(9 years, 10 months ago)
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Lord Bates
That the Bill be read a second time.
Relevant documents: 5th Report from the Joint Committee on Human Rights, 8th Report from the Constitution Committee
The Parliamentary Under-Secretary of State, Home Office (Lord Bates)
My Lords, the emergence of ISIL and its territorial gains in Syria and Iraq present a clear and present threat to our national security. Noble Lords will be aware that nearly 600 people from the UK who are of interest to the security services are thought to have travelled to the region since the start of the conflict. It is estimated that almost half of them have since returned to the UK. On 29 August 2014, the independent Joint Terrorism Analysis Centre raised the terrorism threat level from substantial to severe, meaning that an attack is highly likely. On 1 September, my right honourable friend the Prime Minister announced that legislation would be brought forward.
The horrific events in Paris last week were the latest in a long line of shocking terrorist attacks, following the brutal beheading of Fusilier Lee Rigby, the murder of four civilians at the Jewish Museum in Brussels last May, the shootings at the Canadian Parliament in Ottawa and the Sydney hostage crisis. They all demonstrate the threat posed by ISIL and other terrorist organisations, such as al-Qaeda, across the democratic world.
I know that the whole House will join me in paying tribute to the incredible and courageous work of the men and women in our law enforcement and security and intelligence agencies. Their tireless efforts to keep us safe have thwarted around 40 attacks since 7 July 2005. Since April 2010, 210 people have been charged and more than 140 have been successfully prosecuted for terrorism-related offences. It is those security services that tell us that the nature of the threat has changed and so must our response. It is against that backdrop that we bring the Bill before your Lordships’ House.
The Counter-Terrorism and Security Bill will help us to disrupt people who intend to travel abroad to fight, as well as their ability to return here without ensuring adequate protection for our citizens. It will enhance our ability to monitor and control the actions of those in the UK who pose a threat, and it will help to challenge the pernicious underlying ideology that feeds, supports and sanctions terrorism. Part 1 of the Bill contains two powers that will enhance our ability to restrict the plans of those suspected of travelling overseas to engage in terrorism-related activity. The first is the power for the police, or a Border Force officer acting under their direction, to seize a passport and, in so doing, temporarily to disrupt the ability of an individual to travel. This will allow the agencies to investigate and decide whether further disruptive action is necessary—for instance, criminal prosecution or cancelling their passport under the existing royal prerogative.
Chapter 2 creates the power for the Home Secretary to issue temporary exclusion orders. This will allow us temporarily to disrupt the return of a British citizen suspected of involvement in terrorism-related activity abroad, ensuring that when individuals return it is on our terms. In the light of the comments of the Independent Reviewer of Terrorism Legislation, David Anderson QC, and following the debates in the House of Commons, the Government have committed to considering judicial oversight for this power. We will return to this issue in Committee should the Bill be successful at Second Reading.
Part 2 of the Bill enhances the existing terrorism prevention and investigation measures—or TPIMs—regime. Here, we are again acting on the recommendations of David Anderson QC in his most recent report on the operation of TPIMs. This includes allowing us to relocate an individual subject to a TPIM order up to 200 miles from his or her current residence, to help disrupt terrorist networks. It also involves raising the legal test for imposing a TPIM, providing further reassurance that they are used only where absolutely necessary.
Part 3 relates to data retention, specifically the problem of internet protocol address resolution. This is a technical issue and we will get into the details in Committee. However, these provisions will deliver vital additional capability to the police and intelligence agencies, helping to address the ongoing degradation in the availability of communications data.
Part 4 covers aviation, shipping and rail security. It includes measures in three broad areas: our authority-to-carry or no-fly arrangements; systems for providing advance passenger information to the UK authorities; and enhanced security and screening measures. Carriers will have to comply with our requirements if they are to operate to the UK.
Chapter 1 of Part 5 creates a duty on a range of authorities—listed in Schedule 3 to the Bill—to have due regard to preventing people being drawn into terrorism. The detail of what this duty will mean in practice for the schools, universities, police forces and prisons that will be subject to it will be set out in statutory guidance. We have published that guidance in draft for consultation alongside this Bill.
Chapter 2 of Part 5 also provides a statutory basis for the existing programmes for those at risk of being drawn into terrorism. As many noble Lords will be aware, in England and Wales this is known as the Channel programme. These provisions will ensure that such programmes are consistently available to all local areas.
Part 6 amends two provisions in the Terrorism Act 2000. The first ensures that UK insurance companies cannot reimburse the payment of a ransom to a terrorist organisation, putting the existing law beyond doubt. The second relates to the examination of goods at ports under Schedule 7 to the 2000 Act. It will clarify the law relating to where goods can be examined and the examination of goods comprising postal items.
Along with other miscellaneous provisions, Part 7 allows for the creation of a Privacy and Civil Liberties Board to support the work of the Independent Reviewer of Terrorism Legislation. We are at present conducting a further consultation on this proposal, prior to bringing forward regulations for Parliament to consider.
I welcome the cross-party support for this legislation in this House. I know that the Home Secretary has appreciated it in the House of Commons. I particularly want to thank the noble Baroness, Lady Smith of Basildon, and my noble friend Lady Hamwee for their constructive approach in negotiations about this legislation.
I am also aware that there is a very long and distinguished list of Peers seeking to speak in this debate. I am sure that noble Lords are particularly keen to hear the maiden speeches of the noble Lords, Lord Evans of Weardale and Lord Green of Deddington, who bring considerable knowledge and expertise to these matters. I do not, therefore, intend to detain the House any longer, but will of course respond in greater detail to the points which—
The Marquess of Lothian (Con)
I am grateful to my noble friend for giving way. I am intervening because I cannot stay for the rest of the debate. I welcome his statement that he will consider introducing judicial authority over control orders. Does he accept the general constitutional principle that, where such control orders are to be introduced, they should be under judicial control rather than under the control of politicians?
Lord Bates
I referred to that earlier. In another place, the Minister, James Brokenshire, said that we would look at it and seek to bring forward amendments, should the Bill go into Committee. We will do that.
I was saying, in conclusion, that I will address the points made in the course of this debate, perhaps at greater length, in my closing remarks.
We are in the middle of a generational struggle against a ruthless terrorist ideology that challenges the core values of our society. Those charged with our security must be properly equipped to do the job that we ask of them to maintain a free, open and tolerant nation. That is what the Bill is designed to do and I commend it to the House. I beg to move.
Baroness Smith of Basildon (Lab)
My Lords, I am grateful to the Minister for his explanation. I am both impressed and slightly disappointed at its brevity. This is a complex and difficult Bill. I should like to have heard a little more from him about some of the issues but no doubt we shall have those discussions in Committee. I thank him also for the meetings that we have had so far on some of the details of the Bill.
In some ways, the objections to this Bill are straightforward. I think we are all agreed that the first duty of the Government is the security, safety and liberty of those they represent. The shocking atrocities in Paris last week bring home to us yet again how important it is to do all we can to afford that protection. They also show how much free speech and liberty are valued across the world. That is part of the challenge and complexity of our legislative response to the threat of terrorism. I join the Minister in commending those who, in their daily lives and work, investigate and seek to prevent terrorism. They face enormous risks and challenges and there is no doubt that the growth of ISIL and Islamic State has increased those risks and challenges.
We have heard from the Government that more than 500 people have travelled to Syria from the UK and that around half have returned. Some may return more radicalised and more dangerous; others will return disillusioned. Our response can never be purely legislative. We have to try to understand and tackle the underlying reasons why young people become so radicalised that they resort to such shocking violence, which can never be justified. This is an international problem. We need to co-operate with other countries and recognise the role of our foreign policy in dealing with such issues. Of course, our response must also be humanitarian. There was a Question today on Syrian refugees and the Minister will understand the disappointment and concerns there have been about the number of refugees—the most vulnerable and those who face the greatest dangers—that we have taken into this country.
The Bill seeks to introduce several new measures to help prevent young people becoming dangerously radicalised and travelling abroad to engage in terrorism, and to manage the return of those who do. We accept the need for new powers to tackle extremism and terrorism. The Minister will be aware from the debates and discussions in the other place that we support the Bill. However, there are a number of areas in which we continue to seek improvements and greater clarity. We have to ensure that we achieve that balance between protecting our security and our liberty and that the measures are proportionate. The measures must be workable and feasible in their practical application, not only in theory. Your Lordships’ House will want to seek assurances and evidence that the measures have the effect intended, can achieve the stated objective and are not open to abuse.
Before I move on to the detail of the Bill and its clauses, let me say that I am grateful for the reports of the JCHR and the Constitution Committee. I share the concerns of the JCHR that it was not able to produce a report prior to the Commons debates. I understand why the Government want to bring forward this Bill quickly and I appreciate that they have to maintain debate time, but the accelerated timetable affects the ability of parliamentary committees to produce reports in time for full consideration by both Houses. This is particularly important for Bills which deal with such fundamental issues as security and human rights. Given that there are 39 speakers, I do not intend to comment in detail on all clauses but I hope that I have been clear about our general approach to the Bill.
Part 1 on travel restrictions provides wide powers. We believe that both Chapters 1 and 2 would benefit from sunset clauses to allow reconsideration and review at a later stage. We understand why the Government have proposals for the seizure of travel documents but our concern about the lack of an appeals process remains. Mistakes can be made and there are a number of reasons why an individual could be travelling, other than involvement in terrorism. It was extremely disappointing that when we proposed and voted on these proposals in Committee, both government parties voted against them. We will pursue these points and I urge the government parties to reconsider.
Clause 2 proposes what the Government call “temporary exclusion orders” and what others including the independent reviewer, in effect, refer to as “managed return orders”, as the Minister said in his comments. I suspect that the name of these in the Bill has more to do with the Prime Minister’s speech on 1 September, to which the Minister also referred, when he announced that those suspected of involvement in terrorism abroad would not be allowed to return to the UK. That is evidence of the dangers of a speech coming before policy.
The concept of managing the return of someone who has been or is involved in terrorism-related activity outside the UK, ensuring that they are interviewed on return and subject to terrorism prevention and investigation measures, if appropriate, is not an unreasonable power. However, it has been clear to us from the beginning that judicial oversight is needed. When we proposed this in Committee in the other place on 15 December, the Government rejected our proposals and made clear that they considered it a matter for the Home Secretary. We then retabled our amendment last week at Report but the Minister, James Brokenshire, insisted that the House had not had enough time to consider the proposal and both government parties voted against it. However, the Minister made a welcome concession that the Government would look at this again and return to it in your Lordships’ House. The Government are in charge of the parliamentary timetable and have known of the amendments since the debate on 15 December, so I find their position on this convoluted. I had also hoped to hear more from the Minister on this in his opening comments. I regret that the confusion probably comes from internal coalition government politics. However, whatever the reason, we welcome the change of heart and await with interest any government proposals that are brought forward.
The effectiveness of any legislation lies in enforcement. We want to explore with the Government how these temporary exclusion orders will work in practice. The Government have provided on their factsheet a very helpful diagram of how they expect them to work, but I would like some greater clarity. What happens, for example, when someone is refused access by the carrier: how are they, in practice, going to apply for a permit? What notification will the Government receive? At what point and in what timescale will they be returned to the UK for interview and consideration of TPIMs? In the part of the Bill that deals with deportation, has any consideration been given to those facing extradition or required to attend a court in the UK?
I am sure that none of us wants a situation where someone who could be a danger to the public could just disappear, making any surveillance of where they are or what they are doing impossible. It would, therefore, be helpful if the Government were to tell us with what other countries they have discussed this issue and what arrangements are being put in place for those refused permission to travel back into the country. I want to explore with the Government whether there are also cases where a more effective approach would be to allow someone to travel home, once they have presented to the carrier, and be interviewed immediately on debarkation.
Part 2 deals with TPIMs, which we accept are useful tools for prevention and investigation. Now, as the Minister said, the Government are seeking to reintroduce a residence measure, which we welcome. We were against it being totally removed in the first place. However, if TPIMs are to be effective, they need to be used appropriately and enforced. How many TPIMs are in place and being used now? My information is that there is just one. If that is the case, we need to understand the reasons why, because the Government have to ensure that they make the best use of the powers available to them.
Part 3 is on data retention. We believe that data communication information and intercept evidence are vital for tackling the most serious crimes and for national security. I think all noble Lords recognise that we do not live in an ideal society where all citizens can be guaranteed total and absolute privacy. Modern technology requires that legislation to protect security and liberty must be kept up to date and be relevant. Equally importantly, we recognise that there must be safeguards to ensure that any collection of information will be proportionate and justified: measures should be used only for the purpose for which they are intended. There must be safeguards to protect the public interest and public privacy. The public have a right to be confident that the collection and retention of data meets these criteria. We will also wish to probe whether it meets the test of being up to date and relevant. I am no expert—and we are going to have quite a technical debate—but the Bill appears to have a lack of clarity about how web logs are to be separated out from communications data. This is a vital difference, as more of our communications today move on to social media accessed through mobile apps. It would be helpful if the Minister could explain how this will work in practice.
Yesterday, David Cameron said that new powers were needed relating to communications data. As we have already seen with TEOs, it is not unknown for the Prime Minister to make a speech before the policy has been worked out. Then the Deputy Prime Minister took to the airwaves to denounce the “snoopers’ charter”, as he saw it. Obviously, any proposed changes to principles already established would require evidence, debate and consideration. We all know that there are tensions in the coalition around these issues but this is an issue involving national security, where wise heads and calm thoughts are needed. This kind of rhetoric and electioneering does nothing to facilitate sensible, informed debate on either side.
Part 5 places a duty on specified authorities to have due regard to the need to prevent people being drawn into terrorism. We support the Prevent programme, and will again want to probe with the Minister how this will work in practice. Clause 24 provides a power to the Secretary of State to issue guidance to those specified authorities. The Minister referred to the consultation, which we welcome. Surely, however, parliamentary scrutiny is essential; we want to ensure that this guidance is feasible and effective, and that it is debated in your Lordships’ House and in the other place. There is already considerable good practice in universities on how they manage to provide for free speech, while seeking to prevent abuse of that right. The input from universities to ensure that balance will be central to making this work. The Government have to provide far greater clarity if they are to allay the concerns of universities.
The final part of the Bill provides for a Privacy and Civil Liberties Board. The Minister may recall that this was raised at the time of the DRIP Act, when we welcomed the consideration of such a board, depending on the details of its remit and functions. I am pleased that the Government have modified their original proposals but a number of issues need further probing on this. Other noble Lords may well have read the evidence of the independent reviewer, David Anderson, to the JCHR, including his consideration of the Government’s proposals and what he needed to be more effective in his work. It is fair to say that there is a lack of clarity here given the terms of reference, which we support, a title which does not quite match those terms and a clause which provides powers for the Secretary of State to change the procedure, membership and work plan of the board by secondary legislation. That lack of clarity needs to be resolved.
Finally, I want to put on record, as I have said before in your Lordships’ House, that we care about crime, national security and public safety. We also care about the rights and privacy of individuals. It is not unreasonable for the public to demand both security and liberty. In their interests, we have to get that balance right. We need public understanding of the issues and public consent as we move forward on them. We look forward to today’s debate and to hearing the maiden speeches from new Members of your Lordships’ House. I hope that in Committee, we will be able to seek clarity in some areas and achieve improvements in others.
Baroness Hamwee (LD)
My Lords, it is apposite today to refer to the words attributed to Voltaire:
“I disapprove of what you say, but I will defend to the death your right to say it”,
because it is sadly topical and neatly expressed. I start with the importance of language in both general discussion of the issues and the Bill. Messages are taken from tone and emphasis as well as from the detail.
The term “temporary exclusion orders” immediately made me think of Shakespeare’s words in “Richard II”, when two of Richard’s court are exiled after allegations of treachery:
“England’s ground, farewell;
Where’er I wander, boast of this I can,
Though banish’d, yet a trueborn Englishman”.
TEOs are not banishment; they are about the converse—managing return to the UK. I am worried about misleading language being misunderstood and suggesting something more aggressive and alienating than is intended. I refer to the tone at the start of the Bill, because the application of money often follows tone and because the softer measures, to which the noble Baroness referred, must not be relegated. The most effective dissuasion of individuals from going out to fight may come from those who return disillusioned.
The Minister indicated, and I very much welcome, that the House will have the chance to consider changes to the scheme, particularly judicial oversight. I hope that any revised scheme will address where decisions are taken as well as what the decisions are. It will be very difficult for a court in this country to consider action taken overseas. I am also concerned that an individual who comes back to this country on a permit should not be taken to have incriminated himself. That point is made by the JCHR with regard to TPIMs.
I confess that I have not got my head around quite how the TEOs will operate on the ground. The possibility of being picked up at an airport in Turkey on the way back from Syria to the UK will obviously quickly become known, but what if the individual books to, say, Frankfurt with a view to travelling through Europe, where there is free movement? My question underlying that concerns what discussion the Government have had with our European partners.
The same question occurs to me—I am sorry that I have not managed to give my noble friend notice of this one—about the power in Schedule 1 to seize a passport that is not a UK passport. UK passports are not the property of the passport holder. I assume that the same is the case with other nationalities. Are UK authorities entitled to seize them? If the individual is travelling to somewhere close to the war, or simply buying a return ticket to Frankfurt, great care will be needed to avoid both discrimination and the perception of discrimination. The individual must be given reasons for the exercise of the power under Schedule 1, and be given them immediately. It is a separate matter from there being reasonable grounds for suspecting an intention to become involved in terrorism-related activity and the judicial oversight of that.
I believe these powers should be statutorily subject to review by the independent reviewer and we should consider all the points that Mr Anderson has made so cogently about his remit, his powers and his resources. My admiration for the current postholder—this is not a comment on any predecessor of his—knows almost no bounds but, like the JCHR, I have not quite made the link between this specific power of TPIM relocation and a change in the nature of the threat other than,
“wider powers are always useful to deal with the challenges a growing threat might throw up”.
The JCHR also referred to Mr Anderson’s heavy heart on the topic.
On TPIMs, the increase in the maximum penalty for breach of the provision condition to 10 years seems harsh, given that there has been no conviction for an offence. The independent reviewer’s points about requiring attendance at meetings with probation and others resonate more comfortably with me. As he said, do not waste opportunities—there is a positive strategy of engagement to be used.
I want to dwell on engagement because not everything is capable of being dealt with in legislation. I am pleased that a number of my noble friends are speaking today and I know that others wanted to. At least two of my noble friends will mention data retention but I will simply say that for the agencies it must be not just a matter of powers but of resources.
There is less formal, more imaginative work that warrants a lot of our attention. How should we counter peer pressure, usually on young men but also, to a lesser extent—although it is still a significant number—on women? What is the impact of social media and how can they be used to dissuade people from going to fight for what they may wrongly see as a humanitarian mission, and to encourage those who have gone to come home? These people are a source of intelligence. They can provide an excellent counternarrative, and if we drive them away we may never solve the problems.
I have heard some interesting discussion about the need not just to talk the counternarrative but also to do it. Rather than focusing on taking down content from the internet—which is probably impossible to deal with completely because of the volume involved—we should put up content to dissuade people. I have heard that this can be effective and it is thought to be effective because of the material ISIS itself is seeking to put up in response. A lot of the propaganda is about lifestyle, not ideology, so those who have had experience of conditions on the ground can counter that.
The Prevent strategy of Contest and the Channel programme are in some ways bound to be the hardest. Prevent has lost funding and, perhaps, focus. I have considerable reservations about putting it on a statutory basis. There is, I have heard, some resentment from those who have been doing the job about the implication that they have not been doing it well. Those who have not been doing it well may need assistance rather than direction.
I declare an interest as one of the joint presidents of London Councils, which says that the boroughs are “ready to play their part” but asks for the comfort of on-the-record confirmation that the “new burdens” principle—that is, that new burdens will be funded—will apply to costs not covered by the Home Office, including costs that it expects to be revised upwards following consultation on the statutory guidance. They also make points about who can refer individuals to the panels, which is the sort of detail we can come to in Committee.
We are all aware of concerns in the education sector—not just in higher education—about whether the duties proposed are appropriate or practicable. My noble friend Lady Sharp wanted to speak on that. I will simply say that as a result of a crossed wire her name is not on the list, but she will make her points in Committee.
A number of different approaches have been developed across Europe to prevent potential foreign fighters leaving, to minimise the threat when they return, and to strengthen the knowledge and capacity of families and communities to play a proactive role. To give support to these approaches is not fluffy but hard-nosed and self-interested. The Hayat programme in Germany works at an ideological, pragmatic and effective level. It includes giving support to families who remain in touch with their children while they are in Syria and Iraq. It is said that parents are, in effect, negotiating for their children’s lives. Returnees often need support, which in itself is a prevention measure, and programmes of deradicalisation and disengagement, provided by people trusted by the recipient and everybody else involved, are invaluable. There is also the Aarhus model in Denmark, which is very structured and centralised. All this is very nuanced; it needs attention and effort and, as I say, it is not secondary.
Finally, on the Privacy and Civil Liberties Board, the independent reviewer made what I thought were very modest and moderate points about resourcing and support, and his comments on the proposals have been masterly in their understatement. The independence that comes from the postholder being part-time is not to be undervalued, although I suspect that his and his predecessor’s “part-time” is the equivalent to the aggregate full-time of several other people. However, it seems that there is not yet complete agreement over the role of the board, and we need to consider its relationship to the independent reviewer; what work it undertakes; its role as a check and balance on—let me put it this way—a currently hypothetical future reviewer who might need to be balanced or checked; and its role as a voice that might challenge assumptions within the wider decision-making process regarding legislation where civil liberties issues are at stake.
It is frustrating not to have the time to refer to all the provisions of the Bill, but we will of course have Committee. The Bill has come to us at a moment of high tension, so the task of careful, calm scrutiny is all the more important. I do not dismiss being tough, but we should be tough where there is evidence, other than very exceptionally and without forgetting proper process. Effectiveness is not the inevitable outcome of talking tough. What is even tougher is protecting our freedoms and creating an effective narrative of our own.
Lord Lloyd of Berwick (CB)
My Lords, I hope that I may be forgiven if I start with a very brief personal explanation. I had an operation on my spine on Thursday of last week but I had already put down my name to take part in this debate because counterterrorism is a subject in which I have taken a very close interest over the past 40 years. I was the first ever Interception of Communications Commissioner, appointed in 1985, and I was the author of the report on counterterrorism legislation in 1995 on which the 2000 Act was based. I think I can say that I have taken part in every debate on counterterrorism from that day to this and I can probably also say that this will almost certainly be my swan song. But I did at least want to take part in the debate today. Of course, my views on the Bill may be right or wrong, but at least I am speaking from fairly long experience.
In my view, the powers to seize passports and to exclude British citizens from returning to the United Kingdom are so objectionable in principle that they should be resisted on that ground. I agree with everything that has been said by Liberty in its excellent report on this subject. I also agree with Liberty that these new powers, if exercised, would do absolutely nothing in practice to make us any safer. Why do I say that? The reason is quite simple. We are concerned with some 500 individuals of interest to the police who have travelled to Syria in recent years, of whom about half are said to have returned. So 250 of them are still there. We are told that these powers are essential to prevent these 250 from returning. But the figure of 250 must surely be put in context to see what, if any, harm or difference it would make if they did return, if they wanted to.
We know from what Dame Elizabeth Manningham-Buller told us in 2006 that we had about 20 terrorists in this country at the turn of this century. By 2006 that number had increased to about 1,500, of whom 1,000 had already attended—this is of great importance—terrorist training camps in Pakistan. Those known to be here must surely have presented exactly the same sort of threat over the years as would be presented if the 250 were now returned from Syria. Yet this risk has been successfully contained to a quite extraordinary extent over the years by the vigilance of our police and the Security Service. In the 15 years since 2000, there has been but a single atrocity—the London bombings on 7 July 2005 in which 52 people lost their lives. Whatever else can be said, the risk has been successfully contained over the years under the law as it currently exists, despite the fact that there are 1,500 suspected terrorists already present in this country. To what extent will that existing risk be increased by allowing a further small group of suspects to return from Syria? That surely is the crucial question which so far as I know has never been asked and certainly has not been answered. The only possible answer that one can give is that we obviously do not know for certain what extra risk they will cause, but the overwhelming probability must be that they will not increase the risk in any way, having regard to the suspected terrorists already present in this country. I suggest that the risk might well be negligible. It is certainly very small indeed. Unless it can be shown—it has not been shown—that by allowing in the extra 250 people, if they choose to come, we shall be increasing the risk to a significant extent, the need for this Bill has simply not been made out. The question then becomes a rather different one. Assuming that to be so, to what extent, if we pass this Bill, will it do us harm? That is the question to which I now come.
There are currently in this country about 2.5 million Muslims, of whom about 100,000 are thought to be potential sympathisers to the terrorist cause. Everybody agrees that we will find a long-term solution to the terrorist problem only by keeping the majority of Muslims in this country on our side and doing what we can to bring about an ideological shift of attitude among those 100,000 Muslims. That will take a long time—probably a generation or more. As the noble Lord, Lord Condon, once said, in a speech that I shall never forget, you do not bring about ideological changes of that kind by putting people behind iron bars. Surely the crucial question is whether the legislation as now proposed will help to bring about the change that we need or only serve to make matters worse. I am afraid that the answer to that is only too clear. The sort of legislation that we are now being asked to pass can only make matters worse. One can see that by looking at the past.
We will be making the same sort of mistake if we pass this legislation as we have made so often in the past. We made it first, as I remember very well, when we passed the notorious Part 4 of the 2001 Act. Under that provision, terrorists could be detained without trial. Eventually, too late—it should have happened much sooner—that legislation was struck down by the House of Lords. We made the same mistake again after that legislation had been struck down by bringing in the idea of control orders. There only ever were 48 of those orders, but they were thought to have been even more divisive than what had gone before. They too, in the end, bit the dust. The same applied to TPIMs and all the other repressive legislation with which we are familiar.
Nobody will ever know exactly how much harm all that repressive legislation has done, but it must surely be obvious that the damage to community relations has been very great indeed. The truth is that we have spent much too much time and energy in what is called the Pursue aspect of our so-called respect approach and nothing like enough time on the Prevent aspect. Of course, it is the Prevent aspect that is by far the more important if we are ever to find a long-term solution to the problem. That was the very point made recently by the Intelligence and Security Committee in its report on the Rigby murder—that we should spend much more time on Prevent and much less time on pursuing these matters. How much better it would have been if, after the London bombings, instead of passing the unnecessary legislation that we did, we had taken the same attitude that the French have so magnificently done to the recent atrocity in their country. But we did not take that approach, and we are now being asked to make exactly the same mistake as we have made so often in the past.
Given this history, one would have imagined that the Prime Minister would have hesitated a little longer before making his announcement on 2 September, within two days of the threat having been raised from substantial to severe. Sadly, that was not the case and we now have this Bill before us. On any view, so repressive a Bill should be subject to something more than the fast-track procedure. It will be undermining fundamental liberties in important respects and therefore deserves very careful scrutiny. But what does the Prime Minister do? He says that it will be subject to the fast-track procedure. I cannot think of any Bill less suitable for the fast-track procedure than this one. The reasons given in the Explanatory Notes seem to be wholly inadequate. I can think of no good reason why the Bill should not wait until after the next general election but that, apparently, is not to be. It makes one wonder what possible purpose the Prime Minister could have had in wanting to bring it forward so urgently. One can only think of reasons which one must instantly reject: that he needed to give the Commons something to do to fill the time up to the beginning of the election, or reasons even more cynical than that. I can think of no good reason for giving this Bill the fast-track procedure and, if we do nothing else, we must surely resist that.
That brings me to my last point. In some ways, it may seem a peripheral one, but it throws a good deal of light on the Government’s attitude to these matters. The current Independent Reviewer of Terrorism Legislation is, as we know, David Anderson QC. I held the same post myself many years ago and there have been many reviewers between then and now. The noble Lord, Lord Carlile, was one and I am glad to see him in his place. I think we would all agree that Mr Anderson has been an outstanding success. He spends about 15 days a month working as a reviewer when he could otherwise be working as a QC. He tells us that, in order to do the job, he needs to be solely responsible for the output; otherwise he would not feel he was being truly independent. As he says, it enables him to meet Ministers, parliamentarians and the media and give them the benefit of his views. Yet what do the Government now propose? They propose to replace this man, who is doing such an excellent job, with a committee called, I think, the Privacy and Civil Liberties Board.
We all know that Governments can do silly things from time to time, but I simply cannot imagine anything sillier than that. How can a committee do the sort of job that Mr Anderson has done so well? Fortunately, the Government have had second thoughts and it is now proposed that Mr Anderson should become the chairman of this grand-sounding board. However, that is not what Mr Anderson happens to want. He was asked what he wanted and he said that he needed some further straightforward support—that is, he wanted someone to help him in the same way as a junior helps a QC. In his view, that is the best way in which he can do his job. Why on earth do we not give Mr Anderson what he wants rather than what somebody else may think he wants? I hope that we shall see the back of Clause 36 very soon.
What is the way ahead? We should beg Mr Anderson on our knees to complete the job that he has already started, which he is not expected to complete until next May, and which covers many of the matters that are covered by the Bill. We should then make sure that the Government take the Bill away and bring it back in May, with all the improvements that I know—I think we all know this—Mr Anderson will have made to it in the mean time. To force the Bill through now under the fast-track procedure seems to me the height of folly.
The Lord Bishop of Durham
My Lords, I share with every other reasonable person a horror of the evil actions and effects of terrorism, grief for the suffering caused by terrorist acts and a heartfelt concern for those whose lives are lost or wounded through it. Events in Paris last week clearly illustrated this to us all. However, those events also highlight the need to ensure that we keep a global awareness and perspective, as the fresh Boko Haram attacks in Baga and its surrounding villages last Friday show us. Here, around 2,000 were killed. As we consider counterterrorism and security here in our land, we must stay aware of the global nature of the issues.
In every true place of worship, among people of all faiths, the horror of evil and the grief at loss of life and suffering for friends, families and communities are felt and articulated in lament, confession and intercession, day by day and week by week. As we consider the latest set of government moves to strengthen the laws which guard our people against terrorist acts, we have to hold our nerve in our convictions about liberty, equality and fraternity, and look steadily at the changes being proposed. These matters are too serious for us to polarise or politicise issues beyond what is justified in legitimate debate.
I shall not address the elements of the Bill in exhaustive detail. Others have far greater expertise in each of the areas concerned. However, I want to make some points about the Bill’s provisions in their own terms. As I do so, I believe that it is important to step back and see the proposed changes in the context of broader trends in how we live, govern ourselves and seek to ensure the security of our people.
I begin where local churches begin: trying, under God, to be agents of reconciliation; building communities marked by trust, mutual respect and care, and not by fear and suspicion. In many places, faith communities are coming together to build understanding and break down prejudice and stereotypes. Yesterday, in response to events in Paris, in my previous diocese of Southwell and Nottingham, faith leaders from Muslim, Jewish, Christian and other communities enacted a day of fasting as a sign of mutual commitment and dependence on God in seeking peace for all. They stood in solidarity with one another. In my current diocese of Durham, where the numbers of adherents to faiths other than Christianity are relatively small, work is continually done by the faith communities in places such as Sunderland, Gateshead, South Shields, Stockton and Darlington to build strong community relationships. The Near Neighbours programme nationally has had a significant impact on every place in which it is run.
This groundswell of community building is, and is seen by faith groups as, the most powerful force against radicalisation, especially among young people, on whom so much of the sense of risk tends to be focused. The Department for Communities and Local Government is doing some excellent work supporting local initiatives in this field. Groups with wider knowledge than local churches, such as the Quilliam Foundation, emphasise that this type of work in the community is vital to the Prevent Strategy.
I welcome therefore the increased resourcing of Home Office-driven work through the Channel programme to identify and intervene in the lives of people at particular risk of radicalisation. Nevertheless, the resources going in that direction seem to be much greater than those going towards the community work that is so fundamental to long-term prevention, and that does not carry the risks of fuelling narratives of persecution and heroic resistance. Countering radical terrorism is a long-term grass-roots matter. Long-term support for good community development will reap the best long-term rewards. This is not so much a matter of draining the swamp by immediate legislation as tilling the ground.
In this context, the placing of a statutory duty on a range of specified authorities to prevent people being drawn into terrorism is a significant step. Some have mocked the idea of nursery staff being obliged to report any signs of extremism in a family. I do not share the mockery, as terrorist behaviour is abusive behaviour. Nevertheless, the placing of such an obligation adds to the risks of creating a culture of suspicion and the sense that every citizen is expected to be on the lookout to report on their neighbour rather than build good relationships with them. Great care needs to be taken not to overburden schools or erode their capacity to build diversity and trust among pupils, staff and parents. Some of us are already less than comfortable about the way in which a wider range of citizens is coming under analogous duties in relation, for example, to immigration status.
