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

My Lords, I thank the noble Lord for that intervention and am very glad to hear that that is the reason for his position. However, many people’s argument has been, and will be, that the defendant has a right to know everything that exists in evidence against him so that he may defend himself. That is the issue and it is also an issue of law. My concern is, as the ruling that I have just quoted says, the protection of the rights and freedoms of others, among whom I count the human agent, who in at least some of those cases will have been the means of securing access to the plans and communications of those planning or executing terrorism. As Sir Swinton Thomas says:"““The task of the agencies working in this field has become more difficult and complex as a result of the proliferation of mobile telephones and the greater sophistication of criminals and terrorists””." Things have moved so far since I knew anything about it that I do not even know what ““IB”” means. That may indicate that things have moved on. The hostile intelligence use of encryption is a great problem. There will be times when the key to that can be secured only by the penetration of a group by an agent. I can assure noble Lords that, if we have that type of evidence, the defence will very soon be able to identify who was present at a particular meeting in Hamburg on a particular day and to identify the person who was slightly unlike the rest of them. In this complex world of a fast-moving communications industry and an increasing number of targets who develop highly sophisticated expertise in inventing counter-interception measures, we cannot afford to use intercepted communication in court, even in camera. A good defence lawyer and a sophisticated defendant could very soon set in motion enquiries that could, if a human source were involved, lead to the identification of that source, the end of that intelligence product and, probably, of the agent. Sources take years to infiltrate hostile terrorist groups. We have to be blunt and point out that at least some of those groups will speak esoteric, very unusual languages. It takes a lot of time, not only to acquire the languages but to acquire the approach, the access and the ability to move in that particular world. Sources cannot be replaced for many months, if at all. Coming back to the judgment that I quoted from the Investigatory Powers Tribunal, agents as well as defendants have human rights. The defendant will have the whole majesty of the law there to protect his rights—the agent will not; and, not least, the public will lose vital protection. In the face of the resistance to the Bill from such distinguished legal authorities as Sir Swinton Thomas, the noble Lord, Lord Carlile of Berriew, and the special committees involved daily in assessing the situation, risks and needs, with their experience of the problems of dispensing justice under threat from terrorists, I do not believe that we should change the law. It is vital that we recognise that this world is not like the criminal world. I fear very much that people will say, ““Why don’t we start with the criminal world?”” but the same problems do not arise. Once you open a door, the door opens wider and wider and precedents are set. Although I deeply respect the noble and learned Lord and his motives, I urge the House to recognise that this is a very dangerous path to tread and we should not require it to be trodden.