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Lord Cope of Berkeley: I am not a lawyer but I do not think that the noble and learned Lord can have any idea how nice it was to hear him say that he had to read a clause of this character several times before the meaning became clear. We ordinary mortals know exactly what he meant.

As we all know, the noble and learned Lord has been a judge for a good many years but he has clearly retained his skill as an advocate. I found his argument compelling. When I was involved in Northern Ireland, or when later I had responsibility for Customs and Excise, I do not recall this question being raised in this form or so clearly. However, perhaps I was exposed only to the other side of the case--talking to policemen, customs officers and those who look after them. Today we have heard an extremely powerful argument against Clause 16.

Ever since I was involved in Northern Ireland, one of the most frustrating aspects is the argument constantly put forward by people who say, "We know who the terrorists are but we cannot convict them". There is a series of different reasons for that but this clause may also be part of the reason. Anything which enables us to mitigate the problem of knowing who the terrorists are but being unable to convict them would be a great help. There is a serious case to answer. I look forward to the Minister's response.

9.45 p.m.

Lord Bach: I thank the noble and learned Lord, Lord Lloyd of Berwick, for his warm welcome to the Bill. His support for the general principles behind the Bill and the way in which it is drafted, with the rather stark exception of Clause 16, is of considerable comfort to the Government. His support is very much welcomed. I also concede that the arguments he puts forward in relation to whether an intercept product should be admissible as evidence--if I may do so without undue flattery--are extremely well argued and persuasive.

It is an issue with which, as the noble and learned Lord says, he has lived for many years, as has the Home Office. The basic question is this. Should an

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intercept product be admissible as evidence in court? As the noble and learned Lord said, this type of evidence is not admissible at present because of the Interception of Communications Act 1985. As the noble and learned Lord knows, the question has been addressed many times in recent years. His own distinguished report into anti-terrorism legislation recommended a relaxation of the existing prohibition on the use of this material in evidence. In part as a result of that recommendation, and in part as a result of the genuinely difficult issues which are involved here, my right honourable friend the Home Secretary held a seminar last year at which the future of this existing section of the Interception of Communications Act was the sole item on the agenda. A range of views was expressed and I am told that the balance came down in favour of retaining the existing provision, but I am not quite sure what that phrase means. However, I can say with more clarity that that was the case as regards those who commented on the White Paper, which resulted in the Bill, last summer.

Subject to certain exceptions set out in Clause 17, this clause excludes evidence, questioning or assertion in legal proceedings likely to reveal the existence or absence of a warrant. Clauses 16 and 17 cover more ground than does the original position and are in response to some of the questions that have arisen over the years as to the applicability of Section 9 in certain cases.

What are the arguments against the noble and learned Lord's proposition? Why not use the product of interception warrants evidentially? First, the current prohibition on the use of evidence has worked well since the Act came into force. The existing regime has stood the test of time and offers valuable protection to privacy, which an evidential regime would not.

Secondly--perhaps this is the main argument--in a fast-moving communications industry, it is vital that the existing capability is protected. Exposure of interception capabilities would or might educate criminals and terrorists who might then use greater counter-inception measures than they presently do. We believe that it is vital that the existing capability is protected and that the exposure of interception capabilities, which would result, as night follows day, from a repeal of the prohibition, would educate criminals and terrorists. They would certainly use greater counter-interception measures than they presently do and the value of interception as an investigative tool--it is a valuable investigative tool, particularly against the most serious criminals and terrorists--would be seriously damaged.

For those reasons, we are not convinced that a change to an evidential regime would involve a rise in criminal convictions in any more than the short term. Criminals and terrorists would become "wise" to it. The Government have considered the subject many times and have carried out a number of specific studies, including most recently research into the experience of seven other countries in operating an evidential regime. We are the first to admit that the

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issue is finely balanced. The decision to retain a version of Section 9 is supported by the majority of respondents--which is hardly a convincing argument in itself--to the consultation paper. It has helped us decide that we are right in believing that the prohibition should be maintained.

