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

My Lords, I am very glad to follow the noble Lord, Lord Brennan, who has reminded the House that we are dealing with an extraordinarily difficult issue on which there are very respectable views on both sides of the argument. I grew up in parliamentary terms starting in 1979 as Parliamentary Private Secretary to Sir Michael Havers when he was Attorney-General. Very slowly, I was let into some small part of the secret world in which others in this House have moved much more widely. I think, of course, of my noble friend Lady Park and the noble Baroness, Lady Ramsay with enormous respect in that regard. I express my thanks to the noble and learned Lord, Lord Lloyd of Berwick, for initiating this extremely important debate. I approach his Bill with great caution, but I approach it in very much the same way as the noble Lord, Lord Brennan. This is an area where genuine inquiry is justified—inquiry in a very careful and, if necessary, secret way. But it is a matter for sincere discussion. I have grown up as a lawyer with most of the great lawyers sitting in the Chamber. I have been led by them. I have been in long cases with or against them. I have a very high regard for Sir Swinton Thomas. I am also a member of the Inner Temple. When I find that there are differences of view between him and the noble and learned Lords, Lord Ackner and Lord Lloyd, I realise that we are in very sophisticated country. When I became Solicitor General and, ultimately, Attorney-General, I was allowed a rather more penetrating look into small portions of this world. If you regard the whole security services world and the whole criminal justice world as a cake, there are some who see slices of it, but I suspect that the noble Baroness, Lady Ramsay, and my noble friend Lady Park, have seen perhaps a very large part of the cake. But I doubt if there is anyone in the world who sees the whole cake. The need-to-know principle applies as one of the ways of protecting it. But that does not mean that Parliament should not be entitled, in a careful and sensible way, to investigate. I worked closely when he was a prosecutor, and briefly when he became Director of Public Prosecutions, with Sir David Calvert-Smith, who is a lawyer of the highest integrity and intelligence. He believes that in some cases—it is always only to be some cases—this might be of genuine assistance, without causing disproportionate damage and, I hope, without causing any damage whatever to the security services. The fact that Sir David believes it so sincerely, that Sir Ian Blair believes it and that the Newton committee regard it as a strong case means that we have a very real argument for moving cautiously forward, giving this Bill its Second Reading and getting it into a Select Committee. I do not express any opinion beyond that stage on whether, ultimately, I would vote for or against the Bill. I would certainly require the very strongest safeguards, but I do not take the view, which the noble Lord, Lord Brennan, put well, that because you look at some aspects and dare to peep through the door, the door will necessarily swing open. As he rightly said, we see some communications, but we do not see all communications, and we never should. I know a good deal about the problem of disclosure. During my period on watch as Attorney-General, the issue of public interest immunity certificates was rightly put under strong scrutiny in a wide variety of areas. It is not easy, particularly when you have to have accredited counsel who are not acting for the defendant, but who are coming in as intermediaries to try to see fair play. Because they are security cleared they can see more material than could possibly be properly disclosed to defence counsel or defence solicitors who, by the nature of their role, would have to reveal it to their client. They, certainly, could not necessarily be relied on not to reveal it because they would feel a very strong conflict of interest. So we have to be very careful. But what are we balancing all this against? It is particularly relevant that this debate is being held on the Friday before we debate the Terrorism Bill on Monday. We are considering this against the backdrop of a world in which—going back four years to the Anti-terrorism, Crime and Security Act 2001, the measure struck down by the Law Lords resulting in the release of the 23 accused from Belmarsh prison—we have actually detained people without trial in this country, in some cases for just over two years, something we had not done since the days of the Star Chamber. We have also had a very serious debate about detaining people for 90 days pending charge. A number of our citizens are under control orders. We have to think about placing restrictions on the liberty of the subject in order to protect the people of our nation as a whole in a way that we have not had to consider before. This Bill, which may play a small but significant part in bringing to justice those most likely to be drug runners and what might be thought of as ordinary criminals, but possibly also those in the terrorist world, may help us to be more proportionate in how we take away liberty without any form of trial at all. I conclude by making a simple point. While it is obvious that noble Lords who have worked in the security services feel passionately about this, and while Sir Swinton Thomas obviously feels passionately that we dare not open the door at all, we should give the Bill a Second Reading and move for it to be brought before a Select Committee. We should then think very carefully about what we learn from that committee as to whether we allow it to go further. The Government certainly have control of the Bill. It would be difficult for this measure ever to become law unless the Government are convinced, because it would certainly be defeated in another place. However, this is a serious debate and I hope that it will be allowed to continue.