Committee stage in the Lords
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Baroness Anelay of St JohnsConservative- Quote
- moved Amendment No. 16:
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Lord DholakiaLiberal Democrat- Quote
- We wish to be associated with these amendments. We are also concerned that, as the noble Baroness, Lady Anelay, has pointed out, at present an offence can be a serious offence for the purposes of the Bill if the court considers the circumstances of the case to be sufficiently serious to be treated as such. These amendments would remove that provision, meaning that an offence was only a serious offence if listed in Schedule 1 of the Bill. There has been a very worrying aspect of this clause. What is a serious offence, and what particular circumstances do the courts consider to be sufficiently serious to be treated as such? I mentioned that at Second Reading, and I said: “In other words, the court can regard any offence that it likes as serious. That is an Alice in Wonderland definition; it is effectively saying that words can mean whatever the courts want them to mean”.—[Official Report, 7/2/07; col. 759.] That does great damage to the principle of legal certainty, making it impossible for a person to ascertain in advance what are the likely legal consequences of their actions. The amendments would remove this provision, meaning that an offence had to be listed in Schedule 1 to be treated as a serious offence.
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- As I have said on a couple of occasions, I understand the noble Lord’s anxiety. I should declare an interest, as one of Her Majesty’s deputy High Court judges. I exclude myself from any of the comments I make in relation to those judges who have the privilege of sitting. I am grateful to the noble Baroness for reminding me of the declaration, by virtue of her example. It is important to remember the context when looking at the amendments. Those who commit serious crime are innovative and enormously adaptable. They do not commit crime for crime’s sake; they do so to fund luxurious lifestyles, taking advantage of those more vulnerable than themselves wherever they find them. They are extraordinarily innovative. From his wealth of experience, the noble Lord, Lord Dear, explained this to us very eloquently during our Second Reading debate. It is therefore incredibly difficult to provide an exhaustive list of the types of criminal activity in which such people will engage, both now and in the future. If one looks at the way in which criminal activity has developed over the past few years because of the opportunities that technology has provided, it becomes clear why that is so. This type of criminal continually seeks to find new opportunities to exploit the way in which law-abiding people live their lives together. Our society never stands still; it is always evolving and changing, so the protection which exists at present has its weak points, which are usually preyed upon. The development of internet fraud and of pornographic and paedophiliac activity on the internet was unknown a few years ago, yet it has been developed with great facility by those who want to promulgate these pernicious activities. It is important that we do not fetter the discretion of the courts and their ability to adapt to the constant changes around us by looking too narrowly at these issues. We have to put them in the context of the position in which we find ourselves. The court will be able to make a fully informed and reasoned decision as to whether it will be appropriate for an offence to attract an order. “Seriousness” is not a new concept, as I indicated at the start of our first debate. The term is well understood and there is a great deal of jurisprudence in relation to it. Further, an offence will not always be appropriate for attracting an order in all circumstances. Sometimes the context and nature of the activity and the way it will be used will make it particularly serious, and the court will need to balance when that occurs. The orders should not be used against someone whose crime is to get involved in a fight in a pub, for instance. However, someone who has routinely used violence in the past to intimidate and maintain a reign of terror in an area might be an appropriate candidate for an order after serving his sentence if there is evidence that an order would prevent such crimes taking place again. There are many historical figures that one could cite; the Kray brothers, for example, used violence and intimidation as an integral part of their criminal activities. I hear what the noble Baroness, Lady Anelay, says about the need for certainty. I believe that the position provides just that while maintaining the flexibility which, as I have explained, we believe to be essential. The list in Schedule 1 to the Bill provides significant guidance for the courts about the types of offence that these orders are designed to be used against. I have every confidence that with this guidance the courts will be able to develop a consistent approach that strengthens the certainty of the Bill even further. Although I understand the noble Baroness's concern, we believe that the way in which the Bill is structured and the tests that have to be applied are sufficiently rigorous to make us confident that these provisions can be used with a degree of certainty in law that would make them fit to be used to address this most dreadful and pernicious form of criminal activity.
