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

My Lords, perhaps I may say how much we welcome this important debate and how much we support the idea behind the Bill and the suggestion that has been made that a Select Committee should examine the whole picture, following this Second Reading. All of us in this House are looking for a balance. On the one hand, there are the ordinary processes of justice that we have in accordance with our traditions sought to export to the whole world: concepts of fairness and fair trial and due process. On the other hand, there is the need for security and the protection of people who are at the moment suffering from a terrorist threat. We shall pursue this matter next week, to some degree, in the debate on the Terrorism Bill, in which we shall consider whether people accused of being terrorists should be tried on evidence before a jury and punished in the ordinary way or whether they should be held without trial and possibly without charge on the basis of inadmissible evidence such as that which intercept evidence produces. This is not a unique or new debate. In 1994, the noble and learned Lord, Lord Mustill, one of the Lords of Appeal in Ordinary, in the case of Preston said:"““Those who perform the interceptions wish to minimise the dissemination of the fact that they have been performed, since it is believed that this would diminish the value of activities which are by their nature clandestine. We need not consider to what extent this preoccupation with secrecy at all costs is soundly based for it has been treated as axiomatic for decades, if not longer . . . The need for surveillance and the need to keep it secret are undeniable. So also is the need to protect to the feasible maximum the privacy of those whose conversations are overheard without their consent. These policies are in flat contradiction to current opinions on the ‘transparency’ of the trial process. Something has to give way””." That view has been reflected in the content of some of the speeches that we have listened to today. On the one hand, we have the former Director of Public Prosecutions and the Commissioner of the Metropolitan Police seeking to introduce into the trial process evidence that is currently inadmissible; on the other, we have the views trenchantly expressed of Sir Swinton Thomas, for whom I have the greatest regard. He is no relation to me, but I replaced him on the Criminal Injuries Compensation Board. He and others—possibly including my noble friend Lord Carlile, though I have not had a chance to talk to him—have strayed into the intelligence community. If you do that, and you meet people with such formidable, trenchant and assured views as the noble Baronesses, Lady Ramsay of Cartvale and Lady Park of Monmouth, you meet people whose views no doubt carry considerable weight. But we are all seeking that balance. What is unique about intercept evidence and the intercept warrants that produce it is that the product cannot be used in a court of law; but the paradox is that foreign intercept evidence can be. The noble Baroness, Lady Park, referred to a person being in Hamburg; if that person was involved in a telephone communication from Hamburg, the German authorities could undoubtedly intercept that conversation and it could be used in a British court.