The Home Office has helpfully launched a consultation on the draft guidance, which it has published, and faith groups will be looking carefully at those proposed guidelines. Just as there must be concern for the young child in that context, so too there must be concern for those separated from a parent made to move under a TPIM. Breaking up a family, as could occur, could create longer-term harm even, at one extreme, sowing the seeds of the next generation of terrorists in young children. Great care needs to be taken with any form of what amounts to internal exile that leaves children wondering what has happened to their parent.
On the matter of temporary exclusion orders, I acknowledge the need to have some kind of handle on the return to this country of people who may have been fighting in other countries. I share with many others the concern that there is currently no check by any court or some other judicial means on the decisions made by the Home Secretary. These are grave decisions, as they come as near as the Government think international law will allow to rendering people temporarily stateless. I strongly believe that some form of judicial review and appeal is needed. I share the overall concern of the Law Society about the judiciary’s lack of ability to scrutinise decisions on a number of matters in the Bill. I hope that serious consideration will be given to correcting this omission in Committee.
Across a number of its clauses, including those which I have mentioned and the communications data provisions, the Bill engages the question of the balance between security and privacy. It contains a number of new safeguards to ensure that the balance does not tip too far in favour of security at all costs. I welcome this determination to keep the balance healthy. A senior police officer said recently:
“My job is obviously to help keep people safe. To get that balance between security and privacy is parliament’s job”.
I do not think that that is the whole story. Parliament, even in its most careful and precise formulations of law, cannot remove from any authority the need to strive for a mature and well informed understanding of how to draw appropriate boundaries between security and privacy based on the law as it stands. A member of the Church of England can speak only with humility about keeping people safe. It is a journey that we are making in other contexts.
In conclusion, I refer to part of the very helpful reflection of the Reverend Dr Sam Wells, rector of St Martin-in-the-Fields, on Radio 4 last Friday. He reflected on liberty, equality and fraternity. Having reflected on liberty and equality, he then said that fraternity,
“names the challenge of our times: what happens when our identities and opinions take us to very different places? Fraternity is the reconciled diversity that Christians call the kingdom of God … The issue isn’t straining to uphold liberty … The real challenge isn’t how to live: it’s how to live together”.
I offer these comments of general principle with the concern that we are not paying adequate attention to the issue of fraternity and community building, but I also offer them with the promise of the prayer and support of people of faith up and down the country as Parliament wrestles with what are deeply grave responsibilities.
Lord Jopling (Con)
My Lords, I welcome the Bill. Many of us agree that the tragic events in Paris over the last few days only underline the relevance of this Bill at this time.
I have been looking at the Explanatory Notes for the Bill. I understand, as we all do, that the Explanatory Notes are not part of the Bill, but explain the background thinking of the Government in this. Paragraph 5 says:
“The UK has a strategy for countering terrorism”.
It goes on to say that it is based around four main areas of work and that the provisions in this legislation work in particular to the first three: Pursue, Prevent and Protect. I want to talk about the fourth part of the strategy, Prepare, which is explained as,
“working to minimise the impact of an attack and to recover from it as quickly as possible”.
I hope that it may be possible to strengthen the Bill by finding ways to improve our preparedness for a terrorist attack and to deal with it after it has happened. Terrorist attacks, as we know, can come in many forms. The Paris outrages are strong in our memories at this time but we should understand that individual zealots intent on killing by the use of either the gun or a suicide bomb could be seen as comparatively limited outrages compared with what we could be faced with in the future—events that could even exceed the twin towers tragedy in New York.
My principal concern today is the potentially much more serious attacks that could cause far wider, long-term devastation. I am concerned about our preparations for CBRN attacks, which are not impossible. We must be better prepared for the use of chemical, biological, radioactive or nuclear devices and aware that attacks could happen. In most of these possibilities it is essential that the authorities are aware at the earliest possible moment after the attack of its nature and of what we are confronted with. In the case of a radioactive attack using a dirty bomb, it is essential that we know as soon as possible whether the terrorist bomb that has gone off has radioactive material attached to it, so that at the earliest moment the public can be warned what to do if there is radioactive contamination. I only hope that we are fully prepared countrywide to be able to identify the effects of a dirty bomb when it might happen.
Lord Judd (Lab)
The noble Lord is making an extremely powerful point, which all of us must take very seriously, but does he agree that is not only radioactive threats with which we should be concerned? We need to be equally concerned about bacteriological and other forms of life-threatening content.
Lord Jopling
My noble friend Lord Judd must be a little patient because I am moving on to exactly those points—which cause me even greater concern—in a few moments, if he would be good enough to bear with me.
I welcome the provisions in the Bill that take further steps to strengthen border controls over the various transportation routes. Devices which are known and available can in many cases identify radioactive substances that might be hidden in lorries, trains or ships and could be used for a dirty bomb. I can only hope, and ask Ministers to ensure, that devices that can identify radioactive material are fully used wherever possible.
Now I turn to the point the noble Lord, Lord Judd, has just raised—biological attacks and the way in which a major attack on a city could be implemented by the use of aerosols. This is an area where I think there is the greatest and most urgent need for early warning systems so that we know the nature of the attacks at the first possible moment. As we know, these attacks could come in the form of various diseases, of which smallpox, anthrax or botulism are only examples. It is no good waiting days and maybe even a week or two after an attack of this sort for clinical symptoms to appear in people who are infected. By that time it is too late—a classic case of closing the stable door after the horse has bolted.
In many parts of the world—particularly, as I know, in parts of the United States and indeed in the United Kingdom—it has been the, to my mind, ludicrous and bewildering strategy to monitor sales of aspirin in chemists’ shops as an indication of whether a major biological attack has taken place. I am serious about that. Devices are now available to monitor the atmosphere on a daily basis. They can indicate very soon after a biological attack that there are, in the atmosphere, biological organisms which could have caused widespread diseases. When I last inquired about this in New York some months ago, I was told by the police department that it had 20 of these devices around the city. I can say to the Minister only that it is absolutely vital that we employ those automatic devices throughout our major cities, so that we know that a biological attack has happened within hours rather than maybe a week after it when people become ill.
There is another issue on preparedness which concerns me and I have asked a number of questions about it in your Lordships’ House over the years. The issue is how many front-line doctors and nurses are vaccinated for smallpox and other potential vehicles for biological attacks. In the past, the numbers have been seriously low. I have talked to Ministers about this, stressing how crucial it is to increase the number of front-line medical staff who are vaccinated so that they can deal with an outbreak.
I now come to one other point which I would like the Minister to look into. Again, it is an issue that I have raised before and which continues to cause me concern. It relates to a substance whose name will be familiar to most Members of your Lordships’ House. I refer to Botox, a well known cosmetic treatment for women. While Botox itself is not a danger, the substance from which it is created is absolutely lethal. Botox is created by sterilising botulinum toxins, which cause the dreadful, horrible and deadly infection of botulism. I was told some time ago by researchers in the United States that they had evidence that botulinum toxins had been made available on the internet in certain countries in Asia. One can see the immediate danger of terrorists getting hold of those toxins. I hope that Ministers are aware of this situation and that they are doing everything they can to close down possible sources of botulinum toxins for potential terrorist activities.
I am trying to draw attention to possible shortcomings in our preparedness for devastating terrorist attacks. I hope that Ministers will take notice and apply themselves to addressing them. It is said—and I understand why—to be sometimes in the interests of national security that there is a reluctance to describe fully the structure and details of our preparedness. If the Minister is unable, for those reasons, to reply to the points I have tried to make, could he write to me and express the Government’s views on these anxieties? However, if we were to suffer a devastating attack of the kind that I have been describing, and it afterwards became clear that the warnings such as the ones I have been trying to put over today had not been heeded, I warn Ministers that their lives, in those circumstances, would be barely tolerable, to say nothing of their consciences.
Lord Goldsmith (Lab)
My Lords, this debate would be important whenever it was taking place. However, the unspeakable barbarity of what took place in Paris last week gives this added impetus. Noble Lords who have spoken and will speak today do so from great experience. I count at least two former Security Ministers—maybe there are more—police officers and, I think, two former heads of one of our security services. We look forward very much to hearing what the noble Lord, Lord Evans of Weardale, will say in his maiden speech.
My experience includes being in government at the time of 9/11 and having to work with others—including my noble friend Lord Rooker, who sits next to me—on how to deal with that threat, and what needs there were for legislation. The noble and learned Lord, Lord Lloyd of Berwick, has already referred—disparagingly, it has to be said, but I understand why—to some of the legislation that we passed. Having mentioned his name, I pay tribute to the commitment that he has shown to this question. I have not always agreed with him. I am not sure that I agree with him on all that he has said today. He has, however, always asked important questions, and I am as alarmed as many other noble Lords to have heard the noble and learned Lord talk about this perhaps being his swansong. I hope that that is not the case; if it is, we will all regret it but treasure what he has said today.
In the time that I spent on legislation, I was involved in supervising the prosecution of terrorists and looking at the Prevent strategy, to which the noble Lord, Lord Jopling, referred. I learnt five things from that. The first was that these are such difficult questions. There is nothing absolute about any of them except, I hope, our abhorrence of terrorism. They raise extremely difficult issues, which need to be considered carefully.
Secondly, we have to listen very carefully to the advice from the police and security services. I was concerned and unhappy, during an earlier debate, about whether the advice that we were getting from the police about the desirability of detaining terrorist suspects for extended periods was justified. If anything, that 90-day debate may have given the security services and the police a particular inhibition about putting forward recommendations and advice on terrorism legislation. That may be healthy but we need to listen very carefully to what they say, because they know what is taking place on the ground in a way that is difficult for us to know.
Thirdly, we have to test what they say by reference to evidence, to logic and to whether it can be shown that what is proposed is proportionate and necessary in all the circumstances. Fourthly, one of the things that we as parliamentarians need to do is not just scrutinise evidence and what is put forward, but consider what the safeguards are to protect us and the things that we care about. Fifthly, it is so easy for politicians to use these circumstances for political purposes. Like my noble friend Lady Smith, I was alarmed to hear the remarks today about snoopers’ charters. I worry that these are references to something in the light of the coming election and a need to see a differentiation between the junior and senior partners in the coalition. I hope that that is wrong and that it will not affect the debate in this House today in any way. I also hope that the debate in the country is not affected by that.
What about the substantive points? I want to make three. First, there is the question of process and fast tracking. I declare an interest as a member of your Lordships’ Constitution Committee. We produced a quick report—it had to be quick because the Bill came to us quickly from the Commons—that picked up on the fast-tracking question to which the noble and learned Lord, Lord Lloyd of Berwick, referred. I draw the attention of noble Lords to two significant points in what we said. One is that we welcomed the fact that the Explanatory Notes set out detailed reasons for fast tracking, if that is what it is—there is still some confusion on whether the Government think they are fast tracking this but it is plainly going through a fast process. However, we also respectfully encouraged this House to consider carefully whether the reasons put forward by the Government for the fast tracking of each element of the Bill offered sufficient justification.
It is important to look at each element of the Bill. It is relatively easy to see that with people potentially returning from theatres of operation, battlefields or terrorist operations in the Middle East, we need to do something now about whether they can return and under what conditions, but less easy to see why the proposed changes in relation to data retention have to be dealt with at this point, given that we touched on this in the previous legislation. At that stage, it was said that because it was being fast tracked, it was not possible to deal with the substance. Each element needs to be looked at. I, and no doubt others, will carefully consider what the Government and the Minister have to say about those elements as we go through.
The second substantive point is on the question of temporary exclusion orders. This seems to be the most controversial element in the Bill. The noble Baroness, Lady Hamwee, may be right that this sort of order has not been used since the medieval ages when our kings used to banish people—it was then, I think, for political reasons rather than for protection from terrorism. However, it is a very large power to ban somebody from his home country. The arguments put forward have persuaded the independent reviewer. In my judgment I can see the force of the arguments, but that is why it is so critically important to consider the safeguards in relation to them.
Reference to judicial intervention has already been made and I should like to spend a moment or two on the reasons why it matters. First, I understand that the Government accept that the only judicial safeguard under the Bill as it stands would be judicial review of the decision of the Secretary of State to exclude somebody. Judicial review is hugely important. It is a very valuable tool, and important for the protection of all our liberties, but it is an imperfect tool. In this context, it is particularly imperfect. Judicial review is not generally a reconsideration of the evidence de novo. It is not an original decision; it is not even an appeal. It looks at whether there are defects in the decision-making process: was some irrelevant consideration taken into account or some relevant consideration not taken into account? It is very difficult to deal with in this sort of area. However, it is not a review of the merits of the decision, so it is a limited consideration.
The second problem, inevitable in the circumstances we are talking about, is that that judicial review would have to be brought from overseas. As I understand it—I am sure that the Minister will deal with this—the individual affected by an exclusion order would not be allowed back into the country to make the application. So the difficulties would be compounded by the applicant coming from overseas, wherever that might be, and finding legal assistance to ensure that the application was made.
Thirdly, there is a surprising contrast with the TPIM regime, where there is a judicial intervention which does not exist under the Bill as put forward. That needs to be justified, given that the order excluding someone from this country is every bit as serious, if not more so, than some of the measures that could happen under TPIM.
Fourthly, I wonder whether this is not in the interests of the Government or of the Minister. The concern for any Minister in dealing with a potential exclusion order is that they are told by the police or by the security services that someone is a potential risk. What happens if that person turns into an actual risk and the Minister has not excluded them? It is the day after a terrorist attack that fingers are pointed—inevitably and perhaps rightly so. The Minister is therefore put under great pressure and temptation to look at the evidence in a benevolent way. That would not be what a court did in those circumstances; it would need to look dispassionately and independently, as our judges are trained to do.
I understand why the Executive might be nervous about leaving these decisions to judges, but they would be wrong to be so. Our judges can be trusted to make these decisions. It was, therefore, good to hear what the Minister repeated about the Government’s intention but we shall see the reality when the Government put forward their proposals. I know that there are lots of different gradients of judicial intervention and supervision; we want to see what the Government propose.
My final substantive point is on data retention; I have already touched on it. I am not one of those people who are so concerned about privacy as not to see that where there are advantages to the security services, it must be overridden. I would love to see a situation in which all our privacy was guaranteed, just as I would love to see a situation in which we did not have to take our shoes off—or have all the other security measures—when we travel by air. Those have necessarily been caused by what the terrorists have done. There must be safeguards. People must be satisfied that information will not be misused but, at the end of the day, if the security services and the police are of the view that they need this material—and I know why they think they do—then that is a power which we need to give them.
Lord Paddick (LD)
My Lords, I am very pleased to follow the noble and learned Lord, Lord Goldsmith, and I broadly agree with what he said. I was a police officer for more than 30 years, but I was not directly involved in counterterrorist operations so I have no specialist knowledge of the subject. However, I was the police spokesman following the 7 July 2005 bombings in London and I was responsible for community issues for the police in the immediate aftermath of the shooting of Jean Charles de Menezes on 22 July 2005.
I was a police officer during most of the IRA bombing campaign on the UK mainland and regularly attended briefings by the Anti-Terrorist Branch, as it was then. The IRA threat was very different in nature from that presented by Islamist extremists. The IRA was conventionally organised through an established hierarchical structure and, as such, it was capable of being infiltrated. Even so, the then head of the Anti-Terrorist Branch, John Grieve, said that the police and security services alone could not defeat terrorism; it was communities that would do this. I spoke to John Grieve this morning and he reiterated what he said in the 1990s: the role of communities is even more important in combating the sort of tragic and totally unjustifiable outrages that we saw in Paris last week.
Lone individuals or groups that come together to carry out acts of terrorism are very difficult to identify, intercept and thwart without intelligence from the communities they live among. What we understand from the Paris shootings is that, although the two brothers involved were known to the security services, they were among hundreds who had the potential to be a threat. It is those closest to those individuals who will notice changes in their behaviour that might highlight to the security services that these are the few from the many who may act on their perverted beliefs.
In an interview this weekend, the Commissioner of Police of the Metropolis, Sir Bernard Hogan-Howe, talked about how important it was, for example, for the parents of those preparing to leave to join the conflict in Syria and Iraq to tell the police and other agencies. We should consider how many parents would want the authorities to prevent their children travelling to Syria and Iraq to engage in terrorist activity. He went on to say that he recalled how the 7/7 bombers accidentally bleached their hair and the vegetation outside the flat where they prepared their explosive devices with one of the components from their home-made bombs. Their friends, family and local people would have noticed and could potentially have prevented the atrocity by telling the authorities. They did not, and 52 innocent people died.
That is why increased powers for the security services and the police must be balanced against winning the confidence of communities which fear that powers may be used against their innocent members. We cannot have, do not want and cannot afford to have a police officer on every street corner and an intelligence officer in every community. Whatever surveillance powers we might agree, if we have learnt one thing from the recent tragedies it is that there are too many people who could potentially pose a threat to be able to monitor all of them. Community intelligence is as important as any powers we give to the intelligence agencies.
There is also the wider civil liberties issue. This country has a liberal tradition that citizens should be allowed to do what they will, provided it does not harm others, free from interference from the state. This freedom is anathema to the Islamist extremists who carry out terrorist attacks against the West. They want a society where every aspect of people’s lives is controlled. If we curtail people’s liberties, we are taking society in exactly the direction the terrorists want us to go.
Of course the police and security services will always ask for more draconian powers in order to carry out surveillance of those suspected of criminality. The Liberal Democrats have been criticised for scuppering the Communications Data Bill—the so-called snoopers’ charter—but we must always seek to find the right balance between security and civil liberties.
Lord West of Spithead (Lab)
Does the noble Lord agree that the term “snoopers’ charter” is emotive claptrap? I have worked with GCHQ over a period of 30 years, on and off, and I am not aware of a single case where people working in that agency have “snooped”, which is the word used, on any ordinary member of our society in any way at all. Yes, it has used due and proper process and looked at and found people who wish to damage us. Indeed, in all the plots that we managed to stop during my time as a Minister and since, nearly everyone got their heads-up from that type of intercept information. Using the words “snoopers’ charter” is emotive and gives completely the wrong impression of what it is.
Lord Paddick (LD)
I acknowledge what the noble Lord has said and that there are differences of opinion on both sides of the argument. It is a pejorative, probably unhelpful, term that has come into popular use. I added that description for the benefit of those reading the proceedings of this House who may not be familiar with the Communications Data Bill. I agree with the noble Lord that it is not a particularly helpful term to use.
Noble Lords will understand that my main interests in the Bill concern the new powers it confers on the police and security services and, as far as those aspects are concerned, I substantially welcome its provisions. To that extent, and with some trepidation, I disagree with the noble and learned Lord, Lord Lloyd of Berwick. As my noble friend the Minister said, the nature of the threat has changed. There are many British citizens—mainly young and impressionable—who are being persuaded to travel abroad to participate in terrorist activity. If prevented and provided with the right intervention, they could be diverted from radicalisation. We need to examine in detail the powers given to the police to seize passports and travel documents. Sadly, we have seen well intentioned legislation being misused in practice in the past, and we must do all we can to minimise the potential for misuse of these new powers.
“Temporary exclusion orders” is an unfortunate term for what is intended to be a mechanism to ensure the managed return of those suspected of having been involved in terrorism-related activity and who pose a threat. It is clearly necessary to control the return of those who have either been trained in terrorist training camps or been engaged in acts of terrorism to ensure that they do not pose a threat to the safety not just of members of the public, as the legislation says, but of the police, the Armed Forces and the security services. Again, it is important that these individuals are properly assessed and that appropriate interventions are provided, including prosecution and imprisonment if necessary. As my noble friend Lady Hamwee has said, we must ensure that there is proper scrutiny of such decision-making above and beyond the very limited ability of a young man or woman abroad to challenge the decision of the Secretary of State by means of judicial review. Many of those young people will have been exposed to one of the most brutal regimes that we have seen. It is unlikely that they will not be changed by that experience and potentially pose a more serious threat as a result.
The Bill purports to allow the security services to link a particular IP address with a particular device and therefore to make it easier to identify individuals who are communicating using the internet, in a way similar to what can be done at present with landline and cellular telephone communications. I seek reassurance from the Minister that the data that the Bill requires internet service providers to retain are only those that are necessary to link communications to devices and hence individuals, and that the Bill would not allow the trawling of data in a way that would be a considerable infringement of innocent people’s civil liberties. As for whether this provision needs to be fast-tracked, if it has been identified as a gap in the ability of the police or the security services to prove communication between individuals, surely it is best if that gap is filled as quickly as possible.
The noble and learned Lord, Lord Lloyd of Berwick, is also concerned about TPIMs. However, my understanding is that the changes to TPIMs in this legislation have been recommended by the Independent Reviewer of Terrorism Legislation—someone for whom the noble and learned Lord has the highest regard.
I have other concerns about other parts of the Bill that others will cover in more detail, particularly the banning of radical preachers, which could lead to their perverted messages of hate being preached in secret where they cannot be challenged by those who oppose their views.
We saw unintended consequences of the actions taken following 7/7 under the Prevent strand of the then Government’s counterterrorism plan, with councils forced to spend money where none was needed and some minority ethnic communities feeling that they were being penalised for not harbouring terrorists. Prevent deals with all types of terrorism and I have no issue with a statutory requirement for local authorities to carry out an assessment as to the nature and extent of the danger of local people being drawn into terrorism. I have no issue with a statutory requirement to address the dangers identified, but what action is taken should be a matter for the local authority concerned.
On Saturday, George Churchill-Coleman sadly died. He was head of the Metropolitan Police Anti-Terrorist Branch for seven years, from 1985 to 1992, longer than any other postholder. John Grieve worked closely with Mr Churchill-Coleman and the one message that Churchill-Coleman delivered over and over again during his time at the peak of the IRA bombing campaign was, “Don’t overreact”.
The Bill, properly amended, as I am sure it will be by this House, is a measured and appropriate response to the dangers that we face, and I believe that we should, in principle, support it.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, this is a complex Bill, not least because it amends and interacts with a number of other difficult statutes in the field and presupposes a full understanding of them. Although I have done quite a lot of reading in this area, I confess at once that I have not as yet formed any clear and final view on some—perhaps most—of the many difficult issues that it raises. Today, I propose to confine myself to one or two general, perhaps rather bland remarks and then focus more particularly on Part 2, which deals with changes to the TPIMs scheme.
My preliminary comments are these. Like my noble and learned friend Lord Lloyd of Berwick, although not for as long as him, I have been concerned with the legal aspects of national security over many years, first as Treasury counsel acting in such cases for the Government. Indeed, my very last case at the Bar was in 1984, the de-unionisation on security grounds of GCHQ. The noble Lord, Lord Armstrong of Ilminster, who I am delighted will be speaking in this debate, was our chief witness. Then, overlapping with many—perhaps too many—long years on the Bench, I was, also successively from the mid-1980s chairman of two tribunals which investigated complaints into our various intelligence agencies. Then for six years up to 2006 I was the Intelligence Services Commissioner with, effectively, retrospective judicial oversight into the operation of the various intelligence agencies, most particularly compliance with the requirements of the Regulation of Investigatory Powers Act 2000, which was introduced to secure Article 8 privacy rights conferred by the Human Rights Act. In those days, I was able to give only a month a year to that task. As I understand it, my successors as both the Intelligence Services Commissioner and the Interception of Communications Commissioner have to deal with that on an almost full-time basis.
Over all the years that I have had those various forms of contact with the agencies, I have formed a clear view that they consist—save for the tiniest minority, who are speedily weeded out—of the highest quality men and women, dedicated and disciplined public servants, generally of considerable intelligence and great integrity. Many have come from academe, banking or skilled professions specifically because they wanted to make what they regarded—and which I certainly regard—as the greater contribution to national life that comes from working in those agencies, often at substantially lower salaries than they could have expected in the private sector, and always on the understanding that their particular value would never be recognised publicly. I say never; happily there are in the House this afternoon two exceptions to that non-recognition, both of whom are to speak in this debate, and we look forward to hearing them. The noble Baroness, Lady Manningham-Buller, is to speak later and very shortly we shall welcome enormously the maiden speech from the noble Lord, Lord Evans of Weardale. We shall listen with particular attentiveness to what they have to say.
Of course it does not follow from the undoubted excellence of our intelligence officers that we in Parliament should uncritically grant them ever wider powers. Far from it, but it certainly follows that I, for my part—like the noble and learned Lord, Lord Goldsmith—am readily inclined to listen to their views and to treat with particular respect any arguments and evidence that they advance as to the existence of gaps in the capabilities of the agencies that need to be filled. I would also value their judgment on—for example—the damage caused by people such as Mr Snowden.
In the light of last week’s ghastly events in Paris, it may be thought that the need for this Bill in all its various aspects is more obvious than ever, but there is perhaps a risk on that account that we may be inclined to give it a fairer wind than it—or certain parts of it—strictly merit. I am quite sure that on reflection all Members of this House agree that holding the difficult balance appropriately between freedom on the one hand and security on the other remains just as important as it always has.
So much for preliminary comments—perhaps they were rather tiresomely platitudinous; there it is. I come to the second part of this Bill, which deals with TPIMs. I begin by briefly reminding the House of the gradual evolution of this system of control over those we suspect of terror-related activities but do not have the evidence to actually put through court for prosecution. After 9/11 we began, as we can all too easily remember, with the Belmarsh detention scheme, which in retrospect can be seen as a really shocking form of open-ended preventive detention of foreign suspects. It was ultimately struck down in a seminal judgment of the Appeal Committee of this House, chaired by the late and much respected Lord Bingham of Cornhill, in the famous case of A. Of course, shortly after that this House rightly determined that that scheme should be given its quietus. It was immediately then replaced—and there was, one recalls, a heady night of toing and froing between the Houses—by the control order regime under the Prevention of Terrorism Act 2005, which lasted for six years until its repeal by the TPIM Act in 2011. Control orders were of course highly contentious and much litigated. I myself heard a number of appeals against various aspects of such orders, both in the Appeal Committee of this House and then, after October 2009 when we were banished across the square, in the Supreme Court.
The TPIM Act represents, if you like, stage 3 of this evolving picture, and introduced major changes from the altogether more draconian control order regime which it replaced. It is no longer possible to make TPIMs on an indefinite basis—they are now limited to two years; curfews, which were originally permissible up to 16 or perhaps even 18 hours under TPIMs, are now down to 10 hours; there is now the right to a computer and a mobile phone; the test for imposing these orders was sharpened and raised: “reasonable suspicion” has given way to “reasonable belief”. Most importantly for present purposes, there is no scope under TPIMs for relocation, for what the right reverend Prelate the Bishop of Durham called—as it has been called by others—“internal exile” and the many problems associated with all that. The courts long ago acknowledged that—we discussed it at length in 2010 in our Supreme Court judgments in the Home Secretary v AP.
Clause 12 would amend the TPIM Act to reintroduce the possibility of relocation. As has already been remarked by the noble Lord, Lord Paddick, the independent reviewer, Mr Anderson QC—truly a most estimable and able man—recommended that himself, although, as he put it in his evidence to the Joint Committee on Human Rights on 26 November last, he did so,
“with a heavy heart, but none the less with decisiveness”.
Despite the fearsome disruption to family life and the resentment it causes and the disaffection of the families—which again, the right reverend Prelate spoke of—I, too, support it. Frankly, it is the only effective way to prevent people meeting up with their associates and from absconding. However, it must be recognised that it is a hugely invasive, disruptive power; infinitely more so, for example, than telephone tapping, data recording, or any of the several other such powers available or proposed to be available to the agencies. Those powers merely—I use that word advisedly and rather in the same sense as the noble and learned Lord, Lord Goldsmith, would—interfere with people’s right to privacy, which is a valuable right, but nothing like the right that is removed by relocation.
That consideration takes one—or at any rate takes me—to Clause 16(1), which provides that:
“In section 3 of the Terrorism Prevention and Investigation Measures Act 2011 … in subsection (1), for ‘reasonably believes’ substitute ‘is satisfied, on the balance of probabilities,’”.
The result of that is that in the TPIM Act itself, which provides by Section 2(1) that:
“The Secretary of State may by … a ‘TPIM notice’ … impose specified terrorism prevention and investigation measures on an individual if conditions A to E in section 3 are met”,
the relevant condition A, which is in Section 3(1), is,
“that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity (the ‘relevant activity’)”.
That would become, “that the Secretary of State is satisfied, on the balance of probabilities”, that the person concerned has been involved in terrorism-related activity.
In his evidence both to the Joint Committee on Human Rights, and later, on 3 December, to the House of Commons Home Affairs Committee, Mr Anderson explained that Clause 16 did not give full effect to one of the recommendations he made to the Government about TPIMs. His third recommendation was essentially that the Home Secretary would have to persuade a court on the balance of probabilities that the person in question was or had been involved in terrorism. As now proposed by Clause 16(1), the question will be merely whether the Home Secretary herself is satisfied on the balance of probabilities. Frankly, as a matter of language and logic, I find it difficult to see that there is any material distinction whatever between the present position of the Home Secretary reasonably believing something, and—as now proposed—of her being satisfied of something on the balance of probabilities.
There is, of course, a real difference between reasonably suspecting something—which was the old test for imposing control orders—and reasonably believing something, which is the existing TPIM test. As I said in another criminal context in some earlier reported case, “to suspect something to be so is by no means to believe it to be so; it is to believe only that it may be so.” I am sure everybody here readily sees the logic of that. Belief necessarily denotes that the person thinks the fact in question has been established. I therefore question whether Clause 16(1) as it stands in practice does what it purports to do; namely. to raise the standard of proof required in these cases. I note that there was a Court of Appeal case in 2012 when, in the course of some lengthy judgments, somebody was able to suggest that they found some distinction between the two, but I confess it eludes me. Either way, Mr Anderson’s original recommendation for the court to be satisfied on the balance of probabilities was the correct one, certainly with regard to any future TPIM which is to deploy this new power of ordering relocation, significantly the most burdensome and invasive of the obligations which it will now be possible to impose. I strongly urge the Minister to re-examine this question, and to ask himself whether—after all—Mr Anderson’s recommendation should not be properly accepted rather than fudged and diluted to the point of negligibility in the existing draft. That may have been actually what the noble Marquess, Lord Lothian, was referring to in that early intervention he made during the Minister’s speech, although it was understood—and understandably understood—to be an intervention relating to Part 1 of the Bill.
That is my main present concern with Part 2. I welcome the other proposed changes to the existing TPIM regime, subject always to some persuasive contrary argument that may later emerge from others. Before I sit down I should mention that there are plainly problems with other provisions, most notably both provisions in Part 1. We will see what the Government propose hereafter by way of allowing judicial control of these proposed new powers. Today I merely reserve my position on all these other matters. But overall I am optimistic that we can reshape this Bill to improve national security without significantly compromising our civil liberties. I would certainly give it a Second Reading.
Baroness Neville-Jones (Con)
My noble friend the Minister has set out the background to this, sadly, justified Bill, which relates to the change in the increased terrorist threat to this country. One of the main features of the threat that we now face is the geographical proximity of the conflict that it has generated and the ease with which jihadis leave the United Kingdom and travel by many routes to participate in fighting, and then return.
I am distressed to find myself in such strong disagreement with the noble and learned Lord, Lord Lloyd of Berwick, first in his aspersions on the motives of the Prime Minister but also in his assessment of the situation. There is nil indication at the moment that the conflict that we now see raging in Syria and Iraq, which inspires jihadi terrorism and enables jihadis to be trained in military technique, is going to end soon. On the contrary, the real danger is that it will both spread and intensify before ending. The threat has increased and is in great danger of increasing still further. So it is illusory to imagine that we are simply dealing with 250 people who may yet return; there is constant traffic backwards and forwards and, if we do not seek to disrupt it and do so with effect, that number will increase. The situation is not static, or one that lacks extreme danger.
What is being proposed in these powers to intercept people’s travel? The police will be authorised to act, on the basis of reasonable suspicion of an intention on the part of an individual to participate in terrorism abroad, to retain the passport concerned, initially for no more than 14 days without judicial sanction, until the purpose of the journey has been established. It will not permit the detention of these individuals. It will also give power to bar foreign nationals who are reasonably suspected of participation in terrorism from re-entering, and it will enable the control, through a temporary exclusion order, of re-entry of nationals, permitting a decision to be taken on whether they should be prosecuted if sufficient evidence exists or put into some kind of monitored programme if that evidence does not.
