Interception of Communications (Admissibility of Evidence) Bill [HL]

My Lords, I beg to move that this Bill be now read a second time. The purpose of this short Bill is to enable intercept evidence to be given in court subject to adequate safeguards. Those safeguards are set out in the Bill in Clause 1 subsections (3) and (4) and Clause 2. Intercept evidence, as I am sure all your Lordships are aware, is of great importance in identifying criminals—both terrorists and those engaged in other forms of serious crime, in particular those engaged in the importation of drugs. We could not do without it. But although the use of intercept evidence to identify criminals is well established, we do not permit that same evidence, however compelling it may be, to be used to bring those criminals to trial. That is the effect of Section 17 of the Regulation of Investigatory Powers Act. I emphasise that the Bill is not limited to terrorism but also covers all forms of serious crime. In the case of terrorism, if there is no other evidence against the suspected terrorist, or the other evidence is weak, it will mean either that he has to be detained indefinitely as was done in the case of the Belmarsh detainees—happily that will no longer be possible—or alternatively he has to be released without charge. I have never regarded that as making sense, and I know that view is shared by many others. Recently, there has been a groundswell of opinion that we should look again at Section 17 of RIPA, to see if anything can be done. That is what I am asking your Lordships to do in this Bill. As recently as 20 July 2005, after the terrible events of 7 July, the Prime Minister said in answer to a question from Mr Howard:"““I am very happy to go back and consult the security services and the police about that. My own view has always been that if we possibly can use intercept evidence, we should, because of the obvious value that it can provide in certain cases. The difficulty is that, up to now, we have been advised by the security services that the disadvantages outweigh the benefits. However, in the light of what has happened, it is obviously sensible to go back and consult them again. It is not an issue on which there is an objection of principle to using such evidence. On the contrary, as a matter of principle, I would prefer to use it rather than not use it, but we have to take account of our advice””.—[Official Report, Commons, 20/7/05; col. 1246.]" I find that answer encouraging; the Prime Minister has not closed the door. The question is whether there is some way in which we can open that door a little wider—or perhaps it would be more accurate to say that we should take a look behind that door—to see if there is some way in which the security services might be willing to allow their evidence to be tested. There is a way in which we can go ahead and do that, which is why if the Bill gets a Second Reading I hope that it will be referred to a Select Committee of this House for investigation and for report. A Select Committee of Members of this House covering the three related fields of intelligence, law enforcement and the criminal justice system would be the ideal forum to investigate the evidence both for and against Section 17 of RIPA, and I hope that it would come to some agreed view. The House is rich in experts in all those three fields. Some of the evidence would no doubt have to be given in closed session, but I understand that there would be no difficulty about that. Whether we should have a Select Committee is, of course, a matter in the first instance for the Liaison Committee. At the end of last term I made an application before the Liaison Committee. It saw the importance of the subject, but said that it would defer the decision until the autumn to see if there was anything in the proposed Government legislation on this topic. Unfortunately, there is not. So if the Bill is given a Second Reading, I propose to go back to the Liaison Committee in the hope of persuading it that a Select Committee is the best way ahead. What are the reasons for admitting the evidence? The main reason is the obvious one—that it will enable the conviction of some serious criminals who would otherwise escape justice. That is now common ground because of the conclusion of the most recent report of a Home Office review on this subject—the fifth in the past 10 years. The Statement made by the Home Secretary on 26 January included the comment that the evidential use of intercept would be likely to help to convict some serious criminals. Of course, no one suggests that intercept evidence will be of value in every case or even in a majority of cases. But clearly it will be of some use in some cases. It is true that Mr Clarke went on to say that it would be unlikely to be of use in terrorism cases. I was puzzled by that, and I asked to see a copy of the confidential report in which the reasoning was set out. There is no intrinsic difference between a conspiracy to commit a terrorist act and a conspiracy to import drugs. I could not find in the report any justification for the view that it would not be of use in the future in terrorist cases. But clearly that matter could be investigated by a Select Committee, if such a committee were set up. There is another consideration which points in the same direction. We are the only country in the world, except Ireland, which does not admit intercept evidence. Why, one asks, would all the other countries take the risk of admitting such evidence—if there is a risk involved—unless there is a corresponding benefit? It is said that our system in the United Kingdom is in some way