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

My Lords, let me start with the principle that it is plainly wrong if terrorists, drug dealers or people traffickers cannot be convicted because highly persuasive evidence of their guilt cannot be given in court. This means that dangerous people have to be released, or, at best, if they are terrorists, made subject to control orders. Therefore, I believe that there is a burden—and it is not a light burden—on the security services to justify the exclusion of intercept evidence. We are not satisfied that the burden has been discharged. There are of course differences of opinion among those who know what goes on. And, why not, at least, as the noble and learned Lord, Lord Lloyd of Berwick, has suggested, set up a committee, whose members will have high-security clearance, which can take evidence in closed hearings, so far as is necessary, and make its report? The noble Baroness, Lady Ramsay, made a strong case—and one which I personally find convincing—for saying that there are some circumstances in which the use of intercept evidence would damage national security. But, she accepted, there are also some circumstances, such as the ordinary police phone tap, where the use of intercepts would be of no danger to security. I do not propose that intercept evidence should simply be a matter which is generally admissible, subject only to the public interest immunity procedure, as it now exists. I would certainly agree to reasonable steps being taken to prevent damage to national security. We do not want to have anything in the nature of a SIAC procedure here, but I can see no objection to the procedure proposed by the noble and learned Lord, Lord Lloyd, that intercepts should not be disclosed unless the prosecution, who will no doubt have consulted on this with the security services, wishes to use those intercepts. Alternatively, it might be possible for the security services, if they want to withhold intercepts which would strengthen the prosecution case, to apply to a security-cleared judge for permission to withhold those intercepts. On such an application it would not be necessary for the defence to be represented, because permission to withhold that interest would benefit the defendant in the particular case, and the reasons for withholding the evidence would be possible prejudice to future investigations. Other steps could be taken to minimise the problem. For example, I have had a letter from the Mobile Broadband Group, asking that employees of mobile operators should be allowed to remain anonymous if they are required to give evidence in court about interceptions because of the threats to them personally. That seems to be, to my mind, a reasonable proposition. This is simply an example of many steps which could be taken to protect national security without maintaining the ban on intercept evidence altogether. The Bill is topical because in three days’ time we will be having the Second Reading debate on the Terrorism Bill. My party has argued that it is important that those who are committing terrorist crimes should be convicted in the ordinary courts of this land, whenever it is possible to do so. Control orders are extremely unsatisfactory alternatives. That is because national security is better protected by convicting terrorists and putting them in prison than by imposing control orders and leaving them outside prison, and also because control orders involve the SIAC procedure, which means that the defendant does not know all the evidence which is relied on by the court against him—something which is inconsistent with the fairness of his trial. It is important that these issues get debated during the passage of the Terrorism Bill, and, I believe, debates on amendments to the Terrorism Bill will get a much wider coverage than debates in the course of any future progress of this Bill, which has little chance of succeeding in the other place. If amendments are put into the Terrorism Bill by your Lordships’ House, it would, at the very least, put the Government under pressure to agree to set up the kind of committee which the noble and learned Lord wants as a price for buying-off those amendments. Therefore, I hope very much that the noble and learned Lord, Lord Lloyd, will put down the provisions of this Bill as an amendment to the Terrorism Bill. If not, it is likely that we will do so ourselves. This is an important debate, which is by no means as one-sided as the noble Baroness, Lady Ramsay, suggests. We very strongly support the Bill which the noble and learned Lord, Lord Lloyd, has produced, and we hope that the subject of this Bill will be further considered in your Lordships’ House because we believe it to be of great importance.