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

My Lords, I am pleased to be able to participate in this very well informed debate. I am happy that such issues should be raised from time to time, although perhaps not on an annual basis, as seems to be suggested in some quarters. It is right to examine and re-examine these complex issues in a Chamber such as this where their complexities can be brought out rather than highlighting the simpler and more sensational attitudes which we sometimes read about even in the so-called serious press. My reason for wanting to speak is that for four years, until the last election, I chaired the Intelligence and Security Committee. We followed the discussions on this matter with great interest and discussed it with Ministers and with agency heads on many occasions. I reassure the noble Earl, Lord Erroll, that discussions about intercept do not take place simply with the intention of scaring the criminals—they work on many occasions. The ISC followed through some of the operations that had taken place and saw the importance of intercept in, for example, illicit drugs cases and financial crime and the numerous arrests that resulted. It has been said several times this morning that the use of intercept material as evidence has an obvious, significant and superficial appeal. If it was as simple as just using evidence with no consequences, there might be a very strong case for it. People have looked at what happens elsewhere. Noble Lords have quoted examples of what happens in other countries, where there are significant differences in the legal system. People have assumed that there will be more convictions if we use intercept material in court. The case against that, which was argued by my noble friend Lady Ramsay and the noble Baroness, Lady Park, is very strong indeed. When the Intelligence and Security Committee looked at this issue, we did not come to conclusions, because that was not our role then. We had to understand that there was a significant downside to going down this path. In fact, I would go so far as to say that the use of intercept material in court could be counter-productive in getting convictions and pursuing certain cases, for reasons that I shall give later. The noble and learned Lord, Lord Lloyd, said that there had been five reviews in 10 years. The latest and most in-depth review, carried out by the noble Lord, Lord Newton, was very important. It included members of the Intelligence and Security Committee so that we could dovetail our work with that of the noble Lord’s committee. The outcome demonstrated just how complex these issues are, which means that we should not rush to a judgment or complain that this issue has been around for so long. The message from the fact that we have had five inquiries in 10 years is that this is an incredibly complex subject. Ministers have spent a great deal of time on this issue. My noble friend Lord Judd quoted the approach of the Prime Minister, which is that if we can use intercept in court and it can be productive, then let us use it. Those colleagues who are in favour of the use of intercept should ask themselves why it has not been used yet. The reason that we do not use intercept in court as evidence is not because people want to block it or preserve secrecy for its own sake but because of the very real downside of taking that path. People have to understand that. The Newton committee brought that out to a certain extent. My noble friend Lord Brennan asked why we could not treat serious crime and terrorism differently when it comes to the use of intercept material as evidence. Part of the problem is that you cannot compartmentalise the methodology that is used in one area and not in another. Disclosing intercept as evidence in court can lead to disclosure of methodology which is then transferable knowledge to a different area. That is why I emphasise how complex the issue is; with the best will in the world, we cannot simply say that we must move along that track and the consequences would always be beneficial. We could end up losing more than we gain. My noble friend Lord Robertson said that certain criminals might not be prosecuted because we could not use intercept and that we would have to face that consequence. My noble friend Lord Brennan questioned whether that was wise; it is a genuine moral dilemma. If the consequence of disclosing our methodology is that the agencies cannot detect and apprehend, and therefore cannot possibly prosecute, a wider range of criminals or terrorists, then we have lost out. It is a moral dilemma which we should be realistic about and face. The dangers of going down the road proposed are very significant. Other aspects of this issue have not been dwelt on today. I am not sure what lawyers will think about one which was raised in the Newton report. It was also recently raised by the noble Lord, Lord Carlile; as well as making interesting but somewhat belated comments about the proposed 90-day period he has spoken of using some form of investigatory magistrate. I am not sure whether Ministers are still considering that, but it could lead to some hope that something could be used in certain circumstances. I am not sure that it is the way forward, but so far as I have been able to judge, it might be the most likely way of making some progress on certain issues. I am less convinced about the proposals on safeguards, such as the idea that only the prosecution should introduce such evidence. I am not sure to what extent our lawyers would allow that to remain the situation, given our human rights legislation. Other issues such as having two or three different types of warrant could also create real problems for the agencies. How do they know at the beginning of an inquiry what will be needed in evidence? They may apply for one type of warrant and if the inquiry takes a different turn, they are left high and dry, unable to produce that as evidence. Finally, where should we go from here? The noble and learned Lord Lloyd, suggested a Second Reading, followed by a Select Committee, and there has been some support for further inquiries by Parliament. I remind the House that the Intelligence and Security Committee is a committee of parliamentarians, who represent us. They have access to the information and have already spent time looking at it. I suggest that if further work needs to be done by parliamentarians, the Intelligence and Security Committee should be doing it and, when its members feel it appropriate, they should be able to go public or say something to the House or to Parliament as a whole. That would be the best way forward. This is a complex issue, to which there are no simple answers, but the Intelligence and Security Committee can be useful to all of us in taking these issues further.