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

My Lords, Parliament has a major role to play in the campaign against terrorism. There are those in this House who are neither totally for the Bill nor totally against it but wish Parliament to have the opportunity to examine whether this state of the law should prevail or be changed. In fulfilling that task, Parliament does no more than its duty, testing political integrity with public responsibility—it tests political integrity by investigating whether the law should stay the same and looking at the evidence, and public responsibility, in deciding after such an inquiry whether the public interest is best served by the law staying the same or being changed. I regard that as neither inimical to the intelligence services nor a danger to the realm but as a practical exercise of the parliamentary function. Should the law remain the same? I ask the question rhetorically because, as yet, I have no confident answer. Let me raise some of the issues that Parliament could properly consider in order for evidence to be given within the proper constraints of security. First, I cannot imagine that the prosecution or the intelligence services would wish to use this opportunity to introduce intercepted evidence if there were other adequate evidence to found the prospects of prosecution being successful. There would be no point; the balance would be completely wrong. But I ask rhetorically, because I do not know the answer as a parliamentarian: what is to be done if the critical evidence in a case is an intercepted communication? Is it then to be said that the balance of interest favours the continuance of secrecy and those guilty go unprosecuted? That is a serious moral question with which Parliament should grapple. If it transpired upon reasonable inquiry that that category of case were so small a prospect as to be discounted, the secrecy argument may prevail, but if there were a sufficient or significant number of possible cases where that evidence is critical, should we maintain the secrecy? The noble and learned Lord, Lord Lloyd, pointed out in a 1996 report that some 20 prosecutions might have been mounted if intercept evidence could have been used. That is a significant figure. But all I am asking for is inquiry. Secondly, in the modern communications system, do we make a distinction between the telephonic and the electronic? Is an intercepted telephone call to be kept secret but an e-mail, which is simply a printed document, to be used? If so, what are the differences? I find that technically worth investigating. These days, a BlackBerry will accommodate both the telephone call and the written message. Thirdly, I endorse the concerns raised about disclosure. It is a serious issue that concerns the House. I know from personal experience of a case in Ireland where a limited amount of disclosure led to such a degree of litigation that it finished up in the Supreme Court of Ireland on the extent of disclosure in a terrorist case. That is extremely serious. There is no point in passing the Bill without responsibly addressing that question and producing a just solution. Despite the reservations of the noble Baroness, Lady Park, I am ready to make a distinction between serious crime and terrorism. Why not? Why should I treat a determined drug runner making millions of pounds as in a similar category to a terrorist who takes life indiscriminately? I am ready to make such a distinction if the facts justify it and if the level of secrecy in that sector is different from the terrorist sector. Anticipating Monday’s debate, Clause 17 of the Terrorism Bill envisages the prosecution of terrorist offences committed abroad. Are we to have the irony of a prosecution launched from this country which can use interceptive communications taken from the United States or another country, but not communications of a similar kind obtained in this country? I find that a peculiar aspect of a campaign against terrorism, if that is what we can anticipate. The Bill is in skeletal form, and there is plenty of opportunity to discuss the full range of safeguards that might sensibly be considered. Finally, I beg to differ with the eloquence of the noble Baroness, Lady Ramsay, about the nature of the debate. I do not detect clamour. When I hear the Metropolitan Police Commissioner seek the use of this evidence in court, the recently retired Director of Public Prosecutions in the same vein and the Newton committee with its Privy Counsellors, that is not clamour. It is reasoned argument, which deserves a reasoned response. I admire in equal measure Sir Swinton Thomas, the present Interception Commissioner, the noble Lord, Lord Carlile of Berriew, and those who hold a different view. But the very fact of differing views surely bespeaks the responsibility of Parliament to inquire.