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Of course there will be resource implications, but if we are to be serious about convicting criminals, against whom there may be no other evidence, we must not let resource implications stand in the way. In fact, again Sir Ken Macdonald explained in his evidence that the use of intercept would be very cost-effective, because it leads to shorter not longer trials and to more guilty pleas. He gave some very interesting figures to bear out that view. I will leave the last word to Sir Kenneth:
“Everybody without exception told us that this material is of enormous use. It is cheap, it is effective; it drives up the number of guilty pleas and it leads to successful prosecutions. We are convinced, and have been for a number of years, that this material will be of enormous benefit to us in bringing prosecutions against serious criminals, including terrorists”.
I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Lloyd of Berwick.)
1.36 pm
Lord Boyd of Duncansby: My Lords, the Justice report, to which the noble and learned Lord made reference, tells us that one of the early examples of the use of intercept evidence was the trial of Mary, Queen of Scots, in 1586. She was convicted in the October of treason, following the interception of letters that revealed her knowledge of Babington’s plot. She was subsequently beheaded at Fotheringay Castle in 1588. If it is thought that the citation of that triumph of English justice would persuade me of the merits of this legislation, I am afraid that is mistaken.
This issue has been debated many times in your Lordships House over a number of years. While I am new to the public debate, I am not new to the argument, which I followed for some time while I was in government. While others who have had experience and responsibility in this area have spoken publicly, so far I have kept my own counsel. I want today to set out why I think that the position adopted by the Government is correct and why I believe that it would be premature at this stage to lift the ban on the use of intercept evidence in court.
When I was first called on to consider this matter in detail in 2001 or 2002, my instinctive reaction was that anything that assisted in the prosecution of serious crime and of terrorist offences was greatly to be welcomed. That remains my instinctive reaction. If
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In the first place, doubts were expressed about the number of occasions when intercept evidence would be useful in bringing prosecutions. I was aware of the review being undertaken in government, which was reported in January 2005. It was referred to in the Minister’s speech last week and today by the noble and learned Lord, Lord Lloyd of Berwick. It concluded that there would be a modest increase in the conviction rate of some lower-and medium-level criminals, but not terrorists. When I left office, I was not aware of any change in that situation, although, to be fair, I had not checked that in the month before I left office. However, any change would clearly be a material factor.
The report also pointed out associated serious risks to the effectiveness of the agencies and the development of new technology which would cause a fresh difficulty. I could find no fault with the conclusions of that review. In fairness, I was informed of Sir Ken Macdonald’s work in support of his publicly stated view that intercept evidence should be admissible in court. On two occasions, I was promised sight of that work, but I never saw it, so I am not aware of the evidence that has been reported to us today in the speech of the noble and learned Lord, Lord Lloyd. The benchmark must be the comprehensive review that took account of all of the factors from all parts of government and the law enforcement and security agencies.
I draw some support from the conclusions of the report, cited in Committee on the Serious Crime Bill, as to the effectiveness of the use of intercept evidence in other jurisdictions. The noble and learned Lord, Lord Lloyd, referred to them today. At that stage, the noble Baroness, Lady Scotland, said that Australia’s latest figures on interception,
- “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 ... 1,710 law enforcement interceptions ... resulted in 634 convictions”.—[Official Report, 7/3/07; col. 310.]
The evidence is that there may very well be benefits in allowing intercept evidence, but they would be modest. Many will say that that is sufficient—that modest increases in the conviction rate of serious criminals and terrorists is greatly to be welcomed; but that ignores the other difficulties.
I am particularly concerned at the effect on the resources of the intelligence, law enforcement, prosecution and criminal justice systems generally. An intercept may and often does run for a considerable time. As I understand it, once used for intelligence purposes, the product is not retained or further analysed. We would now be imposing a burden of retention and analysis not for intelligence purposes, but for evidential purposes—which is very different. In doing so, the analysis will have to decide whether
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Sir Swinton Thomas noted in his report at page 11, subparagraph iv that there was a burden of interpretation and translation. Translation is an obvious problem. It is already placing a huge burden on the system. Interpretation is different. We will no doubt hear from others about the difficulties encountered about what is said and when that is said—perhaps in code or some other method that is designed to throw off any possible eavesdropper. That requires real expertise and the disclosure of that expertise may in itself be damaging to the public interest.
