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The noble Baroness, Lady Park of Monmouth, made an impassioned plea and I recognise the depth of feeling that she evinces. However, I am not a stranger to the inner workings of security operations, and, as the noble and learned Lord, Lord Lloyd of Berwick, said at some length—I shall not repeat it, save to align my views with his—if current-serving very senior law enforcement officers who are in touch with those agencies support the amendment, I think we should listen to them. He mentioned the DPP but he could have mentioned the current Commissioner of the Metropolitan Police and previous commissioners; he could have gone through a litany of those who, in

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other debates in your Lordships’ House, have been paraded. I believe that the amendment would lead to a measure which we seriously need, and I support it.

Lord Armstrong of Ilminster: My Lords, it is some time since I was officially concerned with the business of interception. Then, from time to time we reviewed whether we should seek the ability to use intercept material as evidence in criminal trials. I can well understand the potential attractions of being able to use such evidence in those trials. I recognise that, in proposing that this should be allowed, my noble and learned friend has included a number of safeguards in the amendment, but I do not know whether those safeguards are 100 per cent proof. Unless things have changed very greatly, I believe that the conclusion that we reached when I was in the business should be unchanged. I agree with the noble Baroness, Lady Park, that the risks and disadvantages of allowing the use of intercept material in criminal proceedings greatly outweigh the potential benefits. It is with regret that I am unable to support my noble and learned friend Lord Lloyd, but I cannot and I hope that the House will not support the amendment.

Viscount Bledisloe: My Lords, the objections raised by the noble Baroness, Lady Park, are remarkable if one looks at the schedule that goes with the proposed new clause. Under that schedule, an application to introduce intercept evidence can be made only by the prosecution. It seems a little unlikely that the prosecution will try to introduce evidence that the security services say must not be introduced, but let us assume that the prosecution does so. The Secretary of State would have to apply to the court for the evidence to be withheld. Obviously, the successor of the noble Baroness, Lady Park, would, in certain suitable circumstances, ensure that such an application was made. Will the court really overrule the Secretary of State when he says that the evidence, if admitted, would damage our security services? With the greatest respect to the noble Baroness and the noble Lord, Lord Armstrong, their objections are fanciful. I cannot understand, and the noble Baroness has given no example, how this procedure is all right in other countries, particularly America, but not here. She can hardly say that we have greater trouble with al-Qaeda than the Americans do. If the Americans, Australians, Canadians and others can manage, it is totally possible for us to do so.

In spite of the powerful character of the objectors, therefore, I hope that the House will recognise that they have not advanced any argument other than to say, “It never happened in my day and it ought not to happen now”. Everyone accepts that the amendment would solve a lot of the problems with the Bill. Most of the justification for making these strange orders is, “We can prove it but we cannot prove it in court”. If we allow the evidence to be produced in court, that problem will not arise.

Lord Thomas of Gresford: My Lords, until 1993 the idea that the prosecution should have private communication with a judge and disclose to him

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evidence not available to the defence was simply unknown. In 1993 public interest immunity procedures were introduced in England and Wales for the first time. I had experience at that time as a prosecutor, so I was aware how the procedures were to be used. Since then, they have been developed and refined.

Lord Lyell of Markyate: My Lords, I am very surprised that the noble Lord believes that PII procedures were first introduced in 1993. They had been going long before that and were carefully considered at a very high level.

Lord Thomas of Gresford: My Lords, I was referring to the particular procedures followed in a criminal trial, not to public immunity certificates, to which I think the noble and learned Lord refers. These procedures were introduced in 1993. I have never come across a single instance where confidentiality between the prosecutor and the judge has been broken. I would be surprised if any noble Lord present who has experience of the criminal court had come across any such instance either.

It follows that the fears expressed by the noble Baroness, Lady Park, and the noble Lord, Lord Armstrong, perhaps relate to a different era, when those procedures were not in place. We have discussed this matter on many occasions. I find it remarkable that we are discussing the criminal procedure for obtaining serious crime prevention orders in a context where these orders can be obtained on hearsay evidence—that is precisely what a later clause, which we will discuss, says—but not using evidence out of the mouth of the defendant who is before the court, proving what he said, with whom he has conspired and so on. It is extraordinary that rumour and hearsay are enough but what the defendant actually says is not.

