Baroness Hamwee (LD)
My Lords, in moving Amendment 70, I shall speak also to Amendment 71—slightly less fast-tracked legislation than that which my noble friend the Chief Whip sought to take through the House just now.
Under the Terrorism Prevention and Investigation Measures Act 2011, the Secretary of State can impose restrictions on an individual leaving a specified area—the so-called “travel measures”. Clause 13 provides that the Secretary of State must publish factors to be taken into account when deciding whether to impose such restrictions on an individual. My amendment would add not only the restrictions but “and what restrictions to impose”. The area to which I have just referred is not defined, quite understandably, but it could be anything from a small postal district to a very large region. This is a probing amendment, seeking reassurance about the factors that will be applied to the decision as to what the area is, as well as whether to impose the travel measure. I appreciate that the Secretary of State’s decision will have to be a reasonable one, but I am looking to find a way not only to make the criteria objective, but as far as possible, transparent.
Amendment 71 would add to proposed new subsection (1A) of Section 23 of the 2011 Act the provision that, where there is a travel measure, an individual who breaches it is not guilty of an offence—because breaches of the TPIMs measures are offences—if he contravenes the measure,
“with reasonable excuse and in exceptional circumstances”.
I have in mind, again in probing, how an individual who leaves a fairly confined specified area will be dealt with if, for instance, there is a medical emergency involving either himself or a family member living with him, or if there is a sudden severe illness of a family member who is living at the family home and not at the place where the individual has been relocated. Quite understandably, he will want to get there as fast as possible and not have to take time seeking a permit allowing him to do so. It is a humanitarian and reasonable matter that one might well have in legislation. If my noble friend gives me assurances about how these things have been dealt with in the past—they are not new—and understanding has been shown so that a prosecuting offence has not been pursued, I will be happy with that. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to my noble friend for tabling these amendments, which allow us to have a discussion on the travel measure that can be imposed on a TPIM subject.
Amendment 70 would amend the requirement for the Secretary of State to publish factors to take into account when deciding whether to impose restrictions under the travel measure. This would add an additional requirement to publish factors on “what restrictions to impose”. The purpose of the requirement in the Bill is to indicate the types of factors that the Secretary of State may consider when deciding whether to impose the travel measure. In each instance the location and size of any boundary will depend on the individual case. The factors that the Secretary of State may consider could include: national security considerations necessary to prevent or restrict involvement in terrorism-related activity; the original location of the TPIM subject, and by virtue of that, their family connections; the ability to access services and employment; the proximity to airports or ports; and the proximity to other TPIM subjects or prohibited associates. Any restrictions would have to be necessary and proportionate, as the noble Baroness rightly reminds us. The Secretary of State will publish these factors at Royal Assent and a copy will be placed in the Library.
Amendment 71 would allow a TPIM subject to use a “reasonable excuse” in exceptional circumstances to justify leaving the United Kingdom. In such circumstances, a prosecution for breaching the TPIM notice could not be brought. All other breaches of a travel measure—or any other measure—already allow for a reasonable excuse. The reality is that, if a TPIM subject leaves the UK without permission, they will be absconding from their TPIM notice. This is a very serious matter, as I am sure the noble Baroness would agree. It was the problem of absconsions which led to the creation of TPIMs as a successor to control orders. These individuals may very well pose a danger to the public in this country or overseas. We maintain that there is no reasonable excuse for leaving the UK without permission.
If a TPIM subject has a legitimate need to leave the UK, they can seek permission from the Secretary of State. There should be no circumstances where they leave the country without prior agreement. This morning, I discussed with officials the length of time that such measures might take. The experience is that these exchanges, permissions and interactions tend to take place on a very speedy basis. In the circumstances, we would not anticipate that there would be a problem in securing that permission.
I trust that, with that explanation and those reassurances, my noble friend may feel able to withdraw her amendment.
Baroness Hamwee
My Lords, that is very helpful. I wondered whether my noble friend might refer to the need to have a passport to travel outside the UK, which would probably have been dealt with as part of the arrangements for the individual. I will read through the list of considerations which my noble friend gave in response to my first amendment. I beg leave to withdraw Amendment 70.
Lord Rosser (Lab)
My Lords, our Amendment 73 is in this group. As has been said, Clause 15, on appointments for people on terrorism prevention and investigation measures, allows the Secretary of State to require an individual to attend meetings with such persons as the Secretary of State may specify, at such locations and at such times as the Secretary of State may by notice require. The specified persons may choose the time and place of the meeting. The clause is expressed in general terms and the purpose of the amendment, which is a probing amendment, is to give the Government the opportunity to say more about what kind of meetings an individual would be required to attend, for what purposes or objectives and over what period of time. It would also be helpful if the Minister could say if assessments will be made of the outcome of these meetings and to whom the assessments, if they are made, will be given.
