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The Minister of State, Foreign and Commonwealth Office (Lord Malloch-Brown): My Lords, I assure my noble friend that the current rules governing the publication of memoirs and involvement in public debates and media appearances are set out in the Diplomatic Service Regulations, a revised copy of which was deposited in the House Library in March 2006. The main criteria are that disclosure of official information should not prejudice national security,

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harm international relations or be destructive of the confidential relationship between Ministers or between Ministers and officials.

Baroness Symons of Vernham Dean: My Lords, I thank my noble friend for that very reassuring Answer in the light of some recent newspaper reports. Does he agree with me that the important point and the crux of the relationship between Ministers and senior diplomats and Ministers and for civil servants is that they can have frank and robust exchanges without fear that those will turn up in the pages of newspapers or in memoirs? To that end, does my noble friend agree that the codes for Ministers and for civil servants should both be reviewed to encourage Ministers and civil servants to exercise a little more self-restraint and self-discipline than some recent examples have demonstrated?

Lord Malloch-Brown: My Lords, the House of Commons Public Administration Committee conducted an inquiry into the publication of political memoirs, which was published in July last year. The Government are currently co-ordinating and preparing our response, and it will reflect my noble friend’s concerns.

Lord Howe of Aberavon: My Lords, is the Minister aware that the Prime Minister, during his 10 years as Chancellor of the Exchequer, made a habit of virtually never staying at a British embassy but instead staying at hotels? Does the noble Lord agree that that pattern of behaviour not only increases public expenditure but, more seriously, cuts the Minister concerned off from the resources, advice and expertise available in the embassy? Does the Prime Minister intend to continue behaving in that way in his present office? Can the Minister offer any explanation for that strange pattern of behaviour on his behalf? Is it not possible that the reason may be anxiety regarding the point raised by the noble Baroness, Lady Symons, in her questions?

Lord Malloch-Brown: My Lords, the noble and learned Lord has asked a question that it would be difficult and perhaps even inappropriate for me to answer. As a new customer of our embassies overseas, I have greatly appreciated the opportunity to stay there and be briefed by our ambassadors.

Lord Moran: My Lords, I speak as a diplomatist who has not published any memoirs. Like the noble Baroness, I warmly welcome what was said today about the rules, and there will be a very general welcome among present and past members of the Foreign Office for her suggestion that the same rules should apply to politicians as to officials. There have been suggestions from time to time that we were moving in the direction of a blanket ban on memoirs by officials working in the Foreign Office. Does the Minister agree that that would be unfortunate? Obviously, from time to time, there may be a bad penny and there may be people in the Foreign Office, as anywhere else, who may be indiscreet and lack good judgment. On the whole, I think people will behave themselves.

Lord Malloch-Brown: My Lords, the noble Lord should be reassured that already this year some 10

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books and 20 articles by former Foreign Office officials have been cleared for publication. The rules were established several years ago, and nothing has changed since 2006, so there has been no effort to tighten things up since then. Every one of us at ministerial level in the Foreign Office believes that there is a major contribution to be made to the foreign policy debate by retired diplomats.

Lord Wallace of Saltaire: My Lords, does the Minister think that the rules for retired UN officials are more appropriate than those for retired Foreign Office officials? Perhaps he will tell us when he is about to write his memoirs. All of us on these Benches believe that, as far as possible, there should be a bias towards openness and that the same rules should apply to officials as to special advisers and Ministers. There has been a great outpouring of material on British foreign policy in the past 10 years. One thing that has worried us is the very different treatment that Christopher Meyer received to Sir Jeremy Greenstock, when it seemed to many of us that Sir Jeremy Greenstock’s memoirs had a great deal to contribute to the public debate.

Lord Malloch-Brown: My Lords, in the case of Sir Jeremy Greenstock, the ball is in his court, and if he wishes to come back to the Foreign Office that is still an open issue. I agree that he has a tremendous contribution to make to the discussion. Again, we have tried to align policy with our requirements under freedom of information so that the same rules apply across all government disclosure; that, except where it interferes with national security or with the confidentiality of discussions, there should be as much disclosure as possible, because a well informed public are a better educated one in this area.

Lord Anderson of Swansea: My Lords—

Baroness Neville-Jones: My Lords, it is extremely reassuring when the Minister says that he agrees that retired diplomats should be able to contribute to national debate. But how does he reconcile that answer with the extremely limiting restriction in the Diplomatic Service Regulations? They state that retired diplomats may not enter into any commitment to publish or broadcast,

Is this not in the Minister’s view a quite unnecessary restriction, particularly in a liberal democracy? Is it not time that such revised regulations, which seem to revert to an earlier era, were revised in a much more liberal direction, so that Members of this House—many of whom are here as a result of the contribution that they have made to public life—would not have to rely on parliamentary privilege?