Lord Boyd of Duncansby: My Lords, until October last year I was closer to this argument and debate in government than I am now. As the noble and learned Lord, Lord Lloyd of Berwick, will know, I have not been persuaded of the arguments in favour of his amendment. We went through this ground at length during the Second Reading of his Private Member’s Bill, so I will not detain the House by going into detail. I wish to make three points.

First, my understanding is that, in comparison with other countries, the relationship between intelligence agencies and law enforcement agencies is much closer in the United Kingdom than it is in virtually all the other countries that have been discussed. As the noble Baroness, Lady Park, said, we are not talking about conventional telephone tapping but about techniques that are far more sophisticated in the intercept of all kinds of electronic communications. As I understand it, that close proximity gives the character to the present debate, in particular about whether it is right to admit intercept evidence.

My second point is that the use of intercept evidence in court will produce a high volume of material in many cases because intercepts are often

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left to run for considerable periods of time. That will place a heavy burden on intelligence agencies, law enforcement and the prosecution because the material will have to be gone through, sometimes in minute detail, in order to ensure that material that properly ought to be kept secret is blacked out or marked in some way so that that can be done. If it is an intelligence agency tap, intelligence agents will have to do that, and I would prefer them to be used for intelligence, not as disclosure officers.

My third point is that, in moving his amendment, the noble and learned Lord concluded that the issue is a lack of political will. I assure him and the House that, from my observation of this matter, that is not the case. A considerable amount of work has gone in at high levels in government and in the associated agencies to try to produce a model that will meet the proper concerns of the intelligence and law enforcement agencies. All the models that have been produced have had an aspect which has meant that they could not go ahead. I can say with complete candour that it is not a lack of political will. Many of us would love to see the result that the noble and learned Lord wishes, but the report from the commissioner, to which I have no doubt the Minister will refer in her reply, made clear that there are serious concerns about whether this is the right way to go. I hope that this matter will not be pressed.

Lord Henley: My Lords, in moving the amendment, the noble and learned Lord, Lord Lloyd of Berwick, referred to our debates in Committee on this subject. He failed to mention that this is the fourth time that we have covered this subject in the past two months because it featured very largely in the Second Reading debate and the Committee on this Bill and was the subject of the noble and learned Lord’s Bill that we debated the other day. We are now debating this matter again, and I understand that the Minister has debated it on a number of earlier occasions. She is now looking at me with pursed lips, if I can put it in that manner, and I offer her my commiserations for having to debate it yet again. However, after all this time, it may be that she will come to see the merits of the arguments in the noble and learned Lord’s case and of the arguments put forward by speakers from around the House. On the reaction from the Government, I hope that this debate might prove to be the exception. On this occasion, perhaps I may suggest a shorter response from the Minister, as requested by the noble and learned Lord. The noble Baroness could simply say that she accepts all the arguments that have been put forward.

The noble and learned Lord has put his arguments very well. It is not for me to reiterate all that he and others have said. I underline only one point—a point made by the noble and learned Lord and others—that in a great many other countries, outside the United Kingdom, intercept evidence has been used in the past. I refer to a trip made by my right honourable friend David Davis to North America only last month when he saw that in action. As the noble Baroness will be aware, outside the United Kingdom intercept

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evidence has been used to convict al-Qaeda cells in the United States following 9/11; it has been used to convict various serious criminals—the so-called five godfathers of New York crime—and it has been used before the International Criminal Tribunal for the former Yugoslavia at the Hague to convict war criminals.

The Minister noted various omissions of intercept evidence in her response to the noble and learned Lord's Private Member’s Bill, which we debated two or three Fridays ago. I direct her to those examples and I reiterate the request made at the time for the figures on using intercept evidence in serious drugs cases. I expect she will find that the issue is not as cut and dried as she then seemed to think.

On that occasion, the Minister mentioned safeguards and I would like to direct her to the evidence gathered by my right honourable friend David Davis in America last month. In America, they make essential use of classified information procedures. The safeguards are solid and the benefits are overwhelming, yet still, unfortunately, they are over there and not over here. In literally thousands of organised crime cases, intercept evidence has been the key evidence on which the verdict has turned. Often, if intercept evidence is permitted, the accused accepts a plea bargain. It is also vital in enterprise cases. Where big organised crime is involved, intercept evidence can be used in plea bargains to get minor players to give evidence against the bigger fish.