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- Baroness Anelay of St JohnsConservative
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- I am grateful to the noble Lord, Lord Dholakia, for his support. I agree with him that the difficulty is that it is impossible for people to ascertain in advance the likely legal consequences of their actions as a direct result of the way in which the Bill is drafted. I accept a lot of what the Minister said. I will have to read very carefully what she said and consider further. The Minister argues that the Bill provides the right balance between certainty and flexibility because Schedule 1 provides guidance about the type of offence. We will deal with the detail of Schedule 1 later on, but she says in support of her argument that there are three separate reasons why it is appropriate that there should not be an exhaustive list. She talks about the fact that criminals, particularly the ones whom we are trying to get at here, are highly innovative and devious, and will adapt their methods in order to find the easiest way to make the most money. I appreciate that it is difficult to provide an exhaustive list. The implication of the Minister’s argument is that if one has an exhaustive list, the serious criminal will simply say, “Right, well that avenue is closed off so I will find something else”. I understand that argument. However, the Minister goes on to put three different scenarios in support of her argument. I will take them in reverse order, like a beauty contest. She said that the way in which one commits an offence can make it serious. It might be a multiple offence, or it might be the way in which one adapts a particular offence that makes it serious. I understand that the court might indeed be able to interpret seriousness in that way, because she also said that seriousness is well understood and there is jurisprudence on the matter. Those two matters go closely together and I can see her argument developing there. But she started with an argument that there is still some difficulty around. The Minister pointed out, quite rightly, that society is always evolving by its very nature. In support of her arguments, she said that new crimes pop up. We have seen the development of internet fraud and its use for paedophile activity. Society is rightly concerned about both. But the difficulty seems to be, “We must be able to respond to new developments and new crimes”, but if an order is to be imposed, the court has to say that an activity is a crime anyway. In order to get to that stage Parliament would have to have been invited by the Government to have created an offence, the facilitation of which the court can then decide should be taken as being a serious offence. You cannot have a situation where some new innovative activity can bring a person into the order-making process. There has to be a crime first. I can see that the second and third arguments have to be taken very seriously as undermining my proposition but the first one leaves me some cause of concern. I may be able to resolve it at a later stage. At this stage, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 17 to 25 not moved.] Clause 2 agreed to. Clause 3 [Involvement in serious crime: Northern Ireland orders]: [Amendments Nos. 26 to 39 not moved.] Clause 3 agreed to.
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Lord Lloyd of BerwickCrossbench- Quote
- moved Amendment No. 40:
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- Lord DholakiaLiberal Democrat
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- The noble and learned Lord, Lord Lloyd, has our support on this amendment. He has been consistent for years on this and I am delighted that he has put forward the case in this amendment, which would permit the introduction of intercept evidence and evidence of communication data in certain criminal proceedings. Let me give the reasons for our support. One of the Government’s arguments in the Bill is that this new breed of civil orders is necessary—in particular, serious crime prevention orders and control orders. The difficulty that they see lies with prosecuting people involved in serious crime or terrorism. I understand that. We do not doubt that criminal prosecutions may well be more difficult, time-consuming and costly for the state than serious crime prevention order applications. But this is not a justification for abandoning the criminal justice system. Criminal prosecutions are more respectful of our democratic process and values, the rule of law and our human rights than the orders that we are asked to consider. Criminal prosecutions and prison sentences for those found guilty of serious crime would also be a far more effective way of providing justice to victims, a visible public deterrent and protections for the public. We therefore urge the Government to consider ways of overcoming any practical difficulties with the prosecution of those involved in serious crimes. In 2003, the Newton committee concluded that lifting the blanket ban on the use of intercepted communication in court would be, “one way of making it possible to prosecute in more”, terrorism cases. It proposed the removal of the bar as a “more acceptable and sustainable” approach to the threat of terrorism than executive powers to restrict liberty which evade the criminal justice process. Since then, a number of other influential bodies have identified the removal of the bar on intercept evidence as a possible change to the criminal justice system. I am delighted that the noble and learned Lord, Lord Lloyd, was able to identify all these organisations. The Government have themselves argued that one of the reasons why it may not be possible to prosecute those suspected of involvement in terrorism is that the evidence on which the suspicion is based would be inadmissible in court. The JCHR recently concluded that the ban on the use of intercept evidence in criminal proceedings should be removed. That is one of the strong grounds why we should support this amendment.