Our probing amendment provides for the Secretary of State to be able to instruct an individual on a TPIM to attend deradicalisation programmes, since we think it is important that the Secretary of State should be able to require people to attend Channel meetings and appointments and possibly those relating to other parts of the Prevent programme. However, I hope that in his response the Minister will not only address the specific point covered in this probing amendment but talk in more depth about how the Government envisage using powers under Clause 15.
Lord Bates
My Lords, I am grateful to noble Lords who have spoken in this debate. I will put some remarks on record that I hope will answer some of the points made by the noble Lord, Lord Rosser, and then deal with some of the points made by my noble friend Lady Hamwee. I am grateful to noble Lords for raising these matters.
Amendment 72 seeks to amend the appointments measure by overtly stating that a TPIM subject may request an alternative person to the individual specified by the Secretary of State. The Secretary of State will consider whether an appointments measure is necessary for a TPIM subject for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. If a TPIM subject wants to meet a particular person, such as a counsellor, there is nothing to prevent them from making their own arrangements to do so, as long as the measures in their TPIM notice are not breached. In addition, the TPIM Act 2011 already provides the ability—under Section 12—to vary the measures in the individual’s TPIM notice, or for the Home Office to grant permission for the subject to do something they would otherwise be prohibited from doing.
The choice of people or organisations—a point touched on by the noble Lord, Lord Rosser—that a TPIM subject is required to meet will be decided on a case-by-case basis. To develop that a bit further, the types of people who it might be appropriate to recommend particular meetings with include probation officers, somebody from a job centre, if, for example, they are looking for work, or another of the individual’s mentors. As my noble friend said, the point is that we want people who return to the UK to be reintegrated into mainstream society because we believe that they can be very important elements in the prevention strategy aimed at those who might follow in their footsteps. This consideration would include whether such requests might lead to more genuine engagement or were aimed at undermining the effectiveness of this measure, or whether any national security concerns were raised.
Amendment 73, in the name of the noble Lord and the noble Baroness opposite, would amend the appointments measure in Clause 15 that allows the Secretary of State to require an individual to attend meetings as specified by the Secretary of State. The appointments measure is a broad power that allows the Secretary of State to require a TPIM subject to meet relevant organisations or people who can contribute to their ongoing management and integration. The measure includes the ability to require TPIM subjects to meet specified people to assist with their deradicalisation, including, but not limited to, providers of the Channel programme, for example. It is therefore unnecessary to specify explicitly that this is available via the appointments measure.
Amendment 74 seeks to specify that the Secretary of State may not unreasonably withhold permission for a TPIM subject to attend appointments related to deterring other people from involvement in terrorism-related activity. The purpose of the TPIM notice is to protect the public from terrorism and to prevent the TPIM subject from engaging in terrorism-related activity. If the measures are no longer necessary, the TPIM notice must be revoked. Therefore, anyone on a TPIM notice remains an ongoing national security concern. This being the case, we do not consider TPIM subjects necessarily to be good people to mentor others. However, if a TPIM subject chose to speak at a meeting to deliver a deterrent message, he or she could do so as long as it did not breach any of the measures in his or her TPIM notice. If it did breach any of the measures, or he or she encouraged people to engage in terrorism, of course they could be prosecuted.
Turning to the specific point—I am grateful to my noble friend for sending the notice to the Bill team ahead of this debate—about David Anderson’s report on TPIMs, the new measure will be an important part of the management of TPIM subjects and will mean that they must meet organisations and other persons as required by the Home Secretary. Its primary purpose is not to gather evidence to prosecute TPIM subjects. Nevertheless, it would be undesirable to create a situation where a TPIM subject provided clear evidence of committing a crime—including terrorism—but where, due to a statutory bar, that evidence could not be relied on, in any circumstances, in criminal proceedings.
In addition, the criminal courts have the power to exclude evidence where to allow it would have an adverse effect on the fairness of proceedings. We consider this to be a sufficient safeguard to ensure that information obtained in these meetings cannot be unfairly used against the individual. However, we will consider on a case-by-case basis whether appropriate assurances can be provided about how information obtained through the appointments in these measures will be used.
I was asked whether the assessments would be reported back—and, if so, to whom. Where appropriate, assessments will be provided to the Home Office. The ongoing necessity for meetings to continue will be kept under review depending on the nature of the meetings. Some may be one-off while others may be regular over a prolonged period. I think that the overarching message of the response to these amendments is that each case will be different and therefore, in order to be effective, each TPIM will need to be tailored to the individual concerned. With that additional information and explanation, I hope that my noble friend will feel able to withdraw her amendment.
