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Interception of communications

   'Sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 (c. 23) (exclusion of matters from legal proceedings) shall cease to have effect.'.—[Mr. Andrew Mitchell.]

Brought up, and read the First time.

Mr. Andrew Mitchell (Sutton Coldfield) (Con): I beg to move, That the clause be read a Second time.
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Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss amendment No. 10, in page 219, line 10 [Schedule 17], at end insert—

'Regulation of Investigatory Powers Act 2000 (c. 23)Sections 17 and 18'.

Mr. Mitchell: The purpose of the new clause, which is in my name, those of my hon. Friends, and that of the hon. Member for Somerton and Frome (Mr. Heath), who leads for the Liberal party on this Bill, is to abolish the restriction on the use of intercept evidence in the criminal courts. My right hon. and learned Friend the Leader of the Opposition announced last week that we would move the new clause today. Of course, it has a wider application than just this Bill, and might help to bring back within the criminal justice system those currently outside it, which would be greatly welcomed.

We argue that the present restriction is anachronistic and illogical, and its abolition has been recommended repeatedly to the Government in recent years. Our amendment does not alter the circumstances in which an interception warrant can be issued or renewed under the Regulation of Investigatory Powers Act 2000. Britain finds itself isolated, since with the exception of Ireland intercept evidence may be used to support criminal prosecutions in every other major country. The Government's argument that the use of intercept evidence could undermine the public interest by revealing to terrorists and organised criminals vital operational details deployed by the police and intelligence service, is, I submit, complete nonsense, since a well established and refined system already operates in the criminal courts to ensure the withholding of operational details in circumstances in which disclosure would be detrimental to the public interest.

Mr. Hogg: That is a powerful argument against the Government's position, but there is a yet more powerful argument: it is for the Crown Prosecution Service, taking the advice of the Attorney-General where necessary, to decide whether to proceed with the prosecution. If the class of evidence is such as to be prejudicial in the matter outlined, it would not be adduced.

Mr. Mitchell: My right hon. and learned Friend is absolutely right. I will come to that point in due course.

At this early stage in the debate, it is important to point out that the new clause does not require the prosecution to use intercept evidence during a criminal trial. Instead, the new clause is permissive, in the sense that it would afford the prosecution the opportunity to adduce intercept evidence in a case in which the prosecution lawyers believe that it is appropriate to do so. At present, apart from in a small number of eclectic and in some cases random exceptions, that course of action is not open to them.

Vera Baird (Redcar) (Lab): The hon. Gentleman says that the clause is permissive, but in truth it would not be, because the defence would be entitled, in our adversarial system, to raise the query, "Was there any phone tapping?" It therefore becomes incumbent on the prosecution, whenever it has occurred, once it is lawful, to disclose that it has occurred.

Mr. Mitchell: Yes, I will come to that point , too.
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Shutting out telephone tapping evidence is contrary, as I understand it, to the basic principles of evidence—if it is relevant, it is admissible. Therefore its inadmissibility, in my view, is a carbuncle on the face of the law of evidence. The consequences of the Government's unbending refusal to contemplate the use of intercept evidence in a criminal court led them to propose two weeks ago a course of action which many argue is inimical to the rule of law in this country. The merits of the Government's proposals to introduce detention through a control order—less euphemistically known as house arrest—will be debated at another time in the near future.

Sir Brian Mawhinney (North-West Cambridgeshire) (Con): Before my hon. Friend leaves his first point, may I declare a history as one of the five Members of the House who served on the Privy Councillor committee that reviewed the terrorism legislation? Two of my distinguished colleagues from both sides of the House are also currently present. We were led to believe without equivocation that this was an anachronism— we cannot, for reasons that the House will understand, reveal what was said to us. We were unanimous in our view that if the Americans can use intercept evidence from this country and we can use French intercept evidence in this country, and if we now know that the Metropolitan Police Commissioner is in favour of using intercept evidence, the argument has moved on. As gently as possible, I hope that he will help the Government to understand that, for the sake of the security of the nation, this new clause ought to be adopted.

Mr. Mitchell: I am most grateful to my right hon. Friend. He did indeed serve on that committee, and I will refer to some of the conclusions that it reached.

For the purposes of this debate, however, the argument that the proposals represent a disproportionate derogation from the liberty of the individual enshrined in article 5 of the European convention on human rights is wrong. This derogation would not be necessary were the Government to yield to the overwhelming merits of using intercept evidence in a criminal trial. In the view of the proponents of this argument, the long-term interests of this country's citizens are better served by the use of intercept evidence in terrorist trials than by the indefinite perpetuation of a system of house arrest. The European Court of Human Rights has long recognised that the use of intercept evidence in a criminal trial is compatible with the provisions of the European convention on human rights, while house arrest is not.

The recent House of Lords ruling against the Government concerning the Belmarsh detainees, which has left the Government's domestic policy on handling terrorist suspects in tatters, compels the Government to make changes in the law. By repealing sections 17 and 18 of RIPA, one very sensible change would lead to more terrorist cases being brought to court.

Mr. Heath: The hon. Gentleman was kind enough to point out that we support him on this new clause. Does he agree that even if, as the Government say, the use of intercept evidence would not be of assistance in bringing precisely those who were detained in Belmarsh to a trial—despite the fact that many of us feel that it is most
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appropriate that they be brought to trial—the argument still holds good for any number of future suspects who might be held in exactly the same circumstances?

Mr. Mitchell: The hon. Gentleman is absolutely right. He reinforces the key point that these people are currently outside the criminal justice system. Were the Government to concede the new clause, there is at least a chance that they could be brought back into the criminal justice system, which we all want to see.

Rev. Martin Smyth (Belfast, South) (UUP): Would not the hon. Gentleman also accept that it is a waste of money and time to intercept and do nothing with it when folk could be brought before the court on the evidence, of which some of us have been aware for many years, relating not just to international terrorism but to homespun terrorism and gangsterism?

Mr. Mitchell: The hon. Gentleman has made a fair point.

Peter Bottomley (Worthing, West) (Con): Intercept evidence sometimes shows that suspicions are not well founded, especially when intercepts are conducted under warrant. I hope that there will be ways to make sure that investigating authorities, including, where necessary, the police, bear that point in mind, because in a number of well documented cases warrants for intercepts and for examining papers were obtained, but the accusations turned out to be wrong.

Mr. Mitchell: My hon. Friend has made an important point, which I shall address, and the justice system should clearly provide the balance that he has described.

Those who know about the workings of the criminal justice system generally agree that intercept evidence is valuable in cases involving serious and organised crime. Indeed, the Government's written ministerial statement made that very point last week. The attraction of new clause 6 is that it is simple and easy to understand. It permits intercept evidence to be used in a case brought by the new Serious Organised Crime Agency and affords this House an opportunity to demonstrate to SOCA at the first opportunity that it supports SOCA's important work and is willing to put weapons into its armoury to enable SOCA effectively to fight organised criminals.

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