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Of course we will want to study the report carefully, but it seems clearly to accept that intercept should be used, but also importantly to offer guidance on the vital question of how to use intercept to secure convictions while not imperilling national security. Our country has been targeted, hit and some families left pained and grieving, but thanks to the brilliance of our security services we have prevented many other atrocities. We need to defend our homeland and the safety and capability of our security services must be paramount. We must therefore give the fullest weight to their concerns. We must protect security service personnel and we must protect the vital intelligence-gathering techniques. We must, as the Statement says, have the flexibility to adjust to communication by new internet protocol technologies. We also need to ensure that the use of intercept in court does not jeopardise a fair trial.

Will the noble Baroness confirm that the Crown Prosecution Service is clear that the use of intercept will lead to fewer abortive trials? Can she say whether any assessment has been made of how many more terrorists could have been brought to book had intercept evidence been available? Does the noble Baroness agree with the report that Australia, a common law country, also at war with terror, shows how intercept could bring benefits without increasing danger to intelligence services?

I am convinced we now need to move forward, so let me ask about implementation. What is the timing? Will there be yet another Bill on interception later this Session, or in the next Session of Parliament? I hear it being said that implementation might take more than two years. That is patently ridiculous. Can the noble Baroness say whether there is any impediment to speedy implementation, and if so, what it is? I find it disappointing that proposals will not be ready for inclusion in the Counter-Terrorism Bill. I make it clear that we would consider recommitment of that Bill if we would help material to be introduced at a later stage.

But let me also be blunt on another matter. We favour use of intercept because we think it a useful and effective tool in fighting terror, but we oppose firmly large-scale overriding of habeas corpus and the bringing in of a system, wholly alien to our tradition,

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of ever longer detention without trial. After long and painful discussion, this House reluctantly accepted temporary provision of 28-day detention in terrorist cases. Given the further work being done following the Chilcot report, does the noble Baroness accept that it would be wholly counterproductive to force a phoney political row about 42-day detention? The former Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton, is against it, as is the former Attorney-General, the noble and learned Lord, Lord Goldsmith; and I have not exactly seen the noble and learned Baroness, Lady Scotland of Asthal, waving banners in its favour. This House will not and should not brook our ancient liberties being played with as meat for the spin doctors.

Will the noble Baroness give an undertaking that so long as the work following the Chilcot report goes on there will be no question of her pressing legislation to extend detention without trial? If she will not give that undertaking, as Leader of the House, perhaps she could take that message back to her Cabinet colleagues as clearly and as firmly as she likes.

Finally, since this Statement is on intercept—and following past concerns raised by the noble Lord, Lord Ahmed—can the noble Baroness say whether the Wilson doctrine applies to Members of this House? No doubt, as Leader of the House, she has asked this: can she give an assurance that no Members of this House have been bugged while going about their duties?

3.46 pm

Lord McNally: My Lords, I, too, welcome the Statement. I agree with the Prime Minister that the central dilemma we face in a free society is that of preserving our liberties and the rule of law while at the same time keeping our nation safe and secure. This House has played a key part in retaining that balance in recent years. I join the noble Lord, Lord Strathclyde, in paying tribute to the noble and learned Lord, Lord Lloyd. I pay tribute also to the members from these Benches, my noble friends Lord Thomas, Lord Lester and Lord Goodhart. They have worked to keep that balance when measures were brought before this House.

I share the Prime Minister’s judgment of our security services. What they do defends our freedom, protects our society and saves our lives. However, whenever I have sat in this House over the past 10 years considering the numerous Bills presented to us, I have always kept in the back of my mind a statement by my old mentor Lord Callaghan; I think that I have repeated it to the House before. After receiving a briefing from members of the security services and they had left the room, he turned to me and said, “Always listen to what they say, but never abandon your own political judgment”. I think that that is Parliament’s duty when we deal with these matters.