Baroness Smith of Basildon (Lab)
My Lords, it is always with some trepidation that I rise to speak in a debate where I am the only non-lawyer to contribute, so I was particularly grateful to hear my noble friend speak, so I am not the only non-lawyer contributing to this debate. All noble Lords have made the point that relocation with a TPIM should be an exceptional provision. That has been the case. We were very disappointed when the Government removed the relocation part of TPIMs and the old control orders. Nobody likes the idea. As the independent reviewer said, this is something that has to be done in the interests of public safety. My understanding is that they are used only rarely. If my information is correct, currently only one person is subject to a TPIM provision.
Not being a lawyer, I have a couple of questions for the noble and learned Lord, Lord Brown. I think one of the reasons why the Government have made changes here is because they consider that substituting,
“is satisfied, on the balance of probabilities”,
for “reasonably believes” is a higher legal test. The noble and learned Lord, Lord Brown, said that is not the case. I am not a lawyer, so I leave it lawyers to have that debate, but it would be helpful to have some clarity about whether that is in law a higher legal test than “reasonably believes”. The noble Lord, Lord Carlile, said that in effect this is already happening and is how the courts see their role at present. If that is the case, it would be helpful to have some facts on that.
My other point was alluded to by the noble Baroness, Lady Hamwee. It is about individuals subject to the relocation part of a TPIM having no connection. My understanding is that part of the reason would, in some circumstances, be that the person would have no connection with the area they were going to to ensure that they were not associating with people they had engaged with in the past who had led them into terrorism-related activities or potential terrorism-related activities. That is not an easy thing for anybody, and nobody welcomes somebody being moved to an area where they have no connection, but if we were to rule that out in all circumstances, that might be quite difficult. I would be interested to know a bit more about this. I think there is widespread support for a very high test that should be used only in exceptional circumstances, but I am interested in the Minister’s comment and welcome further clarification from the noble and learned Lord, Lord Brown.
Lord Bates
My Lords, I am grateful to noble Lords for having spoken in this debate. I say that I am grateful as a general courtesy. It has not been an easy debate to speak to, and I ponder whether my response will be sufficient to ease noble Lords’ and the noble and learned Lord’s concerns. I shall just raise some points with the noble and learned Lord on his amendment, but I give advance notice that this is one issue on which we need to reflect more.
I am particularly cognisant of the support that the amendment has received from my noble friend Lord Carlile, as a former Independent Reviewer of Terrorism Legislation, as well as from my noble friend Lord Macdonald, who reviewed the legislation in 2011. He looked at its adequacy, which led in a way to the introduction of the more focused TPIM. Then, of course, there is the noble and learned Lord, Lord Hope. So there has been a range of voices. I shall put some points and answer some questions and then take it from there.
I am grateful to the noble and learned Lord for raising this matter; he has tremendous expertise in this area. Replacing the previous text at the point in the Bill does not amend the standard of evidence that the Home Secretary must apply when considering whether the person is or has been involved in terrorism. I underscore the point that all noble Lords have made—the noble Baronesses, Lady Smith and Lady Kennedy, made it—that this is a regrettable necessity. The amendment would therefore have the effect of requiring, for TPIMs that include relocation, the court and the Home Secretary to make independent judgments on whether the person is or has been involved in terrorism, but on different bases. It is therefore highly likely to lead to some confusion. It also removes the enhanced safeguard of raising the standard to that of the “balance of probabilities” for TPIMs which do not include relocation.
The Government recognise that the enhancements to the TPIM Act in the Counter-Terrorism and Security Bill were not part of the package of measures agreed by Parliament in 2011. It is therefore right that we consider whether the current legal threshold of reasonable belief continues to be the appropriate test for the imposition of a TPIM. We have concluded that the threshold should be increased for all TPIM notices to recognise the stringent preventive measures that may be imposed. Given her remit in relation to a range of aspects of terrorism, the Home Secretary remains best placed to make the decision to impose a TPIM notice to protect the public from terrorism. It is therefore right and proper that it should continue to be for the Home Secretary to decide whether a TPIM notice should be imposed, as it has been since 2011 and as it was under the previous system of control orders established in 2005.
I well remember the noble and learned Lord’s speech at Second Reading. He apologised, but I think that we were all immensely helped when he talked about his experience of how control orders were often struck down by the courts when they were actually brought forward. The TPIMs were therefore an attempt to limit the incidents in which they could be introduced on that basis, by introducing time limits and raising the threshold test, as well as allowing them to have access under supervision to the internet and telephony.