A lot will depend on the skill with which the power is used and its terms, and I join those who wish to see sufficient safeguards. The devil in much counterterrorism legislation lies in the detail, and I hope that the Minister will be able to give us more detail on how these processes should eventuate. What will actually happen when these interceptions are made? Then we can understand in human terms what is likely to happen. On the decision arrived at as to whether these are people who have to face some kind of criminal charge or can and should be put into a programme, and which of those verdicts it is—I think that there will be many more who fall into the second category—those involved, and the Muslim community in this country that it will affect, must feel that it is a route to fair treatment and reasonable justice.
We should always be cautious about legislating in a heightened atmosphere generated by a major outrage, although the tone of the debate in this House this afternoon has been singularly sober and not excited. Paris did show us one thing, of which we should take note—that the individuals concerned used military training acquired in the Yemen to kill people on the streets of France. The people of this country will not be very forgiving if effective ways in which to disrupt terrorists who have been trained to kill should be available but are denied to the authorities and this country then suffers some kind of jihadi outrage.
I am aware of the apprehensions of noble Lords about the exercise of these powers and I look forward to what the Minister is going to say in Committee about safeguards. Adequate safeguards will greatly help the swift passage of this legislation through the House. I do not personally think that permanent exclusion orders are sustainable. On the other hand, I do not accept the notion, which is contained, I think, in a Liberty document, that we can somehow rely on jihadis to self-notify their intention to return. Nor do I entirely understand why—I think I am right in saying this—the Joint Committee on Human Rights has suggested that passports should not be removed, even temporarily. An international travel document is not a right and certainly not an absolute one. Those who plead for balance in our legislation must also bear in mind the right to security of the community at large.
The Bill deals with a number of other powers and, given the way the evening is moving on, I am going to be selective about them. I regret that the relocation power is necessary. I was part of the Government which modified the control regime and instituted TPIMs. I regarded that as an advance in our civil liberties, but it obviously has to be consistent with the safety of us all together. I regret that it is necessary to reinstate the relocation powers now, but I accept the judgment of the Independent Reviewer of Terrorism Legislation, Mr Anderson, and I note the points that have just been made by the noble and learned Lord, Lord Brown.
What has not attracted attention in the debate so far are the provisions relating to airline and other forms of transport “authority to carry”. These proposed powers are also important and, I fear, necessary. Al-Qaeda has a known obsession with spectacular massacres and one of their favourites is bringing down aircraft through the terrorist activity of people who are on board. They have attempted this a number of times, fortunately only once successfully, and that is why we take our shoes off. However, it remains an aim of a revived AQ. Our services being in a position to inspect the detail of a passenger list in advance of the take-off of an aircraft is, frankly, a small price to pay in terms of the intrusion into individual privacy. What price privacy if the whole plane-load of several hundred people goes down? I hope that the European Court of Justice, which is not helpful on this issue, will have the sense not to strike down such a provision. One of the points made by Turkish authorities in relation to the massacre in Paris was that they were given no advance warning of the presence on the flight to Istanbul of the wanted woman accomplice and so they let her through. Such a provision on authority to carry would, if widely accepted, materially increase the safety of international airline travel. The least we can do is ensure an increase in safety of travel to the UK.
There are other powers in the Bill which touch on data retention and Prevent policies, which this House is going to examine in detail in Committee. That is the right thing for us to do and, as I said a moment ago, the provision of detail from the Minister will be very helpful. The creation of a Privacy and Civil Liberties Board is an important innovation which I hope will increase confidence in our ability to strike the balance between privacy, civil rights and security. I had not heard, and do not believe, that this is designed to displace the independent reviewer. I would certainly be distressed if that were the case but I do not think it is, because the contribution he makes is extraordinarily invaluable. I hope that it will be a mechanism which strengthens his hand and which enables us at all times, not only when we are legislating but in the subsequent implementation of legislation, to ensure that a balance continues to be struck.
I look forward to the following maiden speech of the noble Lord, Lord Evans of Weardale, and to the later maiden speech of the noble Lord, Lord Green of Deddington. I hope that at the conclusion of this debate the House will signify its support for the Bill’s objectives and principles, and that it will achieve a rapid passage through this House.
Lord Evans of Weardale (CB) (Maiden Speech)
My Lords, it is an honour to join your Lordships’ House. It was also a considerable surprise to be invited to do so, but it has turned out to be a very agreeable surprise. I am very grateful for the welcome and good wishes that I have received from your Lordships and the staff. I am also grateful to my two sponsors, the noble Baroness, Lady Manningham-Buller, in whose footsteps I have found myself treading on several occasions over the years, and the noble Lord, Lord Hennessy of Nympsfield, whose knowledge of the ways of government—even its secret ways—is unparalleled.
I had thought that I might make my maiden speech on a subject other than security in order not to play to type. Since leaving MI5, I have built a portfolio of interests spanning banking, education, the church and even motoring journalism, and I thought that I might look for an opportunity to speak on one of those. However, circumstances have presented this Bill before your Lordships’ House. Unfortunately, I will not be able to be present for the Committee stage as a result of travel commitments that I had taken on before joining your Lordships’ House, so it would seem perverse not to use this debate as an opportunity to make a maiden speech.
When I left MI5 in 2013, I felt cautiously optimistic that we were over the worst as far as al-Qaeda and Islamist terrorist attacks in this country were concerned. It seemed to me that we were making significant progress. Regrettably, subsequent events have proved that judgment to be wrong. The atrocious killing of Fusilier Rigby in May 2013 demonstrated the reality of the threat that we face in this country, and the brutal murders in Paris last week demonstrate that this is a European and international problem and not one that we face alone.
It is, of course, developments principally in Syria and Iraq that have led to the jolt of energy that has gone through the extremist networks in this country. That was becoming evident before I left MI5. We have now seen at least 600 people from this country going as would-be jihadists to fight in Syria and Iraq. That is, of course, a dynamic number. I have no doubt at all that if we were to revisit this in a few months’ time, we would find that that number had significantly increased. When they arrive, they will join many hundreds of other jihadists travelling from other western countries and the Arab world. This puts me in mind of the circumstances that we saw in the period before 9/11 in Afghanistan, where there were many al-Qaeda training camps which drew would-be jihadists from across the globe. On their return, many of them were even more radical than they had been when they departed. They had experience of combat, had been trained in violence and had an international network of support on which they could draw. Those circumstances led to a series of international attacks over a long period. I fear that we may be facing the same situation as we go forward from today. Indeed, we are starting to see that, as the comments made by Andrew Parker, the current director-general of the Security Service, made clear last week.
At the same time the revelations made by Edward Snowden, whatever you think of what he did, have clearly led to a reduction in the ability of the security agencies here and overseas to access and read the communications of terrorists internationally, with the result that as the threat from terrorism has gone up in the past two years the ability of the security agencies to counter those threats has gone down. The result of this can be only that the overall risk of a successful terrorist attack in this country has risen.
Before I turn to the Bill, I would like to make some more general comments on the development of counterterrorism measures in the country over the past 15 years. It is sometimes suggested that there is a zero-sum game between security on the one hand, and civil liberties and human rights on the other—that this is some kind of see-saw and that if one end goes up the other will inevitably go down. That seems to me to be fundamentally mistaken. I believe that a country that has a strong basis of civil liberties and human rights is likely then to be able to draw on that as a form of resilience in the face of extremism and violence; in that sense our civil liberties and human rights are a very important moral component in the struggle against extremism. Conversely, inadequate security will breed vulnerability and fear, and that in turn will tend to limit people’s ability to contribute to civil society, will provoke vigilantism and will diminish people’s ability to exercise the very civil liberties and human rights that we wish to sustain. It is true to state that, when rightly created, appropriate security and civil liberties and human rights are mutually supportive.
The Bill provides in general for some fairly modest, practical and useful measures that will help the security agencies and the police to keep us safer, without unduly undermining civil liberties. That is particularly the case if we see additional safeguards introduced in respect of the temporary exclusion orders. For example, we currently lack any power to seize travel documents temporarily in order to stop a terrorist or would-be jihadist travelling overseas at short notice. One of the strategies that we have employed over many years is to try to break that cycle of movement between the domestic space and areas of jihad, which tends to breed extremism and violence. The Bill plugs the gap, but only permits the passport to be held for a limited period and subject to proper review. This means that the security authorities will have the time to consider whether more permanent steps, such as the cancellation of the passport, are needed. Given that it is often impossible to know in advance that an actual or would-be terrorist might be intending to travel overseas until they turn up at the port, it is a necessary and proportionate power.
Equally, the proposal to introduce temporary exclusion orders—I have considerable sympathy for those who suggest they would be better called “managed return orders”—requires the returnee to meet obligations such as returning at a specified time, attendance at appointments and notifying the police of their place of residence. That does not seem particularly draconian and is certainly very much less than would be the case under many TPIMs. Similarly, the power to require the subject of a TPIM to relocate is, from my perspective, a useful reintroduction of a power that was used to good effect with control orders. Control orders were used only in a sparing and careful way—the same is clearly evident with the number of TPIMs that have been used—but relocation was certainly valuable. I can recall one or two cases where an individual, relocated and taken out of the extremist milieu in which he was living, started to realise that perhaps he had made a mistake in adopting extremism and readopted a more moderate view of his religion. There was a deradicalising effect after taking people out of particular extremist environments, which is surely a positive outcome for all concerned.
In my experience, the part of the UK’s counterterrorist strategy that is at the same time the most important in the long term, and the most difficult to design and implement, is the Prevent programme, which aims to prevent and counter the radicalisation that may lead to terrorism. In my view, this is made all the harder by the hesitancy of many in government, the media and wider secular society to acknowledge or engage with the religious dimension of the threat that we face. The measures in the Bill require any public authorities that have been slow to get involved in this process to step up to the plate, but I have some uncertainty first as to whether going down a legislative path to require this is necessary; it is not yet clear to me that that is the case. Secondly, until we have seen the guidance in its final version it is quite difficult to decide how effective this would be. I therefore have to declare myself an agnostic when it comes to Part 5 of the Bill.
After the recent events in France there is no need to persuade anyone of the reality of the threat that we face from Islamist terrorism. The struggle to protect our country against this threat is likely to last for many years, and involves both long-term and short-term measures. The current Bill appears to propose some practical steps that will help those who protect us from those threats and in general therefore I support it. It does, however, leave a considerable amount of unfinished business, in respect of access to communications data and the interception of communications that are absolutely central to our counterterrorism efforts. No doubt we will return to that here in due course.
I look forward to contributing to your Lordships’ consideration of these issues in future debates and also, I hope, to other matters that come before the House.
Lord Harris of Haringey (Lab)
My Lords, I, too, admit to being delighted to follow the noble Lord, Lord Evans of Weardale, and his insightful maiden speech. He has served with distinction for 33 years in the Security Service and was until just over a year ago its director-general. His early years in MI5 are shrouded in the appropriate cloud of mystery. It is said that he served in Northern Ireland, where he went under the soubriquet “Bob”. If he sidled up to you in a bar in Belfast, his code phrase was allegedly “Call me Bob”. I do not know if that was true and I do not suppose that he will tell us. I first met him when I had some responsibility for overseeing the police counterterrorism network and he was deputy director-general. Indeed, I once encountered him on a bus—yes, deputy director-generals do travel by bus—and inadvertently I broke his cover. I think that his mission was in fact Christmas shopping. I greeted him by name. I realise now that perhaps I should have called him Bob. However, he will bring much to this House’s deliberations and we all look forward to hearing many more contributions from him in the years to come.
I declare my interest as an adviser to Lockheed Martin and UKBN, who have some involvement or potential involvement in underpinning our national security.
This debate follows the events of the past few days in Paris, which make it particularly timely. But it would have been timely anyway because of other recent events, such as what happened in the Canadian Parliament only a few weeks ago, the murder of Lee Rigby and the recent arrest carried out by the police counterterrorist network. Andrew Parker, the current director-general of MI5, talked in his lecture last Thursday about 20 terrorist plots directed or provoked by extremist groups in Syria since October 2013 in Europe, Canada and Australia. He said explicitly that the same intentions are being displayed towards the UK. There are 600 extremists among the many Britons who have travelled there. Many have joined ISIL, some—we do not really know how many—have already returned. He also spoke about three terrorist plots in the United Kingdom being stopped in recent months.
It is worth considering how, over the past 20 years, there has been a significant change in the nature of terrorist attack. Those who recall, as most of us do, the IRA atrocities of 30 years ago remember that there were usually warnings. There was usually the desire by those perpetrating the atrocities to live and continue their activities. There was also an explicit political agenda and a recognition that too many casualties might be counterproductive to that agenda—a recognition that was not always accepted and followed.
Subsequently, we have had the al-Qaeda spectaculars: 9/11, Bali, 7/7 and the airline plot, which, thankfully, failed. There, the objectives were clearly mass casualties and involved martyrdom. The target was to cut off the head of the snake, by which they meant western civilisation. That remains an aspiration for some groups around the world. The difficulty with those plots was that, because they involved the intention to create enormous numbers of casualties, there was a need to intervene very early to disrupt them, due to the risks of those casualties taking effect—perhaps before a full evidential picture had been built up. That explains some of the debates that we had a decade or so back not only on control orders but on the length of detention while investigations took place.
More recently, we have seen a growth in the activities of lone wolves, most notably Anders Breivik in Norway in 2011 or, closer to home, Roshonara Choudhry’s attack on my right honourable friend Stephen Timms in 2010. Often these attacks were quite low-tech, with an expectation of capture and/or martyrdom. We have then seen the IS-inspired attacks of the last few months. Again, these are quite often low-tech and do not require a great deal of advanced planning and organisation. They may involve hostages. Certainly one of the objectives is publicity and the use of social media—YouTube, perhaps—to spread the atrocity that they have committed. It is important that our capacity, and the legal framework to respond, can change with those changes—indeed, to reflect the changing nature of technology itself.
If I was a cynical person—those who know me know that that is the last thing I ever am—I might be cynical about the fact that it has taken this coalition Government five years gradually to come to understand the threat. I resist the temptation to say that those on these Benches warned the Government, but the Government do now accept, in this Bill, that there needs to be the restoration of the power to relocate those subject to controls. Undesirable though that is and however difficult the individual circumstances, it is something that is, on occasion, necessary. Within government there is also now, at last, despite the extraordinary statements of the Deputy Prime Minister this morning, increasing recognition of the importance of communications data and the fact that our capacity to deal with that needs to reflect the way that communications data has changed.
The other lesson that we need to learn from the last few years is that there are no simple magic answers: they are not contained in the Bill and they have never been contained in any previous piece of anti-terrorism legislation. Each measure that such legislation contains must be assessed against a number of tests. The first is of effectiveness and necessity: does the measure proposed actually work and does it do what is necessary?
The second test is about proportionality in our framework of human rights and values. That includes who takes the decision and whether it is subject to review or appeal by an appropriate judicial authority. In my view, it remains right that the decision is taken by the Home Secretary, who is accountable to Parliament. However, for transparency, that decision should be—indeed, must be—subject to review and be seen to be subject to review by some independent judicial authority.
The third test—one which is very difficult to determine and measure—is the extent to which the measures being brought forward are likely to lead to potential alienation within individual communities and the likelihood that the measures may aid the narratives that lead to radicalisation. Will it reinforce the myth or story that is told that the West and western society are somehow out to get people with a particular religion or something else? Are the measures contained in this Bill or any other piece of legislation going to produce blow-back? Do the benefits outweigh the risks and can the measures be used sufficiently sparingly to remain proportionate?
The final test is not quite of the legislation but of the Government’s intent: crucially, is the infrastructure in place to use the measures effectively? Are MI5, MI6, GCHQ and the police service resourced adequately to do what is necessary to make use of these measures?
The question that your Lordships’ House has to consider is: how does the Bill meet these tests? Obviously we will look at the various elements in the Bill over the next few weeks. There certainly is not time in my contribution—noble Lords will be relieved to know—to consider all the measures in the Bill; I understand and fully support most of their objectives. I want to pick out just one to indicate how these tests should be used.
Clause 2 gives the Home Secretary the power to impose a temporary exclusion order on an individual where there is a reasonable suspicion that the person has been engaged in terrorist activity outside the UK and that the exclusion is reasonably considered necessary for protecting the public from the risk of terrorism. I am very clear that the Home Secretary needs to have suitable measures available to deal with returning individuals who are reasonably believed to be a threat to the public’s safety. The question is: will these measures work? As a non-lawyer, it seems to me that the measures have the effect of rendering the individual stateless, certainly for a period and potentially indefinitely, as the temporary exclusion order can be renewed time and time again. I leave it to others—I am sure that there will be others—to argue the international legitimacy of this and its relationship to the clause of Magna Carta that says:
“No free man shall be … outlawed or exiled”,
or otherwise destroyed. Instead, I want to focus on what it means and the practicalities.
So, an individual arrives at a point of entry and is served with a TEO. What happens then? Are they returned to the country from whence they came? What if that country says, “Her Britannic Majesty does not recognise these people as safe and does not see them as currently under her protection”, and sends them back to the UK? What happens then? Are they going to shuffle backwards and forwards? Incidentally—this is just pure curiosity—who pays for the air flights? I am sure that that is a minor detail.
Alternatively, the country from which they come takes them back in, but they are immediately arrested. They are clearly a threat because the United Kingdom Government say that they are a threat. Do those individuals then have consular protection? If they are tortured, does this make our Government complicit? We will not deport other countries’ nationals to their home countries if we think that there is such a risk, yet we are happy to do so if it is one of our nationals to whom a TEO applies. Maybe I have misunderstood how this proposal will work, but I would like that question answered.
What is their status in the country that they are in when the TEO takes effect? Do they have UK consular protection? This is in circumstances when they are stopped from boarding the plane. Is it not a reasonable assumption by the country concerned—which may not have our own respect for human rights, or whose understanding of what human rights amount to is subtly changed by the way that we treat our citizen in this particular case—to say that this person is now a threat to their national security? Can they take whatever measures they feel appropriate?
If that person does go somewhere else and is not arrested by that country, what happens then? Is it not more likely that the security agencies will lose track of them, enabling them to re-enter the UK by another route, perhaps under a false name? So, how well will these arrangements work in practice? Presumably the real problem is that we are admitting that we do not have the resources to manage them adequately.
That brings me to final point: are the resources adequate? On 25 November, the Prime Minister announced that an extra £130 million would be available to combat terrorist activity. This money is to be spread over two years, so £65 million per year. However, it was reported at the same time that the Metropolitan Police, for example, assessed that an additional £30 million was needed for the police counterterrorism network. I understand that the bulk of that £65 million is, in fact, going to the agencies and I do not begrudge that, but I am concerned that the police service needs to be adequately resourced for what it will need to do, particularly at a time when policing is generally being cut—affecting, for example, the policing presence in local neighbourhoods. My specific question to the Minister is: how much additional funding is being made available to the police counterterrorism network during 2014-15, and is that still regarded as adequate in the light of recent events? Incidentally, this figure is not secret because the accounts of police bodies have to be in the public domain.
I have a separate question about policing. Is the Minister satisfied that the level of police firearms capability is sufficient in terms of the current threats? Other areas, too, need to be adequately resourced. London Councils tells me—as it did the noble Baroness, Lady Hamwee—that there is a shortfall in the money being made available to set up the systems required under Clause 21. Are all the overall costs necessary to underpin this Bill really being met?
These measures will fall or amount to nothing unless they are appropriately resourced. This Bill seeks to address important questions and I am under no illusions about the scale of the terrorist threat, but if the measures it contains are to be effective and effective without further alienating that small minority who are already so far alienated from our society that they may contemplate taking part in terrorist activity, the tests of effectiveness, proportionality and consequence must be considered carefully. I am confident that that is what your Lordships’ House will do over the next few weeks.
Baroness Ludford (LD)
My Lords, this debate takes place in the sombre wake of the Paris atrocities but also in the wake of Sunday’s inspiring marches. We must keep our heads—I think that is the broad intention of everybody—and not repeat the ominous claim in August 2005 by the then Prime Minister that “The rules of the game have changed”. I was impressed by the statement in the excellent speech of the noble Lord, Lord Evans of Weardale, about how our security response is more resilient if it draws on a strong framework of civil liberties and human rights.
Throughout the past two decades, as a Liberal I have been guided in my work, which was mainly in the European Parliament and to a much lesser extent in this House, by a strong preference for judicial over executive powers and for targeted investigation and data collection rather than blanket surveillance. I bring those attitudes and preferences to this Bill together with a concern that the relative speed with which we are proceeding should not be at the expense of our critical faculties.
Like other noble Lords, I have to be selective in my remarks today. The first issue I shall address is that of executive or administrative powers for restrictions on liberty of travel, movement and residence in the operation of document seizures, TEOs and TPIMs under Parts 1 and 2. A lot of good reform has taken place recently in narrowing the scope of stop and search, especially stop and search without suspicion, and I have great regard for the Home Secretary in her leadership on this issue, worried that it would create resentment and alienation among those who felt they were open to discrimination, racial or religious profiling or stereotyping. Obviously, we do not want to recreate that problem, so the first question to ask about Part 1 of the Bill is whether there are alternatives and if genuinely not, are there sufficient safeguards?
On the alternatives, in regard to Clause 1 on removal of passports, I read the briefing from Liberty and then yesterday the report from the Joint Committee on Human Rights. I find persuasive the JCHR acceptance that arrest under Section 41 of the Terrorism Act and police bail with conditions, such as passport surrender, is not a complete answer to the capability gap. However, I ask the Minister why the powers in Schedule 7 to the Terrorism Act to seize travel documents and hold them for seven days cannot be used in this scenario of outward travel. He may not be able to answer today.
In regard to terrorism exclusion orders, I strongly welcome the change of heart in the Bill compared to the Prime Minister’s originally declared intention permanently to exclude people or make them stateless. I am glad that, thanks to the working of the coalition Government, wiser counsel prevailed so that Clause 2 envisages temporary not permanent exclusion and managed return. I, too, would look favourably on the possibility of a change of name. I asked myself whether a measure that the JCHR calls “notification of return” could be an alternative. However, I concluded that this is probably unrealistic as someone could cause a threat en route back to the UK; for instance, of hijack or indeed bombing.
On safeguards, we will have to give great attention to whether judicial supervision and procedural and other safeguards are sufficient. There has to be considerable doubt. As regards the seizure of documents, the Bill includes only the possibility for judicial review not the possibility to challenge the merits of a decision or the existence of reasonable grounds for suspicion. We will need to look at that. There is also the question which other noble Lords have raised of how judicial review can be exercised from abroad. Schedule 8 to the Terrorism Act on the detention of suspects has stronger safeguards and even that has been criticised as being too weak. We would do well to examine carefully the list of about six reforms that the report from the Joint Committee on Human Rights has suggested.
On terrorism exclusion orders, as the Independent Reviewer of Terrorism Legislation famously asked, “Where are the courts in all this?”. I am glad that the Government are committed to looking very carefully at this and I hope they will reflect David Anderson’s suggestions for prior permission and subsequent review, not only on the making of the TEO but also the conditions. There are quite a few other detailed issues that will need scrutiny at subsequent stages of the Bill. In Schedule 1 there is a paragraph entitled:
“Restriction on repeated use of powers”.
However, there does not seem to be any limitation on the frequency or number of occasions as opposed to the duration of each period of detention. How do you stop repeated seizures on a rolling renewal basis in the way that happened in declaring the whole of London a terrorism exclusion zone? It was just permanently renewed, so we never got out of that.
Then there are issues such as temporary support. What happens if the Home Secretary decides not to offer support for someone, which could make them destitute in breach of Article 3 of the ECHR? Under TEOs, I do not have time to go into detail here, but I would want to flag up issues such as “reasonable” in time limits, “notice is deemed to have been given”, and whether an excuse for lack of knowledge is reasonable. We will need to probe some of this. The memorandum on human rights compliance from the Home Secretary says that the Home Secretary intends to follow the practice of not applying a TEO if it would expose a person to treatment contrary to Article 2 or 3. Perhaps we need to put that in the Bill.
As Schedule 7 is mentioned in a schedule to this Bill, I would like to flag up the possibility, perhaps not now but in the future, to look further at Schedule 7 which is, of course, subject to action in the courts. I think we need to pursue the recommendations from the independent reviewer on Schedule 7 to the Terrorism Act.
The standard of proof has been mentioned in regard to TPIMs. It was interesting to listen to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who suggested that perhaps the balance of probabilities test is not really much different from reasonable belief but in any case it applies only to the Home Secretary and there is no power for the courts to apply this test.
With the definition of “terrorism”, this Bill is to be welcomed in reducing the breadth of the definition of,
“involvement in terrorism-related activity”,
to perhaps two removes rather than three removes—in the terminology of David Anderson—from the actual commission of terrorist acts but I think this is something we are going to have to come back to.
On the question of data collection, the issue for Liberal Democrats—it is why we refused to accept the Draft Communications Data Bill, which apparently I am not allowed to call the “snoopers’ charter”—is the need to distinguish between limited and blanket surveillance. I am afraid that the Mayor of London, on the radio this morning, seemed not to grasp this key distinction. There is a need to ensure that our privacy is not thrown overboard by disproportionate intrusion. I am glad that various reviews are taking place. We need to be sure that our legal framework is compliant with civil liberties and human rights standards before we decide whether to extend the scope of the powers. There is also the needle in the haystack problem, which I do not have time to follow up on. Let us recall that the cross-party Joint Committee of both Houses on the Draft Communications Data Bill said two years ago:
“Part of the gap is down to a lack of ability on behalf of law enforcement agencies to make effective use of the data”,
that they already possess.
Liberal Democrats accept in principle the Bill’s provisions on IP addresses and welcome the sunset provision of December 2016. However, we will want to probe exactly what data this covers and the practicality and cost of collection, as well as perhaps discovering in the course of our work which professionals outside government have been consulted in drawing this up. I am afraid that materials from government—the factsheet and even the Minister’s letter today—still seem to imply that you can identify a person, as opposed to a device, by knowing the IP address. However, if the address is allocated on a dynamic basis, I do not think that the telcos or the internet service providers, unless they have a video camera in the room, will be able to tell us which individual was using the device and at what time. There are various issues here which I do not have time to cover now.
I know that my colleagues will follow up on the Privacy and Civil Liberties Board, so I will not do so because of the limited time available, but I absolutely agree with those who said that it must support and not replace the independent reviewer and that it must have independence and so on. In addition, the scope of the scrutiny powers needs to be wider and allow flexibility in the work schedule of the independent reviewer.
Perhaps the Minister could clarify something for me in relation to passenger information. The Bill allows the Home Secretary to make regulations to require the supply of passenger information. Does that mean what is normally known as advanced passenger information, limited to date of birth, name and passport number, and that we are not going into the territory of passenger name record, which is what the airlines hold? Those are much more extensive and intrusive data, and it is not clear to me what passenger information means.
My conclusion is that, as well as the review of data collection powers that we will be having early in the next Parliament once the product of various reviews is in, we need a broad review of counterterrorism powers—especially a rigorous audit of executive powers—and to see whether there are more opportunities to prosecute, perhaps using intercept evidence, instead of relying on those executive powers.
There is reason to be gloomy and anxious about the threat that we face but also to be a tad optimistic following Sunday’s expressions of determination to uphold universal values and not to allow the fascist terrorist fundamentalists to win by making us undermine our own civil liberties. I am hopeful of a better context for transatlantic co-operation and I am very glad that this House backed the opting back in on various European justice and home affairs co-operation matters.
Nothing excuses violence and murder by a fanatical cult such as ISIS, but that does not exclude the need to do more to integrate minorities, especially Muslims, as well as to protect them from discrimination, persecution and threats.
Finally but crucially, and speaking as vice-president of the All-Party Parliamentary Group on British Jews, although not on its behalf, we have to be much more proactive in challenging and eradicating anti-Semitism wherever we find it.
Lord Green of Deddington (CB) (Maiden Speech)
My Lords, first, I want to say how honoured I am to have been supported by the noble Baroness, Lady Cox, and the noble and right reverend Lord, Lord Carey, both of whom are of the highest standing in your Lordships’ House. I am grateful also for the courtesy and patience of the staff of the House in guiding me through my first weeks here.
I join the noble Lord, Lord Evans of Weardale, in saying that my appointment to this House was a considerable surprise, not just to me but, I think, to many others. It is also a considerable honour and one for which I am most grateful.
As your Lordships may know, my appointment has evoked some strong reactions in some parts of the press—both strongly positive and strongly negative. All that can wait for another day, except to say that, after chairing Migration Watch on a voluntary basis for 14 years, I hope that I can add a useful voice to the calm and measured debates which are the hallmark of this House.
Turning to the subject of today’s debate, I have had some experience of counterterrorism, as the noble Lord, Lord Bates, indicated. I was for several years the representative in Washington of the Joint Intelligence Committee. I then came back to London as head of the counterterrorism department in the Foreign Office before being posted to Syria as ambassador. I have also, as it happens, been a target for Arab terrorism and a potential victim of Irish terrorism—matters which concentrate the mind. It is in the light of that experience that I should like to focus on Part 3 of the Bill, which concerns the retention of relevant internet data.
As other noble Lords have said, the issue over interception is of course one of balance—the balance between civil liberties and the need to protect our citizens. Some would say that terrorism has been with us for a very long time and that we should calm down and carry on. I think that we need to be clear that the present threat is of a completely different order of magnitude—completely different in scale and nature—from that posed in the past by state-sponsored terrorism or by Irish terrorism, as the noble Lord, Lord Paddick, indicated.
There are at least three reasons for that. The first is the scale. The present director-general of the Security Service spoke only last week of “several thousand” individuals in this country who support violent extremism or, indeed, are engaged in it. That is an absolutely massive problem for any counterterrorist organisation. Secondly, we now face the risk of suicide bombers, which the Irish never were. That obviously raises the stakes considerably but it can also oblige the Security Service to intervene well before it would otherwise wish.
Thirdly, there is the situation in the Middle East, which is fuelling the jihadist movement. In the nearly 50 years that I have been involved in the Middle East, I cannot recall such grave problems as we now face. The sudden emergence of ISIL and its extraordinary initial success threatens the whole state structure of the region, and it is drawing regional and world powers into a situation which itself, frankly, is descending into chaos.
Some will say that to constrain civil liberties any further would be “a victory for terrorism”. I understand that view but, in my judgment, events are now entering a new phase to which we must respond with determination and alacrity, while of course keeping all the communities concerned on side, as, again, the noble Lord, Lord Paddick, mentioned.
Part 3 of the Bill is carefully limited to information needed to identify the sender and recipient. It does not require retention or disclosure of the content of each communication. As your Lordships will appreciate, the pattern of communications is absolutely essential for counterterrorist purposes. It is not in this Bill, but we may yet have to widen the coverage to include social media to achieve this objective.
In conclusion, the intelligence and security services have had the most remarkable success and I pay warm tribute to them. Indeed I share the high opinion expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. They have, of course, had some good fortune. However, that cannot last for ever. Not for nothing did the Intelligence and Security Committee describe the problem as “acute” and call for it to be prioritised. It is surely no less than our duty to make certain that our intelligence and security services have access to the vital information that they need to keep us safe. For these reasons, I strongly support the Motion that the Bill be read a second time.
Lord Wasserman (Con)
My Lords, it gives me great pleasure to follow the noble Lord, Lord Green of Deddington, and to congratulate him on a maiden speech that was every bit as insightful and thought-provoking as one would expect from someone with his extraordinary background of experience and achievement. The noble Lord is, as he reminded us, a former British diplomat who served with great distinction in a number of key posts around the world, including as our ambassador in Syria and in Saudi Arabia. Between those postings abroad, the noble Lord was the director for the Middle East at the Foreign Office. He is probably best known to the general public as the founding chairman of Migration Watch UK, an organisation concerned with immigration to the United Kingdom. As an immigrant to this country myself I was delighted to read, on the organisation’s website, that it believes that,
“sustainable levels of properly managed immigration are of distinct benefit to our society”.
The website then states:
“Many migrants make a valuable contribution to our society in terms of both their skills and experience”.
I was grateful to see that.
The noble Lord, Lord Green, was created a life Peer in October, on the Prime Minister’s personal recommendation to Her Majesty the Queen, for his proven record of public service. This is a very rare honour and one which mere political appointees like me look upon with awe and admiration. As I am sure noble Lords will agree, the noble Lords, Lord Green of Deddington and Lord Evans of Weardale, have set a very high standard with their contributions this afternoon, and I for one look forward very much to hearing much more from them both in the coming months and years.