That job cannot be done by anyone other than intelligence officers. At a time when Britain is facing a huge threat from international terrorism and with our security services under great pressure, I for one would prefer to see our intelligence officers acting as intelligence officers rather than as disclosure officers.
Then there is the problem of placing the material before the court and, if necessary, disclosing it to the defence. I am of course aware of the strictures on judges—the noble and learned Lord referred to the case of R v H—relating to the way in which they should approach the matter to limit the disclosure and the consequent burden to that which is strictly necessary. The role of the judge in our system is not to protect the Security Service or to minimise cost or inconvenience; the role of the judge is to secure a fair trial. We want nothing less and will accept nothing less.
Lord Thomas of Gresford: My Lords, does the noble and learned Lord agree that a fair trial requires the disclosure of material that is exculpatory of a particular defendant? Should not intercept evidence therefore be available for that purpose?
Lord Boyd of Duncansby: My Lords, the noble Lord raises an interesting point. If there is exculpatory material, that is important. He will no doubt draw in his speech on the system in other countries, where, I understand, there is a strict division between intelligence material and evidential material. Does he expect intelligence material to be analysed with that in mind? If the material involves a statement in the person’s own favour, there are limitations, at least in Scotland, on the introduction of that material; it would be introduced only if it were supportive of the reliability and credibility of that witness.
We should not be surprised when we find a judge ordering the transcription and disclosure of 16,000 hours of the product of electronic surveillance at a cost of £1.9 million. Again, we find reference to that in Sir Swinton Thomas's report. That would clearly impose a huge burden on our services.
I have some knowledge of the case in Canada against those accused of responsibility for the Air India bombing over the Atlantic in 1986. The trial concluded in Vancouver last year. In discussing the case with the Canadians, I was made aware that there was a large quantity of intercept material. Dealing with it, transcribing it and disclosing it placed a huge
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These burdens on intelligence, law enforcement, prosecution and the criminal justice process are real and not imaginary. They force us to face the real issue of where best to put scarce and limited resources at a time when all parts of the system are under enormous pressure and the threat to the security of this country from international terrorism is real and not imaginary. It is not simply a question of increasing the amount of resources; it is a question of increasing the capacity of our intelligence services, prosecution and others, and of getting in expertise to do that. As I said earlier, I should prefer it if our intelligence services dealt with the prevention of serious crime. When the potential benefits are modest, we should be very cautious about adding to the burden on the system and potentially undermining the effectiveness of our intelligence services. Others more knowledgeable than me will no doubt speak at greater length from the intelligence perspective. But I have learnt that very often it is not simply a question of one piece of information being damaging; it is the cumulative effective of various pieces of information, disclosed at various times, that may, in the hands of the wrong person, be damaging to the criminal justice system and to our intelligence services.
I accept that it is possible to create a PII regime that will, so far as possible in the criminal justice process, go a long way to protect sensitive material. It is not, however, without its difficulties, given that the primary goal of the process must be to secure a fair trial. As I said, it cannot deal with the cumulative effect, and a balancing exercise sometimes poses real problems when the primary goal is a fair trial. Once before a judge, there is often pressure to disclose more to give just that further inch in order to comply with the reasons for a fair trial.
In the debate on 7 March in relation to dealing with secrets, the noble Lord, Lord Thomas of Gresford, said that,
- “if someone says, ‘This is secret, you’re being told this in secret’, he has a certain power over everybody else. It is a secret that he does not want to tell anybody; he is holding it to his bosom and will not disclose it.