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Lord Thomas of GresfordLiberal Democrat- Quote
- The curious thing about the ban on intercept evidence is that other evidence that is obtained clandestinely is used. I recall a case many yeas ago in which I was prosecuting—I hope that that does not cause too much of a shock to some noble Lords—when intercept evidence was used that had been obtained through the security services breaking into a person’s flat and planting a bug. The relevant conversations were before the jury and there was no problem. The only things that were concealed, following public interest immunity applications, were the method of entering the flat and where the bug was concealed because, presumably, that would have revealed methods used by the security services that it would not have been appropriate to make known. In another much more recent case, which involved the smuggling of drugs from Turkey, a number of defendants’ cars were broken into and bugs were planted. Those bugs recorded conversations that were translated and put before the jury. However, the translation broke down when it was discovered that the proposed defendants were speaking Albanian, not Turkish, so there was a problem with the translation. I also recall a third case, in which bugs were placed in a police exercise yard. The product of that—a conversation between two prisoners who had both been interviewed by the police and were then put together in the prison yard—was used in a trial. There is no bar in principle to recording conversations and putting them into the public domain—laying them before the jury. I have never understood why telephone conversations and telephone intercepts should be treated differently. I can only assume that there are two reasons. First, 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. Unfortunately, they must have missed the fact that the noble and learned Lord, Lord Lloyd of Berwick, was introducing this measure tonight. The other possible reason that I have wondered about is whether, if it was generally known that evidence from intercepted telephone calls could be used, criminals would not talk to each other by telephone for fear that they would be overheard and the evidence would be produced in due course. But that seems a bit of a nonsense to me because surely they would know that what they said was intelligence, and that intelligence-led action, to which I referred earlier, could be brought against them. We have never had a rational explanation of why those such as my noble friend Lord Carlile and Sir Swinton Thomas, who is an excellent judge, suddenly turn once they get a few secrets and join the security services in saying, “This cannot be put before a jury; their ears are not fit for it”.
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- Lord Lloyd of BerwickCrossbench
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- The noble Lord, Lord Carlile, is on our side. It is only Sir Swinton Thomas who is against us.
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- Lord Thomas of GresfordLiberal Democrat
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- I am pleased to hear that, as nobody could have more experience than my noble friend has of the sort of secrets that are passed around. However, I must assure the noble and learned Lord that I have known the noble Lord, Lord Carlile, for some 40 years, so he has changed his view at some point. No rationale has ever been put before us to explain this, as other jurisdictions are clearly quite happy to use this type of evidence—and are clearly successful in using it. We approach this not from the point of view of it being helpful to the defence but that it would be helpful to the prosecution to have such evidence used. Once again, we await with bated breath the government response.
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Lord DearCrossbench- Quote
- As a relative newcomer to the House, I would love to take a great deal of time to dazzle your Lordships tonight with an erudite address on the necessity for this amendment. Sadly, from my point of view, all the points have been made, and in a far more erudite fashion than I could make them. I have nothing to say, except that I support the amendment 100 per cent. However, I was interested to hear the noble and learned Lord, Lord Lloyd of Berwick, introduce—certainly, for the first time in my hearing—the issue of public interest immunity. I have long heard the arguments adduced against intercept evidence being used on the ground that to do so would display to the opposition, so to speak, all the methods that the Security Service and others use. I would have thought that public interest immunity would have covered the majority of that. In any case, as has just been said, criminals will continue to talk on the telephone, knowing that the product of that is used for intelligence purposes. I will not detain your Lordships any longer; I support wholeheartedly what has been said and have supported it for the past 10 years. It is interesting to see the tide not just turning but running strongly in favour of this proposal.
