Chilcot Committee: Intercept Evidence

Tuesday 24th July 2012 Lords Chamber

Question

14:45

Asked by

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government when they expect the Chilcot committee to report on the admissibility of intercept evidence.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the Government are conducting an extensive assessment of the benefits, costs and risks of introducing intercept as evidence in criminal proceedings. Lawful interception is a vital but complex area, and so it is crucial to get it right. The cross-party advisory group overseeing this work will be further consulted.

[Lord Lloyd of Berwick]

My Lords, it is now four and a half years since the committee was asked by the then Government to find a way of making intercept evidence available in court. It is two and a half years since the committee decided not to go ahead with the preferred solution, which is PII Plus, on the basis of certain legal advice which it had received. Since then, we have heard nothing. Will the Minister take what steps he can to make that legal advice generally available so that we can judge for ourselves whether it still has validity?

[Lord Henley]

My Lords, I may depress the noble and learned Lord a little when I tell him that it has actually been longer than four and a half years. I gather that seven previous attempts going back to 1993 have been made to try to resolve this issue, which gives some indication of the difficulty of dealing with it. We have made a coalition commitment that the Government will seek,

“to find a practical way to allow the use of intercept evidence in court”.

However, we must focus on the benefits, costs and risks of so doing, and that is why we want to get it right. As regards the legal advice, I can only say to the noble and learned Lord that it would not generally be appropriate to put into the public domain independent legal advice that had been offered by counsel.

[Lord Dubs]

My Lords, does the Minister agree that if the risks associated with making intercept evidence available in court could be made acceptable to the Government, surely the benefits of using such evidence in court would be enormous? We would bring to justice people who at the moment cannot be brought to justice. It would be a much better way of running these things than having control orders, TPIMs and what have you.

[Lord Henley]

My Lords, I think I can agree entirely with the noble Lord, but we have to accept that there are risks and that we have to find a balance between the risks and the benefits. That is what we are trying to do. As the noble Lord will appreciate, for a whole series of Governments going back to 1993, this is quite a difficult matter to resolve.

[Baroness Hamwee]

My Lords, I do not doubt the difficulty of the subject, but when one looks to see what has been published over the past few years, there is nothing that is recent. Can the Minister give the House any reassurance that progress is being made, perhaps by publishing a further interim report?

[Lord Henley]

My Lords, it is for the committee of independent privy counsellors, the Chilcot committee, to consider what it can publish. I will certainly look to see whether there is anything that HMG can say, but I am not sure that there is at this stage. We want to get there; my noble friend knows we want to get there since she knows that it is part of the coalition agreement. However, I repeat that it is very difficult.

[Lord Elystan-Morgan]

My Lords, does the Minister not agree that, so far as most countries in the developed world are concerned, particularly the English-speaking world—Australia, New Zealand, Canada and the United States—such evidence is admissible and used to good effect day in and day out? Why is it that, for the past 26 years, successive Governments have set their face so intransigently against the use of such evidence in our courts?

[Lord Henley]

My Lords, the noble Lord is correct to point out that there are other countries that have similar common law legal systems that do use intercept as evidence. They do not have the constraints of the European Court of Human Rights—a point that ought to be made to the noble Lord. As I said, all Governments have been trying to get there since 1993. It is going to be a very long road.

[Lord West of Spithead]

My Lords, I am scarred from two years of my Liberal Democrat friends slapping me around when I was in government because I took too long to do anything about this. I am glad that now they are in a coalition, they are finding this quite a difficult issue. Does the Minister not agree that some 25 years ago terrorists did not know that when they picked up a mobile phone we would get them straight away? Now there are techniques that, if exposed, would mean that we would not get the tip-offs that we get all the time which allow us to monitor whole teams of people who wish to do our nation harm.

[Lord Henley]

The noble Lord makes a very valid point about the importance of intelligence, and why we do not necessarily want to risk losing that intelligence by making use of it as evidence. I am grateful to the noble Lord for his support, and I look forward to being slapped around on this by noble Lords from all sides of the House for months to come.

[Lord Campbell-Savours]

Is there a precedent anywhere for Governments having published independent legal advice?

[Lord Henley]

My Lords, as the noble Lord will be well aware, it is the general rule that legal advice is not published.

[Lord Harris of Haringey]

My Lords, the supposition seems to be that a large number of cases do not proceed to court because intercept evidence is not admissible. Could the Minister give us the Government’s estimate of how many such cases there are that would have proceeded to court had this evidence been available?

[Lord Henley]

My Lords, I cannot give the noble Lord that, but I remind him of the remarks made by his noble friend Lord West about the number of cases that possibly would never have been pursued at all because of lack of intelligence. He must differentiate between intelligence and evidence. That is what we are trying to do—to make sure we still have the intelligence and do not lose it as a result of making use of it as evidence.