I welcome this Bill because it will make us safer. I have no illusions about the extent to which it will improve the safety of our country because there are no easy answers in this area of human activity—whether we are thinking about the kind of murderous outrages we saw in Paris last week, or the many other forms of serious crime that our local police forces, our National Crime Agency and our intelligence and security organisations are having to fight every day of the year. Keeping a large, multicultural and free society safe is an expensive and very complex business. It is, however, doable provided that those in charge do not rely on spectacular public gestures like the marches in Paris last Sunday but concentrate on making slow but steady progress, one step at a time. The Bill represents this step-by-step approach, particularly in Parts 1 to 4, and that is why I commend it to the House. Of course, the Bill is by no means the end of the story. There is still much more that can and needs to be done to make it more difficult for would-be terrorists to operate in this country and easier for our law enforcement and security services to keep us safe. I have no doubt, however, that the Bill will make a difference, which is why we need to get it on to the statute book as quickly as possible.
Terrorist outrages of the kind that we saw in Paris last week attract worldwide attention, and the images of police activity transmitted from such crime scenes make it appear that fighting terrorism requires a completely different kind of policing from that required to fight the serious and organised criminality with which we are much more familiar. The truth is that what the media choose to call terrorist acts are for the most part simply another form of serious criminality, and preventing them requires the very same tools and methods that our law enforcement agencies use to tackle the wide range of other serious crimes with which they have to deal every day.
I am talking here of collecting information about what is going on in our communities, a task for which we must rely mainly on the instincts and observational powers of the bobby on the beat. It involves: the careful analysis of this raw information and its conversion into useful intelligence; the deployment of effective tactics based on this intelligence; the rapid deployment of adequate human and other resources; and, finally, the relentless follow-up to ensure that the job is really done and all the lessons that can be learnt are learnt. Parts 1 to 3 will strengthen the capabilities of our law enforcement agencies in each of these areas, particularly in the key area of information and intelligence collection—which, at the end of the day, is what effective crime prevention is all about.
Many will argue that the measures I have highlighted deal only with the symptoms of terrorism: that we need to be paying more attention to its underlying causes. For such people Part 5 is what really matters, because it is aimed at reducing the risk of individuals being drawn into terrorism in the first place. I appreciate the strength of these arguments. I do not for a moment underestimate the need to devote resources to combating the odious ideology that underlies the murderous events of last week. However, these arguments remind me too much of those that we heard in the late 1980s and early 1990s in America, when crime in American cities was going through the roof. New York City alone suffered more than 2,000 homicides in a single year. The argument we heard then was that what was required was not more and better policing but social policies directed at the underlying causes of these crimes, such as dysfunctional families, poor education, bad housing, racial discrimination, unemployment and low incomes.
All these good things were tried in New York and elsewhere, and can all be justified in the name of producing a fair society. They could not, however, be justified on the grounds that they made the communities safe. What drove down the crime rates in New York and elsewhere so dramatically was not higher incomes, better houses or less discrimination: it was much more effective policing, which incorporated the collection and analysis of timely and accurate information, effective tactics, rapid deployment and relentless follow-up. So, while I welcome the Government’s proposals to devote more effort and resources to reducing the risk of people being drawn into terrorism, I hope that these resources will not be at the expense of more conventional policing.
Talking of resources, I do not think that only government resources are needed if we are to strengthen our guard against terrorist attacks. Each of us can play a part in increasing our collective security. In the same way that target-hardening activities such as better household security equipment and more effective vehicle-locking systems have reduced burglaries and car thefts, so they can protect us from terrorist attacks. For example, had the entrance to the Charlie Hebdo office in Paris been controlled by a lock mechanism that could be operated only by someone inside the office seeing on video the person requesting entry, rather than a keypad operated by someone on the street, the events of last week might never have occurred.
In the Second Reading debate in another place, my right honourable friend the Home Secretary and her shadow agreed that the first and most important duty of government is the protection and security of its citizens. I very much hope this means that no matter what happens on 7 May, the Government of the day will not decide to fund the fight against terrorism from resources that would otherwise be devoted to more conventional policing. As I said, terrorism is simply another form of serious criminality and protecting our communities against it is simply another responsibility of our law enforcement and security agencies. A safer Britain is a Britain safe against all forms of criminality, from one-off attacks by deranged individuals who see themselves as part of an international terrorist army to cybercrime, burglaries, thefts and anti-social behaviour that make up the everyday work of our local police forces. We cannot pick and choose. Public safety requires us to address all those threats and to treat each of them with equal determination and concern.
Lord Rooker (Lab)
My Lords, like everybody else, I welcome our two maiden speakers today, who will give real added value to your Lordships’ House. In particular, the noble Lord, Lord Evans of Weardale, may not realise that he also brought something else. That was a greater knowledge of the geography of England to some of my noble friends, who discovered that there was more than one Weardale. That was the source of much asking at the time. Nevertheless, they were two very good maiden speeches.
When looking at emergency planning at the time I was in one or two government departments, not being expert I used to ask, “If we get an emergency, whatever it might be, and then in the middle of it we get another one, can we cope?”. One of the lessons we can take from Paris last week is the way in which people did cope. Although they were linked, there were two distinct emergencies and nobody knew they were linked to start with. We obviously assisted the French but we can learn from them how they dealt with the outrageous actions and the deaths, and we have to be ready to deal with more than one emergency at the same time.
There are some simple things we can do. The noble Lord, Lord Wasserman, mentioned keypads. During one of my tenures as a Minister, the access to my government department was via a keypad. I was also given something that I could do on that keypad when I gained entry to the premises if I was under duress. It warned those inside. It is simple but that technology is in Whitehall now. There are things that people can do above and beyond existing efforts to help them. I was reminded that, in 2001, I was in the position of the noble Lord, Lord Bates, as Home Office Minister in your Lordships’ House, having just arrived. I certainly have evidence of the trawl round Whitehall for that emergency legislation. The call went out, “Have you got anything you’ve not been able to put in a Bill, because the ground is fertile?”. That is putting it crudely but the Civil Service was doing its job. It was looking for a legislative opportunity to deal with terrorism following 9/11. We spent many hours on what is now the Anti-terrorism, Crime and Security Act. That was before Iraq and before the different kinds of accountability and oversight that we have now.
This is not a knee-jerk Bill, and I do not consider it to be fast-track. We are having a day on it today; there is a day in Committee next week and two days the following week before we get to Report. It will be before your Lordships’ House for four weeks. Nobody can claim that we are not doing it carefully. It is true that there is no gap between the first and second stages which we would normally have. Is that a problem? I do not really think so. By any definition we are a liberal democracy. The question is how far we will go to defend it. My answer is all the way. If, as in the past, it is against the massed ranks of troops from another country, as in World War II, it is easy, but what if the people seeking to undermine and destroy our liberal democracy use and misuse the elements of that liberal democracy in the first place—our tolerance, our “live and let live” attitude, our attitude to privacy, our openness, all of which we cherish and all of which are used against us by those who seek to undermine that? How far do we go when the attackers make use of these aspects to try to destroy our liberal democracy? It is no good saying later, “How did all this happen?”. If we do nothing and fail, we would probably not be in a position to stand up and ask how it happened. It will be too late.
Do we close down our democratic aspects? Of course we do not, otherwise the enemy will have won. That is self-evident. By the way, they are the enemy. They are seeking to destroy our way of life. I happen to think that our way of life in the UK is superior to most and it is shared by some other countries around the world. That is my personal view, but I do not equate way of life with religion because I do not think that one religion is superior to another, and that is the end of the matter. But it must be live and let live and to be prepared to die to protect live and let live. In other words, use force to protect live and let live at the end of the day.
Do we do nothing in our defence? No, we use our brains. We put our society—our families, friends, neighbours, even the ones we do not get on with—first. It is as silly to say, “If you have nothing to hide, you have nothing to fear”, as it is to say, “We have mass surveillance of the population” just because the security services want to target the trouble-makers who plan to do us harm, out of the huge mass of information in which they have no interest and, what is more, have no resources to check anyway. It is crucial that we take society with us on measured actions, using the rule of law, parliamentary accountability and, yes, sometimes secrecy—secrecy with oversight, by which I do not mean oversight by the media or NGOs.
It is sad in some ways. I have been a Guardian reader since I discovered it in 1960, so I am a fan; it occasionally publishes the odd letter. But it spent longer in a leader on Saturday last week criticising the head of MI5 than actually reporting what he said. This is the Daily Mail technique. It regularly attacks someone in its leader for something that it has never even reported anyway. It gets it in without giving the person the choice. I think that readers should be able to make up their own minds on the evidence presented by the speech. I have read it. It is available and I think the Guardian should print it in one of its long, wordy pages that it has today. It would fit. The readers could then judge the measured tone of the director-general, Mr Parker, whom I have not met. I have no connection with him at all, but I have read his speech and it does not fit with the kind of stuff and abuse in the leader on Saturday morning. The media are qualified as the media, but they are not qualified other than that.
Neither are the judges, I have to say. Legal and parliamentary accountability are crucial and more of this Bill should be subject to parliamentary approval by the affirmative resolution. I shall just pick out Clause 24(5), which is the power to issue guidance. There is an open and shut case for more parliamentary accountability in that area. I do not think that Ministers should have to go to judges before they can take action. It is as simple as that. I might be doubtful about the practicality of some of the issues in the Bill, particularly the measures in Part 1, Chapter 2. However, if Ministers genuinely believe—and are advised, because they will always be acting on advice—that it is helpful, then they should be given the power. I do not agree with the Joint Committee on Human Rights about Schedule 1 because it almost looks as if they want judges to be given powers over Ministers in a very detailed way for the renewal of retention. I think it should be left at 14 days and not reduced to seven anyway.
Most members of the public think that they have a legal right to a passport. I used to think that until I became the Minister responsible for immigration and citizenship in 2001 for a short spell of a year before the Prime Minister moved me on. The fact is that they do not, and that is probably the reality in most countries of the world. It is not a matter of the political structure of the country.
On Part 3, relating to data retention, I declare a registered interest as a member of the Royal United Services Institute independent surveillance review panel. We started with four Members of your Lordships’ House on this panel and we now have five, following the elevation of the noble Lord, Lord Evans. We have much work to do and our task is to report after the general election to the Deputy Prime Minister.
As the Library Note on this Bill explains, the operation of internet protocol addresses is an incredibly complex technical issue. It is not the same as what was in the DRIP Act in the summer. The addresses appear to be—and are—interchangeable. The same address can be used—and is used—on many computers each week. They are certainly not required for billing purposes; I fully accept that. That is why Parliament has to instruct them to be kept. The power is limited and does not include weblogs. Having read it all, I am not at all clear what the IP has got to do with my privacy, to be honest. The way it operates, the same address can be used 200 times in a day on different computers. It is a piece of a jigsaw which is crucial for the security services to be able to check information flowing across the net. Furthermore, the whole of Part 3—that is, Clause 17—is subject to the DRIP sunset clause, so we know we are going to come back to this at some considerable length after the general election, whoever the Government are. This is not blanket surveillance of the entire population, which is wholly emotive and downright misleading language. It is more about data retention, which might be of use in linking up those seeking to do us harm. It is difficult to see how this is communications data in the first place. It cannot be about checking everyone’s use of the internet. That is impossible and no one is seeking to do it. For that reason, I support the clause.
I want to say a few short words on oversight and Parliament. I know this is not in the Bill but it is all relevant. If we actually had some statesmen who were parliamentarians in the Government, we would by now have an acceptance that the chair of the Intelligence and Security Committee—as is the case with the chair of the Public Accounts Committee—should not come from the governing party. I do not mind whether they come from the Opposition or from one of the minor parties, but they should not come from the governing party. This is a must. It has already been recommended by other Select Committees. It sends the right signal as to the way in which we, as a Parliament, look at oversight and scrutiny. I am not criticising Malcolm Rifkind in any way, shape or form. I would like to see that commitment come even from my own Front Bench. I realise that some of the media and NGOs will not be satisfied until they call the shots but, in the court of public opinion, it is self-evident that this change would be a boost to oversight quality. Public confidence has to be earned by actions.
My final point relates to companies. The growing concern has to be that the internet companies and the rest of the private sector own much more data on us as citizens than the Government do. This is the reality, but nobody ever really discusses it. Some of these companies are now claiming to be such guardians of society by themselves that they are measuring the harm level and saying that they will not co-operate with the police. It cannot be right for private companies to set the criteria of harm by major drug smugglers, gun runners, fraudsters and paedophiles which they think are not high enough to pass on. That is indirectly helping the criminals. I do not think this is an issue that we can leave.
Likewise, and this will have to be dealt with at some point, the internet companies throwing away the encryption keys is seriously damaging to any checks we might want to make on those who seek to do us harm. I realise that it is a very sensitive issue. As a member of the surveillance panel, I do not wish to make a judgment one way or the other, but it is a factor that has to be taken into account. If they throw away the keys to the encryption, nobody gets anything. Who is the gainer? If they maintain the keys and it is done in a careful, measured way, with full democratic scrutiny and oversight, that can be of considerable assistance. This matter is going to have to be dealt with one way or the other, not by this legislation but by the legislation that follows the election. As such, I support the Bill.
Lord Thomas of Gresford (LD)
My Lords, in the year 1219, some four years after King John put his seal to Magna Carta at Runnymede, Ghengis Khan, through his armies, invaded Persia. Their tactics were to create terror. Prisoners were executed, or even used as body shields by Mongol warriors as they charged against their enemies. If a city refused to surrender, diseased bodies were thrown over the walls to spread plague and disease—an early example of biological warfare to which the noble Lords, Lord Judd and Lord Jopling, referred. On the fall of the city, women and children were raped and slaughtered and, through terror, the Persians capitulated and the country was held down with relatively few Mongol forces. It is thought that the population of the area was reduced from 2.5 million to 250,000.
In the past year, we have seen such terror tactics used again across the same lands. Essentially, a war exists between two competing sects of the same religion of peace and it is a conflict that has lasted for more than a millennium. The army of Iraq, trained by the West and with far superior equipment, melted away rather than face the barbarity of ISIL forces. The United States and the United Kingdom have been dragged into the conflict by the barbaric execution of our citizens and by the fall of Mosul and the capture of the Haditha Dam. The polity that we sought to create in Iraq is in danger of collapse. We and other western countries—Canada, France, Australia and others—are now engaged in an asymmetric war in which we attack the enemy by the most technologically advanced means of drones and air strikes. Against them, the forces of terror have no defence. But the price we pay for warfare directed from secure and remote bunkers in our homelands is that we significantly increase the risk of a strike on our own civilian population. The war is brought home to us, as happened in Greenwich, in Canada, in Australia and, only last week, in France.
There is a further significant dynamic to which some noble Lords have referred: the volunteering or recruitment of radicalised young Muslims, born in this country, to fight on the terrorist side in Syria or Iraq. This is the context in which this counterterrorism Bill is brought forward. I believe that the citizens of this country are at greater risk now than when we had armies in the field in Iraq and Afghanistan. The point of balance between the safety of British people and civil liberties has shifted.
However, civil liberties are not abolished. Where there is sufficient evidence of a breach of the criminal law, all would agree that an individual should be investigated, arrested and tried in a judicial process where all the safeguards against injustice are in place. The problem we must examine is where there is not sufficient evidence for such processes and administrative powers are used as an alternative to prosecution. This Bill builds on a past of difficult legislations, as the noble and learned Lord, Lord Brown, mentioned.
Clause 1 proposes the seizure by police or other authorised persons of a passport where a person is suspected of intending to leave this country in connection with terrorism-related activity. The clause includes ancillary powers of searching and for the use of reasonable force. We have to ask ourselves whether this is a proportionate and necessary interference with an individual’s rights serving a legitimate aim.
First, there is already a power for a policeman to arrest without warrant a person he reasonably suspects to be concerned in the commission, preparation or instigation of acts of terrorism. What is the distinction between the exercise of that power and this new power to take away a passport? Is it possible to have a different evidential base for the suspicion necessary to trigger the existing power of arrest and the suspicion necessary for the new power to take away a passport? The draft code of practice says in terms that a reasonable suspicion cannot be formed on the basis of racial stereotypes. Obviously, there must be a stop list that causes someone at an airport or port to remove an individual’s passport. What is the basis of it? It surely cannot be the hunch of the policeman or the officer who happens to be on duty on the particular day, and yet, as the Bill is currently drafted, although someone is on a stop list, no reasons for the seizure have to be given. The noble and learned Lord, Lord Goldsmith, pointed out the difficulties of the limitations of judicial review. Without any reasons having to be given, the remedy of judicial review is further stultified.
Secondly, what happens to the individual whose passport has been removed? Is he simply sent back home or is he made subject to a TPIM order with a travel restriction? What happens to him?
Thirdly, as to the limited judicial oversight contained within the clause, the noble Lord, Lord Rooker, argued that judges should not be able to overrule Ministers. However, it is not the judges who overrule Ministers at their whim; it is the rule of law that controls the way in which a Minister behaves.
Why is there to be no judicial consideration of the officer’s decision unless an extension of the seizure beyond 14 days is contemplated? Why, even then, does the court have no power to examine the merits of the exercise of the power or to consider the evidential base of the original officer’s decision? The limited power of the court to examine whether the process has been carried out diligently and expeditiously is presumably modelled on the unsatisfactory power of a judge on an application to extend the custody time limits of a person held on remand in an ordinary criminal case. However, in applications in criminal cases the court has already considered the merits. Why cannot the court consider the merits of a decision under Clause 1?
Clause 2 gives power to the Secretary of State, on reasonable suspicion of involvement in terrorism-related activity outside the United Kingdom, to cancel the passport of a British citizen administratively and, again, without any judicial process. It is said to be a temporary order but it may last for up to two years, and then it may be extended or renewed without any time limit. It is surely wrong for the Government to contend in their human rights memorandum that the Human Rights Act 1998, which is engaged, and the United Kingdom’s obligation under the European convention, do not apply to the removal of citizenship from a person simply because he is out of the jurisdiction. That was the previous Government’s mistake in connection with the activities of troops serving in Iraq and Afghanistan, and it took the Supreme Court to put it right.
I shall support amendments for which the Joint Committee on Human Rights has argued, which would substitute an exclusion order with a “notification of return” order. The questions raised by the noble Lord, Lord Harris of Haringey, as to the effect of the temporary exclusion order on foreign jurisdictions must be answered. I do not regard this as a weak self-notification, as suggested by the noble Baroness, Lady Neville-Jones; I think it is the way forward.
Relocation under a TPIM order re-emerges in Clause 12. The independent reviewer told the Joint Committee on Human Rights in November that relocation was more effective than the power merely to exclude TPIM subjects from particular locations. We are not told why. Undoubtedly relocation has a down side: it has the most damaging effects on family life. As the highly experienced solicitor Gareth Peirce put it:
“This may affect only a small group of people but in terms of its contribution to what one might call the folklore of injustice, it is colossal”.
The noble and learned Lord, Lord Lloyd, said that we must keep the Muslim community onside. He is right because that community is the source of co-operation and intelligence that will defeat terrorism.
In the other place, in answer to the right honourable Kenneth Clarke, the Minister sought to justify relocation by reason of,
“the changing nature of the threat picture”.—[Official Report, Commons, 9/12/14; col. 800.]
What does that mean? Can the Minister explain specifically how relocation lessens the threat posed to the security of this country by returnees from Syria and Iraq? Is not a programme of reintegration within the community to be preferred? What will we do, for example, with the Cardiff jihadis who appeared in that clip that we saw? Will we house them separately in a completely alien society in Carlisle or Newcastle? Will we put them in a hostel for returnees so that they can be subjected to programmes of reintegration in, for example, Welsh-speaking Bala in Merionethshire? I refer to Bala for a particular reason. The authorities deemed it right in 1916, after the Easter Rising in Dublin, to place 1,800 Irish republican prisoners in an internment camp at Frongoch just outside the town. It became known as the Sinn Fein university, where republican leaders such as Michael Collins and Arthur Griffith gave lectures to inmates in guerrilla warfare. If banishment to Wales did not lessen the tension in Ireland, how does relocation lessen the threat today?
I want finally to refer to the proposed Privacy and Civil Liberties Board in Part 7. I support the broad concept that there should be a specific independent body that can act as a counterweight to the cadre within the Home Office, largely of ex-Security Service personnel, who have exerted such pressure on successive Home Secretaries and—dare I say it?—on the independent reviewer. I do not, of course, suggest that the noble Lord, Lord Carlile, or the current independent reviewer has given way to that pressure. The Bill, however, has only an outline of the membership, purpose and functions of the board. It might be right to leave the details to secondary legislation, but we are entitled to know now how its members are to be appointed and by whom; whether certain classes of people, such as human rights activists, will be excluded; and how it will relate to the work of the independent reviewer. Will the board have access to classified material and, if so, to what extent? It might well be of great assistance to the independent reviewer to have a body of experienced, independent people with whom he can discuss the issues that concern him and who will back him publicly; but a board that is designed to oversee or interfere with his powers, without knowledge of the material on which his conclusions are based, would be a total waste of resources.
This Bill is being put through this House under the fast-track procedure. We must be careful to ensure that these and many other issues are thoroughly discussed and ventilated before we give it our consent.
Lord Hannay of Chiswick (CB)
My Lords, my remarks on this Second Reading of the Counter-Terrorism and Security Bill will pose some critical questions about detailed aspects of the Bill, but they should in no sense be considered to signal opposition to the Bill—quite the contrary. The Government’s case for strengthening current counterterrorism legislation, faced as we are by a whole range of new threats—for example, by lone wolf terrorists, by the possibility of even more sophisticated conspiracies of the 9/11 or 7/7 types or by events such as those that occurred in France last week, which seemed to be somewhere between the two—has been entirely convincing.
I hope, too, that in debating this we will condemn the appalling and odious misuse of language that comes up all the time in the publicity from the jihadis—when, for example, they are claiming completely erroneously that they are supported by their religion, which fortunately in recent days has been contradicted by many, or when they misuse the word “martyr”, which, in my understanding of the word, means someone who is killed by someone else for their principles, not someone who blows themselves up along with a lot of innocent civilians. In any case, I think that the emergence of new terrorist organisations in Syria and Iraq, operating under the umbrella label of an Islamic State and totally impervious to the international conventions on the rules of law, clearly strengthens the case that the Government have made. The provisions in the Bill seem broadly proportionate to those threats and should avoid the criticism of overreaction. The case for fast-tracking this legislation also seems to be a convincing one.
The Government’s contention that a sunset clause for the Bill as a whole would not be practical seems to make good sense, as some of the provisions are indeed intended—and justifiably so—to make lasting changes to our counterterrorism legislation. As the Government point out, some of the measures on TPIMs and data retention will already be caught by sunset provisions in the basic legislation that is being amended. However, it is not clear to me that the provisions on, for example, the seizure of passports or the making of temporary exclusion orders should change our laws in perpetuity, even if it is difficult to predict at this stage exactly how long they will be needed and will be justifiable. Therefore, I hope that the Government will take a careful look at that issue of sunset clauses in the context of at least those two rather important parts of the Bill and will address that issue in our further debates.
There is a tricky issue that has not yet come up in this debate: to whom are these various fairly draconian provisions to be applied? Which categories of people are they to be applied to and who will decide to whom they will be applied? Can we, for example, assume that someone going to Syria to help the Free Syrian Army or other groups seeking to overthrow the Assad regime—an action that the Government approve of and support—would not have these provisions applied to them? Can we assume that an ethnic Kurd from London going to help in the defence of Kobane would not be caught by them? Indeed, can we assume that a person of Ukrainian ethnic origin, going to support the voluntary militias resisting the Russian-sponsored efforts to destabilise and fragment Ukraine, would not be caught? Perhaps the Minister could throw some light on these rather difficult judgments, which have quite important foreign policy implications as well. I hope that the Government will agree that there needs to be some process of transparency and a means of informing Parliament on the judgments that they make as to who falls within these interdictions and who does not. Otherwise, we could end up in the bizarre situation that the United States ended up in at the beginning of the Second World War, when they were prosecuting people who came to serve in the RAF. This is not a clever place to get ourselves to and I hope that some thought will be given to how we clarify that we are not going to go there.
Like my noble friend Lord Evans of Weardale, whose remarkable maiden speech I listened to with great pleasure, I have concerns about Part 5 of the Bill, which relates to the Prevent programme and the moving on to a statutory basis of the Home Secretary’s guidance, with some extremely wide-ranging and totally unspecified powers to issue guidance in this respect to schools, universities and local government. It seems from what Ministers said in the other place that this is certainly intended to apply to universities. I wonder how the Government consulted the universities ahead of reaching that conclusion. It is not going to be enough to say that they are now consulting the universities about how to apply it, because the consultation that the Government are now carrying out does not give the universities the option to say that they would rather do it voluntarily; they are simply being asked to comment on how the guidance should be applied once this Bill becomes law. It would be good if we could hear a bit about whether there was any consultation and whether the Government share some of the concerns about academic freedom and freedom of speech at universities. Is this not an area where the willing co-operation between the Government and the universities is likely to be more fruitful and more effective than wielding the sledgehammer of a statutory obligation, backed up—so I understood from Mr James Brokenshire in another place—by the possibility of criminal prosecutions? Perhaps the Minister could address that point.
My final detailed point—I think that I am the only person so far who has raised this—relates to Part 6 of the Bill, which deals with kidnap and ransom insurance. I wholeheartedly commend this proposed change to the law. It has always seemed quite perverse that the Government’s policy of refusing to pay ransoms for people taken hostage—a policy that I believe, on balance, is clearly preferable to entertaining such payments—should sit alongside treating as perfectly legal insurance activities aimed at assembling such ransom. So I support the provision, but what is not clear to me—perhaps the Minister can make it clearer—is just how far-reaching the proposed changes to the law in the Bill will be. Will those who assemble ransoms for Somali pirates be caught by it? Hitherto, the Government have seemed to take the view that they have no evidence of such ransoms assisting terrorism. That was a pretty heroic assumption, if I may say so. We have only to look at the activities of al-Shabaab in Somalia—nobody doubts that al-Shabaab is a terrorist organisation—to see that it is extremely dubious to say that it is not laying its hands on some of the ransoms being paid to Somali pirates.
Can the Government therefore say whether those in the private sector to whom the amended law will apply can really be sure that moneys paid to Somali pirates never reach al-Shabaab? Will the Government now issue guidance on the obligation to file suspicious activity reports for any payments that could reward criminal activity? That is a matter on which your Lordships’ EU Select Committee has had a long and rather unprofitable correspondence with the Home Office over several years. I hope that the matter will now be put to rest. I am of course perfectly happy for the Minister to reply in writing on this point, because it is fairly complex, but it would be wrong if we missed this opportunity at least to require by law private sector operators who are assembling ransoms in circumstances that do not provide funds for terrorism—which clearly will be outlawed by the Bill when enacted—to file suspicious activity reports. Perhaps the noble Lord can address that matter when he winds up the debate.
Broadly speaking, I support the Government on the Bill and I very much hope that in the course of Committee and Report some of the increased safeguards that have been called for around the House will be inserted by the Government. As for the guidance on how Part 5 is to be applied to schools and universities, the very least that could be done is for the Government to undertake that the guidance will be finalised before the Bill completes its passage through Parliament, so that we and all those to whom it will apply know precisely what is to be applied.
Baroness Buscombe (Con)
My Lords, I begin by echoing the words of my noble friend the Minister in paying tribute to our security services, who do an amazing job under the most difficult and, I suspect, at times, hugely frustrating circumstances. Along with the police and our Armed Forces, much of what they seek to do is often compromised, for all the right reasons, to protect our fundamental freedoms of free speech, a free press, our rule of law and our human rights—as well as protecting our lives. For terrorism, a constant is change and we need to give our agencies the tools that they need to adapt to change.
In addition, and to the best of our ability as a legislature, we need to anticipate and thereby try to future-proof measures to counter the activities of those who seek to thwart us. This is not a knee-jerk reaction to what happened in Paris last week. Some of the measures are concerned with how we confront British nationals who are highly organised and intent on acts of terrorism both within our midst and beyond our borders, including in mid-air and with the aid of the internet, and who are not necessarily concerned for their own safety.
As shadow Minister for the Home Office in 2001, I was very much involved in taking a counterterrorism Bill through your Lordships’ House. From rereading some of the debates, it is clear that we are now in a different place from 2000 and 2001, requiring some different tools and defences, particularly in relation to communications, because of the speed of change in technology.
Turning to the Bill, I want to focus my contribution on just some of the more controversial measures. It is important to say at this point that we are all making judgments about the proposals in, to some degree, a vacuum, as we do not know—nor should we—all that our intelligence services know and seek to know. What is clear is that the threat is real and, as we see on our screens here in Parliament, it is considered severe.
I declare an interest as a member of the Joint Committee on Human Rights, but I must say straightaway that I do not agree with all that is contained in the report that we published yesterday. It is important to note that the committee did not invite a briefing from the intelligence services prior to publishing its report. I have been briefed by the security services, and that brief has given real context to the proposals in the Bill.
Time for consideration by the Joint Committee on Human Rights and other interested parties has been a constraint—although even on that point I must say that, although the report states that not enough time has been given for scrutiny, we have had a lot more time thus far than allowed post 9/11, when we accepted that we had to support the then Labour Government and the work of our security services. To all those who say that these measures are just about being seen to be doing something, I say that I wish that that was true, but it is not.
In addition, I want to put on record that the press release issued by Justice saying that the JCHR report is highly critical of the Bill is just wrong. In its haste to make headlines, Justice obviously has not read the report properly. In many ways, the report supports the Bill and is thoughtful and measured in its response.
We must trust our security services to seek to do the right thing. I, for one, wholly support the measures in the Bill, with a few provisos, particularly in relation to judicial oversight to keep our Executive in check and to allow the independent reviewer the ability to review the working of the additional preventative measures to assure us that they are necessary and proportionate in all the circumstances.
I say “preventative” because that is what the measures are: making prevention a statutory duty on several levels. First, the Bill is focused on British nationals who are travelling to Syria and Iraq with the aim of carrying out terrorist activities. Some of those who we know have returned will probably have committed heinous crimes abroad and are now living in our midst. In most cases, those individuals will have been radicalised and may encourage others to follow their path.
Travel to and from Iraq and Syria can be quick and straightforward. The Bill is intended to assist our intelligence services in their task of tracking those individuals and to try to prevent them from becoming radicalised in the first place. The ability to communicate for harmful purposes via the internet through social media and other means is also addressed in the Bill, as well as the means of travel which are vulnerable to attack.
With regard to specific powers, in Part 1, Chapter 1, the power enables the police to seize and retain a person’s travel documents at a port where there is reasonable suspicion that the person is travelling outside the UK for the purpose of involvement in terrorism-related activity. The key is the ability to allow our enforcement agencies to act quickly where speed may be of the essence, always bearing in mind the speed of communications that can benefit and protect the identity and whereabouts of the individual concerned, making it much harder for the police to track them.
It is important to stress here that, although the travel documents are seized for an initial period of up to 14 days, the individual would not be detained. In addition, once consideration of further disruptive action has been completed, or 14 days after the day on which the travel document was seized, whichever comes first, the travel documents must be returned to the individual if no further action is being taken against the individual and a court has not approved a further retention period. To me, that all makes sense and is entirely reasonable, given that judicial oversight kicks in regarding any extension to the initial 14-day period.
Turning to Chapter 2 of Part 1, relating to the introduction of temporary exclusion orders, I must declare that I distance myself from the report of the Joint Committee on Human Rights, as I entirely disagree with the committee’s stance. Unlike my colleagues on the committee, I am not opposed in principle, or indeed in practice, to the removal of passports from British citizens on a temporary basis. On the contrary, I entirely support the logic of the introduction of TEOs, given the nature of the threat and the fundamental importance of recognising the desire on the part of some of these individuals to commit acts of terrorism on our transport network.
For example, currently if our intelligence services have reason to believe that an individual may have the intent to commit an act on an aircraft outside our jurisdiction, there is nothing they can do to stop them other than talk to other authorities outside our jurisdiction. If the individual complies with the process of a TEO—
Lord Clinton-Davis (Lab)
Does the noble Baroness consider that there should be any rights of appeal at all about a decision?
Baroness Buscombe
I would hope that the noble Lord would wait a moment. I am about to come to judicial oversight. I am talking now about the ability in principle and practice to have a TEO. If he can wait, I think he will be pleased to hear what I have to say following.
If the individual complies with the process of a TEO—this is a very important point and I hope it is helpful—they could be able to return to this country within two days under a managed return. The JCHR is concerned to make the process less onerous, but onerous for whom? The passengers on that aircraft? These orders would make it unlawful for the individual to return to the UK without engagement with the UK authorities and that would be supported by the cancellation of the individual’s travel documents and inclusion of their details on watch lists. It allows for the imposition of certain requirements on the individual once they return to the UK.
The JCHR proposes an alternative to TEOs, which is to introduce “notification of return” orders, requiring UK nationals who are suspects to provide advance notification of their return to the UK on pain of criminal penalty if they fail to do so. I have tried hard to draft a measured response to this proposal, given that it simply does not recognise the minds and nature of militarised and/or radicalised individuals whom our enforcement agencies may be dealing with. In any event—and we will probably look at this more in Committee—I suggest that the committee’s proposed alternative may contravene Article 6 and the right to prevent self-incrimination.
