorists we would be able to lock more of them up and avoid measures such as control orders. That is simply untrue. The last review concluded that there would be, I emphasise, very limited utility against terrorists. That was made clear in the Written Statement and amplified recently by Sir Swinton Thomas’s evidence.

One implicit question is why successive models that we have considered have failed. One reason is that the more the prosecution seeks to rely on intercept evidence, the greater the premium of being able allow the defence to probe it. The more robust the safeguards developed to protect sensitive material from disclosure, the less likely it is that the legal model is ECHR compliant. These are difficulties with which we simply must grapple if we are to have a successful system enabling us to use intercept in a way that we would deem proper within our structure.

When I resisted the proposals of the noble and learned Lord, Lord Lloyd of Berwick, last week, I quoted a number of statistics to illustrate why the Government do not accept that other countries do better than we with their evidential use of intercept. The examples I used came from 2004. I am now able update them with the 2005 figures. These are not anecdotal figures from conversations with individuals who happen to have a view on how their system is working; they have been culled from the reports published on each jurisdiction and we must assume that the figures contained therein are correct. In Australia, no intercept material was offered, and therefore no convictions were made on the strength of intercept evidence, in any terrorist trial in 2004-05. That comes from the Telecommunications (Interception) Act 1979 report. In 2005, Canadian statistics—

Lord Lloyd of Berwick: My Lords, the Minister referred simply to terrorist cases. Can she give the House the figure for serious criminal cases including drug cases?

Baroness Scotland of Asthal: My Lords, I am happy to write to the noble and learned Lord in relation to those figures. We probably have the report in the Box, so by the time I sit down that figure may come, but I shall certainly write to the noble and learned Lord.

In 2005, Canadian statistics that amended the previously released 2004 figures indicated that the updated figure for 2004 was that of 187 cases in which intercept evidence was adduced in criminal proceedings—not just terrorist proceedings—only three resulted in convictions. In 2005, there were 296 cases in which intercept evidence was adduced, but none resulted in conviction. Those figures are from the Annual Report on the use of Electronic Surveillance.

In the United States of America in 2005, there were 1,710 law enforcement interceptions, which is almost exactly the same number as in the UK, despite America being many times bigger. They resulted in 776 convictions, which is a success rate of under 44 per cent. That is well below the success rate of more than 80 per cent estimated for the United Kingdom in an admittedly relatively small 2004 sampling exercise. Those US figures come from the annual wiretap reports made to Congress, so I assume they are accurate.

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However, the use of intercept in prosecution is happily not the only thing that matters. Intercept as an intelligence tool in the United Kingdom has delivered excellent results against terrorism and serious crime, including—crucially—prevention. Protecting life and safeguarding the security of this country must be any Government’s top priority.

We have other strings to our bow. For instance, recently there has been additional investment in the police and the Security Service to increase the use of a wide range of investigative tools and in longer-term approaches to work with communities to counter radicalism and to isolate and challenge those espousing violence.

Let me now spell out again why the proposals of the noble and learned Lord, Lord Lloyd, provide none of the safeguards on which to base an evidential interception system. First, the cherry-picking effect of giving the prosecution alone the right to choose when to deploy evidential intercept is unlikely to be ECHR-compatible. The resulting legal challenge could undermine agencies’ ability to use intercept at all, whether for intelligence or evidential purposes. Secondly, the fact that there are no safeguards over the standard PII procedure for protecting sensitive material would jeopardise the close co-operation that currently exists between intelligence and law enforcement agencies and underpins the excellent results the current regime delivers. My noble friend Lady Ramsay alluded to that. Thirdly—

Lord Maginnis of Drumglass: My Lords, would the Minister extend that argument to the effect that the Police Ombudsman is creating a situation in which intelligence agencies will not in future pass on vital information to constabularies that are to be quizzed systematically and in detail about the very issues that she says need to be protected?

Baroness Scotland of Asthal: My Lords, the noble Lord, Lord Maginnis, raises a very interesting point. I assure him that we will give it some attention, and I will write to him in due course about it.