The court will continue to be required to review the Home Secretary’s decision as to whether the conditions for imposition of a TPIM are met—and the court must now, as part of its review, satisfy itself that the Home Secretary could make that decision at the higher legal threshold. This comes to the point raised by the noble Baroness, Lady Smith, who asked whether it is a higher legal test to have a “balance of probabilities”.
Although I tread deferentially in the company of distinguished lawyers, certainly my understanding is that you have reasonable suspicion, then reasonable belief and then, above that, a higher threshold of the balance of probabilities, which is where we are heading now. The courts will continue to apply an intense level of scrutiny to the decision-making process on the issue.
Lord Bates
My Lords, I am grateful to my noble friend for introducing this amendment. I will try to address the key points and then come back to the questions that she and the noble Lord have raised.
To be clear, communications data are the who, where, when and how of a communication, but not its content. They are a vital tool in the investigation of serious crime, including terrorism, and in safeguarding the public. Gaps in communications data capability are having a serious impact on the ability of law enforcement and the intelligence agencies to carry out their functions. We shall talk about these wider issues in the next group of amendments, but it is significant that communications data have played a very important role in every security service counterterrorism operation over the last decade. The data are used in 95% of serious and organised crime investigations handled by the Crown Prosecution Service. That is what we are talking about at present.
On the point raised by the noble Lord, Lord Rosser, Clause 17(3)(c) contains a statement about what is not data for the purposes of the Bill. I think that that is a legal definition of a web log; so there is specific mention in the Bill of what cannot be accessed under this provision.
However, the provision in the Bill is on the issue of IP addresses. Every internet user is assigned an IP address to ensure that communication service providers know which data should go to which customer and route that accordingly. Addresses are sometimes assigned to a specific device, such as a broadband router located in a home or company. However, as my noble friend Lady Ludford referred to, they are usually shared between multiple users—hundreds or even thousands—and allocated automatically by the provider’s systems. The amendments seek to ensure that the scope of this provision is limited to the retention of data that are required to allow the identification of a user from a public internet protocol address, and I am very pleased that on that principal issue there is not a great deal of difference between us. It is important that this provision goes no further than is absolutely necessary to ensure that communications service providers can be required to retain the data necessary to link the unique attributes of an internet connection to the person or device using that data at any given time.
At this point, I should say to my noble friend Lady Ludford that in essence we are talking here about adding another essential piece of the communications jigsaw. We are not actually saying—and I do not think that anyone is making this claim—that somehow an IP address on its own will be sufficient to identify what has happened. However, alongside other communications data—for instance, other CCTV footage or other surveillance evidence that may be there—this could be helpful in identifying who was where on a particular device and communicated with whom at a particular time.
The noble Lord, Lord Rosser, asked for examples of access data that may be required. An example is port numbers, which are akin to a house number, where an IP address is akin to a postcode. I know that the noble Baroness, Lady Lane-Fox, could probably give us a tutorial on the technical points; I could probably do with one at some point. Other types of data include the MAC address—the identifier of a particular computer—the time, the location and so on. Those are the types of data covered by “or other identifier”, and that is set out in the Explanatory Notes which accompany the legislation and in the addendum to the draft data retention code of practice, on which the Government have recently consulted. The code of practice sets out very detailed safeguards concerning how data can be collected. The consultation began on 7 December and concluded last week, and we look forward to informing the House of the findings very shortly.
The way in which an internet service provider identifies its individual customers varies from company to company depending on how their systems work. It is therefore important that the legislation is drafted in such a way as to enable us to work with individual communications service providers so that they retain only the data that they need to resolve an IP address. Our ability to do so would be limited by the amendment, which specifies the items of data to be retained in secondary legislation. For that reason, we cannot agree to the amendment.
The amendments seek to ensure that the provision goes no further than IP resolution, and I am able to confirm that the provision is already limited in this way. Clause 17(3), to which I have already referred, defines the data to be retained as data which,
“may be used to identify, or assist in identifying, which internet protocol address, or other identifier, belongs to the sender or recipient of a communication”.
At this point I should say that, although we are talking about the Counter-Terrorism and Security Bill, this provision will be of significant assistance to those who are seeking to tackle, for example, the worrying growth in accessing child sexual exploitation online. That is an important element here.
The noble Lord, Lord Rosser, asked whether the Minister for Security, my honourable friend James Brokenshire, will be writing. The Minister in the Commons dealt with all the salient issues. We of course reflected on the points raised in the debate, but there is nothing that we see as requiring further clarification at this stage.
