Serious Crime Bill [HL]

I certainly do and I pay tribute to that persistence. I also admire the erudition of the noble Lord, Lord Henley. By his example he has reminded me why it is so important to resist the temptation simply to concede when one ought not to do so. Our position remains what it has always been. We see that this would be an advantage if it could be safely deployed. The noble and learned Lord the Attorney-General is a fine member of our Government—this is a Government view. The emphasis has always been on whether it is possible for it to be safely deployed. When this matter was discussed in Committee, as the noble and learned Lord, Lord Lloyd, made plain in late 2005, several Members of your Lordships’ House explained that the successor to the noble and learned Lord, Lord Lloyd, as Interception of Communications Commissioner, the right honourable Sir Swinton Thomas, had profound concerns that these amendments would cause grave damage to our capability. In addition to his extensive legal experience which has been appropriately lauded in this House, Sir Swinton has the widest independence and up-to-date experience in all aspects of interception, including his scrutiny of the use and effectiveness of interception by all interception agencies and the co-operation of the service providers. The House will have seen Sir Swinton Thomas’ latest annual report, quoted so correctly by the noble and learned Lord, Lord Lloyd, tonight. In view of his authority, his views should be taken very seriously indeed. I hear what he says about being ““misguided”” and ““ill-informed”” but I am sure he could not have thought that the noble Lord was ““ill-informed””, although I make no mention of whether it is possible to change things in view of current circumstances. He makes it clear in his report, as the noble Lord indicated, that protection is vital if we are to ensure that the most effective protection from terrorism and serious crime is provided and if we want to continue to benefit from the crucial co-operation of the communications industry on which we rely. We cannot afford, or be seen, to play games here because there is simply too much at stake. Perhaps I may try to correct what appears to be a misapprehension in the amendment of the noble and learned Lord, Lord Lloyd, concerning the current inadmissibility of communications data, as defined by Section 21(4) of the Regulation of Investigatory Powers Act 2000.The noble and learned Lord will be interested to know that the current prohibition on communications data evidence extends only to data related to interception and not communications data within the meaning of Section 21(4), which is obtained separately under RIPA, Part I, Chapter II powers and widely used as evidence by a number of public bodies. I think that the comments of the noble Lord, Lord Thomas of Gresford, demonstrated the way in which those issues are dealt with. Perhaps I may again highlight the issues and expose the many misconceptions. It is frequently pointed out—the noble and learned Lord did so this evening—that there is little or almost no knowledge of the interception regimes in either the UK or overseas and that the United Kingdom is one of the few countries which do not use interception evidentially. The intimation is that a vital tool is missing from our criminal justice toolkit. However, that takes no heed of the fact that our results—what we achieve with our intelligence-only regime—are already impressive. For example, in 2003, interception led to the seizure of 26 tonnes of illicit drugs and 10 tonnes of tobacco, and the detection of £390 million worth of financial crime and 1,680 arrests. A sampling exercise carried out in the latest review showed that the resulting proportion of convictions exceeded 80 per cent of those arrested as a result of the use of interception for intelligence purposes only. Those statistics are very significant because no evidence has been produced or found to show that other countries are more effective in countering terrorism and organised crime. It has been implied by a number of noble Lords tonight that we could do significantly better if we exchanged our system for the Australian or US systems, yet I have to tell your Lordships that that is simply not true. For example, the media have reported on the unsuccessful use of intercept product in terrorist trials in Spain and Italy. Australia’s latest published figures on interception, from the Telecommunications (Interception) Act 1979 Report for the year ending 2004, show that in 2003-04 there were no convictions in the five terrorism trials which used intercept evidence. The Canadian 2004 Annual Report on the Use of Electronic Surveillance shows that there were 84 interception authorisations in that year but that none ended with a conviction. In the United States, in 2004 there were 1,710 law enforcement interceptions—much the same figure as in the United Kingdom—but those resulted in 634 convictions, which is a success rate well below that estimated, albeit based on a small sample, for the UK. These statistics are very powerful. They do not support the contention that the evidential use of intercept will produce more convictions than using intercept for intelligence purposes only but, rather, that there is