unique—that there is a uniquely close relationship between the intelligence and law enforcement agencies. But our criminal justice system is exactly the same as that in the United States and Australia, where over the past 20 years or more they have found no difficulty in admitting such evidence. They get great value from it. In support of that, perhaps I may quote the views expressed earlier this year by the Federal Director of Public Prosecutions in Australia:"““We rarely now have a drug importation prosecution that does not have telephone intercept evidence in it. I can think of any number of prosecutions where we would have real difficulty in prosecuting without it—we just would not get the evidence””." That view is borne out by Sir David Calvert-Smith, who was the Director of Public Prosecutions in England and Wales. He described the ban on intercept evidence as,"““a damaging restriction . . . weakening Britain’s fight against organised crime, drug trafficking and terrorism””." He said that the admission of phone taps would assist enormously. Sir Ian Blair is of the same view. He said:"““I have long been in favour of intercept evidence being used in court. In policing terms, it would make my job much easier. The simple reason why it would be better is that if we’ve got this, we can put it in front of a court and the court can weigh it up””." Finally, and perhaps most importantly, I refer to the views of the Newton committee. It sums up the arguments both for and against the admission of evidence in court and then says in very measured terms:"““We understand the concerns of the intelligence and security services, which include not only the protection of sources and methods but also the need to ensure that interception for intelligence purposes is not impeded by the imposition of complex procedures to meet evidential requirements. We recognise that a balance has to be struck between the public interest in prosecuting particular cases and the public interest in maintaining the effectiveness of intelligence gathering techniques and capabilities. We consider, however, that the balance has not been struck in the right place if intercepted communications can never be used evidentially””." I suggest that those extracts—I could quote many more—make a very strong case in favour of admitting intercept evidence unless there is some insuperable objection. I know that the intelligence services have great concerns about this matter—I do not underestimate them for one moment. The thought of intercept evidence being used in court makes shivers run down their spines. We shall, I know, hear from the noble Baroness, Lady Ramsay, who is to speak next. I have to be very careful in her presence because all I ever learnt about investigation and interception techniques at the more sophisticated end at GCHQ, I learnt at her knee. We shall also hear from the noble Baroness, Lady Park, who also has huge experience in this field. It seems to me that there are two ways in which those concerns might be met. First, there are safeguards in the Bill. Only the prosecution can apply to introduce evidence; the defence cannot do so. There will be no access to intercept material at all unless the prosecution has applied and the judge has agreed. If some of the evidence has to be excluded on grounds of public interest, it will always be open to the Secretary of State to issue a public interest immunity certificate. Those are methods which could be investigated in a Select Committee, and they are matters which I am sure the noble Lord, Lord Thomas, will want to cover at the end of the debate. He may well suggest improvements to the Bill. The other way in which the concerns of the intelligence services could be met would be to change the way in which warrants are issued. At the moment we have a single-tiered system, under which the Secretary of State issues all warrants. But that system could be changed into a two-tier system or even, as is now suggested, a three-tier system. The Home Secretary would continue to issue warrants covering intelligence matters, as he does now, but a judicial authority would issue the evidential warrants. At the end of 1999, I attended a Home Office seminar on that subject. It seemed to me that there was a great deal to be said for the two-tier system. It would be much cheaper and would give absolute protection to GCHQ, a matter which concerns the noble Baronesses the most. During the seminar, the only objection I heard was a possible problem in relation to Article 6 of the Human Rights Act in that it might contravene the principle of equality of arms. I read the legal advice, I listened to the arguments and I found them unconvincing. Whether intercept evidence should be admissible has been under discussion now for at least 10 years. There is no doubt that it is a subject of importance if, as is now agreed between all the agencies, some serious criminals could be convicted who would otherwise escape justice. The Prime Minister said that he is acting on the advice of the security services and the police. I understand that. But I am not happy that the decision should be taken on the advice of the police and the security services without Parliament having a chance to investigate and to test that advice. I believe that a Select Committee of this House could play an enormously important part in that respect. The security services might even be persuaded that their fears are groundless, but whether they are or not, I do not believe that it is a matter that should be decided on their mere say so. I commend the Bill to the House. Moved, That the Bill be now read a second time.—(Lord Lloyd of Berwick.)