The noble Lord also asked whether the combination of primary and secondary legislation is confusing. This legislation is accompanied by a retention of communications data revised code of practice for those implementing the legislation. The Government also work closely with communications service providers. This will ensure that there can be no confusion about how the legislation can be applied.
My noble friend Lady Ludford asked whether any consultations with communications service providers have taken place. The answer is yes—probably not at the time that she was talking about, when the Bill was going through the other place, but certainly since then. We regard communications service providers as an integral part of this whole process and we want to work very closely with them.
The noble Lord, Lord Rosser, asked how we define a communication and whether it includes messages sent by social media. Any messages sent over the internet, including via social media platforms, will have associated communications data. That has always been the case under existing legislation. Where those data are generated or processed in the UK by a company subject to the data retention notice, they can be used to resolve an IP address—that is, they can be retained under this Bill. Those data could then be accessed only where it was necessary and proportionate to do so for a specific investigation. However, that is quite separate from the content of a communication. What was said or written in, for instance, a Facebook message or a FaceTime call could not be retained under the Bill.
Similarly, the Bill ensures that we cannot ask internet access companies to keep a record of internet services that a given user account may have accessed, known as web logs, even where the data could be used to help resolve IP addresses. Any data which cannot be used to identify or assist in identifying the user of an IP address are already outside the scope of this provision. A requirement to retain data may be imposed only where it is necessary and proportionate to do so.
Accordingly, while I agree with the sentiment behind these amendments, I do not agree that they would add to the tightly drafted provisions that we already have. With the explanation that I have given and with my responses to the questions, I hope that I have offered sufficient assurances to noble Lords and that my noble friend will feel able to withdraw the amendment.
Baroness Smith of Basildon
My Lords, this has been a long debate with some powerful and informed speeches. I take issue with one thing that the noble Lord, Lord King of Bridgwater, said at the beginning of his comments. I think he was referring to something that had been said to him about this being an unacceptable use of parliamentary time. I totally disagree. In fact, my criticism is that we do not spend enough parliamentary time discussing issues that are of primary importance to both our security and our liberty and to finding the balance between them. Your Lordships’ House has enormous expertise, interest and experience on these issues, which this debate has shown very clearly.
Whatever one’s views on specific amendments, it has become clear that the general view is that legislation is being outpaced by the speed of change in technology. We have had a serious and very thoughtful debate today about the balance between security and privacy in what our security services and police require, and how we can legislate most effectively from an informed position, with public understanding and consent. Technology changes rapidly. That means that we, as parliamentarians, have to respond to those changes and ensure that legislation meets the challenges that those changes bring.
Last July we brought in emergency legislation, the Data Retention and Investigatory Powers Act. My noble friend Lord West referred to a six-year delay. Some of the points he was concerned about were brought forward in that legislation, which was due to a European Court ruling that struck down something that we had put in secondary legislation rather than primary legislation. We were able to address that in DRIPA—as it is affectionately known—and we supported that Bill to ensure that the existing capability was maintained. However, we were then highly critical of the Government's use of the fast-track procedure, as they had ample opportunity to bring that legislation before the House sooner. We said then—and it was very evident—that an ad hoc, piecemeal approach to such serious and important issues using fast-track processes was unacceptable.
At our instigation all parties agreed on a thorough statutory review, to be undertaken by the Independent Reviewer of Terrorism Legislation, David Anderson, into the capabilities needed to meet changing technology, and on the oversight and the safeguards that are necessary to ensure that any legislation is both necessary and proportionate. In addition, the Intelligence and Security Committee is examining how we can properly balance both security and liberty in online communications.
However, a theme of this debate since we started it is the question of where the Government's plans to tackle this issue are. Over two years ago the Government withdrew their Data Communications Bill following serious criticisms from the Joint Committee of both Houses which had been set up, and was chaired, as we have heard, by the noble Lord, Lord Blencathra—a highly qualified committee of parliamentarians, including future and former Ministers. I reread this report over the weekend. The committee’s criticisms of the Government’s Bill were serious and far-reaching: the Bill’s provisions were too sweeping and too broad, it paid insufficient attention to privacy issues, and it went much further than it needed to. The report criticised the safeguards and the definition of communications data, and it was highly critical of the Government’s analysis of the costs and benefits, describing some of the figures as “fanciful” and “misleading”. It was also critical of the additional personal powers provided to the Home Secretary. That is very serious criticism.
At the same time, the committee was explicit about its necessity. The noble Lord, Lord Blencathra, in his powerful contribution, quoted it. It said that,
“legislation which will provide the law enforcement agencies with some further access to communications is needed”.