every reason to suppose that it would not. It cannot be disputed that no other country in the world—none—enjoys the huge benefits which the United Kingdom derives from the close relationship, including in terms of interception, between law enforcement and the intelligence agencies and with the communications service providers. Yet there are those who still propose that we adopt the interception regimes used in other countries—consequently undermining or severing those relationships. However, they fail to point out that in doing so we have little, if anything, to gain but potentially much to lose. Indeed, even if it were possible to preserve the effectiveness of intercept as intelligence entirely, while also using it evidentially—and no one has yet found a way of making that possible; that is what we are trying to do and if we could, obviously, it would be capable of being used—the evidential use of intercept would not even add significantly to the number of convictions that can be secured. The most extensive and comprehensive review of a series of reviews culminating in January 2005 found that—even if a way could be found to protect sensitive material—the evidential results of intercept products would be modest, confined to lower and medium-level criminals and could not be sustained past the change to new technology which is beginning. It expressly found that the modest and time-limited benefits that might arise from the evidential use of intercept would not apply to terrorists at all. The noble Lord, Lord Thomas of Gresford, asked: ““Why can we have bugging and eavesdropping products used as evidence and not intercept material?”” That overlooks fundamental differences between the two investigative techniques. In the case of planting microphones, a matter to which the noble Lord referred, it is the investigative agency which chooses the medium; with interception it is the criminal. The crucial distinction is that the criminal selects the way of communicating that he believes is safe and continues to provide intelligence on his intentions and preparations. That advantage would be lost to the investigation if disclosed to the criminal by evidential use. Furthermore, one interception technique may encompass many targets, some of enormous importance, while one bug, or position of surveillance, if exposed, is unlikely to compromise any other operations. So comparisons between these entirely different techniques are neither appropriate nor helpful. The noble Lord, Thomas of Gresford, said that if it is vital to protect sensitive capabilities and techniques from disclosure you should devise a way of separating the two out. I remind the Committee that, frankly, that is easier said than done. The Home Office has been leading work to assess the impact of new technology on communications and their interception. That work, which has had a substantial input from a cross-section of communications service providers, has highlighted that the United Kingdom, before anywhere else in the world, is to undergo the biggest change in communications technologies since the invention of the telephone. Within just a couple of years voice communications in the UK, like e-mails or video streams, will be computer data signals carried over the internet. The old-fashioned voice signals carried down lines and through telephone exchanges will go for ever. The priority must be to ensure that we maintain our interception capabilities in the face of this change. And we cannot look to see how others are doing it because we will be the first. We have already made it clear that the ongoing work is also looking at what evidential opportunities there might be with the new technologies. That is why I have continually said we keep on looking at it. It is not that we have closed our minds or that we do not want to do it. We are looking at it to see how and if it could be done, and done safely. Noble Lords said this evening that overseas jurisdictions do not seem to have any problem with using intercept evidentially. They also asked: ““Why do we think we are different?”” The answer is that our system is different. We have a rigorous disclosure regime within an adversarial justice system in which evidence is probed in court to an extent that does not occur in the inquisitorial or examining magistrates’ systems. In addition, the co-operation between our intelligence and law enforcement agencies is unparalleled. We need to protect this partnership. Overseas jurisdictions do not. Because their intelligence and law enforcement agencies work separately they can have evidential intercept use for law enforcement and intelligence use for intelligence. We need to protect our co-operative and collaborative approach because we think that that model is more successful. It has delivered us outstanding results on terrorism and organised crime that we believe is second to none. I repeat that there is no evidence that other countries do better than we and it simply does not make sense to dismantle our system in favour of an alternative approach unless we are sure that the benefits of doing so will outweigh the risks. It has also been said that overseas jurisdictions do that and that we should also. It remains to be seen how those other countries that allow intercept will fare