Frequently, a court will go in camera and one hears evidence that the public would not generally hear. My experience is that people involved in the security services and in this sort of work are very proud of the fact that they know things that other people do not know. Their whole purpose in life is to know things that other people do not know. I often wonder whether that is the reason why there is such reluctance to divulge it. The usual suspects in your Lordships’ House are not here tonight to put the other side of the case. We all know who they are”.—[Official Report, 7/3/07; col. 304.]
No doubt we will hear from them in due course. But I say to the noble and learned Lord in all seriousness that it is very easy to poke fun at the security services; I have done it myself. However, I think we all know that, if it were not for their activities, very many more people in our country would have been killed, maimed or injured over the past few years, and, in my submission, their views demand respect.
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I am very sorry that on this occasion I shall not be supporting the Bill of the noble and learned Lord, Lord Lloyd. I acknowledge the great contribution that he makes to the work of this House and also his tenacity in pursuing this issue. I hope that one day I can, with a clear and good conscience, support him but, for the moment, I think that the Government have it right.
1.52 pm
Baroness Park of Monmouth: My Lords, the noble and learned Lord, Lord Lloyd of Berwick, knows how much I admire him for his splendid work in relation to the Gulf War veterans. I bow very sincerely to his tenacity, determination and brilliance. I have to respect the fact that we see those qualities again today, although, unfortunately on this occasion, I am not entirely at one with him, as he will know.
When considering the Security Service Bill in 1996, the noble Lord, Lord McIntosh of Haringey, proposed an amendment to insert a new clause laying down the rule that,
I opposed his amendment as a whole but I agree with that provision, as I agreed with the Government’s position that, where techniques were involved that required serious intrusion into the privacy of members of the public, the rules were already sufficiently robust. Among them is oversight by a commissioner. That is still true today, and the right honourable Sir Swinton Thomas, the Interception of Communications Commissioner, reports regularly. He has been quoted many times today and on earlier occasions.
Noble Lords will know that even the Intelligence and Security Committee has no access to the confidential annexes to the reports of either Sir Swinton Thomas or the noble Lord, Lord Carlile of Berriew, to the Intelligence Services Commissioner. That, in itself, to my mind makes it deeply inappropriate to consider, as the noble and learned Lord wishes us to do, making records of such highly secret intercepts available, however truncated and disguised, in a court of law. It is worth remembering that Article 8(2) of the European Convention on Human Rights, cited in the commissioner’s report of 2004, justified such interception in the interests of national security and the protection of the rights and freedoms of others.
When the noble and learned Lord last brought his Bill forward, I argued that we must also consider the human rights of live agents playing a critical part in securing access to highly sophisticated communications, and the rights of the innocent public under threat from a presumed terrorist organisation. The noble Lord, Lord Thomas of Gresford, is likely to take me up on that issue, as he did last time; it is nevertheless relevant.
The Privy Councillor Review Committee recognises that,
“It is important that making intelligence available for prosecution does not compromise the collection and use of intercepted communications for intelligence services”.
In 2004, Sir Swinton Thomas reported that the Birkett committee felt strongly that it would be wrong even to disclose figures on the extent of intercept because,
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“It would greatly aid the operation of agencies hostile to the state if they were able to estimate even approximately the extent of the interceptions of communications for security purposes”.
Although my own, strongly held, concern is largely for the live agent whose reports and activities in this field may enable the target to identify him, we must be quite as concerned about the danger of compromise of intelligence methods used to intercept communications. I am not talking about straightforward telephone taps: the material used in some courts abroad and based on police taps. The Minister has recently made the distinction between data-related interception and communications data. The world of encryption is becoming daily more sophisticated. Even during our debate in 2005, the noble Earl, Lord Erroll, made the point, speaking of the IT world, that it would be technically possible for an interception to be identified and recognised by the target. That very revelation, he said, would alert the targets to what was going on. Very small clues, given the extreme sophistication of some terrorist groups, will ring alarm bells and help them to identify either a live source or an encryption clue.