Lord Malloch-Brown: My Lords, I, like the noble Baroness, was quite shocked to read the first sentence of DSR 5 to which she refers. I was directed by officials to read the rest of it, which specifies arrangements which essentially put the responsibility on officials to consult the Foreign Office if they feel that they might

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be in breach of what I think are well understood guidelines. When the Government’s response to the House of Commons committee report comes out, we will use that opportunity to draft a regulation which is more in line with the 21st century and which avoids broad and misleading statements.

Lord Trefgarne: My Lords—

Serious Crime Bill [HL]

3.31 pm

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, I beg to move that the Commons amendments be now considered.

Moved accordingly, and, on Question, Motion agreed to.

commons amendments

[The page and line references are to Bill 103 as first printed for the Commons.]

Lord West of Spithead: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.

As noble Lords will know, this will be the first time that I stand before the House to discuss this Bill. I understand from the Attorney-General, my noble and learned friend Lady Scotland, and colleagues in the other place that the Bill has undergone very careful consideration throughout its passage. I thank all of your Lordships for your time, attention and close scrutiny to date and I look forward to our consideration this afternoon.

The Bill was introduced into this House in January and has been the subject of interesting discussion and debate between your Lordships during the following months. The Bill then passed to the other place in May and was considered by a Public Bill Committee before the Summer Recess. The Third Reading took place in the other place on Monday of this week and I am grateful to noble Lords for attending this afternoon to consider the amendments made since the Bill left this House.

On Amendment No. 1, the Government’s position has consistently been that we would change the law to permit intercept evidence only if the necessary safeguards could be put in place to protect sensitive techniques and capabilities, and the potential benefits outweighed the risks. Whether or not one supports a change in law to permit intercept evidence, the amendment of the noble and learned Lord, Lord Lloyd, was not the right way to take this forward for the reasons previously articulated. That is why it was removed during Committee stage in the other place. It is not my purpose here to go over well trodden ground on the debates on the Lords amendment. The fact is we recognise the strength of views on this issue and it is time to bring the debate to a conclusion. That is why we established a cross-party independent review on privy counsellor terms, to report its findings by the start of the parliamentary Session in November. The privy counsellors conducting the review

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are the noble and learned Lord, Lord Archer of Sandwell, the noble Lord, Lord Hurd of Westwell, the right honourable Alan Beith MP and the right honourable Sir John Chilcot, who is the chair.

It would be more appropriate to return to this debate once the privy counsellors have completed their review and the House can benefit from their detailed considerations. Until then, it would be unhelpful and inappropriate to enter into further debate.

Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord West of Spithead.)

Baroness Hanham: My Lords, like the Minister, I rise for the first time on this Bill. Clearly, a lot of water has passed under many bridges since this started and we are arriving in port today.

The point raised by the noble and learned Lord, Lord Lloyd, on the admissibility of intercept evidence in courts is to be commended, as he is for his excellent work in pursuing the matter not only in relation to this Bill but in his introduction of Private Members’ Bills. We have supported him in that and will continue to do so. Indeed, he has been so successful that the Government have been forced to concede that there is a need to investigate this whole matter properly.

We are grateful to the Minister for saying that the privy counsellors’ committee has been set up. However, that was a little later than anticipated, so I wonder whether he will give us an indication of when it will start meeting, when it is likely to complete its review and when that will come back to the House for further consideration.

Lord Thomas of Gresford: My Lords, I am an old lag in this; I have been through it all not once but on many occasions. We are very grateful that the Government have given way to the pressure exerted on them by the noble and learned Lord, Lord Lloyd, who has consistently put forward the case for the use of intercept evidence in court. That case has been supported by the previous Attorney-General, by Sir Ian Blair of the Metropolitan Police and by numerous people who really know what they are talking about.

I hope that the privy counsellors’ committee will come to the right conclusion. Our only worry is that things will be put in front of the members of the committee that will scare them to death and they will not be able to approach the matter as dispassionately as we hope. However, I am sure that that will not be the case; I am sure that they will consider all the evidence and report in due course.

Baroness Ramsay of Cartvale: My Lords, I will not rehearse all the arguments that have been made ad infinitum in this House about whether intercept material should be used as evidence in court. However, given the statements of the noble Baroness, Lady Hanham, and the noble Lord, Lord Thomas, I do not think that those of us who do not think as they do should allow the record to remain as it would if we did not speak.

I welcome the setting up of a privy counsellors’ committee to look at this issue. People like me, who think that the disadvantages and damage to national security and our intelligence and security agencies of allowing intercept material to be used in court would

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be enormous and would outweigh any benefits, have nothing to fear from a committee of privy counsellors looking at the matter. I, too, think that they will come to the right conclusion, although obviously I think that that conclusion will be different from that of the noble Lord, Lord Thomas. I have more faith in their nerve than he seems to have. I do not think that they will be panicked. They will be presented with evidence that those of us who have been in positions to know this area well at first hand are sure will make the facts very clear.

Baroness Park of Monmouth: My Lords, let me add my voice to what has just been said. I, too, have faith in the Privy Council and believe that it will listen to what people such as Sir Swinton Thomas, who really knows what he is talking about, have consistently said: there is a danger and that danger should not be lightly taken. I do not believe that the Privy Council is in the least likely to be panicked. It will be sensible and, if it is, it will, I hope, reach the conclusion that we have fought for.