We in this House have long supported the use of intercept evidence and welcome this move. The task now is to get the balance right between the effective use of such intercept evidence and the protection of capabilities in the field. One concern about the

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Statement is that there are so many checks, balances and conditions that it is almost an open invitation to those who do not want to see this move implemented to find reasons not to implement it. It will take some strength on the part of Ministers to ensure that this is not in fact one step forward and two steps back. Is the Minister satisfied that the right balance will be struck between the use of these new capabilities and excessive claims by the security authorities that this will damage the agencies? We must make sure that that happens. Our argument has always been that this move will strengthen our ability to secure terrorist and organised-crime convictions. That will not happen if it is too easy to make such objections.

Is the Minister confident that the move will not undermine inter-agency co-operation? It is true that agencies have not in the past co-operated with each other. They should not use this relaxation of the rules on intercept as an excuse for not communicating with each other. I repeat the question from the noble Lord, Lord Strathclyde: when can we expect legislation on this? I also underline his concerns about the justification for pursuing 42-day detention.

The Chilcot team has done a good job of work. But, as the noble Lord, Lord Strathclyde, pointed out, there is now a wide concern that goes beyond just intercepts and concerns the nature of our society and where it is going. The Bill needed to implement this change will, I think, be the ninth one in 10 years to address various aspects of security. There is growing public concern at the growth of what has been termed the surveillance society.

I therefore wonder whether the Chilcot team, which has proved so admirable, could not be given a further task: to have a full overview and review of the legislation introduced over the past 10 years and to see what has worked and what has not. Those who have studied these matters have found whole sections of legislation which was rushed through the House in days or hours that have never been implemented. Other provisions referred to in this House have been used with unforeseen circumstances. We must ensure that security legislation is not an ever-incoming tide. We must continually use the considerable strength and wisdom of this House to ensure that we strike the right balance between our civil liberties and our security needs.

3.51 pm

Baroness Ashton of Upholland: My Lords, I am grateful to both noble Lords for their welcome and have, indeed, already paid tribute to this cross-party working. I am also very happy to join in the tributes to the noble and learned Lord, Lord Lloyd of Berwick. I always consult him because I find it more valuable to do so than not. He and I watched my right honourable friend the Prime Minister give the Statement in another place and I saw what I thought was a flicker of a smile cross his face as he listened. If he comments on the Statement today, I hope his comments will be largely supportive because the Statement picks up the issues he raised.

We have to be clear that no one on the committee is suggesting that this is a magic silver bullet that will dramatically change the way things are. We have a

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very good and high success rate for convictions in trials in this country. I have no estimates from the Crown Prosecution Service, but the Metropolitan Police estimates that its success rate could increase from 88 per cent to 92 per cent if it could use intercept. That 4 per cent is worth having, but worth having only within the conditions laid down in the report. I think that those bodies would also accept that there could be fewer aborted trials, a point made by the noble Lord, Lord Strathclyde.

The issue of the link with Australia as a common law country has been raised today in both your Lordships’ House and another place. Noble Lords who have read the report will have seen an extensive section on comparisons with different countries, France, the Netherlands, Canada and Australia being but four. I recommend that noble Lords who have not had a chance to read that section do so, for the committee clearly found the comparison extremely valuable. However, the committee was also keen to point out the differences between the different regimes, not least the different systems. For example, Australia, as I indicated, has a common law system; the other countries I mentioned do not. But there are distinctive differences between the British system and the systems in those countries. Although Australia is a common law country, it does not have the European Convention on Human Rights. That is a distinct difference. We have the adversarial legal system which I have described. We also have strong and good co-operation with international partners. I do not underestimate the importance of that in thinking through how we should use this. As has already been indicated, we also have a very high level of co-operation between the police and the security services. So although the committee was very clear that comparisons are valuable and useful, it was also clear that no direct comparator could be translated across. We therefore need to devise our own solution.

I do not have detailed timings to give noble Lords. My plan, of course, is to keep the House informed—not least because, as noble Lords will see when reading the report, there is a lot of detailed work to be done. I do not think that the nine conditions will be a hindrance, but each requires substantial work. I hope the noble Lord, Lord McNally, will be reassured that the combination of an implementation team drawn from across government and from the agencies with the newly convened cross-party group led by Sir John Chilcot, with all the experience that it already has, will enable us to make sure that the eventual proposals are robust and, vitally, as I am sure the House will agree, that we do not compromise our national security ability in anything we do while recognising that there is clearly a possibility of taking this forward in a particular way.