We were up to the third point—that proposals take no account of the huge changes now under way in communications technology. It makes no sense to change how our agencies operate until we understand fully what these changes mean for interception. The extent of the change is considerable. Voice over internet protocol creates some very sensitive capabilities and techniques; those have to be created to intercept these very sophisticated new forms. It is far more time-consuming, difficult and costly to do. The key feature of voice over internet protocol is the multiplicity of different ways of communicating through that medium. It is very good for the customer and the consumer, but bad for interception. We must not drive criminals into using ways of communicating which are less susceptible to interception and which therefore deprive us of an invaluable source of intelligence and jeopardise our fight against terrorism and very serious crime.

No solution is proposed for the increased resource burden that would fall on the agencies in intercepting to an evidential standard, another point that was raised by my noble friend Lady Ramsay. This would limit the amount of interception that they could do and seriously impair their effectiveness. I might add that the Bill is also technically deficient: it incorrectly defines the

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“communications data” that they seek to use evidentially as a type already used as evidence. As such, we believe that the proposals are deficient: they are not thought through properly and they represent potentially very dangerous and very real threats to our ability to maintain our fight against serious crime and terrorism.

I absolutely accept that, in drafting the Bill, the noble and learned Lord did not intend that this would be the final word. I do not suggest that it is simply a stalking horse; it is a way for us to debate these issues properly. We do not see that there is a basis on which we can change our current stance. Indeed, the noble and learned Lord was right to include my name among all the other names of those who believe that, if this could properly and safely be done, the Government’s position is that we would do it.

I commend my noble friend Lord Desai for joining this august company. We do not feel that the current provisions are in any way deficient, but we welcome him. I dare say that we will have his support in due course.

I hope that the noble Lord, Lord Henley, and, indeed, Her Majesty’s loyal Opposition will, on further reflection, consider that the words of Sir Swinton Thomas merit more than a little consideration and that the views expressed on this side of the House—and, indeed, on his side of the House by the noble Baroness, Lady Parks, with her usual wisdom—should prevail. I hope that he, with his party, will be able to see that this is not nonsense but profound good sense, which is keeping our country safe.

3.29 pm

Lord Lloyd of Berwick: My Lords, the noble Baroness, Lady Scotland, was kind enough to refer to my tenacity in raising this matter once again. As she was feeling for that word, I thought that she was going to say “temerity”. She also said that it is not a question of counting heads, but, as I calculate it, if we took a head count of noble Lords and Baronesses who have taken part today, I make it a draw with one abstention, but I may be wrong. Of course, there is no question of considering it in that way.

I was very grateful that the noble Baroness, Lady Taylor, took part in the debate. She seemed to be a new face and voice in these matters. She was clearly concerned about the unpredictability, as she called it, of public interest immunity. I am also deeply grateful for the support of the noble Lord, Lord Dear, who referred to some difficulties that he experienced in the 1980s. During the past 10 years, there have been enormous advances in the protections afforded by public interest immunity, especially since the decision of the House of Lords in R v H and what is now set out in Part 25 of the Criminal Procedure Rules. I would now dare to say that the public interest immunity protection for the sources and techniques that everyone is rightly concerned to protect is now watertight. There is no danger of these procedures coming out in public. If one wants proof that that is so, one has only to look at the United States and Australia, where PII has now been used for many years without the revelation of any secret techniques. If that is taken into account, I suggest that the arguments in favour of the Bill are very strong.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

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Piped Music etc. (Hospitals) Bill [HL]

3.32 pm

Lord Beaumont of Whitley: My Lords, I beg to move that this Bill be now read a second time.

It will not have escaped the attention of those of your Lordships who are doomed to be here for last business on a Friday that we have been here before. I have initiated a debate on piped music in general and I moved the Second Reading of a Bill which covered piped music in public transport and health establishments, which I then abandoned because, apart from some intelligent and mildly sympathetic comments from the Conservative Front Bench, it received very little support from your Lordships' House.