The committee suggested a more balanced proposal to be brought forward for consideration and recommended improvements to the Bill. As the noble Lord, Lord Blencathra, said, that information would be presented to Parliament and it would be for Parliament to decide that balance and where the line must be drawn. But that was over two years ago, and the Government have not brought forward any further proposals to give Parliament that opportunity to decide. Last week the Home Secretary told the other place that she had accepted the recommendations, but we have had no explanation as to why she has not come forward with revised provisions other than the limited measures in this Bill and those in the 2014 DRIP Act.
Now, as the general election looms and despite the excellent work of the Joint Committee, the Prime Minister and the Home Secretary have started to speak out about the need for new powers but have not produced any evidence to Parliament, have not initiated a serious debate on the detail, and in more than two years have not produced, so far as I am aware, a new draft Bill. But we have heard today that there is a draft Bill. The noble Lords, Lord Blencathra and Lord Armstrong, have seen it, but has anyone else? Has the Minister seen the draft Bill, which apparently the Government have sitting on the shelf?
I say to those who want to characterise this debate as being about either those who care about security or those who care about liberty that they are doing the public a serious disservice. I really do not like the term “snooper’s charter”; the issue is bigger and far more serious than that. The police and our agencies need the capacity to capture intelligence information that will foil terrorist attacks. They need to be able to respond quickly to identify, for example, the last known location of a missing child or a murder victim. They need to know who sends abusive images of children, and they need to monitor potential terrorists. They also need to build their capability to tackle online fraud and cyberattacks, which are escalating all the time.
Some of the tools, particularly in relation to the retention of communications data, are controversial and cause concern. If we want the public to support such powers, we need to provide more information about why they are needed, how they will be used and how privacy will be protected. That is why we have to be prepared to have an open and honest public debate about the framework, the principles and the safeguards to ensure that these powers cannot be abused. Obviously such a debate has to be sensitive to the necessity of not exposing intelligence capabilities and should recognise the fact that some details must remain secure so as not to endanger national security or criminal investigations. Any legislation has to be necessary and proportionate, and it has to strike the balance between security and liberty. It is not an either/or. The public are entitled to expect both, and they are entitled to expect us to determine that balance from an informed position.
It is widely accepted that there has been a technical revolution in how we communicate and that the law and the oversight framework are now out of date. We need to understand how far and how quickly new technologies are outstripping the legal framework. We also need to understand how the use of new technologies has blurred the distinction between communications and content, as well as between domestic and international communications using mobile phone and tablet apps. The last debate we had on this in your Lordships’ House showed that many noble Lords are still confused about the difference when communicating through web apps. The noble Baroness, Lady Lane-Fox, referred to the challenges posed by the dark web. How many of us here today, apart from the noble Baroness, can claim to have the expertise that is needed to consider all the details of these issues? We need to understand not only the legal implications but the privacy and technical implications.
David Anderson’s report examined the details of issues such as authorisation, access, storage, technical capabilities, checks and balances, safeguards and so on. We are clear that following both that report and the report of the Intelligence and Security Committee, the Government must take action. Indeed, there is a time imperative to do so before the DRIPA provisions expire in 2016, at which point new legislation must be in place and fully operational. The Counter-Terrorism and Security Bill introduces further measures to address the issue of identification of a device that is used for communications at an IP address, given that in many circumstances multiple users will be sharing the same IP address. We support those changes. We have been clear that we are willing to work with the Government to discuss capabilities and safeguards, the powers that are needed, and the checks and balances that are required to ensure that the detail between protecting our liberty and protecting our security is right, and we want to engage the public in that debate.
But the Government have not initiated that debate. They have had the opportunity to do so, and apparently the legislation for that is on the shelf in the Home Office, gathering dust. That is why noble Lords have tabled their amendments today. However, what they have been unable to do in the time available and without access to the resources and information of government is what the Home Secretary has promised, and that is to adapt the original proposals to take account of the concerns and criticisms of the original Bill. I appreciate that the noble Lords have made the judgment, which is justified in part, that people are more accepting of measures that deal with terrorism and serious crime. However, when we look at some of the detail and examine the report of the committee, we can see that there are a number of other issues to which the attention of the Committee should be drawn.
Interestingly, one of the criticisms in the report was not of the purposes of the Bill, although the noble Lord, Lord Blencathra, did say that the number of organisations that can have access should be limited, but of something that goes much deeper. The Government’s view was that wider powers may be needed in the future, but the committee rejected the notion that Parliament should grant powers on the precautionary principle and thus without a current and pressing need.