Through the agencies, working with law enforcement officers and with the invaluable help of the communications service providers, the Government are able to penetrate enemy communications and, by identifying one technique, gain access to several networks. The targets feel safe. As the noble Baroness, Lady Scotland of Asthal, said on 7 March, when it is a case of planting microphones—and it is the output of those operations which some other countries use in court—the investigative agency chooses the medium. With interception it is the criminal, and the crucial distinction is that the criminal believes he is safe, so he continues to provide intelligence on his intentions and preparations. That is why it is crucial he should never become aware of the degree to which he is vulnerable to penetration, even in the very sophisticated IT world in which he operates today.
Many targets are capable of developing highly successful counter-interception measures. With the amazing expansion of sophisticated technology in this new communications world, it is all the more vital that we should retain the initiative, continue to develop our knowledge of new techniques and always stay one step ahead. We know from a recent trial, for instance, that the defendant had successfully concealed a series of files and records pertinent to his réseau beneath several layers of encrypted material, hidden like Russian dolls within a computer. It is worth remembering that the police, with such knowledge, are able to identify sleepers as other members of réseaux and observe them, even if they cannot bring them to court. Thus the less our targets are aware of the degree of access our services have to ever more sophisticated methods of communication in this age of IT, the better the chances of defending the realm. The introduction of new technologies will raise by several notches the protections required to protect interception techniques and capabilities in the future.
I have a further and very real concern, and it is not only for the live agent whose access here or overseas procures the clues to how a sophisticated international or domestic communications network operates, what technology it obtains and so forth. That agent often
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We should not forget that, given the increasing number of identified suspects who may prove to have large quantities of material requiring urgent and accurate decryption, there are relatively few sufficiently highly trained and skilled people available to do that work, whether as linguists or technological experts or as men and women able to understand the working of the target’s mind. All this is a far cry from wartime experience when the instructor who had trained an agent in wireless telegraphy could and did recognise the agent’s signature, habits and methods of sending and could tell when it was the Gestapo, not the agent on the line; that is, whether the agent was under control. Nevertheless, I suspect that cryptographers and transcribers today develop a not-dissimilar feel for the target, and we should do nothing to put that valuable access to the minds of targets and the threat they pose to our way of life at risk by showing our hand.
In short, I can only reiterate the view I have expressed in earlier debates on this subject: we should do nothing to endanger our capacity to penetrate increasingly sophisticated communication networks through blowing the agent or making the target aware of our capacity to decrypt his communications. The man who should know, Sir Swinton Thomas, is in no doubt about the risk posed to our security. We should not disregard his view or those of others who should know: the noble Baronesses, Lady Ramsay and Lady Taylor, the noble Lord, Lord Robertson of Port Ellen, and, not least, the Minister. I found the statement she made during the debate on the Serious Crime Bill on 7 March compelling. She told the Committee that Home Office work on the impact of new technology in communications and their interception was going on. She said:
“The priority must be to ensure that we maintain our interception capabilities in the face of this change”.—[Official Report, 7/3/07; col. 311.]
There is no time to move to the use of intercepts in a court of law, whatever the safeguards, especially in the face of the resistance and anxiety of all the experts. Should the noble and learned Lord nevertheless succeed in securing the agreement of this House to a re-examination of policy, I must record my continued opposition to a Select Committee. There is already a cadre of parliamentarians who are cleared for access to delicate intelligence and security material: the Intelligence and Security Committee. They are privy to all the issues and are best placed to understand the risks. We should not forget Sir Swinton Thomas’s dictum that,
- “interception has played a vital part in the battle against terrorism ... and one which would not have been achieved by other means”.
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2.02 pm
Lord Dear: My Lords, I support the Bill. However, I have some sympathy for and understanding of the stance that has been taken for several years by the security services and those who advise them. I congratulate the noble and learned Lord, Lord Lloyd of Berwick, on introducing this short and economically written Bill. If it were enacted, it would punch well above its weight in the field of law enforcement. The Bill is so small in compass that I feel I am dancing on a pinhead because the issues, although weighty, are relatively easy to determine. However, I shall try. I shall not repeat in detail the wealth of examples that were given by the noble and learned Lord, Lord Lloyd, in his introduction.
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