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Lord HenleyConservative- Quote
- The noble and learned Lord, Lord Lloyd of Berwick, referred to the Minister’s remarks at Second Reading, when she said that in any debate, at any time of day and on any subject, he brought up the subject of intercepts. That reminds one of Cato the Elder, who preceded any speech that he made in the Roman Senate with his remark, “Delenda est Carthago”, that is; Carthage must be destroyed. Well, he got his way in the end and Carthage was destroyed, which might have been rather sad for the Carthaginians but was what he wanted. It might be that the noble and learned Lord will get his way in the end—particularly as the Minister said, in her later remarks, that the matter had not been resolved and that the Government were still thinking about it. I hope to add my voice, and that of the Official Opposition, to those who favour the noble and learned Lord’s amendment. Like the noble Lord, Lord Thomas of Gresford, I am mystified by the Government’s position. Why do they have any doubt about the great importance of intercept evidence in helping to identify criminals? I certainly want to take this opportunity to pay tribute to all those who work in the Security Service and that whole world of the intelligence services. The noble and learned Lord quite rightly said at Second Reading of his Private Member’s Bill in 2005 that, “We could not do without it”.—[Official Report, 18/11/2005; col. 1301.] Yet although the use of intercept evidence to identify criminals is well established, we do not permit that same evidence—however compelling it may be—to be used to bring those criminals to trial. That is the effect, as I understand it, of Section 17 of the Regulation of Investigatory Powers Act 2000. We are by no means saying that the use of intercept evidence is the silver bullet. However as Eric Metcalfe, the director of human rights policy at Justice and the author of its report, which I have here and to which the noble and learned Lord referred, put it—
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Lord Bassam of BrightonLabour- Quote
- I thank the noble Lord for giving way. I would like the answer to one question. When did the party opposite change its mind on this issue? I do not recall that it held this view when in government.
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- Lord HenleyConservative
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- It has been some 10 years since we were in government. We are always entitled to change our minds. I am grateful to the noble Lord for correcting me, but this is now our policy. I can think of a number of matters on which we have changed our policy and—dare I say?—I can think of a number of matters on which the party opposite, now in government, would not have recommended when it was in opposition—I have seen Home Office Ministers blush over a number of years. The noble Baroness will, no doubt, agree with me on that. Perhaps I may return to what Eric Metcalfe said in his report. Although he accepted that it was not a silver bullet, he said, “it is a bullet nonetheless”. As the noble and learned Lord underlined, outside the United Kingdom, intercept evidence has been used in a large number of countries, including in the US to convict various al-Qaeda cells following 9/11 and the five godfathers of New York crime, as well as war criminals before the International Criminal Tribunal for the former Yugoslavia. The Justice report, published last year, highlights the fact, to which the noble and learned Lord also referred, that we are the only common-law country that prohibits completely the use of intercept evidence. The report details how prosecutors in Australia, Canada, New Zealand, South Africa and the US regularly use intercept evidence in prosecuting serious organised crime and terrorist offences. The report shows also how principles of public interest immunity are used in those countries to protect sensitive intelligence material from being disclosed in criminal proceedings. It concludes that the ban on such evidence in this country is, as the noble and learned Lord said, archaic, unnecessary and counterproductive. That view was supported by Liberty. The noble and learned Lord underlined just how many other people supported this change. He mentioned the Commissioner of the Metropolitan Police and Dame Stella Rimington, the former director of MI5, who has called the ban ridiculous. He referred to the remarks of our own Attorney-General, the noble and learned Lord, Lord Goldsmith. I have his remarks as reported in the Guardian in September of last year, but I have not been able to dig them out for this occasion. He is yet another person who has supported this move, along with the Director of Public Prosecutions. The Minister has argued that one reason why it may not be possible to prosecute those suspected of involvement in serious crime or terrorism is that the evidence on which suspicion is based would be inadmissible in court. I ask her what assessment the Government have made of the number of criminals who avoid conviction because of the restrictions on the use of this evidence. Would the disclosure of such methods that would result from the use of that evidence damage the ability of those who protect us to go on doing so as effectively as they do? It is now time for the noble Baroness to justify why the Government, in bringing forward a Bill of this nature, will not give the prosecutors the ammunition that they need, whether it is a silver bullet or an ordinary bullet, to prosecute serious criminals and terrorists in the criminal courts. She says that she would like to see further prosecutions. Rather than supporting what the Bill seems to be doing—relying on control orders and super-ASBOs—she might take this opportunity of supporting the noble and learned Lord’s amendment and allowing a more effective method of achieving prosecutions.