I now return with a Bill covering hospitals alone which, I give notice, I hope to pilot through your Lordships’ House, thus bringing to four the number of Bills that I have piloted through your Lordships' House, one of which reached the statute book as part of the wild animals and wild plants protection Act. I have hopes for this Bill, with such key advocates for my cause as Mr Robert Key in another place.

The reason that I have narrowed the field affected so much at the same time as everyone, without exception, who has spoken to me on the subject has urged me to widen it, is that I believe that the case for hospitals is irrefutable. Clause 1 directs the Secretary of State to draw up within two years, after consultation, a plan to prohibit piped music or the showing of television programmes in the public areas of hospitals and to require the wearing of headphones by persons listening to music in those areas and, when he has done so, to lay the plan before both Houses of Parliament. Clause 2 lays down exceptions to be included in the plan for television broadcasts which are in the public interest, including those which are for the purpose of safeguarding the welfare of hospital users. Clause 3 defines piped music in public areas of hospitals, and Clause 4 contains a citation of the Act as it extends to Northern Ireland.

There should be no doubt about the need for the Bill. Many hospitals, including outpatients’ departments, are filled with music and television. The reasons for this are, of course, well meant. It is thought that music is calming and television distracting. Some music is very calming; the kind that you happen to like. By definition, however, the proportion of any given involuntary audience that likes the kind of music being played at any particular time is small, while, for the rest, it is actively unpleasant, even painful, or just noise. All unwanted noise raises the blood pressure and depresses the immune system. For some medical conditions, such as tinnitus, noise is actually very painful.

A famous survey of blood donors at University of Nottingham Medical School in 1995 found that playing piped music made donors more stressed before giving blood and more depressed afterwards. Surely hospitals should be places of restful calm, whereas too often they are the reverse. I would like to acknowledge the help that I received in preparing the Bill from the UK Noise Association, Pipedown and the Royal National Institute for Deaf People. I urge your Lordships to accept it at Second Reading.

Moved, That the Bill be now read a second time.—(Lord Beaumont of Whitley.)

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3.36 pm

Lord Addington: My Lords, I am one of those who did not give the original Bill a tremendously good welcome. This Bill is in a slightly more workable form of words, although I am still not 100 per cent convinced that background music, piped music, canned music—call it what you will—is that bad. In my experience, based admittedly on a limited number of times sitting in accident and emergency departments, waiting to be treated for small injuries and so on, one can wait for long periods without being prepared. Things go wrong in hospitals, and TV screens or a little music allow you to switch off, not because the music is to your taste but often because it cuts down the amount of background noise. You may be waiting to have two stitches in your knee, as I said before, when someone comes in after a big road accident. You are then quite rightly at the back of the queue, but you see people running around, especially in accident and emergency departments, and stress levels go up. Some form of distraction is needed. The one most easily available to you is probably television, and it should be available in these circumstances. That is what makes me slightly more cautious about this.

I commend the noble Lord for making the Bill short enough to read quickly. It says that exemptions could be made where it was felt to be in the patient’s interests. I suggest that a balance will always have to be struck. It might be interesting to have guidance from the Minister, now or at another point, on where the Government think it is appropriate not to have music and in which circumstances. I believe that, in our previous debate on the subject, the noble Lord talked about someone who had died in a hospital with friends and relatives around the bedside, with music blaring out from somewhere else. This might be better addressed by a little common sense and guidance to ward administrators on the appropriate level of background music. Other than that, I have no active objection to the Bill, although I certainly could not bring myself to support it actively.

3.39 pm

Earl Howe: My Lords, in presenting his Bill to the House today, the noble Lord, Lord Beaumont of Whitley, has shown himself to be an eloquent advocate for that precious and most elusive commodity, silence. I say to him immediately that my sympathies lie with his cause. Over the years, the poets have written about the joys of silence. Oliver Wendell Holmes put it rather aptly:

To heal the blows of sound”.

Christina Rossetti spoke of,

Gerard Manley Hopkins, that most original of poets, wrote:

Pipe me to pastures still and be The music that I care to hear”.
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