Where I do agree with the JCHR report is in its desire to support these measures with some form of judicial oversight, if that oversight is humanly possible, given the speed of communications available to the individual concerned. Already our agencies operate in effect with one hand behind their backs in order to meet HR obligations and the rule of law; I will not support a measure which means both hands are tied. I am pleased that my noble friend the Minister has said in his opening remarks that he is now committed to considering some form of judicial oversight in relation to TEOs.
Perhaps it is helpful to add that we now know that those whom these measures are aimed at are rarely carrying out these acts of terrorism in a vacuum. Most of them have a very professional, well financed, powerful and evil force supporting, funding and directing them, even though they may appear in practice to be acting alone. The difficulty is to ensure to the best of our ability that innocent people are not caught and impeded by these measures, although realistically that may not always be possible. But then that is why there are safeguards in place to minimise free movement where the individual co-operates and is indeed innocent. In addition, I support the proposal of the JCHR that the operation of these measures should be reviewed over time by the independent reviewer.
Turning to Part 2 of the Bill, relating to TPIMs, I entirely support the Government’s proposals to locate a TPIM subject away from their home address, given that this would be of real practical assistance to the police and MI5 in distancing individuals from their associates. The effect of amending the definition of terrorism-related activity in the TPIM Act would be to increase the threshold at which conduct is considered to be a terrorism-related activity. The proposal also to prevent individuals subject to TPIMs from acquiring and/or owning firearms, offensive weapons or explosives is overdue, coupled with a new power to require TPIM subjects to meet with statutory bodies specified by the Secretary of State. I think anyone beyond your Lordships’ House, hearing that these measures to support our agencies are not already in place, would be amazed.
Part 3 of the Bill relates to communications data—data which can help identify who has made a communication and when, where and how. It can include the time, and duration of a phone call, the phone number or e-mail address which has been contacted and the location from which a call has been made. It does not include the content of a call or e-mail—it is not hacking. It was interesting listening to the excellent and very thoughtful maiden speech given by the noble Lord, Lord Green of Deddington, where he made this very point—it is not hacking.
The new measures relate to IP addresses which are shared by multiple users, and IP resolution is the process of identifying who used an IP address at a given point in time which can then be used at any point in time to identify who has accessed a particular service or website. The Bill seeks to require communications service providers to retain data showing which device used which IP address at which point in time. Again, in my view this is overdue, given that capability in this area is increasingly undermining the ability of law enforcement agencies to use communications data to keep us safe. The data can be retained for up to a maximum of 12 months. I notice that in his very excellent maiden speech the noble Lord, Lord Evans of Weardale, said that access to communications data falls short of what is required. I think it is a great shame that he is unable to take part in further debates on this Bill, as his experience would obviously help us a great deal.
Turning now to Prevent duties in relation to activities in universities, I have concerns in line with those set out in the JCHR report. Universities and all other institutions where young people gather away from home present opportunities for young people to socialise freely among different faiths and cultures—to listen to other points of view, other ideas, other perspectives on life. Living side by side is not enough; the chance to communicate openly without fear of reprisal is of critical importance. That said, I want to hear more from the Government about the objectives and the safeguards contained in the Bill. Indeed, there is a meeting with Ministers for interested Peers on Thursday this week to discuss this matter, which I will attend and I encourage others to do so in order to further consider these particular proposals.
Finally, I want to add my support to the proposals for more assistance for the work of the independent reviewer and for the power of the Secretary of State to establish, by regulation, a Privacy and Civil Liberties Board to provide advice and assistance to the Independent Reviewer of Terrorism Legislation in the discharge of his functions.
In conclusion, achieving the right balance is difficult and made more so by recent events. Debate, particularly in the media over the past few days, has been too often characteristically and depressingly skin deep with poor analysis. Fixed opinions do not work well in a changing world. Human rights are, to some degree, subjective and in considering the measures in this Bill, I believe our first priority should be to support our enforcement agencies which work tirelessly in their incredibly difficult quest to protect our fundamental freedoms.
Baroness Lister of Burtersett (Lab)
My Lords, it goes without saying that we are united in our abhorrence of violent terrorism, not least as our debate takes place under the shadow of the appalling murders in Paris. However, the magnificent solidaristic reaction in France and beyond reminds us of the values our Government seek to protect through this legislation. Democracy, the rule of law, individual liberty, mutual respect and tolerance of different faiths and beliefs are not, as claimed, uniquely British values but—I would argue—values of democratic citizenship. The implications of the Bill for democratic citizenship and human rights are what I wish to explore in my contribution—with reference to the report of the Joint Committee on Human Rights, of which I am a member—not least because if the Bill is seen to infringe the citizenship and human rights of one particular community, it could have the opposite effect to that intended. This echoes the point made so strongly by the noble and learned Lord, Lord Lloyd of Berwick.
In Part 1, the JCHR accepted the case for a new power to seize travel documents but, in view of the significance of such a,
“power to interfere with the right to leave the country”,
it emphasised the importance of the,
“procedural safeguards … to ensure that it is not exercised disproportionately”.
We therefore made a number of recommendations for strengthening these safeguards so as to uphold the rule of law. The proposal for temporary exclusion orders has been more controversial. To his credit, the Minister, James Brokenshire, rejected his colleagues’ attempts to persuade him to rename it a “managed return order”, which was advocated also by some noble Lords, because, he acknowledged,
“it is exclusionary in its nature during the period prior to return”.—[Official Report, Commons, 6/1/15; cols. 207-08.]
He also argued that this is “not about citizenship”. That may be true in so far as it is not about the formal, absolute deprivation of citizenship; I welcome the retreat from the proposal originally announced by the Prime Minister in September. Clearly, however, it fetters the right of a citizen to return to his or her country of citizenship and therefore it is “about” citizenship, and in effect suspends it.
In the JCHR’s view there is,
“a very real risk that the human rights of UK nationals will be violated”,
and we made clear our opposition,
“in principle to any exclusion of UK nationals from the UK, even on a temporary basis”.
As the noble Lord, Lord Thomas of Gresford, noted, we therefore suggested that “notification of return” orders, which would require,
“UK nationals who are suspects to provide advance notification of their return to the UK on pain of criminal penalty if they fail to do so”,
would represent a,
“more proportionate interference with the right … to return to the UK”,
in a way that is,
“compatible with the UK’s human rights obligations”.
The arguments in support of proper judicial safeguards were well aired in the other place, leading to the welcome, if somewhat vague, commitment to return to this issue in your Lordships’ House. The JCHR was clear that the Bill must,
“provide expressly for a judicial role prior to the making of”,
an order. We also supported the view of the Independent Reviewer of Terrorism Legislation that the powers in Part 1 should be subject to review by him, and we recommended that they be,
“subject to a renewal requirement”,
so that Parliament can consider the case for their continuation,
“in the light of the Independent Reviewer’s report on their operation in practice”.
I turn to Part 5 and, in particular, to the application to universities of the new statutory duty to have due regard to the need to prevent people being drawn into terrorism. Here I declare an interest as an emeritus professor at Loughborough University. As Universities UK, my former union UCU, the NUS and the JCHR, among others, have asked, how is this new duty to be balanced with the obligation on universities to defend academic freedom and freedom of speech? In oral evidence the Minister tried to reassure the JCHR on that account, but I am afraid we were not reassured, because:
“Broad terms such as ‘extremist’ or ‘radical’ are not capable of being defined with sufficient precision to enable universities to know with sufficient certainty whether they risk being found to be in breach of the new duty and therefore subject to direction by the Secretary of State and, ultimately, a mandatory court order backed by criminal sanctions for contempt of court”.
We warned that:
“This legal uncertainty will have a seriously inhibiting effect on bona fide academic debate in universities, and on freedom of association”.
Universities UK raised a particular concern about paragraph 57 of the draft guidance, which explicitly states that universities must include “non-violent extremism” in the risk assessments they will be expected to carry out. As the former vice-chancellor of Salford University asks in the current Times Higher Education, could the new obligation,
“be used against opponents of fracking … or any radical opposition to the status quo?”.
Surely universities are just the place where young people and others should be able to explore “extremist” ideas, however unpalatable, without being treated as potentially being on the path to terrorism or as popularising “views which terrorists exploit”, to quote the guidance. I found a recent article by Professors Paul Thomas and Ted Cantle, who have done much work in this area, very helpful in thinking about these issues. They point out that:
“Leading academic analysts of terrorism … have long-argued that how democratic states respond to terrorist threats is crucial—a response of repression or unjustified surveillance can represent precisely the undermining of democratic rights and processes that extremist groups hope to achieve”.
They also warn that,
“the further pressure to ban extremist speakers in universities and colleges will remove almost all opportunity for young people to hear extremist views and to have them challenged in an open and reasoned way, as though they are so seductive that any attempt to oppose them will result in failure”.
Instead, they argue for an education approach based on,
“open dialogue, with prejudiced views challenged but in a patient and respectful way”,
which,
“trusts the power of education and shows a faith in the potential of all young people to develop resilience against extremism and hatred by enabling them to learn and to practice real, democratic debate and citizenship”.
I welcome the issue of the draft guidance for consultation last month but rather than provide reassurance it has, if anything, exacerbated the JCHR’s concerns. For now I will raise just one concern that Universities UK is particularly worried about: what it calls the “over-prescriptive and onerous” expectations with regard to external speakers, which include the requirement of:
“Advance notice of the content of the event, including an outline of the topics to be discussed and sight of any presentations … etc”.
As someone who is quite frequently asked to lecture at other universities, will I now be required to send my notes to be vetted in advance?
In view of such concerns and the very special place that academic freedom and freedom of speech enjoy in the context of university education, as recognised in Section 202 of the Education Reform Act 1988, the JCHR concluded that the best way to ensure that these principles are protected would be either,
“to remove universities from the list of specified authorities to which the new duty applies”,
or,
“to add the exercise of an academic function to the list of functions which are excepted from the application of the duty”.
We also recommended that the guidance should be scrutinised by both Houses by way of affirmative resolution. At the other end of the educational age-scale, can the Minister explain just how nursery staff and childminders will be expected,
“to identify children at risk of being drawn into terrorism”?
It is crucial that fears about terrorism do not lead to the erosion of the very principles of democratic citizenship that the Bill purports to defend. We now have an opportunity and a responsibility to ensure that these principles are protected as we subject the Bill to scrutiny.
Lord Carlile of Berriew (LD)
My Lords, the terrible events in Paris last week give great grief without measurable mitigation. Nevertheless, such events provoke an instructive debate in which we have an opportunity to reassess some of the beliefs we have about the way in which politics, legislation and the authorities should deal with issues such as civil liberties and terrorism. The events in Paris have led many to re-examine the crucial balance between state power and civil liberties; we do well to remember that this is not science but art, and that it must to an extent reflect the development of events.
The civil liberties effect of what happened last week was not merely the continuing results for those few suspects who are still being hunted as alleged conspirators in what occurred. The effect on civil liberties has been to demonstrate how such events can put the majority in fear of exercising their basic rights, such as: free speech; artistic impression, which I regard as very important; the right to laugh at other people’s beliefs in a democratic society; and the corresponding responsibility to absorb being laughed about—particularly if you are involved in politics.
In this House, we are fortunate to have such a wide expertise of all the relevant disciplines and issues that can inform a Bill which is going to have considerable debate before your Lordships’ House, as the noble Lord, Lord Hannay, said, and will be fully considered. In this debate we have been particularly fortunate to hear two skilled maiden speeches from people who understand the security services and how they act. I look forward to hearing future contributions from the noble Lords, Lord Evans and Lord Green, on these issues. Indeed, I believe it behoves those who govern this country, and the two Houses of this Parliament, to listen to the advice of people such as those two noble Lords; to the advice of the predecessor of the noble Lord, Lord Evans, the noble Baroness, Lady Manningham-Buller, from whom we shall hear later; and to the advice of his successor, Mr Parker, who gave an unusual and not quite unprecedented but very well informed and important speech last week.
I say to my noble friend Lord Thomas of Gresford that to caricature a group of officials at the Home Office as a cadre, in the way in which I think he intended, does little justice to people who—in my experience—agonise over every issue that affects civil liberties well before they ever reach the point of advising Ministers. As others have said, we must remember that the people who police terrorism— whether they are police officers, the Security Service, the Secret Intelligence Service, or those officials in the Home Office and others—are brave and thoughtful people who play a very important part in the life of this country, and who have been extraordinarily successful. One of the reasons why there have been so few terrorism events in this country is because of the rate of attrition which has been caused by those services, and we should not forget that for one moment.
This Bill takes a few necessary steps. Some of them do not go quite as far as one would wish, others a little further, but it takes some important steps which are a responsible act by this Government. There are other issues to which we will return after the election, such as the whole picture of communications data. The canard “snoopers’ charter” is a brilliant piece of branding, but it is grossly misleading. We must allow the authorities of course to have a proportionate, reviewable, and judicially scrutinised set of powers, but a set of powers that will enable them to catch terrorists and putative terrorists. When the media naively said that there had been 50 telephone calls between the wives of the two terrorist brothers in France last week, what they should have said was that the wives’ telephones were used for communications which may well have been relevant. The authorities need to be able to take an interest in such communications. Those people who really believe that the authorities spend their time looking at the Amazon or Tesco Direct communications, or the idle chatter of your Lordships and other more ordinary citizens, are simply not looking at reality. As I am sure the noble Lord, Lord Evans, would confirm, MI5 does not have the time to intervene in the communications of ordinary citizens unless there is a reason; occasionally it happens by mistake.
Subject to proper control by legislation, and subject to proper review, these measures are broadly necessary. One of the most effective forms of review is scrutiny. As I was David Anderson’s predecessor, my noble friend Lady Hamwee wanted to be courteous to me, so I will say what she wanted to say: one of those scrutineers is David Anderson and I can state, with uncharacteristic modesty, that the present Independent Reviewer of Terrorism Legislation is matchless and incomparable in his role. We are very lucky to have him doing that job. In my comments on this Bill, I merely reflect what has been said by David Anderson, with whom I agree in all respects, and indeed the cogent summary that was given in a relatively short intervention by the noble and learned Lord, Lord Goldsmith, earlier in this debate.
I want to comment first on Clause 1, which relates to the seizure of passports. We heard some criticism of Clause 1, but I say to your Lordships that they have got to get real about what Clause 1 is dealing with. Let me give you an example. It is hypothetical but not unrealistic. Suppose a suspicious travel agent who is public spirited telephones the police and says, “I have just sold an air ticket in suspicious circumstances”, and the authorities decide it is worth following the person who has bought the air ticket. That kind of incident can occur within an hour, and it does not leave the time to go off to a judge to get permission to seize that passport. We have to allow the authorities to deal with the urgent provisions made in Clause 1 and Schedule 1.
Secondly, I turn to temporary exclusion orders. I absolutely welcome what my noble friend the Minister said in response to the representations by Mr Anderson. I agree with the independent reviewer that judicial intervention at the appropriate stage and in the appropriate way is desirable, and I look forward to seeing the Government tabling amendments which may not exactly reflect what Mr Anderson says but reflect the spirit of his representations.
The third thing I want to say is about Prevent. As someone said earlier, Prevent is a really difficult part of counterterrorism policy. I say that with feeling, because I played a part in the formation of the current Prevent strategy. The first thing to say about Prevent is that it cannot actually be done by the police. It is best done at ward level, at community level. It is better administered by local authorities, and by far and away in many areas the most successful participants come from the third sector and are not officials at all. Prevent needs imagination; it needs originality. I went to see one Prevent programme in which a young Muslim man was teaching young people about the dangers of being radicalised on the internet in the boxing club he was running, when they had had their bouts, were tired, and were drinking Lucozade or Red Bull by the side of the ring. The evidence was that that kind of activity is very successful. However, it is quite difficult to bottle that activity, so it needs a great deal of work and that means resources. Prevent has not had sufficient resources. Resources have been removed from some good programmes. It also needs better oversight. The Prevent Oversight Board, of which I am a member, actually does very little. It does not need control, but it either needs to be replaced by something that exercises a much more imaginative oversight over Prevent or it needs to be given more to do.
The fourth issue I want to mention is the Privacy and Civil Liberties Board. I am intensely suspicious when I open a tin that says “chocolate biscuits” and it contains cheese biscuits. I prefer what is in the tin to be reflected by what is on the tin. This is not a Privacy and Civil Liberties Board; this is a counterterrorism legislation review board, so if we are going to have that kind of board let us call it that. Let us be honest about what it is. I believe that reflects a view held by David Anderson. More importantly, it is vital that the independent reviewer has the capacity to see secret material, to act quickly in real time if necessary, and to communicate with the security services without having to consult a whole range of people, although he or she should be able to consult whom he or she wishes. My understanding—and I look forward to hearing from the Minister on this in due course—is that the board is being postponed in its operability at least for further reflection and consultation. It is inevitable that we will return to this after the general election has taken place, and through clear policy which will be subject to affirmative resolution if it is to be brought into force. I hope that the Government will agree that this provision, while welcome in principle, is not quite ready to be fully enacted at present. That is a perfectly respectable position for any Government to take, and I hope and trust that my Government will take it.
Those are my reflections on the Bill. I give one coda, which returns to where I started. It is about religion. I am not a religious person; indeed, I suspect that if I were provoked I would say that I believe that religion is responsible for quite a lot of ills in the world. But one thing that struck me when I looked at that parade in Paris on Saturday was that behind the phalanx of European leaders with their arms linked there was no phalanx of world religious leaders—although there were some. But among those religious leaders, there were four men from Albania, a small country which has desires to be part of mainstream Europe but which has quite a long way to go. They were the four leaders of the religious communities in Albania—two Muslims and two Christians arm in arm in declared solidarity that religion should never be used for the ends that were claimed last week. My call would be to the religious leaders of the world to link arms, as the European political leaders did, to draw to the world’s attention that, if there is a God, and if there are blessings from that God, one of them is peace and not a ghastly, asymmetrical conflict that threatens to visit us for another generation.
Lord Hennessy of Nympsfield (CB)
My Lords, I declare my membership of the Royal United Services Institute’s independent surveillance review. I share the threat and risk assessments that are the motive power behind the Bill, and I share the natural and, perhaps, instinctive regret of many who live in an open society such as ours whenever the state needs to reach for more powers of intrusion and intervention into the lives of individuals than it would if times were more tranquil and secure. I hope, even in advance of such legislation passing, for the day when at least parts of it can be repealed.
The line between security and liberty is never static, nor is it clearly drawn. It is always a truly jagged frontier, and this has certainly been case with what one might call the construction of the new protective state that we have created in successive instalments since the atrocities of 11 September 2001. I add my welcome to the noble Lord, Lord Evans of Weardale, to your Lordships’ House as a hugely experienced shaper and former operator of that protective state. I also add my congratulations to the noble Lord, Lord Green of Deddington, on another fine maiden speech.
The key criterion for our new protective state, in my judgment, should be that of the great Sir Karl Popper in his classic 1944 study, The Open Society and Its Enemies, in which he wrote:
“We must plan for freedom and not only for security, if for no other reason than that only freedom can make security secure”.
It is a tough book and that is one of the easier sentences to absorb, but it also happens to be the crucial sentence in the entire book. That is the approach and state of mind that we need to cling to, especially when our spirits recoil from particularly dreadful events, such as those that occurred in France last week, as here in the UK we face exactly the same configuration of threats generated by jihadi-related terrorism.
Counterterrorism and security legislation requires especially careful crafting, as we all agree. Not only does it have to reflect the Karl Popper criterion but it also has to meet a test of practicality. Here, in one particular aspect of Part 5, the Prevent section of the Bill dealing with the universities, lies, in my judgment, an anxiety on the practicality front. I declare an interest as a semi-retired professor of contemporary British history at Queen Mary, University of London. My particular concern is stimulated by paragraph 61 of the Government’s consultative paper, Prevent Duty Guidance, dealing with the duties of higher education institutions. The paper says:
“We would expect the institution to have robust procedures both internally and externally for sharing information about vulnerable individuals (where appropriate to do so). This should include information sharing agreements where possible”.
The difficulty here lies in the degree to which, in today’s universities, even the most conscientious and pastoral care-minded tutors and supervisors can be such sensitive eyes and ears for the proposed Prevent panels under the Prevent duty as described in the draft guidance.
When I graduated in 1969, only 7.5% of the age group were in higher education; now it is close to 45% and rising, and the ratio of teachers to taught has widened. However much we university teachers try to compensate for that, it is genuinely harder to get to know your students well, and the old “in loco parentis” requirement has long since lapsed. When I tutored and taught substantial numbers of undergraduates, my own view was that I would intrude and intervene in their personal lives only if they came seeking help or guidance. That was usually about financial difficulties or family circumstances. I appreciate that it will be but a small number of students to whom the proposed Prevent requirements are likely to apply. But even here, unless a sudden and overt bout of proselytising occurs, indicating a fast-developing radicalisation, it will be very difficult even for the most attentive tutor to pick up mood swings, for example, let alone the real reason for such oscillations in mood and temperament. I appreciate that the Government have consulted and are consulting with universities on what, if the Bill receives Royal Assent, will be their duties under Part 5. However, I respectfully suggest to the Minister that, if it has not already happened, officials should talk to university teachers active at the level of tutorials, supervisions and seminar classes about the possible compliance problems on which I have touched.
In no way do I diminish the perils that we face, nor the rapidity with which radicalisation can occur among some men and women in the university age group. Until the first examples of this came to light in our country, I lived under the illusion that young men and women, whatever their origins or faith, who had been taught in our schools and universities and passed through our colleges, would almost organically have picked up a feel for the values, practices and essentials of a pluralist, open society. I was truly shocked when I discovered that that was not so and, to be frank, felt naive in my previous assumptions.
I recognise, as the noble Lord, Lord Evans, said earlier, that the Prevent section is an especially difficult segment of the Government’s Contest counterterrorism strategy. I ask the Minister and his colleagues to look again at what early warning can practically and sensibly be expected from those who tutor and those who teach.
Lord Clinton-Davis
To fight against terrorism effectively is absolutely vital but we need to be careful about how we do it, and we should not try to cut corners in any way. There is a real danger with hastily prepared legislation that it might be error-prone, and this Bill may well, unhappily, fall into this category. The Joint Committee on Human Rights, representing several political parties, came to the conclusion that this Bill contains powers that could result in colleges banning certain speakers. If undiluted, this could result in undesirable effects. I would like the Minister to address this situation because it worries a lot of people and this view has not been wholly represented in the House today.
I have some further reservations about the Bill and I hope that the Minister will be able to respond to these anxieties. It is absolutely essential that the power to make temporary exclusion orders should be subject to some judicial oversight. The Minister was not altogether clear on this. This oversight should be invoked by a prior application to the court. The Government’s view is that the Secretary of State alone should make this decision. That is undesirable. There should be an appeal procedure and a sunset clause that would apply to any decision to seize an individual’s passport. I think the appeals procedure can be invoked rather speedily but it requires legislation to that effect.
The requirement that the Government should specifically limit the amount of information kept by communication service providers should extend only to what is needed to identify individuals by IP addresses. Affirmative resolutions of both Houses of Parliament—not just ill defined public consultation—should apply to the guidance given to specified authorities concerning their duties to have due regard in exercising their functions to prevent people being drawn into terrorism. Will the Minister respond to this point, which has also been made by many others who are deeply concerned about this question?
Local authorities should be given, subject to affirmative resolution of both Houses, formal government guidance regarding the need, under the legislation, to establish and sustain local support panels to ensure that individuals who are thought to be vulnerable to becoming involved in terrorism are properly dealt with. I invite the Minister to say something about that. Should the Government not revisit the proposed Privacy and Civil Liberties Board and state exactly what the board should do and what its functions are? It is important for there to be some definition on these matters. Finally, although I have tried to be more specific about the proposed legislation, I hope—probably in vain—to get a constructive reply from the Minister. I sympathise with him: he has a very difficult choice, but it is also important that Parliament has a choice. This Parliament has a voice as far as these issues are concerned. We cannot ignore the civil liberties aspect.
Lord Condon (CB)
My Lords, I add my congratulations to the noble Lords, Lord Evans and Lord Green, on their excellent contributions to today’s debate. I look forward to further contributions from them.
I support the aims of this Bill and almost all of the proposals within it. As a former commissioner of police, I want my former service and the intelligence services to have the necessary powers to prevent and detect terrorism. On balance, I believe that the measures contained in the Bill are necessary, proportionate and should be supported. However, the Government must put forward a compelling case as we take this Bill through its various stages and show how these new measures are integral to an overall coherent strategy to prevent and detect terrorism. In assessing whether the Government have this strategy right, it is worth very briefly taking stock of the aims of the terrorists we face.
At the Second Reading of the Counter-Terrorism Bill in July 2008, I spoke in your Lordships’ House against extended detention without charge as a disproportionate distraction when faced with what we knew about the aims of the terrorists. I referred to a book, Governance in the Wilderness, written by al-Qaeda’s then chief theoretician. That book and others like it, then and now, that author and others like him, then and now, in al-Qaeda, Islamic State, ISIL and other groups, have a very clear manifesto for individuals and groups who wish to pursue a jihad against us. They advocate turning the developed world we know into a fearful and divided wilderness where only those under jihadi influence enjoy security and everyone else is in constant, disruptive fear for their safety. They see this struggle as a war of ideas and lifestyles which will be fought for decades or, in their terms, maybe even centuries. They want no form of legitimate power or influence or dialogue in our country. They do want to create parallel, extremist societies within this country, France, Germany and other countries with significant Muslim communities. They crave most of all and encourage an endless cycle of violent attacks, widespread publicity, repressive and divisive government responses and legislation—if they can get it—and the radicalisation and recruitment of further young people to carry out even more terrorist attacks. Any legislative response by us must be designed to break and disrupt that cycle of terrorism and not unintentionally to feed and encourage it. I believe that this Bill passes that test.
The men and women who carry out these violent acts may not be sophisticated. They are often very vulnerable people who have a distorted and perverted view of Islam and seek martyrdom as an end in itself. However, we should never forget that they have been indoctrinated and inspired by individuals and ideas which we must understand and which will take generations to combat. This is a very long battle for hearts and minds.
I understand and share the outrage at attacks such as those in Paris last week, but we must keep our collective nerve. We must emphasise the normality and general safety of our daily lives. Sadly, and inevitably, acts of terrorism will occur but not often enough for us to sacrifice the essential freedoms which define who we are and how we live together. If in legislative terms we run scared and overreact, the terrorists win and we fail all our citizens. But, again, I am confident that we are not overreacting with this Bill.
I will briefly raise two specific observations about the measures in the Bill. First, it contains a number of measures which address the specific gaps in the police and intelligence agencies’ powers to disrupt people seeking to travel abroad to engage in terrorist activities and to control their return to the UK. Other noble Lords have spoken about the proposed powers. I support these measures but seek reassurance from the Minister that we are also monitoring and learning from the actions taken in other European countries. Denmark, for example, which reportedly has the second highest rate of recruits to Islamic State, has adopted a programme of counselling, mentoring and training which has had reasonable success with young people returning from Syria and elsewhere. This so-called Aarhus model developed in Denmark’s second city seems to have significantly reduced the number of young people leaving Denmark to join Islamic State. I hope the Minister will be able to reassure your Lordships that we are learning lessons from this programme and others like it as well as putting forward our own proposals.
My second observation is about resources. As others have said, Part 5 of the Bill refers to the risk of being drawn into terrorism. The Government’s Prevent programme is designed to stop people becoming terrorists or supporting terrorism. Clauses 21 to 32 apply the new general duty on specified authorities. Like the noble Lords, Lord Evans of Weardale and Lord Hennessy, and others, I am not yet fully persuaded of the need for a statutory requirement although I remain open to persuasion. But even if we do implement this new statutory duty, for understandable reasons police forces and local authorities continue to face dramatic reductions in budgets. The Bill’s impact assessment specifies £119 million over 10 years to fund some of the new measures. Like the noble Lord, Lord Harris of Haringey, I have fears about how the police service and others will respond to these new statutory duties. Can the Minister reassure us that the police service, local authorities and other partner agencies will have the resources to deliver the additional statutory duties contained in Part 5 if we go ahead with it?
In combating terrorism, we must be courageous and resilient but we must also be stoical and truthful with the public. We must acknowledge that violent acts of terrorism will probably be part of our lives for decades to come and we cannot legislate them away simply by a cascade of new tougher laws and powers. However, what we can do is dramatically reduce the likelihood and frequency of attacks with a coherent overall strategy with emphasis on both prevention and detection. I believe that the Bill is part of such an overall strategy. With laser-like intensity as we go forward, we will have at some stage to focus more on the perceived weaknesses in our ability to understand, monitor and disrupt the modern communications between terrorists and their supporters which so easily enable or facilitate violent acts.
Finally, we must be very careful that we do not encourage widespread public fear that our everyday lives are constantly in danger of terrorist attack. Vigilance must not be overwhelmed by despondency and anxiety. The victims of terrorism must never be forgotten, and they never will be forgotten, but their killers should become anonymous footnotes in our history and should not be allowed to change our way of life or the freedoms we enjoy. I support the Bill and look forward to more detailed debate in Committee.
Baroness Shields (Con)
My Lords, I add my congratulations to the noble Lords, Lord Evans of Weardale and Lord Green of Deddington, on their maiden speeches and their thoughtful and insightful interventions on these vital issues of national security. Their experience is timely and we should all express our gratitude to them for serving in this House and bringing their great wealth of knowledge to this debate.
I welcome the opportunity to speak on this most important legislation and start by declaring my interest as the Prime Minister’s adviser on the digital economy. The focus of my remarks today will be on the issue of communications data and, specifically, Part 3 of the Bill, on data retention, which concerns a technical point but one with particular significance to counterterrorism efforts. I come to this discussion after decades of experience in executive roles with the world’s leading global internet and technology companies. In those roles I have witnessed first hand the vital importance of access to communications data to support law enforcement in serious and organised crime investigations as well as matters of national security.
It is important to be clear what we are talking about in Part 3. It is specifically about resolving IP address in order to identify the who, when, where and how of connections or communications. It does not provide for access to what people are saying or what they are sharing. Part 3 provides a simple technical fix to a technical problem of resolving an IP address. However, the value of that data can be pivotal in moving forward investigations. The police can use an IP address to prove or disprove an alibi, identify associations between suspects and tie an individual to a particular location or crime scene. Communications data have played a significant role in every security service counterterrorism operation over the last decade. These include the Oxford and Rochdale child grooming cases, the 2007 Glasgow Airport terror attack, and the Soham murders of Holly Wells and Jessica Chapman, to name but a few. If these data are not retained on reasonable terms, the implications are obvious.
Just last week, at the height of the horrific killings in and around Paris, Andrew Parker, director-general of MI5, spoke of the potential for mass casualty attacks in the UK by ISIL and al-Qaeda terrorists. He said:
“We increasingly face a world in which those who pose a serious threat may be able to operate beyond our reach”,
adding that MI5 will need,
“the right tools, legal powers and the assistance of companies which hold relevant data”.
He also warned that,
“a lack of cooperation from internet companies means that there is a risk of terrorists slipping through the net because MI5 cannot track them”,
and he renewed calls for enhanced access to digital communications.
As your Lordships will be aware, there are currently gaps in communications data capability that have a serious impact on the ability of law enforcement agencies to carry out their functions. One such gap is identified in the internet protocol address resolution in Part 3 of the Bill. The IP address identifies who in the real world was using the IP address at any point in time, or at least which device they were using, such as a mobile phone or a tablet. The IP address will not always tell us—
Baroness Ludford
I apologise for intervening, but the noble Baroness is clearly an expert in these matters. Will she remove my ignorance? There are not enough IP addresses to go round, so you do not have one for every device, certainly not for every PC. So you can identify what device was using the IP address at any particular time, but how do you know who was using the device?
Baroness Shields
I hope noble Lords will understand if I carry on and then come back to the question, as I think that I may be able to answer it. However, it is a very good question and an important intervention.
The IP address will not always tell us who is operating the device, because the addresses are changed and shared when mobile phones move to connect between different masts, or laptops or tablets come online in the home, used by individuals across various networks. However, the IP address helps us significantly to narrow down the field: it is just one aspect of the information that we need. The communication service providers who issue the IP addresses to identify computers and mobile phones currently do not log which device is used at each address and when. This means that law enforcement agencies cannot work out who is using an IP address at a particular time. This impedes the investigations.