I will not go into the detail about the individual clauses before us today because other noble Lords have spoken about them, but it is clear that they have not been able to take into account the recommendations for changes made by the Joint Committee. Perhaps I may mention just one because it raises a serious issue. In the detail of the amendment before the Committee today, no provision is made for the recommendation of the Joint Committee that any legislation should provide for the wilful or reckless misuse of communications data to become a specific offence that is punishable, in appropriate cases, by imprisonment. That is a recommendation of both the Justice and the Home Affairs Select Committees of the other place. Although if passed these amendments would be returned to the Commons, they have not been properly discussed and debated. This is complex and detailed legislation that requires proper scrutiny and expert advice. To have such clauses in fast-tracked legislation whose Report stage will be taken next week makes that difficult.
I have already referred to the assessment being undertaken by the independent reviewer, David Anderson. His review needs to address the serious points that have been raised by the noble Lords, Lord King, Lord Blair and Lord Carlile, and my noble friend Lord West. He also needs to deal with the points raised by the Joint Committee more than two years ago. We insisted on that statutory review and all three parties supported it. It is extremely unfortunate that we are in a position today where the Home Secretary has made no proper public or parliamentary response to the Joint Committee on the independent review, which was started just last summer at our instigation and where currently we have no proper process for consultation or the detailed scrutiny of proposals. That was yet another complaint of the Joint Committee.
The noble Lord, Lord Condon, talked about a road map. The Government need to set out a proper process for this. We need to see detailed legislative proposals from the Government, along with a summary of the capabilities and the safeguards to take account of the issues raised last time. We need to ensure that the measures are sustainable and enjoy broad public consent, otherwise we will undermine confidence in the vital work that the agencies do, and companies whose co-operation is needed will find themselves under pressure from their customers to find ways around the legislation. So although we do not think that these amendments are the right ones—I think this was acknowledged by the noble Lord, Lord King, who spoke of the amendments that he would be prepared to incorporate for the Joint Committee report—because they do not fit into a wider government process, we do think that this is an extremely serious debate. I look forward very much to the Minister’s response.
Lord Bates
My Lords, this has been an extremely good debate, and in that spirit the actual sequence of events here is worth considering for a moment.
The Government brought forward the Bill currently before the Committee seeking a broad, cross-party approach to these matters. I and the Home Secretary are grateful that the Opposition agreed to the semi-fast-tracked procedure and a shortening of the intervals between the various stages so that it could make its way on to the statute book and thus give the security services and the law enforcement agencies the extended powers which they have been seeking. These include the temporary seizure of passports, temporary exclusion orders, the right-to-carry schemes on the air side, the IP addresses that we have been talking about, as well as the Prevent strategy measures. Basically, in approaching this, we have tried to listen to the various bodies that have spoken to us. We have listened to the views of the Independent Reviewer of Terrorism Legislation, and we have brought forward the legislation which is now before your Lordships’ House.
Going further, we of course recognise that the Regulation of Investigatory Powers Act, as was mentioned by several noble Lords, is something that is desperately in need of review. People recognise that. The world has moved on since the year 2000. There is a real fear that the pace of technology, in the phrase of a number of noble Lords in this debate, is outstripping the legislative and security capabilities of our country to keep us safe. That is the context in which we find ourselves.
Lord Bates
His seven years’ experience there, as the noble Lord tells me, and seven years as chairman of the Intelligence and Security Committee add additional weight to what the noble Lord says. We will listen very carefully to what has been said.
There does not seem to be much doubt about the threat that is faced. The threat that we face was very eloquently put in a number of contributions: the noble Lord, Lord Macdonald, talked about the evidence used in real convictions; cases of communications data were given by the noble Lord, Lord Evans; and some practical, real-life examples were given by the noble Lord, Lord Blair. There are some very strong arguments that show that there is a need for us to look again at communications data.
Then of course we heard from my noble friend Lord Blencathra and we heard from the committee which reviewed the original legislation. It is important to get on record that elements of the original draft Bill considered by the Joint Committee are contained in this Bill. The IP resolution element was something that was in the draft Bill. It is not something that has been shelved; we felt that we could bring it forward with the necessary safeguards and it was brought forward. The noble Lord’s hesitations and questions very much remain, and we are very much committed to working with him and will seek to address his particular concerns.
I want to come back to the point that the noble Baroness, Lady Smith, mentioned. I preface these remarks—context is all with this—by saying that, first, we have to get a message out to people that we are talking about, in all of these things, the actual communications data and not the content. The content of the data will rightly require, whether it is an e-mail or a telephone call or an envelope, a warrant in order to be looked into. What we are talking about is tracking the communications data.