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Baroness Scotland of AsthalLabour- Quote
- I have been sitting quietly, listening to everything that has been said, tossing up in my mind whether to give your Lordships the short version or the long version. It seems absolutely clear that if I am to do justice to all the questions raised by the noble and learned Lord, Lord Lloyd, the anxieties expressed by the noble Lord, Lord Dear, with his wealth of experience and the changed position of the noble Lord, Lord Henley, and the noble Lord, Lord Thomas of Gresford, notwithstanding the paucity of Members on your Lordships’ Benches, I think I could very well entertain your Lordships for the next 35 minutes and therefore I intend so to try.
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- Lord Lloyd of BerwickCrossbench
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- I wonder if we could have a vote on that because I think we would all want the short version rather than the long version.
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- Baroness Scotland of AsthalLabour
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- In that case, I would not be able to answer each and every question I have been asked and answer globally. The noble Lords, Lord Henley, Lord Dear, and Lord Thomas, have asked me repeatedly what the Government’s justification for its position is and I fear I should answer that.
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- Lord Thomas of GresfordLiberal Democrat
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- I am very anxious for the long version. That will take us to 10 o’clock.
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- Baroness Scotland of AsthalLabour
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- I start by saying to the noble Lord, Lord Henley, that the destruction of Carthage is seen by very few as having been a good thing. It was a civilisation of great grace, great beauty and great intelligence. When it was lost, it was much regretted and it could not be brought back. Some may see some real similarities between the destruction of that and the protection we currently have the advantage of having through the use of intercept.
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- Lord HenleyConservative
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- I do not want to delay the noble Baroness. I was purely referring to the persistence of Cato the Elder and I hoped that she would admire the persistence of the noble and learned Lord, Lord Lloyd of Berwick.
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- Baroness Scotland of AsthalLabour
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- 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.
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- Lord Thomas of GresfordLiberal Democrat
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- I congratulate the Minister on giving us the fullest explanation that I have ever heard on this topic. We are obviously moving forward. I hope that she will convey the contents of her speech, the statistics and so on, to the Attorney-General and the Director of Public Prosecutions in the hope that they may change the attitude that they have taken. Perhaps the noble Baroness will convey it also to the Commissioner for the Metropolitan Police and all the other people who, one presumes, know a little about the criminal justice system, so that they too will realise the error of their ways—she has most certainly told us the error of our ways tonight. The Minister must appreciate that, if the technology is improving, that must mean that you can hear it better. One of the problems of intercept evidence through bugs is that we only half hear what is going on and it is not easy to hear. With the new technology, what is being said must be as clear as a bell. I know that a 12-month terrorist trial has just finished in the Old Bailey. It is all being held in camera; I do not know what it was about. The noble Baroness, Lady Kennedy of The Shaws, has gone to California to take a well earned rest. I do not know what that case was about but, assuming there was a piece of intercept evidence which at the beginning had indicated in absolutely unequivocal terms that the defendants had admitted what they were charged with, under the policy of the noble Baroness that would not have been produced in court. They would not have pleaded guilty and we have had a 12-month trial. So from the point of view of resources and justice it is essential that such material is released. It is not just a question of the prosecution always benefiting. If there is nothing in the intercept evidence or if there are indications that the defendant is innocent, that evidence should be released to the defence. But the defence is not allowed to know that. A completely innocent conversation may take place in intercept evidence which supports the defence, but it will not be released. I just do not understand where the Government are coming from.
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- Baroness Scotland of AsthalLabour
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- I can assure the noble Lord that consideration across the Government is of the most comprehensive kind, and that consideration continues.
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- Lord Lloyd of BerwickCrossbench
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- Of course I accept that the Government have been and still are considering this matter. My complaint is that they have now been considering it for 10 years and still have not come to a decision. At this late hour, and I certainly have no intention of playing out the time until 10 o’clock, all I want to do is to congratulate the Minister on her reply and to thank her for it. As the noble Lord, Lord Thomas, has said, it was the fullest reply we have yet had. I am afraid to say that I did not find it convincing. She said that there was passion on my side, but I thought I was advancing an argument in the cold light of reason. It seems to me that the passion was more on her side than on mine. Whatever it may be, I hope she will not be disappointed if I bring the matter back yet again. On that basis, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord Bassam of BrightonLabour
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- I beg to move that the House do now resume. Moved accordingly, and, on Question, Motion agreed to. House resumed. House adjourned at 9.52 pm.
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