This legislation will amend the Data Retention and Investigatory Powers Act, which this House considered last summer, to enable Government to require that communication service providers, under a data retention notice, retain that data that can be used to link a specific device or individual to an IP address. We are not talking about requiring every single internet start-up to do so. The Government’s approach has always been proportionate and risk based, but without these data it is far harder, if not impossible, to attribute a particular action on the internet to an individual person.
These data will be available only to those public bodies that are entitled to them for lawful purposes where, on a case-by-case basis, this is necessary and proportionate. The value of these data can be clarified in this example: if a server hosting child sexual abuse images were to be seized, IP resolution would allow the police to trace the individuals who accessed the images where the server holds a log of the IP addresses and of the times that they were used.
This legislation asks for only a small addition to the automated systems that already run our nation’s communications infrastructure. The recording of which person uses which address and when is generated in the normal course of operation, and is thus not overly burdensome for these companies. This Bill will require CSPs, subject to reasonable notice, to retain vital data that can help dramatically in our country’s ongoing battle to bring criminals to justice, protect the most vulnerable and keep the United Kingdom safe.
Part 3 of this Bill is not politically controversial. As my noble friend the Minister has already mentioned, the Joint Committee on the Draft Communications Data Bill looked at this issue specifically and concluded that it did not think that IP address resolution raises any particular privacy concerns. These provisions will be limited. They will not enable the retention of weblogs, which, as some noble Lords have said today, become a list of the websites that you visit, for instance. Instead, they will help the appropriate agencies identify which device is the particular network identifier.
IP resolution will help us locate terrorists and criminals, but it is important to understand that it will not help us in every situation. The obligation to store the data in the UK is limited, but the technical action of resolving it must not be so. For instance, IP address resolution applies only to data generated or processed within the UK and not overseas, so it is thus further limited in scope and potential to combat what has become a global challenge. Furthermore, the rise in anonymous and encrypted internet traffic, the use of proxies and the sharing of one public IP address across hundreds if not thousands of devices make it ever harder to locate a specific device on the internet in the UK and abroad. Resolving IP addresses is an important first step, but it is only one part of a much larger problem that continues to morph and requires constant scrutiny, re-evaluation and response. We must remain diligent to stay ahead.
How do we address the wider problem and keep on top of the fast-moving threats that we face online? I believe that a new mode of collaboration between government and industry is needed to ensure a safe, creative and resilient internet from which we can learn, earn our livelihoods and keep in touch with our loved ones. We have done a lot of work in this Government to improve co-operation with internet and communications companies on the removal of terrorist and extremist content from their platforms, and to prohibit their use by those who will do so to distribute propaganda and radicalise our citizens. In its recent report on the brutal murder of Fusilier Lee Rigby, the Intelligence and Security Committee concluded that these companies must do more to fulfil their social responsibilities and help combat the serious threat that we face from terrorism. We must work with these companies to find better ways to alert government to the terrorist and illegal activities that threaten our livelihood.
Part 3 of this Bill is a significant step and one that we must all support, but it alone is not enough. There is no silver bullet. In specific terms, there remains a pressing need to update legislation to ensure that data for new types of internet communications on the ever evolving platforms and products are available in the future, just as data for telephony have been in the past. The Joint Committee on the Draft Communications Data Bill accepted this requirement, subject to the appropriate safeguards. David Anderson QC, the Independent Reviewer of Terrorism Legislation, is conducting a statutory review of these issues at present.
My right honourable friend the Prime Minister has been clear that we will need to return to this matter in the next Parliament. In fact, in light of recent events we must urgently do so. As a matter of general principle, this Bill is an important occasion on which to acknowledge and reflect on the importance of continued co-operation between government and the technology industry to assure the safety of our nation.
Lord Judd
My Lords, I declare an interest as a trustee of Saferworld and as somebody involved in the governance of universities.
It has become clear in the debate that we all agree on the sinister and horrible nature of the threat and that it is probably increasing. Although as parliamentarians we must constantly keep them under constructive criticism and scrutiny, it is appropriate to put on record my admiration for the police, the security services, the armed services, the Home Office and indeed Ministers—the men and women who are grappling with this situation.
What exactly are we defending? I thought that the significant speech by the noble Lord, Lord Evans of Weardale, came very close to understanding the complexities of the situation and the interplay between security and human rights. I found his remarks very important. However, one thing has come across to me clearly from recent events and from this debate: by definition, terrorism is international. If we are to grapple with it effectively, there has to be maximum effective international co-operation. This is no time for us in Britain to be involved in a debate as to how we can extricate ourselves from our international involvements. It is a time in which we should strengthen those as a way to contain the nightmare before us.
Ultimately, what we are defending is not just our economy, our wonderful literary, artistic, musical and architectural inheritance, or our fantastic landscape. All of these matter very much; I will take second place to nobody in emphasising how important they are to a civilised society. However, directly and immediately, it is our people and their families whom we must defend. To do that, we have to defend relentlessly our imperatively important system of justice and the principles on which it is based, for which we have struggled for centuries. We have not perfected it, but for centuries we have been improving the situation. It is there to protect our people.
Central to this, in my estimation as a non-lawyer—a lay man—is habeas corpus, equality before the law, fearless impartiality, transparency and knowing the case against you. Here, of course, the issue of interception becomes very important. Of course we must understand the dangers of and the anxieties of those responsible for our security about what could happen if we go down the road of bringing intercept evidence into court. I believe that it is a matter not of how we do not do it but of finding a way to do it that improves the quality of the other elements that I have described.
We must beware of counterproductivity, accentuated by shortcuts. Terrorism works best, it seems to me, in a context of ambiguity: when there are larger numbers of people, many of whom—I have said this before in this House—would abhor the act of terrorism as much as any of us, but who sometimes just wonder whether, however misguided and horrible, these people are on their side. That is why it is imperative that we emphasise the importance of human rights in our society. I put it as strongly as this: if we have a good, demonstrably effective and encompassing record on human rights, the extremists will be on the defensive. People will want to embrace that kind of society because they feel that it is in their interests. If there are some doubts about how far human rights really apply to them in a particular situation, we begin to get into trouble. People can be influenced in the wrong direction, in a way that leads them to involvement with the very worst. This issue of counterproductivity cannot be overstressed.
Policing and building security depend essentially on working with the community. I was glad that the noble Lord, Lord Wasserman, made the point about being certain that anything that we do on the security front is not at the price of conventional policing, because conventional policing has a vital role to play in combating terrorism. At its best, conventional policing is close to the community, knows the community in which it works and can therefore play a critical part in foreseeing what might happen, in informing and in being able to brief the specialists whom we must have to deal with crises as they emerge.
I want briefly to deal with a couple of specific points; they have been referred to in the debate. The first is the temporary exclusion order. I find it very difficult indeed to believe that, in the Britain in which I want to live, we can ever contemplate isolating somebody abroad. At a practical level, we can lose control of the situation by abandoning them abroad, where they may become more active. It is surely much better to have them under our jurisdiction.
In that context I was interested by the report of the Joint Committee on Human Rights. We are fortunate to have the Joint Committee working for us. I always feel that its reports are indispensable reading, as I am sure the Minister does, and its members do not mince their words in their recent report. They say:
“We are opposed in principle to any exclusion of UK nationals from the UK, even on a temporary basis … In our view, the Government’s objective of managed return could be achieved by a much simpler system requiring UK nationals who are suspects to provide advance notification of their return to the UK on pain of criminal penalty if they fail to do so”.
They recommend that the Bill should therefore be specifically amended to cover this point. At the same time, to the Government’s credit, they welcome the Minister’s indication that the Government will return to the issue of judicial oversight during our deliberations in the House of Lords.
The other issue, on which several noble Lords have spoken, is education at school level and at higher education and university level; there have even been references to what all this means at pre-school level. Again, in the Britain which I love and which is dear to me, a pillar of our society has been the principle of academic freedom—the autonomy and independence of universities. We must be very careful indeed, whatever the threats, about how we begin to infringe on that. I am glad that on that point the Joint Committee on Human Rights reminded us in its report that Parliament gave statutory recognition to academic freedom in Section 202 of the Education Reform Act 1988, which provides that university commissioners,
“shall have regard to the need to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions”.
That has been central to the exercise of freedom in our society. I am a bit alarmed about the implications of some of what is in the proposed legislation. I hope that the Minister will be able to reassure us.
Security cannot be imposed. Security, like policing, even in a conventional sense, works best when it works with, involves and has the assent, endorsement and the identification of the community with its purposes and what is necessary to fulfil them. We have to be careful again within the language of our deliberations—and there has been reference to language—that we are not reinforcing doubt or even marginally encouraging and fanning alienation. Do the provisions of the Bill—this is what we shall have to scrutinise in every clause as we go through it—help us to build society’s security or may we inadvertently be causing dissent and anxiety? We must watch that closely because, as the noble Lord, Lord Evans of Weardale, said, there is no fundamental clash between the principles of security and human rights. Indeed, they are there to reinforce each other and we must make sure that in every step of the Bill just that is happening.
Lord Butler of Brockwell (CB)
My Lords, I would have liked to have started my remarks by congratulating the noble Lords, Lord Evans and Lord Green, on their maiden speeches but I cannot honestly do so because other House of Lords business prevented me from hearing them. However, I have heard enough favourable references to make me look forward warmly to reading them in the Official Report tomorrow.
Last summer I was critical of the Government’s treatment of Parliament in respect of the Data Retention and Investigatory Powers Act—DRIPA—which, in my view, took too long to prepare and offered unnecessarily limited time for this House to debate. In the past, I have also been critical of the quantity of legislation, particularly Home Office legislation. Even though this Bill is being fast-tracked, I am less critical of it in respect of those aspects. Like the majority of others who have spoken, I believe that the Bill contains necessary and useful provisions and that the Government are giving Parliament greater opportunity to consider it. Even so, there is evidence that parts of the Bill have not been fully thought through before presentation, and there is a regrettable and unhelpful element of political window-dressing in some parts of it. I shall return to those aspects. One feature of the debates in the other place was the large number of issues which the Government themselves identified as requiring further consideration in this House.
Nevertheless, I believe that further legislation is necessary, both to deal with the growing threat of domestic terrorism and with the particular circumstances created by the involvement of UK citizens in jihadism in Syria and Iraq. That threat has been growing and changing, and it is right that UK law should be developed and changed to deal with those new circumstances.
As many others have said, this debate takes place under the shadow of the terrible attacks in Paris, which remind us vividly of the imminent danger posed by perverted religious fanaticism. Moreover, those attacks appear to have been carried out by well armed but also well drilled and disciplined terrorists—exactly the sort of people who developed their training and discipline as jihadists in Syria and Iraq.
My knowledge of this subject has been mainly derived from my experience as one of your Lordships’ two representatives on the Intelligence and Security Committee of Parliament. Your Lordships will know that this committee recently published a detailed report on the mercifully more limited but similarly horrific attack on a soldier in Woolwich, Fusilier Lee Rigby. The House has not yet had an opportunity to debate that report but I have been asking myself what lessons can be drawn from it which bear on our consideration of this Bill. Much of the attention on the publication of the report focused on the performance of the intelligence agencies and the improvements needed in them—none of which in the committee’s view, I remind the House, could have prevented the attack on Lee Rigby—and on the one clue to the intentions of one of the attackers present in an internet message not available to the intelligence agencies.
There are other lessons to be learnt from the report which support the measures in the Bill before us now. One is that, although both attackers of Lee Rigby were identified by the intelligence agencies well in advance of the attack—in fact, one of them had gone abroad in an effort to make contact with a jihadist organisation—neither of them was under close scrutiny at the time of the attack and neither of them had been referred to any part of the Prevent programme. A second one is that both those potential attackers were highly security-conscious, so, although they had been subject to numerous investigations, their plot to murder a soldier was not uncovered or available to the agencies. The third is that both the attackers had other problems symbolic of alienation from our society, such as drug dealing and other criminal activity. All those three characteristics apply, mutatis mutandis, to the Paris terrorists.
What conclusions can be drawn from that case which are relevant to the present Bill? I suggest that the main one—and it is supportive of the provisions in the Bill—is that, as so often in terrorism cases, prevention is much better than cure and prevention cannot begin too early. So it is necessary to have powers to prevent people going abroad to take part in jihadism. If they do go abroad, it is necessary to have powers to monitor them on their return and to take action.
However, action directed at individuals is not enough. It may come too late. We also need action directed towards the communities from which jihadists may come. We need to ensure that locally there is a counter-narrative to jihadism, that local authorities, universities and schools have both the duty and the means to combat extremism while not infringing freedom of speech. Only finally do we need to ensure that, if people reach the point of being radicalised, the law enforcement agencies have the power to prevent them from breaking the law. In the face of the growing threat, we cannot afford to be lethargic about this. So it is welcome that the Government make the Prevent and Channel programmes into statutory obligations on those in a position to influence individuals who may be vulnerable to the propaganda of extremists.
Nevertheless there are parts of the Bill which smack of gesture politics and, as many other speakers have pointed out, which need clarification and improvement. The Government admitted in the House of Commons that judicial review of passport confiscation and supervised returns to this country needed further consideration in this House. So does parliamentary oversight of communications guidance to local and other authorities. As other speakers have pointed out, notably the noble Lord, Lord Judd, because there is such a narrow margin between free speech and censorship, there certainly should be parliamentary oversight of the guidance that is applied in these areas. However, if I may reassure the noble Lord, Lord Judd, my experience of universities suggests that those in higher education will not easily allow their academic freedom to be infringed.
There is also the vexed question of the Bill’s use of the term “temporary exclusion orders” when they are nothing of the kind. The term appears to have been adopted only to save the Prime Minister’s face when he unwisely said that,
“what we need is a targeted, discretionary power to allow us to exclude British nationals from the UK”.—[Official Report, Commons, 1/9/14; col. 26.]
Such a measure would be impracticable and contrary to international law.
I also have serious reservations about the proposed Privacy and Civil Liberties Board, which smacks of being a knee-jerk reaction to the revelations of Ed Snowden. Its purpose is nominally to support the Independent Reviewer of Terrorism Legislation, but it is all too likely to be a fifth wheel on his coach—a coach which, as steered by the present reviewer and his predecessor, appears to have been running satisfactorily without that support. It may well be unwise to rush through the establishment of a body of this sort in the few weeks before a general election without more consideration. I hope that the Government will at least wait for the imminent report of the ISC on privacy and security. I was very reassured by the suggestion—I think from the noble Lord, Lord Carlile—that the Government have indicated that they will not rush this body through in order to institute it before the general election. If the Minister could confirm that tonight I would be greatly reassured.
I should like to make one other point arising from last week’s speech by the director-general of the Security Service and the Prime Minister’s statement that if he is returned to office he will want to go ahead with the Communications Data Bill. In doing that, I am greatly reinforced by what was said by the noble Lord, Lord Carlile, and the noble Baroness, Lady Shields. In all the hubbub about this matter, sight seems to have been lost of the fact that what these proposals involve is simply the retention of records of communications—not even retention by the Government, but retention by the providers. What that would allow is properly authorised access by the law enforcement agencies only to the communications of those whom they have reasonable grounds of suspecting as meaning to do us harm. When that is properly understood, it seems to me much less objectionable than some have represented.
That is a debate for another day. Meanwhile, as so many speakers have said, there is a considerable amount of work for your Lordships’ House to do on this Bill. Subject to those points, I support the Bill.
Lord Roberts of Llandudno (LD)
My Lords, it is a privilege and a responsibility to take part in the debate this evening. I come from one of the most beautiful towns in the whole of the United Kingdom—Llandudno. I think I know the community of 22,000 people, and we have a Buddhist centre, a synagogue and, within reasonable distance, a mosque. We have Anglican churches—that is, the Church in Wales—and we have Welsh nonconformist churches. We are one group together. I remember that, at the time of tensions in Northern Ireland, the Roman Catholic priest and I were singing carols together outside the English Methodist church. At a local level, we are getting on well together.
However, when you come here you sometimes find that you have to struggle to gain at this level what we are already experiencing at a local level—not only in my town but in many other places. Sometimes we have battled here and we have won arguments. On immigration, we have mainly seen the end of detention of children for immigration purposes. We have seen other strides forward. At other times, we fail. We struggle, and I know that some of us have struggled very hard for the right of asylum seekers to be employed within six months of their arrival here.
It is difficult to get this message through. In this world we want people to be partners together. I was delighted that my noble friend mentioned the four Albanians—two Muslims and two Christians—who walked together in the demonstration in Paris. That is what I would like to see throughout the UK. We can be the example, where we are able to have multifaith groups. They exist in many places and people are able to say, “My brother, my sister, my family; we are one family”. We could really tackle a lot of these stresses before they become threatening. That we can do and here is an opportunity in some way or another to encourage it.
However, the world is full of uncertainties. I am not the only one who remembers the time when it was better to be red than dead—so some said. Others said that it was better to be dead than red. There are uncertainties and there is always some difference, as there is here between security and liberty. We are trying to see where is the line that needs to be drawn. This Bill seeks to draw that line. It has been improved but, as many have said, there are many improvements that we yet wish to see. We are grateful to those who have already battled for improvements. I sometimes measure our civilisation by Alan Paton’s values. Noble Lords will remember Paton as the author of Cry, the Beloved Country. In a lecture in 1953, he declared himself a liberal and defined the term thus:
“By liberalism I don’t mean the creed of any party or any century. I mean a generosity of spirit, a tolerance of others, an attempt to comprehend otherness, a commitment to the rule of law, a high ideal of the worth and dignity of man, a repugnance of authoritarianism and a love of freedom”.
That is my level.
What happened in Paris is a tremendous tragedy in so many ways. How does Alan Paton’s dream inspire not only Paris, France and the leaders of the free world but us in this country? What exactly does freedom of speech mean? Who should have it and under what circumstances can it be limited? The Deputy Prime Minister, Nick Clegg, got it right in his recent article. He said:
“This is the bottom line: in a free society, people have to be free to offend each other. There is no such thing as a right not to be offended”.
Here we are protected by parliamentary privilege. We are able to make remarks that we would be arrested for outside this House. Because the occasion demands it—and today it certainly does—we must be free to speak truth as we see it, be that right or be it wrong, without fear of what could be done to us.
The Bill does four things that we need to tackle. Others will disagree. Threats to our freedom can often come from within these walls as well as from without. We have to ensure the presumption of innocence, the right of abode, the right to privacy and freedom of speech. I want to focus this evening on one of those four: freedom of speech. In Chapter 1 of Part 5, Clauses 21 to 26 refer to,
“regard to the need to prevent people from being drawn into terrorism”.
It does not say “from being terrorist” or “from terrorist acts” but from being drawn into terrorism. Surely, this means the spoken word. I am just asking a question; I do not have the answers. Is this not an assault on the very free speech that all sides of the House have spent this week swearing to defend?
Is the Home Secretary giving herself the right to determine what can and cannot be said in many of our public institutions, including universities? I believe this is so. Is she granting herself the power of sanction over those institutions that fail to abide by her ruling? Under Clause 24, the Home Secretary “may issue guidance” and give directions. Under Clause 25, any failure to abide by this guidance could result in her enforcing the guidance “by a mandatory order”. Is this the freedom of speech that was meant when the four Albanians and the 40 or 50 leaders of the free nations marched to the statue of the republic in Paris? Is this what we speak of when we proclaim our support for free speech? What is the limit? Who has the authority somehow to destroy what we believe is a fundamental right to freedom of speech—the freedom to say things we agree with and tolerance of the things we do not?
In a Written Question—the Minister might remember this—I have tried to get the Government to define what someone has to say to be considered an extremist under these provisions. I understand that they had a very helpful discussion on what an extremist is. The Minister knows that I have not received a satisfactory answer. The vagueness of what is termed extremism means that the powers that the Home Secretary is granting herself could be applied to rooting out any ideas she chooses. It need not be only those of Islam. It could perhaps apply to liberalism or socialism, if she so wished. The powers give her that right. Of course, the target here is radical Islam. However, there is nothing in principle to prevent the powers being used to purge other ideas that the Home Secretary might disagree with.
These are difficult questions. Before I finish, I again quote the words of the Deputy Prime Minister from his recent article:
“The same laws that allow satirists to ridicule Islamists allow Islamists (and other extremists) to promote their views … But when they peacefully express views which the majority of people find odious, we need to remember what is at stake. Free speech cannot just be for people we agree with. If it is to mean anything, free speech has to be for everyone”.
The threats that face us are real; they are growing and they cannot be ignored. If we are to remain a free society—this is what our discussion in Committee and on Report will enable us to do—we must protect those cherished freedoms and not undermine them in any way, as, I suspect, some clauses of the Bill threaten to do.
Lord Thomas of Swynnerton (CB)
My Lords, it gives me great pleasure, as another Welshman, to follow the noble Lord, Lord Roberts, and to be reminded of the superior grandeur of Llandudno.
Ours is a generation which has lived in the shadow of war and terrorism but more recently of terrorism. I am a survivor of Brighton 1984, when Anthony Berry MP was murdered by the IRA and the noble Lord, Lord Tebbit, had his life ruined by its activities. I also recall the murders of such noble figures as Ian Gow and Airey Neave, both of whom I knew well. I heard close at hand, in my own house, the bomb in Campden Hill Square which was intended for Hugh Fraser but killed a cancer specialist. I was told by my wife not to slam the door; she thought that I was behaving badly, but it was the IRA.
In addition, at one time in my life I made a special study of the international anarchist movement, which in the years before 1914 sought maximum publicity for what it called “the propaganda of the deed”. It believed that if it managed to “strangle the last king with the guts of the last priest” a golden age would begin. It murdered three Prime Ministers in Spain, a President of the United States, an Austrian Empress, at least one cardinal and did a lot of other damage. The consequences were in the end nil.
Some fine novels explain and describe that era. I think of Conrad’s The Secret Agent, of Henry James’s brilliant Princess Casamassima and Pio Baroja’s La Dama Errante, which tells of what happened to those who tried to murder King Alfonso XIII and Queen Victoria of Spain in Madrid when they were coming back from their coronation in 1905.
I venture to mention these matters to remind the House that, although they were different, we have faced similar challenges to radical Islam in the past—not perhaps as bad, as the noble Lord, Lord Green, reminded us—and have survived thanks to a variety of stratagems. We can recall past victories in the battle against terrorism as well as present woes.
The challenge posed now is, of course, an international matter. So was the anarchist movement. Anarchists were once known as “the Internationals”. Radical Islam—which I suppose is the right name and the right way of putting it—is rich. This makes it more formidable in many respects as there can be no weaponry which it cannot afford. Yet wealth can lead to decay faster than poverty.
Radical Islam now has a heartland in Syria and Iraq which we cannot ignore, just as we cannot visit it. There are also, as we have been reminded on many occasions today, many nests of ill intentioned radicals in all the major European cities. This makes everything much more complicated. In these circumstances, most of us see the need, as I think the noble Lord, Lord Evans, will agree, for greater security and greater willingness to give the police powers of investigation and oversight. I say this pace to the noble Lord, Lord Paddick. It is sad that it should be so and it is understandable that such concessions seem to some, including my dear and very old friend the noble and learned Lord, Lord Lloyd of Berwick, a threat to our ancient liberties. However, our ancient liberties are under threat and their preservation requires high spending on intelligence and interpretation. We must assume that our security services and police have the instruments and techniques that they ask for, since one will not be able to forgive anything that goes wrong if we neglect something that could have been done but was not because of a lack of wiser provision. We must try to relate the steps that seem to limit liberty to the time during which there is a real threat. In World War II, for example, people had no doubt about the benefits of temporary censorship and the control of information. Confiscation of passports is an extremely unpleasant idea, but all is a matter of time: if it is temporary, it does not matter. The word “repeal” is used by the noble Lord, Lord Hennessy, very effectively.
On these activities, I will say one thing: we ought always to aspire to seek to capture and then try terrorist conspirators or activists. The killing of the murderers in Paris was understandable and right, but I have always felt that killing Bin Laden in that very calculated way was a bitter response; I would have liked to have seen a trial, complex and difficult though it certainly would have been.
I will also seize on the use of the word “generational”. It is suggested that we are involved in a generational struggle that is going to go on for a very long time indeed. Surely that is very pessimistic. If we are going to win, we must win soon; it is a little pessimistic to think that it will take a matter of years, as the noble Lord, Lord Condon, and others spoke of.
The tone of our current propaganda needs to be measured: it should not be too heavy. We need to recall that what distinguishes our civilisation from others is that we have a sense of humour. When Disraeli referred to the Opposition Front Bench as a “row of extinct volcanoes”, he did not expect to be denounced, as indeed he never was. Would a modern Disraeli be denounced if he spoke of the leaders of the Arab spring in similar terms? Radical Islam has not yet shown many achievements of humour, any more than the IRA or the anarchists whom I mentioned did.
Baroness Berridge (Con)
My Lords, as a member of the Joint Committee on Human Rights, I can say that the report we issued on Monday was one of the most positive during my tenure. The Government are to be applauded, as the proposals in the Bill are some of the most complex to get right in human rights terms. France has not just brought home the serious security threat that we face, which no one in your Lordships’ House denies; the French have also shown us the best of responses, namely the bold assertions of our freedoms.
It is one of the highest duties of the state to keep its citizens physically safe, but it is also for the state to enable citizens to enjoy and use their freedoms. Islamic State says that its state is actually very safe: there is no crime on the streets there, but there is no freedom. I am uncomfortable with the language that it is the first duty of the state to ensure security, as sometimes it seems like a trump card placed on the table to exclude further debate. I approach this Bill from the perspective that ensuring our security and our freedoms are two of the highest duties of the state. The principles in the Bill are admirable in performing those duties—with one caveat, which I will come to.
The power in Part 1 to seize passports is a lacuna that I was told of when I was visiting Heathrow Airport to see the Schedule 7 stop-and-search powers in operation. The officers specifically complained about not being able to stop a British citizen who was re-entering the country, question them about their travels and seize their travel documents. The report of the Joint Committee on Human Rights recommends tweaking this power, but is in principle supportive of its introduction. It is similar with the clauses relating to TPIMs. In fact, I have always been concerned about the ending of the power to relocate people, which was removed by this Parliament and arguably diminished the effectiveness of TPIMs.
Turning briefly to Part 6, I was surprised to learn from Walk of Truth, a small NGO run by Tasoula Hadjitofi and for which I hosted an event before Christmas, that IS partly funds itself through the sale of stolen religious art from Iraq and Syria. I hope that my noble friend will investigate whether Part 6 can be strengthened to ensure that there are fuller details of the origins of artefacts transported through our ports.
I join other noble Lords in saying that my tenure on the Joint Committee has been greatly assisted by the work of the independent reviewer, Mr David Anderson QC. As a parliamentarian, you are keenly aware that you lack the necessary security clearance to see the whole picture. Mr Anderson does, and his role is invaluable. I am grateful that Part 7 retains his role and I hope that the Government will take very seriously his need for additional resources in the current context.
Finally: my caveat. I think that all noble Lords are agreed about the mischief that Chapter 2 is aimed at. We need to be firm on our citizens but also need to know when they are returning from Iraq and Syria. I welcome the major changes that the Government have made to the proposed solution to this issue, which was at first said to be to exclude our citizens from the UK completely. I particularly welcome the recent concession that that power should be subject to some kind of judicial oversight. However, I still have concern about the power to temporarily exclude our citizens. Although Members of the other place now term that power “managed return”—I note that my noble friend the Minister said, “temporarily disrupt the return”—those terms are not entirely accurate. I welcome the candour of the Minister, James Brokenshire, in saying to the Joint Committee on Human Rights that it still includes a power to exclude our nationals from the UK.
Without getting bogged down in the semantics of Chapter 2, perhaps “conditional return” is a more accurate description. The noble Lord, Lord Harris, noted that those two-year terms can be renewed, so this could be a permanent exclusion. Also, there seem to be few limits in Clause 4 on the conditions that can be imposed on a permit to return. There is a very broad executive power in that regard.
Before I get bogged down in the legal-speak, I have a useful, although imperfect, analogy. Your really badly behaved teenager goes for a sleepover at a friend’s house and is so violently badly behaved that you refuse to accept him home except on certain conditions. Relations between the respective parents would undoubtedly be affected, and it is hardly conducive to wider neighbourhood relations. However evil the behaviour of our citizens abroad, are they not our citizens and our responsibility? Her Majesty’s Government were right to concede that we have to accept our citizens back if they are deported by other nations. Does that power not depend much on the co-operation of other nations if our citizens who refuse to comply with such broad conditions to return have to be detained, perhaps pending deportation to that country? Do we have to pay the costs of such detention to that other nation? What if they escape detention or house arrest and therefore commit an atrocity on foreign soil? Will we then have to compensate for the injuries and loss to that country and its citizens for failing our responsibility to allow our citizens to return?
I note the discussion of our passports. Of course, we do not have a legal right to a passport, and I do not think that this should be viewed primarily in terms of the citizen’s right to return to their own state. It is about the agreement that we have made in customary international law, as I understand it, between one nation and another. When you accept that nation’s citizens with their passports, that nation agrees to take them back at the end of their stay. It is clear that Her Majesty’s Government may be reaching agreements with other nations. Will Her Majesty’s Government be disclosing the terms of such agreements that we might reach about the treatment of our citizens? It is noteworthy to add that France, Germany, the United States and Denmark—all of whom face a similar risk to us—have not suggested that power. Perhaps that is because they have written constitutions. I have pondered on why our risk is different to theirs and why these nations have not resorted to a similar power, and have not been able to find a Government who have resorted to this measure.
It is very sad to note that only a few hours ago on the Times Twitter feed there was the report—and I will note with interest the response of Chancellor Merkel—that the anti-Islam demonstration in Dresden this evening made a demand for the German Government to ban the return of jihadi fighters. I am not that comfortable with those bedfellows in relation to this power, but with it we are in danger of undermining the fundamental aspect of collegiality in international law and international relations. The collegiality principle underpins the system that countries accept their own citizens back, without condition or permit to return, so that they can prosecute their case on their own soil. I hope that Her Majesty’s Government can answer the concern that has been raised by the independent reviewer and in the Joint Committee on Human Rights. What will we do if other nations start doing this to us, nations who may use—in our view—spurious national security reasons, such as those mounted by Burma about Rohingya Muslims, to introduce conditions for the return of their citizens to their countries? I fear some kind of long-term tit-for-tat like the Cold War, and pockets of citizens in different countries who cannot go home to their respective nations.
If we act unilaterally to introduce conditional returns, could not some nations go one tiny step further and say, “We do not want our citizens back, even if you deport them to us”? How can you rid yourself of Abu Qatada if Jordan will not take him back? I have seen the successful removal of someone from a plane here in the United Kingdom; our police and security services are indeed very impressive. I am not a soft touch. My world-view understands evil but it is not clear why we do not use the full force of TPIMs and the criminal justice system here in the UK, not at the Turkish Airlines check-in desk. Some of your Lordships have mentioned today the possible contravention of the Magna Carta, and we are rightly applauding ourselves on its anniversary this year. However, I am more concerned that the United Kingdom should still have the privilege of retaining a permanent seat on the United Nations Security Council and could perhaps be seen as a poor role model in acting this way.
I am grateful to Her Majesty’s Government that they are still seeking engagement with the Joint Committee on Human Rights, due to the accelerated nature of the legislation. I hope to have my fears allayed but my final piece of preparation for today’s debate was to sit and read my passport this morning. Inside the front cover it says:
“Her Britannic Majesty’s Secretary of State Requests and requires in the Name of Her Majesty all those whom it may concern to allow the bearer to pass freely without let or hindrance, and to afford the bearer such assistance and protection as may be necessary”.
For centuries, I believe, that phraseology has been on our documents. We need to be very careful and take a long-term view of the potential risks that we run by acting in this way in relation to the validity of our passport when we travel overseas.
Baroness Kennedy of The Shaws (Lab)
My Lords, I share the horror that has been expressed in this House about the events that took place last week in Paris. They followed on the real revulsion that we all shared about the barbaric killings by ISIL in northern Iraq. Those were the precursors of this Bill. It would be all too easy to write a blank cheque to Government to do whatever it takes to counter terrorism when we have just had these experiences. However, we should be deeply aware of the risks associated with erosions of civil liberties because once we create paradigm shifts inside the law, the reality is that they are very hard to reverse.
I have seen this over laws that were introduced at the time of the Irish troubles in the 1970s when I started doing work in terrorism cases. You actually find that the changes that are introduced inevitably leach into the system as a whole. We see that more recently with the secret courts, which were introduced as an isolated and extreme measure. We have now seen institutional creep and that “exceptional” process is moving into other parts of the system. Our commitment to open justice is thereby being eroded. We must be clear that emergency legislation can never be vacuum-packed. It permeates attitudes and standards—and, I am afraid, rarely to the good.
