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

My Lords, I have more than a passing sense of déjà vu about arguing yet again against the use of interception material as evidence in court with the noble and learned Lord, Lord Lloyd of Berwick, in this House, this time in the form of a Bill. He was kind enough to say that I taught him all he knew about interception. All I can say is that I could not have taught him very well because I think he is so wrong about this. As of now arguments against such use remain, in my opinion, overwhelming and I speak from a background of considerable professional experience in this somewhat arcane field. I am very concerned at the growing clamour for the use of this material as court evidence in the UK, which in a large part results from a very imperfect picture of what intercept entails, what its use in court would reveal and the loss of intelligence capability that would ensue. The whole area of intercept is much wider and much more complex in scope and type of operations than most people can possibly imagine; and fortunately that includes those who are the targets of intercept operations because, again and again, transcripts show people assuming, wrongly, that they are secure in whatever means they are using to communicate. The slightest revelation of interception risks blowing for ever the techniques involved and in some cases putting at risk human agents. It not only means the end of that particular operation but, by extension, others which will be surmised to be in place on similar types of targets. The extreme vulnerability of intercept to instant loss if revealed or even hinted at is especially true if the material is encoded or encrypted, where often very sensitive technical means and/or human agents are involved, and the loss of access is usually permanent. It is often said, as the noble and learned Lord did in his introduction, that ““other countries use intercept evidence in court, why do not we?””. There are actually many reasons for that and I shall touch on just a few. First, our very sophisticated and extensive expertise in this field is something of which we can all be very proud, but its very sophistication and scope renders it extremely vulnerable. A straightforward police telephone tap on home national territory would likely have little to lose in terms of giving away techniques or endangering sensitive sources and it is that kind of material alone which some other countries permit to be used in court. In some countries that is the only kind of intercept they actually produce and in those others, where more sophisticated techniques are employed by agencies other than the straightforward law enforcement agencies, it is only the more routine product of the law enforcement agencies’ warrants that are produced in court. Like the noble and learned Lord, I have also discussed in Australia and Washington what they do and do not use in court. In our country, and this leads to my second point, there is an almost unique—I say ““almost””, but I believe it is unique—closely interwoven relationship between our intelligence and security services and our law enforcement agencies. It is, therefore, much more difficult to disentangle the various contributions of intercept material than it is where there are clear divisions. To use material from the services—which, as I said, is not done even in countries where they use law enforcement agency transcripts—would endanger very sophisticated techniques as well as agents and entail much greater loss than most people realise. Thirdly, our legal system with its adversarial roles for counsel, where defence counsel can roam far and wide at the discretion of the judge, means that defence counsel can range very widely on evidence or with someone in a witness box and that, in the case of intercept material, would pose an absolutely unacceptable risk of exposure. It also means enormous burdens of transcribing and preserving all related interception material if it is to be available for court evidence. That would certainly mean a considerable diminution of product from the services concerned, because of the sheer volume of what would have to be processed and kept. I do not wish to go into more detail than that on that point. Countries whose legal systems contain investigative judges or magistrates can manage to handle sensitive material without the risks involved in using it in a British court. Before some noble Lord who is a barrister asks me, as I have been asked before more than once in this House, let me say that I am fully aware of public interest immunity procedures and indeed have had considerable experience of dealing with them in my past life and none of them, in my opinion, provides a satisfactory answer to the points I have raised about the use of intercept material in British courts as envisaged in this Bill. A further point of difference in our legal system compared to the countries most quoted as using intercept material in court is that we have no statutory obligation on telecommunication companies to co-operate with the intelligence and security services or law enforcement agencies to facilitate interception. That obviously adds another factor of sensitivity about revealing operations. After a previous debate in this House, I received a lengthy letter—some seven A4 pages—from an American law professor who courteously informed me that he had copied his letter to the noble Lords, Lord Thomas of Gresford and Lord Judd. The noble Lord, Lord Thomas, has previously quoted some of the professor’s points in debates in this House. I have to say that nothing in that letter affects my position of complete opposition to this Bill. I should like to make one other general point. It has been said that there can be nothing in principle against using intercept material as evidence. I agree with that statement. This is not a matter of principle; it is a question of practicality and the effect of such a move on the efficiency and productivity of the services and agencies engaged in interception. In my opinion, if a list were to be made of any gains from such a move, as against a list of the losses—in productivity, efficiency and security of sources—then the difference in the lengths of those two lists would lead any sensible person to see that the losses far outweighed the gains. On the suggestion for a Select Committee, I have to say that I do not see what a Select Committee would do that the Interception of Communications Commissioner, who is entrusted with precisely this task of looking at how the interception is working and overseeing the agencies which are practising it, is not doing on behalf of the Government, and reporting to Parliament about it. I should like to conclude by quoting the present Interception of Communication Commissioner’s recently published report for 2004, which I am sorry that the noble and learned Lord, Lord Lloyd of Berwick, did not quote from. In dealing precisely with Section 17 of the Regulation of Investigatory Powers Act 2000, which is the object for amendment in this Bill, the right honourable Sir Swinton Thomas says in paragraph 24:"““The question of the admission of intercept material in criminal proceedings has been discussed at some length in the course of 2004 between myself and Ministers, the Security and Intelligence Co-ordinator, the security, intelligence and law enforcement agencies and the communication service providers. The aim of all concerned is, of course, to use this material to the best advantage to prevent terrorism and crime, and to apprehend terrorists and criminals. The subject is a complex one, much more complex than at first sight might appear. It is not suitable for lengthy discussion in this Report. I have the considerable advantage in my position of having an overall picture of all those engaged in this work. I am left in no doubt that the balance falls firmly against any change in the present law and that any amendment of Section 17 of the Act would, overall, be damaging to the work of the security, intelligence and law enforcement agencies. I continue, of course, to have an open mind on this subject if any major change should occur in the future””." I find myself in complete agreement with that paragraph from the Interception of Communication Commissioner’s report. I totally oppose this Bill.