in the new world of computer technology. Will they be able to continue to intercept communications and will they be able to make what material they gather stick in a court of law? Our work suggests that they will not. I respectfully say to noble Lords that that is not a sound basis on which to go forward. The Home Office has set up a cross-department programme to co-ordinate our response to the technology changes and consider the resource implications. The business case phase of that programme will be ready fairly soon. That will be followed by an implementation phase. Let me turn last, I hope, to the legal model set out in the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick. His amendment would give the prosecution alone the right to choose when to apply evidential intercept and when to withhold it. We have grave doubts that such a system would be consistent with Article 6 of the European Convention on Human Rights, which requires there to be equality of arms between the prosecution and the defence and which prohibits cherry-picking by the state. Even if the judicial discretion accorded by the scheme proposed by the noble Lord might theoretically go part of the way to meet those concerns, the Article 6 considerations are likely to render the scheme redundant in practice. Finding a way to limit the exposure of sensitive material imports is extremely difficult because our disclosure rules rightly—I emphasise ““rightly””—seek to provide the defence with all the information necessary to ensure a fair trial. Therefore, we can justify withholding information only when it is strictly necessary and proportionate. Our previous efforts to devise a workable legal model have shown that the increased burdens on the intercepting agencies of devising systems to meet the Article 6 requirements would be crippling and undermine their capacity to undertake crucial interception. We must ensure that intercepting agencies, especially the Security Services, are able to combat terrorism and serious crime effectively and continue to have the flexibility to deploy resources to keep us safe. I know that all noble Lords agree with that. It has also been said that past prosecutions have been dropped—we could not proceed with them. We do not think that that is very helpful. There are specific issues about the Prevention of Terrorism Act. I could entertain your Lordships for some time about them. Suffice it to say that during debates on intercept being used evidentially to help to prosecute terrorists, including those on the Prevention of Terrorism Act, it was asserted that that would have rendered certain approaches to counter-terrorism, such as control orders, unnecessary. That was repeated again this evening. It was suggested that intercept could have enabled those previously detained under Part 4 of the Anti-terrorism Crime and Security Act 2001 to be prosecuted. I can confirm that that is simply not the case. A detailed analysis of all the material in those cases, including available intercept material showed that intercept would not—I emphasise, not—have enabled those individuals to be prosecuted, even if we had been able safely to adduce it. During the most extensive review of the possible impact of intercept as evidence, that conclusion was replicated with regard to terrorist cases generally. Clearly it is a priority of the Government to ensure the conviction of those who are guilty of crimes, but we would prefer those crimes, which might include terrorist atrocities, not to be committed in the first place. In that respect, our existing interception regime has served us well both with terror and with serious crime. The London attacks on 7 July 2005 and the attempted attacks two weeks later on 21 July were truly horrendous, but other attacks have been prevented and it is vital that we do not undermine our ability to prevent future attacks by exposing our most sensitive capabilities. The noble and learned Lord, Lord Lloyd of Berwick, in the Lords debates on the private Peer’s Bill in November 2005 and on the preamble to the amendments proposed for the Terrorism Bill in December 2005, intimated that his proposals needed further work and consideration. I am sure that he would say the same for these. These are merely a stalking horse for us to come back to the issue. I honour him for coming back to the issue but I assure him that our refusal so far to accept his proposal is not intransigence, blindness or obdurate refusal to consider change. Each issue is being considered very carefully because it would be a consummation devoutly to be wished if it could safely be used. Neither we nor anyone else have found a way of enabling us to use the material safely. If we could, we would. I have tried to answer far more fully than I have previously, not to dissuade noble Lords from bringing back judicious interventions, but in the hope that the noble and learned Lord will be at least convinced that the provision has been rigorously examined. It will continue to be rigorously examined during the continuing review. I assure the noble and learned Lord that, if we can find a way to do as he proposes, he will be the first to hear. I hope that his passion for the subject may at least be sated for this evening and I invite him to withdraw his amendment.