I do not want to spend a lot of time—I could, believe me—discussing the 42-day issue. Like noble Lords, I have had the benefit of talking to a number of people in your Lordships’ House and in another place and beyond about the issues that I know are of concern. In all the conversations I have had there has been a real clarity of understanding that we are reaching the point where we may need to look in exceptional circumstances at the possibility of someone

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being held for longer than 28 days. Two issues which noble Lords will be aware of come to mind. The first is the ability of those who wish to create havoc and terror in our country to use technology in an increasingly clever way, and the requirements therefore to be able to use the encryption codes and so on that are on our services.

The second is that this often has an international dimension, and that requires us to think, talk and discuss with forces all over the world, some of which may be very far flung and do not have the communication abilities that we do. Those issues have implications in terms of whether 28 days will be sufficient. I have always believed it is the job of government to think ahead, to consider and to plan. That is exactly what we are trying to do within the counter-terror Bill that will come before your Lordships’ House. It is absolutely critical, having accepted that principle, which I believe people do, to make sure that the safeguards are built in. In the context of the counter-terror Bill, those safeguards are political judgment, parliamentary oversight and judicial oversight combined. Noble Lords may have views on how those work, but they are three important and distinct elements.

Finally, I looked up the Wilson Doctrine. The last statement on the Wilson Doctrine was on 30 March 2006. I want to read out the paragraph that answers the questions I have been asked about it:

“In answer to questions in the House of Commons on 17 November 1966, the then Prime Minister, the right hon. Harold Wilson MP, said that he had given instructions that there was to be no tapping of the telephones of Members of Parliament and that if there were a development which required a change of policy he would at such a moment as was compatible with the security of the country make a statement in the House about it. This approach, known as the Wilson Doctrine, has been maintained under successive administrations”.—[Official Report, Commons, 30/3/06; col. 95-96WS.]

And it does apply to your Lordships’ House.

3.58 pm

Lord Lloyd of Berwick: My Lords, I thank the Leader of House for repeating the Prime Minister’s Statement and add my warmest congratulations to the Privy Council team on producing an excellent report. I do not think I have ever read a clearer or fairer account of the benefits and risks—because there are risks—involved in introducing intercept evidence into court. I greatly welcome their conclusions.

Does the noble Baroness agree that if the Government put the preferred legal model called PII Plus on a statutory basis and agree to give the undertaking which the report recommends in paragraph 213, they will go a long way—I hope the whole way—towards removing the concerns which have been felt by GCHQ and the other agencies and also by the service providers?

Baroness Ashton of Upholland: My Lords, the different legal models are discussed on page 44 of the report. As the noble and learned Lord will know far better than I, there are several possibilities. My noble and learned friend Lord Goldsmith when he was Attorney-General also looked at the PII Plus model. This is the one that the noble and learned Lord thinks would be of greatest interest, so I hope noble Lords will study it with great care. As he says, we will be coming forward with proposals on that.

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Lord Hurd of Westwell: My Lords, I thank the Leader of the House for the Statement and her words. Does she accept that the group has tried—and the noble and learned Lord, Lord Archer of Sandwell, will make his contribution in a minute—to open a door for the Government using a great deal of work done previously by many people, including many Members of this House? She paid a just tribute to my noble and learned friend Lord Lloyd of Berwick.

Does the noble Baroness accept a point that has not really come out yet in these exchanges? As she said, further important work needs to be done on procedures, safeguards and cost. We hope that we have put forward in the report not only a legally robust procedure, which is set out in some detail, but also a way in which, if the Government accept our suggestion, even if we were wrong and there were to be an adverse judgment somewhere along the way, the result would not be the loss of security. It might be the loss of a particular prosecution, but it would not in any circumstances be the spilling out into the open of the precious information about the capabilities and techniques at our disposal which everyone in this House knows have to be kept secure. I am not sure how far the noble Baroness would follow me in my personal view, which is not the opinion in the report, but this issue has caused the whole government apparatus of counter-terrorism to creak rather badly. Whenever they come forward with ideas for new powers or new procedures, they have to face the argument, which they have not been able to answer, that they are barring themselves from using evidence which could be crucial. Therefore, there is a wider context beyond the scope of the report which I hope that the Government will find useful.