The Bill was introduced to deal with the threat of radicalised young people leaving the United Kingdom for places such as northern Iraq, Syria or Somalia, participating in terrorism abroad and then returning to this country highly trained to wreak further harm. Those were the concerns that motivated this legislation, and the ones that we can all understand. The Joint Committee on Human Rights, on which I serve, accepted that preventive steps should be taken to stem the flow of travel to join those insurgencies. There was also a very real recognition by the Joint Committee that we have to use the law in these cases. We all felt particular horror at the idea of young women going off to make themselves available to this jihadist struggle by becoming jihadist wives. One wonders whether they are finding it quite as idealistic and romantic as they imagined it would be when they started out.
The prevention of travel is supported by the parents and families of young people. However, it must be pinned down with real safeguards and not operate on the hunches of officers at ports, with the risk of misuse being great and the risk of mistaken use being considerable. We on the committee therefore accepted that there was a need to look at that and that there were gaps in what was legally available to the authorities.
We were also sympathetic to the idea of managed return. We have to find ways to enable the return of those who bite off more than they anticipated—the people who go to those places, see “The horror! The horror!”, to quote Conrad, become sickened by what they see, and who must want to return to the sanity of their lives in this country. Therefore opportunities to bring those people back and find ways to bring them back into our communities should be found.
What is often not understood by many people is that, unlike in previous generations or in previous times, people who are currently in Iraq are in communication with their families—that is the nature of modern media—so their families are able to phone them and say, “Please, come home”. They are able to contact them by e-mail. Their e-mails may be being intercepted, but they certainly communicate quite frankly, and some of them do not realise the extent to which the things they say might be a source of evidence against them on their return.
We should therefore be thinking about different categories of people. There are those who are undoubtedly committing horrible crimes over there. We have a responsibility as a nation to prosecute them should they come within our jurisdiction. If we have the opportunity to do so, they should be put through the legal processes, prosecuted, found guilty and imprisoned as our nationals for committing crimes aboard. That should be one of our priorities. We have to ask ourselves whether we will enable that by the introduction of the system we are currently looking at.
We also have to try to prevent people coming back who might commit further crimes. They may very deliberately come back, claiming that they just want to come home, but have ulterior motives. It will be important that the authorities are able to examine those possibilities, so we have to look at procedures that could be created to help us to deal with all that. We need to revisit a number of elements in the Bill but all the time we have to have two important things at the back of our minds. The first is the importance of avoiding the erosion of civil liberties and doing things that are not proportionate to the need. The second thing we have to think about is whether, if we risk miscarriages of justice or the misuse of some of the new powers that are given, we will end up alienating large numbers of law-abiding, decent Muslims in our communities, who are important to us in trying to find solutions to the problems we currently face. Collective punishments are what people feel, and if people feel or perceive injustice, it leads to very negative consequences. We have to have that high in our minds as the Bill goes through the House.
I want to consider the issue of removal of passports when people are leaving the country and there is reason to believe that they may be going to places where they are going to engage in terrorism in one form or another. Is the seizure of a passport from someone suspected of travelling to become involved in terrorism proportionate? We would say yes, but it depends on the safeguards that surround the exercise of the power. The Joint Committee on which I sit noted that while Schedule 1 provides for a judicial role to govern this power, it is not, for example, as strong as the safeguards that are provided in the judicial oversight of warrants of further detention, when someone is detained on reasonable suspicion of being a terrorist. It seems sensible to have parallel provisions. There is no provision, for example, for gisting: giving people an entitlement to having the gist of what the reasons are for removing their passport and not allowing them to travel.
The Bill provides for judicial consideration only after 14 days, at which point the judge is under a duty to extend the period of retention of the passport to 30 days. That is on the basis that he has to be satisfied that the investigation has been conducted diligently and expeditiously. Is it really good enough that he just thinks they are moving fast enough or that they are being hard-working enough? Should we not be expecting more to be in the judge’s mind? It also provides for a closed material procedure at the hearing—the secret process that I have mentioned before—and yet there is no provision for the excluded party to be represented by a special advocate. Warrants of further retention should be just the same as warrants of further detention. The Joint Committee on Human Rights recommended that application for the extension of retention should be within seven days, not 14 days, and the judge should be able to issue a warrant only if satisfied that not only was the investigation being pursued diligently and expeditiously but also that there were reasonable grounds to suspect that the person intended on leaving the country to become involved in terrorism or related activities. The person should be informed of the reason for the exercise of the power against them. It should be done at the earliest opportunity and not once they have got a lawyer further down the line and during a process of disclosure later on. That gisting should be referred to on the face of the Bill as it is so fundamental to due process.
If you have secret hearings, there has to be a provision for special advocates. I urge the Minister to look at that. There should also be legal aid and compensation should be available in serious cases where it becomes clear that there has been some misuse of the powers; for example, where the opportunity for someone to go to their grandmother’s funeral or to a family event has been completely destroyed and cannot be revisited ever again.
The most serious power is the temporary exclusion order. As your Lordships know, the Joint Committee on Human Rights has made it very clear that it considers that this is an inappropriate power. We should be thinking about managed return, which is an important thing for the Government to be engaged with. Denmark is doing very successfully and there are many things that we can learn. However, I heard a number of Members of this House being dismissive of the idea of a notification of return to the UK being expected from anybody who wants to return. I go back to the fact that most of the young people in question are in touch with their families from time to time. Those families are trying to persuade them to come back so they could very easily give the authorities notification that they want to come back. Therefore, you could go through the process of having an order made of notification that they want to come back and then the procedures in the Bill could be adapted to fit a notification order. That would replace what is there already without very much surgery to the Bill. It would avoid us getting involved with all the difficulties described by the noble Baroness, Lady Berridge, and others regarding our relations with other countries.
It is not enough just to talk to Turkey. People will not come back on the same routes; they might come back in many different ways, through other countries. We will find ourselves becoming very much the outlier with other countries if we are the people who depart from international law in the protections provided by having a passport. That seems to me a very sensible option, and to dismiss it out of hand is a failure of government. The Government have clung to the temporary exclusion order because, initially, they wanted to take people’s passports away from them. They then realised that that was not on because of our international obligations. So now these temporary exclusion orders are being proposed when in fact they do not have to go that far in any circumstances. The notification of return orders could be substituted and I would urge that this be done.
I also ask the House to consider the cost of having people over there, interrogating people who come to ports, and having to arrange with the authorities there for housing people on a temporary basis if they want to manage their return. We should consider the implications of all that financially—and we are saying that the reason we are doing it is that we cannot afford supervision or surveillance. That seems a very strange consideration of the financial problems that we might have.
I again urge the introduction of a judicial role in all this. The independent reviewer again expressed his concerns about the temporary exclusion order and said that judicial scrutiny using judicial review was pretty unlikely if someone was abroad. So we want to encourage people to look at the whole business of the judicial role prior to the making of the temporary exclusion order or, indeed, the notification of return order. There should also be a renewal requirement to enable Parliament to consider whether there is a case for continuing these powers once they have been reviewed by the independent reviewer and he has assessed how they have been conducted. I have great reservations about all this because of what it does in relation to our international commitments. We really are making a big mistake, and I do not think that people who have said with great coolness that we need these powers have thought through the implications for our international relations and the standards that we are trying to set around the world.
On TPIMs, I have always resisted the idea of relocation, because I have seen it up close and seen the effect on families. I saw a young mother giving birth to her second baby while her first child was still unable to walk; they were being moved out of London to Leicester, to live on the 18th floor of a multi-storey block, where they had no family and where she had no support systems at all, with none of her sisters living there, or her mother. We have to have real consideration for what this does to families, and we have to remember the impact on what is described as the folklore of oppression as it is seen by the Muslim communities. This is not a sensible route to go down. I know that the independent reviewer said that he had a heavy heart in thinking that it was necessary sometimes. I hope that it is used with great limitations, if it is used at all. I always thought that it was one of those things only ever used by totalitarian regimes—sending people to Siberia or Pinochet sending people to the remoter parts of Chile. I really regret that we are even thinking about doing it here.
Finally, I want to talk about universities. I am the head of an Oxford college and I know that, across Oxford, there is real concern about the introduction of this power. Others have spoken to it, so I am not going to repeat what they have said, but academic freedom is very important. The idea that an academic will feel in some way obliged to report on a student whom she feels is asking questions or expressing views that seem inflammatory is a really worrying thing for academic freedom. It would destroy the trust that is so important between the student and the academic, which is where learning is at its best—the point where people are experimenting and thinking the unthinkable. That is where you beat it down with good argument. The idea that we should not have freedom of expression in our universities and that we will have people reporting each other, or that when we go to speak at a university we will have to declare and send ahead the notes of our speeches, is really not workable. I ask the Government to think again and at least to remove universities from the list. I actually think that the whole Prevent project should be looked at again.
A real issue is undoubtedly presenting itself to us as a society, but I say to all of us, “Beware”, because we can give away the most important things if we are not careful—the things that we are most proud of.
Lord Phillips of Sudbury (LD)
My Lords, the night is wearing on. It is nearly half-past nine and there are another seven speakers to come. I have chucked away my speech: I am going to make a few rather jagged points and sit down. I commend, as other noble Lords have done, our two maiden speakers who, as I am sure we all agree, did extraordinarily well. Their presence here will be of great value to us over the years to come.
I want to tell my noble friend the Minister that I understand what an intensely difficult task it has been to put the ideas behind this Bill into print. It is almost impossible to arrive at precisely the right conclusion. However, the House of Commons did move in the right direction and it is clear from the speeches tonight that the bulk of opinion in this House is that we have some way to go, that we can go there and we can do it without undermining the essential protection for which the measure is needed. We are considering this in the aftermath of the dramatic events in Paris at the weekend. It is impressive that nobody has been carried away by that, but we have paid due deference to it. This has been the House of Lords at its best: measured, completely lacking in partisanship and extremely thoughtful.
The difficult balance between public safety and human rights needs the most careful and prolonged contemplation. Unlike the noble Lord, Lord Rooker, I regret the time we have been given for this measure and I do not think it is necessary to push it through before the election. I feel very strongly that, if we insist on legislating before the election, the consultation and report which the independent reviewer, David Anderson, is in the process of undertaking should mean that Part 5 is left out of the Bill. I will come back to that in a minute.
The danger is that the intangible values are given less credence and force in our deliberations than the tangible effects of terrorism, which are only too obvious and dramatic. A corpse will always carry more conviction than philosophy, but here at least we realise that that is a short and dangerous road to take. The background to all this is that we must get the culture as beneficent as it can be vis-à-vis our minorities—our Muslim minorities in particular—and create what the right reverend Prelate the Bishop of Durham called a culture of fraternity and my noble friend Lord Paddick spoke of at some length using different language. We have to help sustain a culture of inclusion, of mutual value and co-operation and of tolerance. A number of speakers have remarked on some of the interesting work being done by the churches. In my own small town of Sudbury in Suffolk we have an amalgamation called Churches Together, which includes non-Christian as well as Christian faiths. That is far more important than this Bill. The fruits of the work that we do at grass-roots level, through communities, will determine, far more than legislation, whether this country lives in peace or in fear.
I agree with the majority of speakers on the legal aspects of the Bill. Particularly, I could not disagree with a word said by the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Thomas of Gresford. We absolutely have to have judicial oversight. If we cannot have it because there is a genuinely instant and plangent emergency, then we must have it as soon as possible after the emergency. We must have reference to this House when regulations are issued and we must have affirmative resolutions in matters as important as these. In Part 5, guidance is issued by the Secretary of State that does not come through Parliament at all. That is not right.
We have had some distinguished contributions on Part 5 from the noble Lords, Lord Hannay of Chiswick and Lord Hennessy of Nympsfield, and the noble Baroness, Lady Lister of Burtersett. I want to put their comments in a fuller context because I think it makes what they said even more compelling. Part 5, which runs to some 12 pages of small print and has two chapters, applies to not just universities but also to “specified authorities”, which, in Schedule 1, are a whole range of bodies, including health authorities, police authorities, probation authorities—you name it—and, of course, education authorities. But the thing to remember is not just that the authorities covered by Part 5 must have,
“regard to the need to prevent people from being drawn into terrorism”,
as stated in Clause 21(1), but that guidance will come in on the back of that which they have a duty to follow. The Secretary of State can issue directions if he considers that any of these specified authorities is not doing exactly what it should do vis-à-vis the guidance. Ultimately, enforceable mandatory orders can be issued under Clause 25(2). That is heavy-duty regulation and it is all in pursuit of a statutory demand—namely, to have,
“regard to the need to prevent people from being drawn into terrorism”.
That is so vague that I suggest it will give a thousand lawyers a thousand years’ work to define. My noble friend the Minister smiles at me as he knows that I am a lawyer, but there are limits, and I think that this part of Chapter 1 of Part 5 goes too far.
Nobody has referred to Chapter 2 of Part 5, which covers local authority support panels. Local authorities include all district and county councils. Their function is somewhat the same—that is, to assess,
“the extent to which identified individuals are vulnerable to being drawn into terrorism”.
That statutory obligation is placed on every single district and county council. They have to have a support plan for each individual, which they have to review, revise and assess, and they are governed by guidance. Even worse, they have to have partners—although I should not say that because that prejudges the utility of the measure—which are as voluminous as are the specified authorities in Chapter 1 of Part 5. Indeed, they are the same sort of bodies. The partners are under a statutory obligation, set out in Schedule 4, to co-operate with these local authority panels. If they do not do so, there is potentially a punitive regime for such a failure. The bureaucracy attendant on Part 5 is massive, whether you are dealing with Chapter 1 and the duty to prevent people entering terrorism, or Chapter 2, which deals with identifying individuals who are vulnerable to terrorism and then supporting them with plans and so on. That is a massive creation of bureaucracy, both locally and centrally.
I would not mind if I felt that it would work but I have a terrible feeling that, quite apart from the in-principle issues raised by Peers vis-à-vis the freedom and culture of universities, I concur with every word that they said about the complete inappropriateness of lumbering universities most of all, but schools and probation services too. I speak as someone who was chancellor of the University of Essex for 10 years. This part of the Bill is severely misconceived. I deeply hope that it will be excluded for the time being. If on further reflection and after David Anderson’s report it appears necessary to do something along these lines, so be it. We will do it. However, the voluntary aspect of the status quo is essential to its effect. I am sure that we can build on the status quo. The Government could fund support for what is being done, and no doubt provide inspectors who could go round the country and see what is being done, but we do not need a statutory framework.
I could say so much more, but 10 minutes have gone and the night is old. I will end merely by saying, “Je suis Charlie”. Perhaps I will not; your Lordships will think that I am a Charlie.
Baroness Manningham-Buller (CB)
My Lords, speaking so late in the debate has its advantages. You will be reassured to hear that I have been able to do some rigorous editing of my speech, partly because many other noble Lords have made the points that I wish to make. I congratulate my noble friend Lord Evans of Weardale on his excellent maiden speech, but of course I would say that, wouldn’t I? He is also a friend. I also congratulate my noble friend Lord Green of Deddington, with whom I worked when he was in the Foreign Office.
My noble friend Lord Evans says that he followed in my footsteps. Certainly, this evening I follow in his: to my surprise, I agree with everything that he said. I wish to avoid the thought that MI5 all thinks the same. In the time that we worked closely together we had many disagreements and arguments.
In particular, I agree this evening with the point that was picked up by the noble Lord, Lord Judd. Whatever the outside world may think, those in the Security Service, including my noble friend Lord Evans and I, believed that we were trying to protect civil liberties through security. There is no liberty without security. That is very important. I am extremely glad that my noble friend’s maiden speech was not on vintage cars, because I would have gone to sleep.
In starting scrutiny of the latest counterterrorist legislation, we do so, as Members of the House have noted, against the sober backdrop of events in Paris, although drafting this legislation predated that. The calm and resolute way in which Parisians have responded reminds me of how London responded in the days after the attacks in July 2005, which I remember very well, as we all can.
In some observations before I get down to the legislation, I note that, as in July 2005, some people—not in this House—have rushed to blame not the terrorists but the French authorities for the crimes of the terrorists. They assume that the crimes could have been prevented because those responsible were known. My noble friend and I will not always agree but, as he has said in the past, you can know of people without knowing what they can do. Although people are known, there may still be inadequate intelligence to identify what they are going to do and, mercifully, we do not intern people on suspicion, although we have in the past.
As the noble Lord, Lord Paddick, said, the numbers involved are simply too big to prevent everybody of concern being monitored constantly, be that here, in France or anywhere in the world, even in a totalitarian regime, which we are not. The French security service is an excellent organisation. Its leaders are well known to us and it is a very good friend of the United Kingdom.
As Andrew Parker, who is following in the footsteps of my noble friend Lord Evans, said last week, it is not possible to prevent all attacks. We must remember that. Post hoc analysis of events, as the noble Lord, Lord Butler, referred to regarding the awful murder of Lee Rigby, gives us lessons. We learn from what happened in those events. However, it is not the case that we can ever expect to prevent everything. Incidentally, I strongly support the comments made by the noble Lord, Lord Butler, on the need to revisit the issue of communications data.
This legislation is taking a number of steps—some of them contentious, some of which will probably be improved in Committee—to do a number of smallish things. However, the loss of capability following the revelations of Snowden is extremely damaging. For the record, this House should not assume that counterterrorism legislation is, as it were, dictated to government and the Home Office by the security and intelligence organisations and the police. As the noble Lord, Lord Carlile, mentioned, that is simply not true. Governments have their own ideas on counterterrorism legislation. I remember, in the wake of the Brighton bomb, trying to persuade Mrs Thatcher against the powers that she was thinking of. Many people and different departments contribute to legislation, and it is not the script of the Security Service.
I will keep my main comments on the legislation for Committee, but like others I am concerned about Part 5 of the Bill concerning Prevent. Prevent is the key part of the Government’s counterterrorism strategy. That strategy has existed for a decade; it was drafted in 2005 and became part of the previous Government’s strategy in 2006. Of the various strands—Pursue, Prepare, Protect and so on—Prevent is the most difficult and the most important. I cannot agree with the noble and learned Lord, Lord Lloyd of Berwick, that we need to do less of Pursue. The identification, tracking, arresting and prosecution of terrorists needs to go on unabated. However, it seems to me that Prevent is clearly not working.
This is not altogether surprising because it is difficult. We do not really know what works. I retired nearly eight years ago. I know that a great deal of effort has gone into thinking about how to counter this toxic and murderous ideology. I believe that we must have a better understanding of the roots of terrorism than we used to, and a better understanding of how to divert people—particularly vulnerable young people who have, in some cases, been groomed and exploited—from their path.
Some of those who come back from Syria will not be terrorists; some need to be reintegrated. The Channel programme is obviously to be applauded, but I am still concerned that it is bound to be slow, even over the long term. It is understandable that it will be slow, but we do not seem—I beg to be corrected by others who are more up to date than me—to be having much effect. We are told that 600 dangerous extremists who are British citizens have fought in Syria. That is a large number. If Prevent had been working for the past 10 years, we might not have seen so many going.
It follows that I rather doubt that the Government, however laudable their efforts, are well placed to counter this ideology. A lead on that has and is beginning to come from moderate, mainstream Islam, which has itself suffered so much from the distorted version of its faith propounded by terrorists. One of the most appalling scenes from Paris was that of the Muslim policeman on the pavement being executed brutally by one of the terrorists.
It also follows, therefore, that I am not convinced of the value of putting Prevent on a statutory footing. I am out of date. The Government may be able to convince me but I cannot see how legislation can really govern hearts, minds and free speech. We can legislate against activity—the actions that people take can be detected, prosecuted and brought to court—but this I find much more difficult. We already have legislation on incitement to violence, which it is difficult enough to get evidence of, as the police know and have tried.
Finally, I must declare an interest. This is not as a pensioner of MI5, although I am that, but as the chair of the council of Imperial College London. The noble Lord, Lord Phillips of Sudbury, expressed strong feelings about the difficulties for universities of what is proposed. Again, I will listen carefully in Committee but I prefer to believe that a voluntary, optional regime of securing co-operation is preferable to what is proposed in Part 5. I have real difficulty in understanding the practicality of requiring an enormous range of authorities to respond to what is described as the “local threat”, which may after all be covert. How will they judge who is vulnerable? How will they judge who is a non-violent extremist? I wait to hear. I look forward to listening to the Government’s arguments in Committee on these and other issues.
Lord Marlesford (Con)
My Lords, I suppose it is axiomatic that defence of the realm is the first priority for any British Government, but what is it defence against? Today in the UK we face the gravest threat to our safety, freedom and way of life since the end of the Cold War with the dissolution of the Soviet Union in December 1991. We are not alone. It is a threat faced by much of the developed world and often more immediately by developing countries in every continent. The threat is that from political Islam. I first heard this phrase through President Sisi of Egypt, himself a devout Muslim, who is one of the doughtiest opponents of political Islam. It is, he said recently, “antagonising the entire world”. Some Muslim clerics have bravely denounced political Islam as a distortion of the religion of Islam, although many have remained silent. Let us hope that some of them now speak out.
I believe that political Islam ticks all the boxes to be identified as an international fascist movement. It is conceptually undemocratic. It is wholly intolerant. It is racist. It is in fact secular, with its leaders being drawn, and many of its supporters attracted, from among the fanatical, alienated, criminal and psychopathic elements that lurk at the bottom of every society. It inflicts on men, women and children unbridled brutality and cruelty that is truly psychotic. By combining modern management methods with the latest cyber and communications technologies, as well as the lesson of history on the effectiveness of terror as a weapon, which the noble Lord, Lord Thomas, referred to, it has been horrifyingly successful so far. Its stated aim is to establish a worldwide caliphate apparently recalling the days of the Ottoman Empire, which in 1923 Ataturk replaced with a secular republic in Turkey.
We are told that political Islam has succeeded in recruiting some 15,000 foreign fighters from 80 countries, the majority of them to ISIS in Syria and Iraq. The seduction of many of these appears to involve offering sexual delights. I have myself seen a film on ISIS in which one of its leaders promises recruits, “The virgins are waiting for you”. In north-east Nigeria, where Boko Haram continues to wreak havoc, killing more than 4,000 people last year, schoolgirls are being kidnapped to become sex slaves of the fighters of that terror group.
In the longer term, the destruction of political Islam must come through the collective rejection of it by the Governments and religious leaders of the Muslim world. Meanwhile, we have to defend ourselves from it, and this Bill is concerned with that defence. Its aim, therefore, must have our support. However, the methods that it proposes manage, in some areas, to be both inadequate and sometimes injudicious. I shall focus on some of the inadequacies.
First, in Part 1, with its powers to disrupt the travel of people suspected of involvement in terrorism, I suggest that one of the most urgent and easiest measures—not in the Bill—would be to require all British passport holders to notify Her Majesty’s Passport Office of any other passport they hold. I have, over several years, repeatedly sought to introduce this requirement. I have never sought any limit on other passports of British passport holders. All I ask is that details of them are available in the records of the Passport Office and that they are revealed to immigration staff when scanning British passports. The Home Office has always opposed my proposal. Now surely its time has come.
Other, very simple but necessary, changes to passport administration should include the automatic electronic cancelling of passports—I think that the idea of physically seizing passports is rather old hat—particularly, for example, those of all deceased persons. There is currently a silly little gap in this regard. Quite often, these passports are flogged off on the black market. I think that the General Register Office should be made responsible for the immediate notification of deaths to the Passport Office. The cancellation of passports of all persons while in custody or serving custodial sentences is also appropriate. We have heard of people suspected of terrorism, even on bail, getting out with their passports intact. The courts can already require the surrender of passports but I think that electronic cancellation would be simpler.
Secondly, there needs to be much more rigorous vetting and control of the integrity of Border Force staff and all those concerned with the processing and issuing of visas. In January 2012, my noble friend Lord Henley, in a Written Answer, gave me details of 29 convictions of Home Office staff for misconduct in public office in the previous five years—that is, one every two months. The seriousness of the offences is indicated by the sentences passed: 18 were sent to prison for two years or more, and in one case nine years. Twenty-one of the 29 were employed in what was then the UK Border Agency. Considering the improbability of detection, the scale of what in many cases was abuse of the administration of the immigration system for private profit suggests that this behaviour may be responsible for a significant failure to secure our borders.
The Answer to the Written Question gave an indication of the sort of profiling needed in the recruitment procedures. Interestingly, my noble friend Lord Bates, updating the list in an Answer on 6 January, omitted to give the names of those convicted. When I inquired about the reason for this omission, I was told that the Home Office,
“do not consider it appropriate to include sensitive personal data in our response, ie the names of individual offenders”.
Convictions and sentencing in this country are done in public. What is this Home Office playing at, trying to conceal from Parliament names of its employees who have been sent to prison for misconduct in public office? Given the ease with which people could get jobs in the border agency in order to make money from such practices, is not the possibility of terrorists infiltrating the Home Office to threaten our country a much more serious risk? For example, given what the Government said yesterday about Boko Haram, would it be wise to employ people who might have such sympathies or indeed connections? During the Cold War there was an elaborate system of positive vetting to prevent those with communist sympathies being employed in sensitive areas. I hope that the Minister will be able to assure us that all government departments and agencies are now equally vigilant on the threat from political Islam.
Finally, I draw attention to the extremely unsatisfactory situation regarding the electronic monitoring of our national borders. I refer of course to the e-Borders system, which is one of the biggest failures of government computer procurement. The main contract with the American-based company Raytheon, signed in 2007 and worth around £750 million, was terminated by the present Government in July 2010. After binding arbitration, the Home Office has been left to pay Raytheon £224 million. Now we are talking about the need for more resources for the police and security services. That, by any standards, is big money.
What we should have is electronic scanning and recording of the passports of every person arriving at and leaving our borders, by land, sea or air. This information should be stored, probably for at least five years. That is simply not happening. Although there is now fairly extensive scanning of arrivals, even that is not complete, nor is it recorded. However, scanning and recording on departure is every bit as important. That is virtually non-existent. How do we know that those who have been admitted for a limited period have departed? How do we know that those who should not have been allowed to depart have not got out of the country?
A full e-Borders system is of the highest priority in protecting us from terrorism. When I have raised this question I have been fobbed off with the suggestion that the monitoring of exits is “intelligence-led”. That is simply not good enough.
I hope very much that the House of Commons Home Affairs Committee will urgently consider the consequences of Raytheon and the action that is now needed. I hope that the report of the National Audit Office, which is reviewing this fiasco, will be published soon and reported on by the Public Accounts Committee.
There are three problems in making this legislation fit for purpose. First, the Home Office is traditionally extremely resistant to any suggestions as to how it could better perform its duties. The “not invented here” factor meant that it took me 10 years from the time the legislation requiring it was passed to get the invaluable electronic firearms register established—10 years. Secondly, the Home Office is not taking the measures it could do under existing legislation. There is a lot of new legislation but it is a matter of doing what could already be done. This is largely because—as demonstrated by Raytheon—it is lacking in the computer skills and capabilities to defend our borders. Thirdly, I am afraid that the performance of the Home Office certainly does not indicate that—in this area at least—the “gentleman in Whitehall always knows best”, as has been demonstrated by a number of contributions this evening. This House must scrutinise and, where necessary, amend this legislation fully and fearlessly.
Viscount Hanworth (Lab)
My Lords, the Bill is a mixture of new initiatives and refinements of existing legislation. It is being fast-tracked through Parliament in a way that makes it very difficult to subject it to adequate scrutiny. The complicating factor is that much of the information that might enable parliamentarians to judge the likely effects of the powers to counter terrorism or the terrorist threat is unavailable to them. To reveal more might prejudice the security of operations, so parliamentarians have to work in the dark.
Apart from the questionable urgency that Governments typically associate with such legislation, there is a new factor that might affect our critical judgments. We witnessed appalling terrorist atrocities in France last week. These are bound to increase anxieties about the possibility of a similar event occurring in the UK. This, I am sure, will predispose many of us to look favourably on the Bill’s provisions. Nevertheless, the Bill deserves detailed and critical scrutiny. It requires far more scrutiny than the time that has been allocated to it will allow.
In the absence of such careful oversight, it may be appropriate to offer some words of warning. This is an enabling Bill that grants powers without either mandating their use or posing limitations on the extent to which they might be used. They are powers that in the main should be used very sparingly. There is a danger that some of the powers will be used to the extent that they will become counterproductive. In addition to refining the existing powers, the Bill adds a whole new dimension to the counterterrorist legislation. This is contained in Part 1.
Chapter 2 concerns a new power to enable the Home Secretary to issue a temporary exclusion order that would control the return to the UK of a British citizen who is reasonably suspected of involvement in terrorist activities abroad. An exclusion order can last for up to two years, after which it will be renewable. Very little has been said to justify these orders. They seem to have originated in an extemporary pronouncement of the Prime Minister when the atrocities of ISIL were prominently exposed for the first time in our media. It was in August that David Cameron first raised the prospect of barring a British jihadist from returning to the UK. At the time Dominic Grieve, the former Attorney-General, said that the proposal was likely to be a non-starter. He pointed out that withdrawing an individual’s passport would effectively make them stateless, which would contravene international laws.
In an address to the Australian Parliament in November, David Cameron said that British fighters in Syria and Iran would be barred from returning to this country for two years unless they submitted to strict conditions. He also indicated that they would be granted a right of appeal. That represented a refinement of the original proposal which has been described by some as an attempt to dump the UK’s toxic waste in distant places. The suspicion remains that the Bill’s proposals represent an attempt at saving face by turning a hasty and ill considered reaction into practical legislation. However, few of the practicalities have yet been considered.
An appropriate policy for confronting British nationals who wish to return to the UK after visiting the areas of conflict in the Middle East would make some clear distinctions regarding their motives for going there and their reasons for wishing to return. There should be no automatic presumption of guilt in advance of proof of innocence. We must distinguish among the various categories of Muslim Britons who have travelled, or are thinking of travelling, to the areas of conflict.
In the first category, which might be the predominant category, are young and naively impressionable individuals who have been influenced by others to espouse the cause of the jihadists. When confronted with the realities of the conflict they might seek to return home. They should be assisted to do so in every possible way, and they should not be made fearful of punishment or reprisals. There will be others who have inevitably been involved in brutal acts of war. In those cases, it will be difficult to judge how a balance should be struck between any punishments and programmes of rehabilitation to which individuals should be subjected. Those involved in barbaric acts that can be classified as war crimes ought not to go unpunished, and in the light of the likelihood of such punishment it will be less likely that they should seek to return. There will be some who would seek to return for the purpose of wreaking havoc in the UK. They will be very few in number but they will pose a disproportionate threat to our security. These dangers need to be averted by enhanced levels of surveillance and intelligence.
Our Islamic community will be one of the most important factors in overcoming the threat of Islamist terrorism in this country. The opinions of parents, siblings, friends and elders will eventually discourage young people from espousing the ideology of jihad. Every effort must be made to make sure that such people are not alienated by the rough handling of their errant relatives. Senior police officers who have been involved in these matters understand this. Helen Ball, of the Metropolitan Police, who is the senior national co-ordinator for counterterrorism and terrorist investigations, has stated this clearly in outstanding testimony to the House of Commons Home Affairs Committee. She confirmed that the police clearly see the need to build trust and confidence which will enable families, schools and institutions to be forthcoming with intelligence about people who are in danger of being radicalised.
Another testimony from the police is that their ability to handle the cyberintelligence that should enable them to avert acts of terrorism is constantly being degraded by the advent of new means of electronic communication. It is to matters of cyberintelligence that Part 3 of the Counter-Terrorism and Security Bill is devoted. There are various provisions that will enable the Home Office to require communication service providers to retain the data that would facilitate the identification of individuals who might be planning acts of terrorism in association with others. It is by no means certain that these provisions will enable the investigators to redress the balance in their favour. This is where part of the danger to which I have alluded resides.
What might happen in the event of a failure of this intelligence? A likely outcome could be increasing harassment of young individuals of the Islamic community whose profiles might resemble those of the terrorist suspects. This would serve only to generate the alienation and resentment that sustain the cause of the terrorists. In the opinion of many who are concerned with civil liberties, a further expansion of the powers to retain electronic data is inconsistent with our rights to privacy. However, we all demand a degree of security against the threat of terrorism. We cannot expect to have the best on both accounts. We must tolerate a degree of intrusion into our private affairs as the cost of this security but we must be vigilant in guarding our rights.
Baroness Brinton (LD)
My Lords, it is inevitable in a debate that has taken more than seven hours already, and will continue for some time to come, that the focus of much of what we have said has been on the current Islamicist terrorists. However, one of the most important tests for this Bill is ensuring that it covers other terrorists as well; we should not forget those. Noble Lords have mentioned the IRA in the past but 10 years ago there were terrorists in the animal rights movement who were leaving pipe bombs—certainly in Hertfordshire, where I lived. In Europe there is a threat from far-right racists who, as we know, can also perpetrate acts of terrorism.