Lord Elystan-Morgan: My Lords, I was unavoidably absent from the discussions that took place in this House in February and April of this year, although I have read the reports carefully. I join in paying tribute to the noble and learned Lord, Lord Lloyd.

I welcome the fact that a committee of privy counsellors is being set up, and I have no doubt that the matter will be thoroughly considered. Having said that, I fear very much that there will be a delay, which can be avoided, and that, even if a firm conclusion is arrived at fairly swiftly, there will still be a long delay before the legislative position is dealt with. I say that without in any way being churlish towards those who hold strong views in this matter. This is an issue where the protagonists on both sides seek exactly the same end. In each case, one wishes to protect the efficacy of the agencies of counter-crime and counter terrorism, as well as a system which is as just as possible in a practicable way.

Having said that, and with great respect to those who take a different view, from the very first I have thought that the argument is extremely one-sided in that all the evidence and available facts are on one side. It is not as though we are taking a course different from that in many other countries. This system has long been employed by Canada, Australia, New Zealand, South Africa and the United States of America. In June this year, Sir Ken Macdonald gave evidence to the Joint Committee on Human Rights. Speaking of the discussions that he had had with representatives from those countries, he said:

In other words, the use of intercept communication such as this is central to combating crime and, indeed, to the just disposal of criminal cases.

In those circumstances, I should be grateful if the Minister could give an undertaking to the House that the decision will be arrived at swiftly and that, if there

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is a decision to implement, as I very much hope and trust there will be, again, it will be implemented without delay. The onus is on those who stand against the United Kingdom taking the same attitude as other countries in the world which have tried and proven the system to be efficacious and just.

Lord Boyd of Duncansby: My Lords, does the Minister agree that one issue that we have to face is teasing out intercept for intelligence purposes from intercept for criminal purposes, and that one of the strengths of the British system has been the close co-operation between intelligence and criminal investigation agencies? In answer to the noble Lord, Lord Elystan-Morgan, perhaps that marks us out from some of the other countries that he listed. Therefore, in considering this matter and the Privy Council report, will the Government bear in mind the distinction between intelligence gathering and gathering evidence for criminal prosecutions?

Lord West of Spithead: My Lords, I welcome the consensus over the fact that a committee of the Privy Council is looking at this very complex issue. I think that there have been seven previous major studies into it. I thank my noble and learned friend Lord Boyd of Duncansby for mentioning the difference between intelligence and criminality and, indeed, for pointing out the differences between us and other countries. It is very dangerous to say that certain behaviour goes on in other countries and that we should follow that route. We need to be extremely careful.

3.45 pm

There is no doubt whatever that in the previous studies it had become clear, normally to the party in power—whether it be Labour or Conservative—that the balance of judgment was that there was more loss and more risk to us in going down this route. I do not now want to go through all the arguments because we have agreed that the Privy Council needs to look at this, which is absolutely right. The noble Lord, Lord Elystan-Morgan, correctly pointed out that we are all on the same side. All of us want to achieve the same thing. We want to catch those who are trying to destroy our way of life, and we want to bring them to justice and have them punished, as they should be, for what they are trying to do. There are clearly different views about what we lose by doing certain things, and I hope that that will be teased out by the Privy Council group which is comprised of some extremely able and capable people. I am sure that that will come out.

The noble Baroness, Lady Hanham, asked about timescales. I believe that the Privy Council has already started taking evidence. I shall confirm that, and I think that the noble and learned Lord, Lord Lloyd, who I know has a deeply held belief about this and certainly has notable persistence, has already spoken to them but I shall come back to the House on that. As it is so complicated, there may be some risk that the Privy Council may not be able to report as early in November as we had wanted, but we hope that it will have done the work so that it can inform discussions on the counter terrorism Bill. There will be an opportunity to discuss this further in the Chamber. I am glad that

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we welcome the Privy Council group; that is the right place for this matter to be considered initially. It is an extremely complicated issue. All sorts of matters are touched on that cannot be mentioned in this Chamber. I do not use that phrase to stop us debating it but there are extremely sensitive issues and, at times, those issues are very important to this nation and need to be looked at thoroughly and in the cold light of day.

On Question, Motion agreed to.

(a) it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision; and(b) it appears to the Court of Appeal or (as the case may be) the Supreme Court that the point is one which ought to be considered by the Supreme Court.(a) appeals to the Court of Appeal under Part 1 of-(i) the Criminal Appeal Act 1968 (c. 19); or(ii) the Criminal Appeal (Northern Ireland) Act 1980 (c. 47);(b) appeals from any decision of the Court of Appeal on appeals falling within paragraph (a); or(c) any matter connected with or arising out of appeals falling within paragraph (a) or (b).(a) section 9 or 10 of the Criminal Appeal Act 1968 (c. 19); or(b) section 8 of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47). (a)”
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