Baroness Ashton of Upholland: My Lords, I thank the noble Lord for his work on the committee. It is valued extremely highly by my right honourable friends the Prime Minister and the Home Secretary. I noticed the noble Lord shaking his head vigorously at the idea expressed by the noble Lord, Lord McNally, of extending the Chilcot committee’s remit. I do not feel the need to answer the point as the noble Lord has done it rather well for me.

I accept much of what the noble Lord said in the first half of his comments. As he would expect, however, I am not sure that I would agree that the apparatus creaks rather badly. I think that there is a perception that this could make a difference. What is very measured in the report is the real understanding that the difference will not make a substantial change in the ability to bring people to justice. In fact, we have an extraordinarily good track record. The question is whether it could make the difference in particular cases and lead to fewer aborted trials and more solid convictions. That is the essence of what we need to look at. It is important to look at it in that light, but not to feel in any way that we have failed to achieve what we need to achieve because this facility has not been available to us. That is where I would not agree with the noble Lord’s terminology of creaking machinery.

Lord Lester of Herne Hill: My Lords, the Joint Committee on Human Rights will greatly welcome these proposals. Together with the committee chaired

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by the noble Lord, Lord Newton, and in other work by the noble and learned Lord, Lord Lloyd, which has already been mentioned, all of us have been pressing for proposals of this kind. Is the noble Baroness aware that when the Joint Committee took evidence on this, we went to Madrid, to Paris and to Canada? What impressed us greatly was that if you look at the common law world and think of the United States, which has a Bill of Rights, and you think of Canada, which has a Charter of Rights—those countries which need to balance liberty and security—they were not subject to the same exclusionary rule as we have. In Europe, only Ireland, in the common law world, has the same exclusion. Is the Minister aware of that and how isolated we have been, and therefore how important it is now that we are able to join forces with, for example, Spain, which has more serious terrorism than any other country? Finally, the Minister will be aware that Sir John Chilcot has been involved in this subject for as long as any of us. He was involved in the first prevention of terrorism Bill in 1974. I cannot think of a better person to do further work in this area. In my view, he is one of the great public servants of my time.

Baroness Ashton of Upholland: My Lords, I am sure the whole House will agree with the noble Lord in his praise of Sir John Chilcot. The quality of this report and the work that has been done clearly demonstrates that this cross-party Privy Council approach has worked extremely well with what we wish it to achieve. I pay tribute to all those involved. It is interesting when one looks at the comparisons within the document. The noble Lord talked of going to Madrid, Paris and Canada—indeed, Spain, France, Canada, Australia, the United States and the Netherlands are examples within the document. I take nothing away from the comparison between the ECHR and the Bill of Rights and the ability to make these things work together.

However, I would point to the unique nature of the particular criteria that I spelt out for what makes this country different: our collaboration externally with other nations, our adversarial system and so on. When one adds all these up, one sees that we have to have a home-grown solution. I am not sure that we felt isolated. As I have indicated, the quality and quantity of the work we have done in bringing people to trial and to justice has been extremely high. The question was whether we could do even better. In the eyes of the Metropolitan Police, it was the difference between 88 per cent and 92 per cent. That has to be balanced very carefully against the risks which noble Lords have indicated. I also note that Andrew Dismore, who chairs the committee, was keen to welcome this earlier today in another place.

Lord Clinton-Davis: My Lords, the Statement says that it is not possible for the current Counter-Terrorism Bill to include the recommendation of this committee. In that event, would it not be possible to withdraw the Counter-Terrorism Bill and reintroduce it in the new Session? Alternatively, can the Counter-Terrorism Bill be extended from now until the new Session?

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