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

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, has made a valuable contribution to the debate on whether the law should be changed to lift the current ban on intercept evidence. He entered into that debate with his customary charm and with his usual thoughtful, intelligent and probative approach. The Bill is clearly drafted and is clear in its intent. We are under no illusions on where it wishes to take us. We have had a very valuable debate, not least because it has given many people with much more experience than I have in this field the opportunity to examine the issues and bring forward their ideas and thinking in a way which we perhaps do not usually have in your Lordships’ House. As the noble Lord, Lord Cope, said, the Second Reading of a Private Member’s Bill is an unusual way in which to engender this debate and the considerations around it. To reflect momentarily on one of the other contributions, the noble and learned Lord, Lord Lyell, called for a whole-picture approach to the issue. Perhaps with all the different and various contributions we have had from Members with different backgrounds and experience, we have had a whole-picture approach to the issue. Before I turn to the exquisite merits of the Bill, I remind your Lordships of the Government’s stance and make that absolutely clear and transparent. The Government set out their position in a parliamentary Written Statement on 26 January 2005. My right honourable friend the Home Secretary stated then that, following the most thorough and wide-ranging review ever undertaken, the Government decided that the risks of change outweighed the benefits. Intercept, as we know, is extensively used in the United Kingdom as an intelligence tool and its use has consistently delivered very good results against serious crime and terrorism. There is no evidence that these results are bettered elsewhere in the world. Set against that, the review concluded that evidential use of intercept material would be likely to help secure only a modest increase in convictions of some serious criminals, but not the most serious and not terrorists. The Home Secretary expanded on two areas of particular risk: the need to safeguard the unique co-operation between the intelligence and law enforcement agencies by protecting from disclosure their sensitive capabilities and techniques, and the need to understand the impact that new technology will have on the interception landscape. That has already been referred to in the exchange about the views of Sir Swinton Thomas, who I think made very clear that the forthcoming changes in technology in a sense make the proposed Bill sterile. That was a very potent point made by the interception commissioner. If a way could be found safely to use intercept as evidence without jeopardising this productive relationship, without resulting in an excessive resource burden on the intercepting agencies, and in a way that would stand the test of time and would be compatible with our responsibilities under the ECHR, then we would support such a measure. In a sense the point made by the Prime Minister on which the noble and learned Lord, Lord Lloyd, drew, is evidence of that. If those requirements could be met, who would not want to go along that route? Unfortunately, the experience of 12 years of almost constant review, as has been referred to by many contributors to the debate, has shown that successive governments of both major parties have been unable to find a way of achieving that. Nor, with due respect to the noble and learned Lord, Lord Lloyd, has he. For the Bill that he has set out would on the face of it not appear to guarantee the safeguards necessary to protect that important relationship—a relationship which has drawn expressions of admiration and support in your Lordships’ House today—between the intelligence and law enforcement agencies. That would lead to a reduction in co-operation, a reduction in the options available to criminal investigation and a reduction in its effectiveness as an intelligence—and ultimately as an evidential—tool. Increased reliance on public interest immunity alone could not provide the degree of assurance sought. Crucially, the Bill does not take into account technology change. The Government are at this moment working with the communications industry in order to understand and respond effectively to technology change and to examine any evidential opportunities that that might offer. But one thing is certain. The communications and interception world in just a few years’ time will be radically different, as we have heard this morning, from the one we are looking at now, let alone the position when the noble and learned Lord was more actively engaged in the subject in his previous role as Interception of Communications Commissioner. The changes will be felt in the United Kingdom ahead of most of the rest of the world, but they will occur globally in the next decade, and the signs are that the United Kingdom is well ahead in preparing for them. That is in no small part due to the uniquely close co-operation in the United Kingdom between the intelligence agencies and law enforcement bodies, but also to the similarly close relationship we have established with the communications service provider industry. The additional work that has been commissioned on this subject will be completed by the end of the year and in the Government’s view it would be premature to try to pre-empt any conclusions that might be drawn from that. Suffice it to say for now that the introduction of new technologies will raise by several notches the protections that are required to protect interception techniques and capabilities in the future. A number of questions were raised in the debate which I should deal with in conclusion. The noble and learned Lord, Lord Lloyd, in particular asked about the value of utility in this matter. We take the view that, because of the terrorists’ skill, it is extremely important for us to protect intercept facilities. Terrorists go to great lengths to avoid detection and intercept provides the enforcement agencies and those involved in the security of our nation with a very important tool. The noble and learned Lord, I think, referred to the Australian example of handling intercept material. There have been recent reports from Australia of five terrorist court cases in which intercept material was used but no convictions were obtained. That is felt to be due partly to the way in which key information was revealed. There have also been recent media reports of difficulties in using intercept evidence in terrorist cases in both Spain and Italy. The noble Lord, Lord Goodhart, proposed guaranteeing the anonymity of employees used in intercept work and offered that as a form of safeguard. We take the view that guaranteeing anonymity in court of those employed in intercept work by service providers would not protect the degree of co-operation, assistance levels or the important relationship that is developed between the service providers and those in the intelligence service. So we do not necessarily see that as a particular benefit in arguing the case for the Bill, as the noble and learned Lord did. Those are important points to consider. The noble Baroness, Lady Ramsay, made them forcefully, as did the noble Baroness, Lady Park, both of whom have long experience. I think that it is that experience to which we should listen most in this debate. We are in difficult times, times in which our security and safety in this country is very much in peril. When someone with the experience of the noble Baroness, Lady Ramsay, in this matter says that—and I paraphrase—to change from our current position would endanger very sophisticated techniques and pose unacceptable risks, then, in view of her 20 years’ experience in dealing with these issues, I take such views very seriously. Nevertheless, this is a very important debate and one certainly does not wish to deny its validity. It is a debate that, outside the confines of the Second Reading of this Private Member’s Bill, I have no doubt will be actively pursued. During the course of the debate, the issue of referring the matter to a Select Committee has been raised. Here I am drawn to conclude, in agreement with the noble Baroness, Lady Taylor, that the Intelligence and Security Committee has done a great job in examining such issues in the past, and I do not see why it should not do that job in the future. Like the noble Lord, Lord Cope, I have severe doubts about whether it would be appropriate for a Select Committee of your Lordships’ House to look at those matters in the same way, given the significant national security interests involved. For all of the reasons that I have drawn upon and for many of the reasons advanced during the course of the debate, I am obviously going to conclude on behalf of the Government that we cannot support the noble and learned Lord’s Bill, although convention is that the Bill receives its Second Reading in your Lordships’ House. The Bill would be unlikely to secure a safe and sustainable way of using intercept evidence in the United Kingdom. While, like other noble Lords, I welcome the opportunity that the Bill has provided for us to have a debate in a constructive way this afternoon, ultimately the Government cannot support the Bill.