The 2.5 million Muslims who live in this country are currently finding it very difficult to be heard, so I want to start by giving one example from my home town of Watford. On Sunday, Watford’s Muslim community came together to turn their procession—which should have been in honour of the Prophet’s birth—into a solidarity march for the people of Paris. They were joined by ordinary people in Watford who would not normally have done that. It was recorded and commented on much in the local media. Sadly, there has not been much comment in the press, but that sort of activity shows that Prevent is working in this country. The attitude of many in our community, particularly those who were criticised in the Muslim community 10 years ago for not having the dialogue about extremism, is at last beginning to change. Of course, there is much more to do.
Much of the Bill is important and it will be vital if we are to follow through on everything that the independent reviewer, David Anderson QC, has set out as being necessary. Liberal Democrats are very supportive of those measures which will combat terrorists and help the police and the security services in all they need to do to monitor people, arrest them and deal with them in a judicious way. As other noble Lords have mentioned, there is a difficult balance between human rights and having the tools to catch those committing the most heinous of crimes. Even moving towards that has to be balanced, and that is what this legislation is about. Many noble Lords have spoken about that today and I will not add much more, except to say that there is a key role for Parliament and the judiciary to have oversight. We must ensure that it is not left to the Home Secretary or the department to make judgments. We must always check to make sure that the balance between human rights and security is there.
What will otherwise happen is that all those we seek to catch will move to the dark web. There was discussion earlier about IP addresses. I have been in this Chamber when we discussed the young and how they work their way around pornographic filters far too easily. They are way ahead of us, their parental generation. The same is true, I am afraid, of those who will subvert any route we set up. If we think that we have resolved the issue by being able to identify IP addresses, they will immediately find another way around it. In fact in Russia, I understand, Putin is talking about moving back to typewriters to avoid anything being written in a form that can be traced via the internet.
I worked in the university sector for over 20 years, not as an academic but as an administrator. I was the bursar of a Cambridge college for 10 years and then ran a unit that looked at universities working together with communities and employer engagement. I have read the Bill with an eye to how practical the implementation of the duty will be. I am concerned that those in the Home Office who have drawn it up do not understand the way in which our universities are structured. The duty on curbing free speech that is being asked for to protect us from terror will require primary legislation to change universities’ current duty to ensure that there is free speech. That debate will take some time because, fundamentally, it lies at the heart of what we believe our universities are there for. It is not an add-on to be sorted out in regulations, as has been suggested by the briefing notes for the Bill.
As a bursar, I would be horrified to have to sit and debate whether a student society—over which my college and the university would have no control because it was an autonomous body—was making the right decision to allow somebody there, let alone to demand in my role to see the presentation of a speaker and try to understand whether it just went over the boundaries of extremism. How do individuals in institutions decide what is or is not extremism? This is madness. It is the sort of thing that is done in haste. I notice that this part was not debated when the Bill went through the Commons but has been introduced only recently. It is utterly impractical and I hope that before we move to Committee next week, serious consideration will be given to whether this duty will work for universities. Certainly, there is no time to look at changing the primary legislation required for universities to make this possible. I liked my noble friend Lord Phillips’s phrase about “a lumbering part of the Bill”, but it is more than lumbering. It will kill this part of the Bill if it goes through.
I support my noble friend Lady Berridge, who referred to the funding of terrorism at the moment through looted works of art and religious icons. The Walk of Truth charity that she spoke of is a 21st-century equivalent of “The Monuments Men”, a splendid film which recognised the work done by service men and women at the end of the Second World War to restore looted arts. There is nothing to restore in the current system because works of art are being sold through traders, some of it coming to this country. I hope that, in Committee, it will be possible to at least put down a probing amendment and perhaps to have reassurance from the Minister that we are making sure that works of art coming into this country have effective provenance, to show that they are not being looted from the Middle East.
The Guardian reported on 15 June that a series of flash sticks was discovered after a courier was killed in battle. These flash sticks revealed that ISIS had taken $36 million-worth of goods from al-Nabuk alone, including a large number of antiquities up to 8,000 years old. Each item could be sold for between $20,000 and $50,000. That is the scope of how ISIS is funding its activities. We have a duty to ensure that religious art, icons and murals are not coming into this country and being sold on; and that that flow of money for terrorism stops. At the moment, the Bill is very light on the funding of terrorism: it is rightly saying that other things should be stopped. This may be small, but it is important that we dry up that flow of money for terrorism, whether it is in this country or in the Middle East.
Lord Armstrong of Ilminster (CB)
My Lords, we have had a long debate with very many thoughtful contributions. I certainly do not propose to try to sum them all up. I would like particularly to thank the two noble Lords who made their maiden speeches; theirs were notable contributions to the debate and we look forward to hearing from them both. If I pick particularly on the speech from the noble Lord, Lord Evans of Weardale, it is because I come from a generation of public servants for whom the Security Service was not allowed to exist. It was like the girl in the song:
“Oh! no! we never mention her,
Her name is never heard”.
The director-general’s identity and name were the most profound state secrets, and the director-general’s voice was never heard in public. Things have changed, and they have changed to our advantage: we had the present director-general making a speech that we read last Thursday and we had two noble Lords who are former directors-general of the Security Service contributing to our debate this evening with all the authority of their experience.
The people of this country have a right to be able to go about their lawful business freely and in freedom, and in private if they so wish. They also have a right to be able to go about their business in safety and without fear. Parliament and the Government have to try to resolve the conflict between these duties, since measures to provide safety and security almost invariably and inevitably limit freedom and erode privacy. How the balance should be struck at any given time has to be decided by Parliament, and should be decided by Parliament. The Government can and must propose, but people will expect Parliament to decide. It is a serious and heavy responsibility.
The rights to freedom and privacy, although they might have to be qualified, are none the less absolute. They should be qualified or limited only to the extent necessary for the purpose of maintaining or improving safety and security. We must therefore be ready to accept limitations on freedom and privacy where they can be shown to be essential for maintaining—or preventing a deterioration in—safety and security. If and when we are satisfied that the nature of the threat has changed, so as to make it unnecessary to retain measures that were hitherto regarded as indispensible, we need to be ready to dispense with those measures.
We have once again reached a stage when the balance needs to be reconsidered and restruck in the light of new threats to safety and security. I believe that the Government had established a case for the new measures proposed in this Bill before the shocking events in Paris last week. Those events have served to strengthen that case.
No doubt we shall go through the Bill in detail and consider the relevance and effectiveness of each of the measures but, subject to that examination, I hope that the House will give the Bill a Second Reading today and eventually pass it. We owe it to the law enforcement and intelligence and security agencies on whose vigilance and effectiveness we depend to provide them with the powers, authorities and resources that they need for the purpose of providing us with the best possible protection from threats to safety and security, as we now perceive them.
As for the detail of the Bill, I shall only briefly mention that I await to see what is said about the temporary exclusion orders and the role of judicial review. I also await to hear what is said about the Privacy and Civil Liberties Board. On that matter, my respect and admiration for the Independent Reviewer of Terrorism Legislation, Mr David Anderson, is possibly slightly less—but hardly less—than that of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Carlile of Berriew. It is very great. We shall need to ensure that nothing in the Bill dilutes or diminishes his responsibilities. We shall need to ensure that he has the range of duties that he thinks he needs and the resources to fulfil them. We shall need to watch that very carefully as the Bill proceeds.
I comment briefly on Part 3. It will allow the Government to require communication service providers to retain data that will allow the authorities to link the unique attributes of a public internet protected address to the person or device using it at any given time. It will not enable the authorities to obtain access to the content of such communications; that will continue to require the authority of the Secretary of State.
The power to be able to access such data and, often, to be able to do so as a matter of urgency, is, as we have heard this evening, an indispensable and vital tool in the investigation and detection of terrorist threats and crimes—and of other serious crime. It was one of the provisions contained in the Government’s draft Communications Data Bill, which was given pre-legislative scrutiny two or three years ago by a Joint Committee of both Houses under the chairmanship of the noble Lord, Lord Blencathra, of which I was a member. The Joint Committee recommended a number of changes to the draft Bill, but accepted this provision.
For my part, I regret that the current Government were unable to reintroduce a communications data Bill that incorporated the Joint Committee’s recommendations. Such a Bill is needed to reflect fast-moving changes in communications—particularly internet—technology since the Regulation of Investigatory Powers Act 2000, 15 years ago. Parliament should be asked to return to the subject very early in the new Parliament. I am glad to learn that the Prime Minister has said that if he is still Prime Minister after the election, he intends to introduce such a measure. A similar commitment from the leader of the Opposition and other party leaders would no doubt be welcome.
Indeed, I believe that the new Parliament will have to give early consideration to these issues, as Part 3 includes a sunset clause which provides for its repeal at the end of 2016, at the same time as the repeal of the Data Retention and Investigatory Powers Act 2014. In the mean time, thankful for small mercies, I welcome and commend Part 3 to the House.
Lord King of Bridgwater (Con)
My Lords, may I fill in the gap and follow the magisterial address from the noble Lord, Lord Armstrong, on the considerable number of issues with which he dealt in his previous incarnations for a considerable length of time? In general, I will simply say that I support the Bill but I also welcome the way in which the House has addressed the issues contained within it. I recognise and applaud the way in which the Minister introduced it, and I am sure he will enjoy my applause after his wind-up as well. He has been willing to listen and that is very much appreciated in this House.
On Clause 5, the Minister will have undoubtedly have some interesting discussions on exclusion orders and relocation with many Members in Committee. I pick up the rod of the noble Baroness, Lady Manningham-Buller: there is no civil liberty without security. The noble Lord, Lord Evans, who I am delighted to see here—I have had the pleasure of meeting him on other occasions in different venues—made a chilling remark in an excellent maiden speech. He said that the threat is greater but the capability to meet it is less. You listen to that statement and think, given the troubled nature of this world, about what it means—the threat and the worry that it represents for our country. It is our duty as a House and as a Parliament—the Government have their duty as well—to take every reasonable step that we can to try to ensure that that capability is as little reduced as possible, even after Mr Snowden and other activities which have arisen.
My noble friend Lady Neville-Jones, with her considerable experience in this field, said that this is not a short-term problem. We look at the state of the world, the places from which our problems are coming and the conditions of those places at present, and see the virtual impossibility of envisaging any real significant improvement in those areas. We are moving, I believe, into an extraordinarily difficult and different time. Having had my own experiences in trying to counter terrorism and in other situations, I recognise the exceptionally difficult nature of the problems we now face. We never faced suicide bombs in Northern Ireland; other noble Lords have made that comment. We did not have 10 year-old girls coming as suicide bombers, which has only recently occurred.
I disagree with the noble and learned Lord, Lord Lloyd of Berwick, who referred to a finite number. I think he said there were 250, or maybe 500, who have to be dealt with and accommodated. I do not think that this is a static figure. The risk is that it is a continuing movement. There is the growth of social media; the extraordinary capabilities in organising and mobilising shown by ISIS at present; and the fact that Mademoiselle Boumeddiene could, while French police were still worried about whether they were going to arrest her, go from Paris to Madrid to Istanbul to Syria. The mobility of some of these people, and the fact that others can make the reverse journey, means that the threat to us is very great.
My own knowledge is that in these situations you can have all the boots on the ground that you like, but unless you have good intelligence you do not have a chance of meeting the threats that you face. It is to be hoped that, once the Bill has had its Second Reading, it will get serious and responsible consideration in Committee in the interests of improving the security of all the people in our country, which is our great responsibility at this time.
Lord Rosser (Lab)
My Lords, I do not wish to detain the House for too long, frankly because of the hour. Secondly, I am not sure for how long my voice will hold up. This has been a calm and measured debate on an issue that can and does arouse diverse and very different reactions. We have heard from nearly 40 Members of your Lordships’ House with considerable knowledge of the issues addressed in the Bill, including two thought-provoking maiden speeches approaching the subject of counterterrorism and security from different standpoints and experiences. I hope it will not be too long before we are able to hear again from the noble Lords, Lord Evans of Weardale and Lord Green of Deddington, when they will no longer be constrained by the accepted conventions applicable to maiden speeches.
Inevitably, the recent atrocities in France have played a part in this debate. However, the Bill is not of course a response to what happened in Paris, although no doubt many feel that what happened there has underlined the case for it. The Bill relates to counterterrorism and security issues in this country, and sets out the measures and changes that the Government are asking this House to agree to in addition to existing statutory revisions. However, we are not alone in having faced and continuing to face the reality and prospect of terrorist acts. Pakistan, Australia, India, Canada, Belgium, America, and of course France, to name just some countries, have been and potentially still are in a similar situation to us. Home Office Ministers have previously referred to the 40 or so terrorist plots that have been disrupted since the attacks in London in July 2005, and 2013 saw the first terrorist-related deaths in this country since 2005. We know that there is a very real prospect that British nationals, following involvement with terrorist groups in Syria and Iraq, will seek to persuade others to go down the same route or will carry out attacks here, or both.
The Government have said that they believe that about 600 people of interest to the security services have travelled to Syria, with about half having already returned to the United Kingdom, some of whom pose a significant threat. The problem is not unique to the United Kingdom: the United Nations estimates that foreign fighters from 80 countries may be in the region, mainly fighting for ISIL. Over the past five years or so, more than 800 people have been arrested for terrorism-related offences, more than 200 have been charged, and nearly 150 have been successfully prosecuted. Last year alone, the Metropolitan Police made some 270 arrests following counterterrorism investigations, and with other agencies it has disrupted several attack plots.
The recent Intelligence and Security Committee report set out the serious challenges our security services and police face in keeping us safe, and they deserve our gratitude and thanks. As my noble friend Lady Smith of Basildon said at the beginning of this debate in setting out our position on the Bill, we agree that the terror threat has grown, and we will support the Bill because it responds to new and changing threats and addresses some past mistakes, not least on terrorism prevention investigation measures. The Government have at last recognised the need to restore relocation powers, the abolition of which led to the effective demise of TPIMs for those extreme cases where prosecution cannot be successfully pursued but the threat continues.
However, there is a need to examine closely the detail of the provisions in the Bill and to ask: whether what is proposed will in each case achieve the stated objective; whether the stated objective is clear, unambiguous and proportionate in the light of the situation we now face; and whether there are sufficient checks and balances in place to prevent powers which should be proportionate from being abused and discredited, thus undermining the fight against extremism. A number of the contributions today have homed in on one or more of those considerations, and a number of concerns have been expressed. It is for the Government to seek to allay those concerns, either in their response to this debate today or, probably more realistically, during the further stages of the Bill’s consideration.
One such concern which has already been raised is in connection with the provision in Part 5 for a new statutory duty on certain bodies, including local authorities, schools, colleges and universities, to have due regard to the need to prevent people being drawn into terrorism. I doubt that too many people would disagree with that as an objective, but there is a need for the Government to be clear about exactly what powers the Bill gives to the Secretary of State, who will be able to make a direction to one of the bodies covered by that power, such as a university, if it is deemed to be failing to exercise its statutory duty. The Government also need to state clearly what a body would have to do to show that it had met a duty to have regard to the need to prevent people being driven into terrorism. When asked in the other place if she envisaged the Home Secretary making a direction in order to tell a university or institution not to allow somebody to speak, the Home Secretary replied that that was not the intention of that power of direction. The question that does need to be answered, though, is whether the Government consider that a Home Secretary could make such a direction, under the powers in Part 5.
There will also be a need for the Government to provide more detail on exactly how the proposed temporary exclusion orders will work in practice, bearing in mind that they will be dependent on the co-operation of other countries, which will presumably also have to be acting within the provisions of their own laws, and international law. It is not clear at the moment just how practical or otherwise, or how bureaucratic or otherwise, the proposed arrangements for what the Government describe as a “managed return” will be, how long it is envisaged that those covered by the proposed arrangements could be detained, or even if they will be detained on foreign soil, pending their being allowed to travel back to this country.
The Government appear to have changed tack on the issue of judicial oversight of the temporary exclusion order power, following pressure on this point in the other place, although the Home Secretary may have left the door ajar to not doing anything, since she said in the other place last week that,
“the Government have committed to look very carefully at judicial oversight of the temporary exclusion order power”,
and that the Government,
“will return to this issue in the House of Lords”.—[Official Report, Commons, 7/1/15; col. 340.]
Perhaps the Minister in his reply could give a specific commitment that the Government will bring forward amendments to provide for judicial oversight of the temporary exclusion order power.
We will want to discuss further the role of the Privacy and Civil Liberties Board, since the Bill itself reveals very little on this point. It contains more on the make-up and composition of the board than it does on its purpose and powers. Like the noble Lord, Lord Butler of Brockwell, I was interested in what the noble Lord, Lord Carlile of Berriew, had to say, because I thought he was indicating something about the intentions of the Government in respect of the board which I do not think I have heard from either the lips of the Minister or in writing from his pen. No doubt the Minister will want to clarify the intentions of the Government. The Bill says that the board will advise and assist the independent reviewer. Will the board be able to overrule or outvote the independent reviewer on any issues related to the carrying out of his role and responsibilities? Will the existence of the board create a bureaucracy which will divert the time and attention of the independent reviewer away from his existing crucial role, and will the board have its own separate support staff, and if so what will their role be? Will the independent reviewer still be able to seek advice—if he so wishes—from outside the board, and will he be required to seek the advice of the board on any specific issues, or will it be a matter for him to decide whether he wants their advice or not?
I appreciate that the Government have published a consultation paper, but presumably they did not provide for the setting up of the board in the Bill without having come to the conclusion that it was needed, and what its working relationship and role would be in respect of the independent reviewer. As my noble friend Lady Smith of Basildon said, our response to the threats we face can never just be a legislative one. Community action, pressure, and involvement is needed; and understanding and tackling the reasons why people—mainly young people—become radicalised and go down the road of violence and extremism is crucial. We hope that putting Prevent on a statutory footing will assist the situation in this regard, but we need to examine how the arrangements will work in practice, including, in the light of the resources previously cut, what will be made available. While we share the view that there is a need to take quick action to stop someone who it is believed is about to leave the country to become involved in terrorism-related activity, we believe that checks and balances are needed to minimise the possibility that the power to seize travel documents will be misused, or otherwise result in an injustice, a view that the government parties do not apparently share.
We very recently had the benefit of the views on the Bill of the Joint Committee on Human Rights, as well as those of the Constitution Committee. The Joint Committee on Human Rights has raised a number of points of concern, no doubt all of which will be considered and debated at Committee stage. Bearing in mind that there appears to be pretty widespread support in your Lordships’ House for the overall objectives and intentions of the Bill, the Committee and Report stages are likely to be the crucial ones. It is at those stages that the detail of how it is intended that the proposals will actually be implemented should be provided by the Government so that a considered view can be reached on the practicality and feasibility of what is being proposed, as well as on the adequacy or need for checks and balances to ensure that powers cannot be abused and that the possibility of injustice occurring can be minimised.
We have already indicated our support for the objectives and intentions of the Bill. It is the detail that needs careful and considered debate, but with a recognition that we need both liberty and security in a democracy if the goal of safety for our citizens is to continue to be delivered and sustained.
Lord Bates
My Lords, I echo the words of the noble Lord, Lord Rosser, in viewing this debate as calm and measured. In the words of my noble friend Lord Phillips of Sudbury, it has been the House at its best, as it is on many occasions of this nature. A lot of issues have been raised and I shall do my very best to get through them. Essentially, they have grouped around nine main thematic areas: the nature of the threat; the procedure and legislative process; passports, and their seizure; temporary exclusion orders; funding and resources; international co-operation; IT and data retention; Prevent powers, particularly in relation to universities; and the Privacy and Civil Liberties Board.
I turn to the first of those—the nature of the threat. I thought that the debate was aided immensely by the contributions in our two new maiden speeches, which were both focused on the particular expertise that the noble Lords, Lord Evans and Lord Green, have in their respective roles. The noble Lord, Lord Evans, referred to a jolt of energy that has gone through the terrorist networks; they are enlivened, bold and audacious in how they undertake their attacks. The noble Lord, Lord Green, from his immense experience in the Middle East, spoke of what he regarded as that region descending into a chaotic situation. He chillingly viewed the situation as being the worst that he could recall in 50 years. That is of course because of what is happening through ISIL in Iraq and Syria. I pay tribute to the work of my noble friend Lady Neville-Jones, who pointed out that it is not a static threat but an expanding one, and that ISIL is now very much on the borders of NATO in Turkey. It is growing and dynamic.
The noble Lord, Lord King, has immense expertise, which I was grateful that he could draw on while speaking in the gap. He reminded us that ISIL is different and distinctive from anything that we have seen before. The noble Lord, Lord Marlesford, talked about its international nature in referring to Boko Haram and attacks elsewhere, including Pakistan. The noble Lord, Lord Rosser, referred to the horrific attack on the school in Peshawar, which led to the death of 132 schoolchildren. It is of course not just happening far away; it is happening with the active and determined support of British citizens—a small and determined band. That is what makes it different.
My noble friend Lady Neville-Jones and the noble Lord, Lord Butler, referred to the fact that in the case of the horrific attacks in Paris, the attackers were using skills and training that they had experienced in training camps and active service elsewhere. The noble Baroness referred to Yemen, where they had learnt those deadly skills that we need to counter. The noble Lord, Lord Carlile, talked from his immense experience about the actions of a determined minority that were jeopardising free speech. When we have a debate about the Prevent duties for universities—which I will come to in a minute—it is important that we also remember this enemy’s absolutely determined war on free speech.
The noble Lord, Lord Rooker, offered me some professional sympathy, having been a distinguished predecessor in this role, and talked about a group of people who were intent on destroying our very way of life. For these reasons, and others, the noble Lord, Lord Hannay, adjudged fairly that the Government had entirely and convincingly made the case for the necessity of legislation. On the nature of the legislation and its process, a couple of noble Lords, to whom I will not refer directly, questioned whether it was a knee-jerk reaction. They used terms such as “window-dressing” and questioned whether it was meaningful and would have a real effect in tackling a real problem. At my very junior level in the Government, I have an overwhelming sense of the need to consider such matters as: are you overlooking something; are you upholding safety; are you correctly balancing security, civil rights and freedom; are you doing all that you can? I can only imagine what the weight and pressure must have been for the Prime Minister when he was informed, on 29 August, of the view of the Joint Terrorism Analysis Centre—not of his committee, not in his judgment—that the threat level should be raised from substantial to severe. It therefore determined that an attack was highly likely. I guess he responded as most of us would do on 1 September, when he said that he wanted to be absolutely sure he had done everything in his power to try to keep our citizens safe. That is the genesis of the legislation.
As to the legislative process before us, the Government are committed to ensuring the effective parliamentary scrutiny of the legislation. The noble and learned Lord, Lord Goldsmith, talked about the use of fast-track in a very thoughtful speech, which showed an incredible understanding of the wrestling and agonising which is going on across government about how to strike the balance and frame the legislative approach. The noble Lord, Lord Rooker, said that he did not feel that the term “fast-track” was appropriate. In some senses it is not, because we are talking here about a limitation of the intervals, not limitation of the debate. The signal of intent came at the beginning of September; the Bill was introduced at the end of November; we have had hearings by the Joint Committee on Human Rights; it has been scrutinised in another place; it will have three days in Committee, then go on to Report and Third Reading. There are also five or six parallel consultations on different aspects of the Bill. We can make the case. I know that the noble and learned Lord, Lord Lloyd, brings immense expertise to this area. He made a very thoughtful speech in which he raised concerns on this point and I listened carefully to them. However, I feel that in this case of necessity we have got the balance about right in terms of the legislative process.
The noble Baroness, Lady Smith, to whom I express my gratitude for her support as we work through the Bill, asked about the sunset clause. There are certain provisions within TPIMs and the Data Retention and Investigatory Powers Act which are subject to sunset clauses. However, the view is that it would be inappropriate to add a sunset clause for some of the other provisions—for instance, where they simply clarify existing legislation or where an industry, such as the aviation sector, needs certainty if it is to implement new technical systems. Noble Lords will wish to note that the Constitution Committee, which took a great interest in such issues, did not recommend a sunset provision in this regard.
My noble friend Lord Jopling and the noble Lord, Lord Rooker, talked about preparedness. My noble friend Lord Jopling also spoke about the chemical, biological and nuclear attacks which could arise—and about the chilling side-effects of Botox, which, if they were made known in the market, would lead to a dramatic fall in sales. However, it is right that preparedness is a key part of what the Government are seeking to do here. In 2014, more than 120 people were arrested for alleged offences relating to Syria while seven individuals were convicted for Syria-related terrorist activities, which shows that the Government are prepared in this regard.
Many literary allusions were made in the debate. The noble Lord, Lord Hennessy, referred to Karl Popper, and I was grateful that he struggled with the relevant text as that made me feel less guilty. We have also had references to Joseph Conrad, Voltaire, Henry James and others. Noble Lords have struggled with the texts of philosophers in trying to get the right balance between privacy and security. That issue was helpfully touched on by the right reverend Prelate the Bishop of Durham, who said that it is not how we live but how we live together that matters, and that we need to be careful about taking away security and civil liberties. The noble Lord, Lord Armstrong of Ilminster, talked about the need to restrike the balance between the two concepts in the face of the new threat. That balance is constantly under review. My noble friend Lord Carlile, in a very powerful and eloquent speech, which was full of insight, said that the Home Office was far from caricatures portraying a cadre of people seeking every opportunity to restrict the freedoms of others. In his experience and in mine, the Home Office is full of incredibly professional people who agonise, along with everybody else, about whether they have struck that balance correctly.
My noble friend Lady Shields and a number of others spoke about the international discussions that are going on. I can inform the House that active discussions are taking place bilaterally with Turkey and France, as one would expect, but also with EU partners. This underscores the fact that we are facing these threats having taken the decision at the end of November to opt into certain justice and home affairs issues. One can only imagine what people might be thinking, and how insecure they might feel if, in the face of the terrorist attacks in Paris, we did not have any legislation currently in train. We are debating it and that is part of our preparedness.
The noble Lord, Lord Condon, referred to lessons from Denmark. My noble friend Lord Carlile painted a picture of a phalanx of international leaders arm in arm on the march on Sunday. The international community needs to move forward and to ensure that we send a collective message, but we also need to work with each other to counter this very serious threat. My noble friend Lord Roberts and I are attracted to the suggestion of my noble friend Lord Carlile that religious communities can be part of the solution, not part of the problem. My noble friend Lord Marlesford talked about political Islam but religions are very much part of the solution. The picture of the Albanian Christians and Muslims marching together in Paris certainly showed that the terrorists have not won.
Several noble Lords, including my noble friends Lady Berridge and Lady Buscombe, referred to passport seizure for longer than 14 days. They talked about the Joint Committee on Human Rights report. There is an important point here. My noble friend Lady Buscombe said that to characterise this as a universally critical statement on the Bill, as perhaps some of the press releases that have surrounded this debate did, was absolutely wrong. The report took a fair and balanced approach. Again, it reflected the fact that everybody is wrestling with this. The difference in views between the noble Baroness, Lady Kennedy of The Shaws, and my noble friend Lady Buscombe reflects the scale of debate that is happening not just in the Joint Committee on Human Rights but across the Floor of the House. In fact, it is happening across the country.
At 14 days, the police’s investigation should have progressed to the extent that a court can meaningfully consider whether the investigation has been conducted diligently and expeditiously. Any evidence provided at a court hearing should not differ too greatly from that which caused the decision to seize a passport in the first place. This is done on a case-by-case basis. The noble Viscount, Lord Hanworth, reminded us that each individual has a different route to ISIL or wherever they are going. We need to treat them as individuals, case by case.
In terms of reasonable suspicion, I am sure that my noble friend Lord Thomas of Gresford did not mean that officials would seize a passport on a hunch. We are in consultation over a substantial document—a code of practice. It goes into exhaustive detail about the circumstances, assurances and processes that must be gone through before such a serious step as temporarily taking away someone’s travel documents is taken. I can assure the House that that power would be used only on a case-by-case basis, where the police reasonably suspect that a person is travelling overseas for terrorist purposes. It would probably be circumscribed by a number of stringent safeguards, with a check by a senior officer above superintendent level and an additional check by a more senior officer independent of the investigation for up to 72 hours; an initial retention period of only 14 days; and a court review of the ongoing need to retain a passport, allowing a judge to extend that period up to a maximum of 30 days if the police needed more time for their investigation.
My noble friend Lady Hamwee asked whether we could seize foreign as well as UK passports. The answer is yes and it feeds into the point that my noble friend Lord Marlesford raised about notifying people when they have more than one nationality. The noble Lord, Lord Thomas of Gresford, asked about the JCHR’s proposal for notification of the turnovers, and I feel that my noble friend Lady Buscombe dealt with that effectively. We are all searching for the right approach.
The noble Lord, Lord Harris of Haringey, asked whether the temporary exclusion orders will be retained indefinitely. The clause makes it clear that there is a duty for the Secretary of State to issue to the subject of a temporary exclusion a permit to travel within a reasonable period if the subject applies for one. This is a key provision for a temporary exclusion power. It is about managing the return, to which a number of noble Lords have referred.
I was asked specifically about what is meant by “considering further action” and the judicial oversight of that process. The only language that I am able to use at present, which may not be satisfactory—noble Lords will have to read between the lines—is that we will visit this in Committee. Noble Lords understand how legislation works. I hope they will understand that that is more than a general statement; it is something of a statement of intent.
On temporary exclusion orders, if people want to return we will decide whether to impose a temporary exclusion order on a case-by-case basis. A temporary exclusion order does not prevent individuals from returning to the UK. It ensures that they return in a controlled manner and subjects them to additional measures on their return. It can be in operation for up to two years because of those additional measures; it is not that the process of their return will take two years.
I now move on to funding. I hope the House will bear with me just a little bit longer, given that I was chastised by the noble Baroness, Lady Smith, for being a little bit brief at the beginning. She is perhaps beginning to regret that statement now, as I am sure the House is. I will try to get through this, but I will certainly finish within the next few minutes. I give that undertaking. Not a great many questions were raised on finance, but the noble Lord, Lord Harris, asked me about it. I have that finance available. I am happy to write to the noble Lord about that. I absolutely underscore the point made by the noble Lord, Lord Thomas of Swynnerton, the noble Baroness, Lady Brinton, and my noble friend Lady Berridge that finance is critical to the way that this terrorist organisation is growing. It is a rich organisation, as the noble Lord said. We need to attack its finances as well as its ideology and its human resources.
I think the point on control orders is now accepted. We have seen the remarks of the Independent Reviewer of Terrorism Legislation, David Anderson. He has made his position very clear on this and we are listening very carefully to him.
I was asked by the noble Lords, Lord Carlile and Lord Butler, about the oversight board and whether it was the case that we had somehow changed our position. I think that was the suggestion. We are currently consulting on the powers. The document is out there and that consultation is live until 30 January for people to offer their views on the shape of the board. We do not want to pre-empt the end of that process at this stage. We are determined to go forward in the light of the consultation. If it goes forward, the establishment of the board will be by means of the affirmative procedure, as the noble Lord, Lord Phillips, asked. The timing of this will be subject to the availability of parliamentary time. I cannot say a great deal more on that, but I assure noble Lords that we will have more to say on that in Committee.
A number of points were made on Prevent. I will use this as an opportunity to plug the fact that we have a meeting at 2.30 pm on Thursday 15 January to deal with this matter, particularly relating to universities, in Committee Room 4A. Most noble Lords have been written to about this. The only point I would make on universities is that a copy of the Official Report of this debate should be required reading in all universities. That is not a regulation; it is just a suggestion. I do not want to stir things up too much further.
On the Data Retention Act, I want to thank my noble friend Lady Shields in particular for her work and for her helpful comments. During the scrutiny of the draft Communications Data Bill, both the Intelligence and Security Committee of Parliament and the Joint Committee on the Bill concluded that legislation is required to address the ongoing capability gaps that this narrow provision will not fill. We talked about the gaps in current capability. The noble Baroness, Lady Manningham-Buller, referred to that as well.
I have covered as many points as I can. The first duty of any Government is to ensure that their citizens are safe. That means not only the wider elements of how we talk about and tackle the culture that is giving rise to this problem but also effective policing, as my noble friend Lord Wasserman pointed out. I agree with noble Lords that we must protect our civil liberties alongside our rights to safety and security. The range of safeguards in this Bill and those we propose to add in Committee will do that, ensuring that these new powers are used in a necessary and proportionate way. The varied and detailed contributions from noble Lords have enabled us to cover a full range of issues during the course of today’s debate and I and my noble friend Lord Ashton of Hyde look forward to returning to these issues in detail in Committee. I commend the Bill to the House.