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

: My Lords, once again the noble and learned Lord, Lord Lloyd of Berwick, has raised a most interesting debate, even if he has chosen the slightly unusual vehicle of a Private Member’s Bill in which to put if before your Lordships’ House. When I previously debated this matter with the noble and learned Lord and others five years ago on the Regulation of Investigatory Powers Bill—which is now an Act, of course—it was clear that there was a serious case to answer. The noble and learned Lord has expressed it again today with his usual clarity and forcefulness. However, it is also clear that there is a very considerable body of well informed opinion which takes the opposite view and which we should also respect, and which was expressed most clearly today by the noble Baroness, Lady Ramsay, the noble Lord, Lord Robertson, and my noble friend Lady Park of Monmouth. The background to what is an apparently simple question is very complex, both legally and technically. We all know that technical progress regarding mobile phones and communications more generally races ahead. That has been referred to by several noble Lords in the course of this debate. Sometimes these changes no doubt help the security services but sometimes the reverse is the case. We can be sure that, like the security services, criminals and terrorists devote a great deal of expert time and effort to getting and staying a jump ahead. I do not know whether there are at present effective methods of tapping communications on the Internet, which seems to be the coming method of communicating. If such methods exist, I do not know whether they will count as intercepts or ““bugs”” for evidential purposes. They could fall either side of the line. There is, after all, a distinction between evidence obtained from telephone intercepts and that obtained from telephone bugs, as the noble Lord, Lord Thomas, said. The difference between the two is very slight but the difference regarding how they can be used in court is total. Much more difficult problems will arise in regard to e-mails, blackberries and all the other latest devices. I do not know whether the Minister will be able to give us more information about how those newer methods of communication will be affected by the measure, and perhaps it would be best not to publicise that, but the answer affects whether the Bill has any value because if the newer methods of communication are not open to the same problems, the Bill will not be of much value. As has emerged clearly in the debate, the balance that we have to assess is whether there are many cases of serious criminals and terrorists who avoid conviction because of the restrictions on the use of this evidence on the one hand and whether the disclosure of the methods which would result from the use of such evidence would damage the ability of those who protect us to go on doing so as effectively as they do. Neither of those questions can really be judged by outsiders in public. Those involved in prosecutions can judge whether many prosecutions will fail on those grounds—we have not heard much evidence on that today one way or the other—but only those involved in the security services and the intelligence world can judge whether the effectiveness of protection would be damaged. I echo the tribute that the noble Lord, Lord Robertson, paid to those who work in the security and intelligence services and the whole of that world. They are immensely brave, have high expertise, and we rely on them a very great deal. In considering their objections to the measure, such contacts as I have had with them leads me to make the following point. I do not believe for one moment that anyone involved in the intelligence and security world would wish to do anything that would prevent terrorists and, for that matter, serious criminals, being convicted. On the contrary, their whole lives and expertise are devoted to trying to get people into court and to stop them doing the things they are attempting to do. They have no interest in prosecutions not succeeding for whatever reason. They spend their lives trying to ensure that they succeed, and that the terrible things, whether resulting from crime or terrorism, which might otherwise happen, do not do so. They are not on a different side regarding whether or not people should or could be prosecuted successfully. As I say, the legal matter and that of potential damage to the effectiveness of protection cannot really be judged by outsiders. I am certainly an outsider these days. I was a bit of an insider a decade and a half ago when I was a security Minister in Northern Ireland and dealt with these matters, but whatever I was at that point, time and technical progress certainly make me an outsider now. My provisional opinion is that we should consider very carefully the views of those involved in the intelligence world. My other point concerns the vehicle of a Private Member’s Bill. It is certainly an unusual vehicle. We shall no doubt discuss the issue again on other occasions. The noble Lord, Lord Goodhart, has promised to discuss the matter next week when we debate the Terrorism Bill. I am sure that on that occasion we shall discuss the measure in terms of the terrorist connection. There is a problem with Lords’ Private Member’s Bills generally. They are virtually always sterile anyway. I have to be careful not to criticise Commons’ procedure. However, it is a fact that no Private Member’s Bill starting in the Lords can succeed unless there is not a single word of discussion on it in another place. It is most unsatisfactory that any Bill should pass into law without a word of discussion in the elected House. However, that is an issue between the two Houses which would repay examination and is to a certain degree incidental to today’s debate. The purpose of the noble and learned Lord, Lord Lloyd of Berwick, in proposing a Private Member’s Bill is to get it into a special Select Committee. However, as has been pointed out, notably by the noble Baroness, Lady Taylor, it has already been considered—and can, indeed, be considered again in the wider context—by the Select Committee of another place. Therefore, we should hesitate before setting up such a committee. In any case that is a matter which will in due course come before the Liaison Committee if it is to be pursued. The whole issue of the use of intercept evidence is a matter that we have debated before. It is clearly a matter that we shall debate again, and it is a matter of importance. However, it is not one that we should rush into. It is a much more technical and deeper matter than it first appears. I await the Minister’s reply with the greatest interest.