We do not believe that we are in danger by taking this attitude as regards Article l6 of the ECHR. No successful challenge has ever been launched and the prohibition was endorsed by the Strasbourg Court in its judgment on 16th February this year in the case of Jasper v. United Kingdom. We do not believe that the change would involve a rise in the number of criminal convictions in the long term.

The arguments for the repeal were made most persuasively tonight by the noble and learned Lord. I shall try to deal with one or two of the issues that he raised. So far as concerns the argument for educating criminals, of course everyone knows that telephones can be intercepted, but they do not always know the exact capability, how quickly interception warrants can be sought, which networks are capable of interception and so on. We attempt to keep a step ahead by not revealing that capability.

The noble and learned Lord drew the contrast between evidence from a bug and that from a phone tap. It is arguable that different considerations exist. Phone taps rely on third parties--Post Office staff, for example--and use more sophisticated techniques. Bugs are employed and placed by law enforcement security agencies, and their capacity is relatively well known, unlike some of the details of interception capability. However, it would be an abuse of the Part II powers, referred to by the noble and learned Lord, to plant a bug on a telephone simply in order to avoid the non-evidential rule in Part I. That is already made clear in the code of practice under the Police Act 1997.

I repeat that this issue is finely balanced and of considerable importance. The case could not be put better than it was by the noble and learned Lord. For our part, we are persuaded that our course is the better one. In spite of the disadvantages which clearly lie in not allowing interception evidence to be given, we believe that strong arguments exist on the other side.

I turn to the matter of other European countries. The noble and learned Lord made the point that other countries allow intercept evidence. In fact, he believes that that is the case in every other country, and I am certainly not in a position to argue with him. We do not believe that a direct comparison is possible. In countries which allow intercept material to be used, the interception warrant is generally ordered by the investigating judge. In this country, obviously criminal investigations are not supervised by judges but by law enforcement agencies. We are concerned that it would be difficult, if not impossible, to devise a system that would ensure equality of arms between prosecution and defence which is both practicable and affordable. We believe that the present system does that; in other words, neither the prosecution in the vast majority of cases nor the defence knows of the existence of the interception that may have taken place.

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I have attempted to explain fairly briefly why we believe that the course that no doubt successive governments have taken on this particular issue is the right one with which to continue. However, it would be ridiculous for me to say that this is not still a live issue and one to which we shall return at various times.

Lord Lucas: Perhaps I may ask the Minister a few questions. First, can he clarify what is the position when an intercepted communication provides evidence for the defence? Let us suppose that someone was facing a murder charge and a communication had been intercepted which gave strong evidence that the murder had been committed by someone else. Under those circumstances, would the communication be admissible or inadmissible?

Secondly, I turn to the matter of overseas territories. I believe that we should pay close attention when every other country comes to a different decision from that taken by the UK. That should make us pause and examine closely the arguments that we are adducing, particularly when we are talking about an essentially international matter; that is, the length to which substantial criminals go to protect their communications. These days, with mobile phones that work in any country and people travelling internationally, particularly in the drugs trade, it would be extraordinary for criminals suddenly to become more relaxed when they enter the UK. If they carry out business all over Europe and, indeed, throughout most of the world, they will take a set of precautions which protect them in 99 per cent of the world. It is ridiculous to assume that they will suddenly become more relaxed when they get into the UK. Can the Minister adduce any evidence that in foreign jurisdictions the interception of communications has become more difficult, that we do better than others or that when others have passed laws allowing the interception of such communications, the value of it has gone down? I do not believe that any such evidence exists.

The Minister has mentioned the balance of responses to consultation many times. Are those responses available to us? Are they in the Library or available for inspection somewhere else? The noble and learned Lord, Lord Lloyd of Berwick, has made a powerful argument. We should give the Government time to answer his points in more detail, perhaps by letter, but, on the supposition that the Government are not going to move before Report, we should give the other place an opportunity to take a decision on this.


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