The noble Baroness may be interested to hear a little about the safeguards surrounding that procedure. As I understand it, first, a judge must authorise the use of intercept, which would be in camera, and the defence would have an opportunity to challenge that if it wished. Further, judges and defence lawyers involved in the procedure must have particular clearance to deal with intercept material. In support of those measures, evidence may be edited or summarised to protect the sources and to allow the defence to challenge it in open court.

Again in summary, to repeat what has been said by a great many noble Lords in this debate, the United Kingdom is the only country in the common law world to refuse the admittance in court of evidence gathered on home soil. Furthermore, as I understand it, evidence gathered in the United Kingdom can be admitted for use in the United States. Therefore, on this occasion, after so many earlier opportunities, we hope that the noble Baroness will consider this and, in the light of evidence in the United States of the proven effectiveness of their safeguards, be tempted to offer, dare I say, the short and sweet response to the amendment of the noble and learned Lord.

Baroness Scotland of Asthal: My Lords, I can certainly make this much short and sweet: I accept without qualification the arguments of the noble Baroness, Lady Park, the noble Lord, Lord Armstrong, and my noble and learned friend Lord Boyd. That could perhaps suffice, on the basis that this is the seventh time the noble and learned Lord, Lord Lloyd, has made his intercept-as-evidence proposals in the past two years, and the third time during the course of the Bill.



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However, it is right for us to bear in mind what has been said so eloquently by my noble and learned friend Lord Boyd in support of the comments of the noble Baroness, Lady Park, and the noble Lord, Lord Armstrong. It has been suggested that the noble Baroness and the noble Lord are perhaps no longer in touch, or up to speed, with the current position. Of course, the noble Lord, Lord Dear, also has real experience in this field, but that cannot quite be said about my noble and learned friend Lord Boyd or fairly said about those who now put forward this argument on the Government’s behalf.

Given the history of these debates, I can do no better than refer the House to the comprehensive and detailed response I gave on the Government’s behalf on 7 March, Hansard cols. 308-314, and again on 16 March, Hansard cols. 990-995. We concluded then—as on every occasion we have considered and responded to the proposals in detail—that we are unable to utilise the material as the noble and learned Lord has sought. The proposals are not only seriously flawed but actually dangerous because, as I have explained, they provide none of the safeguards that we and others have recognised as crucial and have been working so hard to develop. Our position reflects that of the key stakeholders in the debate, which is measured and sensible. Until we find a method of delivering change in a way which protects our ability to fight terrorism and serious crime effectively, the Government cannot support a change in the law. Again, therefore, we oppose the proposals.

My response to the noble and learned Lord, Lord Lloyd of Berwick, in our previous debate was to the assertion that intercept as evidence would be particularly effective against terrorism. I gave figures from the Australian Telecommunications Interception Act 1979. The most recent, for the year ending 30 June 2005, showed that intercept was not adduced in any terrorist prosecution. As the noble and learned Lord rightly said, I then went on to deal with these other figures.

Lord Lloyd of Berwick: My Lords, it was good of the noble Baroness to provide those earlier figures she sent to me. How many terrorist cases were there in the relevant year?

Baroness Scotland of Asthal: My Lords, I do not have the table from which those figures were adduced, but I can certainly find them. The important thing is that this goes to the noble and learned Lord’s point that this sort of evidence is useful and should be used. He suggested that Australia was an example of where intercept evidence had been used to that purpose. Therefore, I thought it was important for us to have the facts about the accuracy of that assertion. We now do so.

The Australian figures of course were of interest. But we know that overseas jurisdictions have, as the noble Baroness, Lady Park, indicated, a different structure from our own. Their use of intercept evidence, and the way in which they protect sensitive capabilities, differs. They wall off the more sophisticated work of their intelligence agencies, which is not produced

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in evidence, from the more straightforward interception work conducted by their law enforcement. We could do that, too. We have not done so because in the United Kingdom our intelligence agencies work hand in hand with law enforcement and the access to sophisticated capabilities this promotes has served us very well. Once you dismantle the protections on intercept material, you dismantle the protections for all intercept material. That requires replacement safeguards to be put in place, and that is what we are working really hard to try to develop.

I take up the issued raised by the noble Viscount, Lord Bledisloe. It has been said that if only the prosecution can decide whether it can in each case provide intercept evidence, surely that will suffice. That song has been echoed by the noble Lord, Thomas of Gresford. It is not likely to be ECHR compatible because there has to be a right to a fair trial. That—I hope the noble and learned Lord would think—would undermine the efficacy of that as a way forward.

I had wanted to keep my speech short because these issues have been trailed so often. However, it is only right to say that in many of our previous debates on these proposals I have explained why intercept evidence would not be effective against terrorist targets; why it would not obviate the need for control orders; why it is very different from eavesdropping evidence; why any gains against serious crime would be modest and time limited; why our country is different from others which do not use intercept evidence; and why technology changes, in communications and the ability to intercept, is so crucial.

I have also set out why the Government's view is and continues to be that we have to work on the issue. I do not propose to go through all the fine details. I know that the noble and learned Lord has been invited to come and see the work we are doing. I really want to underline what was said by my noble and learned friend Lord Boyd. This is not because of any lack of will. Considerable efforts are being undertaken on a continuous basis to address the issue, and we are determined to pursue the matter.

I now come to a stage where I am almost going to beg the noble and learned Lord, Lord Lloyd, to accept our bone fides on this issue. This is not implacable hostility. This is not obdurate or obstinate opposition for opposition’s sake. There is no resistance to doing this—and I reassure the noble Lord, Lord Henley, of that—because we are antipathetic to this move as a matter of principle. That could not be further from the case. But I have to tell the House that this Government will not move to introduce information on intercept which is likely to cause damage to the security of our nation. We will not move.

Unless and until we determine a way in which that can be safely used, from this Dispatch Box the House will receive the same response. If, through ingenuity and hard work, we are able to resolve the problem, I will with joy return to the Dispatch Box to explore how it has been done. Until that stage, I invite the noble and learned Lord to withdraw his amendment

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and to be content that he has ensured that our efforts will continue at a heightened level.

Lord Lloyd of Berwick: My Lords, of course I accept the bona fides of the noble Baroness and the Government, but she has not explained why it has been found possible to do what I seek to do in so many other different countries with systems similar to ours. In those circumstances, I wish to test the opinion of the House.

5.46 pm

On Question, Whether the said amendment (No. 21) shall be agreed to?

*Their Lordships divided: Contents, 182; Not-Contents, 121.


Division No. 2


CONTENTS

Addington, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Blackwell, L.
Blaker, L.
Bledisloe, V.
Bowness, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Broers, L.
Brougham and Vaux, L.
Bruce-Lockhart, L.
Burnett, L.
Byford, B.
Campbell of Alloway, L.
Carnegy of Lour, B.
Cathcart, E.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Crathorne, L.
Darcy de Knayth, B.
De Mauley, L.
Dean of Harptree, L.
Dear, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dundee, E.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Elton, L.
Falkner of Margravine, B.
Fookes, B.
Fowler, L.
Freeman, L.
Garden, L.
Garel-Jones, L.
Geddes, L.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greengross, B.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hylton, L.
Jacobs, L.
James of Blackheath, L.
Jenkin of Roding, L.
Joffe, L.
Jopling, L.
Judd, L.
Kimball, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laing of Dunphail, L.
Lang of Monkton, L.
Leach of Fairford, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L. [Teller]
Lucas, L.
Luke, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
MacLaurin of Knebworth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar, C.


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Marland, L.
Marlesford, L.
Masham of Ilton, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Montgomery of Alamein, V.
Morris of Bolton, B.
Neuberger, B.
Newton of Braintree, L.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Onslow, E.
Oppenheim-Barnes, B.
Palmer, L.
Patten, L.
Pearson of Rannoch, L.
Perry of Southwark, B.
Pilkington of Oxenford, L.
Plumb, L.
Quinton, L.
Rawlings, B.
Razzall, L.
Reay, L.
Rennard, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Russell-Johnston, L.
Sainsbury of Preston Candover, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taylor of Holbeach, L.
Tenby, V.
Teverson, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Trenchard, V.
Trimble, L.
Tyler, L.
Ullswater, V.
Verma, B.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
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