In the Data Retention and Investigatory Powers Act, which went through last year on a fast-tracked basis, Section 7 of that relatively short Act provides that:
“The Secretary of State must appoint the independent reviewer of terrorism legislation to review the operation and regulation of investigatory powers. … The independent reviewer must, in particular, consider … (a) current and future threats to the United Kingdom … (b) the capabilities needed to combat those threats … (c) safeguards to protect privacy … (d) the challenges of changing technologies … (e) issues relating to transparency and oversight … (f) the effectiveness of existing legislation (including its proportionality) and the case for new or amending legislation. … The independent reviewer must, so far as reasonably practicable, complete the review before 1 May 2015”.
If we had such a review from David Anderson before your Lordships’ House at this point, that would be of immense benefit in reaching these judgments. Your Lordships have touched on all the areas on which the independent reviewer has been asked to undertake a review and report. Those are the pertinent issues which have concerned Members who have spoken in this debate.
In the view of the Home Secretary, in the view of the Prime Minister and certainly in my view, the case is made for a communications data Bill to come forward. The noble Lord, Lord Condon, asked us to set out the clear road map as to how we were actually going to proceed. The road map has already begun. It began with the data retention elements in the Data Retention and Investigatory Powers Act last year and it continues in the counterterrorism Bill which is before your Lordships’ House. As a result of that legislation, it will require action once the report from the Independent Reviewer of Terrorism Legislation is received. In reality, that will probably mean that, very early in the new Session of Parliament, the House will have to turn its mind to this. Certainly, it is the absolute intent of the Prime Minister and the Home Secretary that it should do so as a matter of urgency.
Some people have said that that will necessarily take a year, or a year and a half, to the period of the sunset clause, but we do not anticipate that it will be necessary to take that long at all. In fact, as far as this counterterrorism Bill is concerned, which is perhaps a wider measure as far as others are concerned, we have managed to move this through, albeit at pace, but it will still have gone through scrutiny in a period of, say, three to four months from its introduction in the other place to its receiving Royal Assent, should your Lordships choose to pass the Bill.
So our position would be one of being deeply appreciative to my noble friend for introducing these amendments and of being particularly grateful for the quality of the debate and the contributions—
Lord Carlile of Berriew
I apologise for interrupting my noble friend, who is giving a most helpful speech, but can he confirm that David Anderson will be shown a copy of the draft Bill which met the approval of the noble Lord, Lord Blencathra, and can we please see a copy?
Lord Bates
I can certainly say in response that a copy of the Bill will be, if it has not already been, made available to him. It would be unthinkable for him to undertake this review into this serious matter without actually having sight of it. So I will certainly put that on record as the government position. As to our ability to share it more widely at this stage, I would be grateful if I could come back to the noble Lord on that when I have an opportunity to check—
Lord Carlile of Berriew
I am sorry to interrupt again, but can my noble friend confirm that, in coming back to us, he will do so in time for us to be able to consider tabling further amendments to this Bill?
Lord Bates
That is a more difficult question, which I am sure is why the noble Lord has pressed me on it. That is not something I feel able to give a commitment on at this stage. However, he is certainly right to put his finger on the point that we have someone there in David Anderson, the Independent Reviewer of Terrorism Legislation, whom we have charged in statute with a particular responsibility. Of course he should have sight of all information which would be relevant and pertinent to the requirements that we asked him to undertake on our behalf last year.
Baroness Smith of Basildon
I note the Minister’s response to the noble Lord, Lord Carlile. Can I ask for an assurance that the Official Opposition will also be given sight of the draft Bill? When we return after the election, whichever Government are in power, they will want to start work on this immediately. It would help if all sides of your Lordships’ House and the House of Commons had access to the detail of the draft Bill.
Lord Bates
The noble Baroness will perhaps understand if I need to just check with people on a slightly higher pay grade whether that is a commitment which I can make. I will certainly look at the issue with regard to the independent reviewer. I will certainly give an answer by Report to the very reasonable question which has been put forward.
A number of questions have been addressed in this debate, but I am conscious that we have spent considerable time on it. I will give an undertaking and say that this is not something that we want in any way to be seen to be distancing ourselves from. We want to put it under active review, and it is under active review. The contributions which have been made in the debate this afternoon on these amendments have afforded us an opportunity to air these issues and to identify where the gaps in agreement are, as well as where the gaps in capability are. We will reflect on those. I may have more to say at Report on that, but in the interim—
Baroness Hamwee
My Lords, before my noble friend responds, and without making any comment about whether we should or should not be shown things, I do not think it is appropriate to characterise all the opposition to these amendments as solely being about the way in which they have been put. My noble friends have made points of principle which we should not ignore.
Lord Bates
I also acknowledge the noble Lord’s experience as a former Minister—I am surrounded by former Home Office Ministers and Security Ministers in this debate. The specific point is whether there could be further provisions. The noble Lord says we should not beat around the bush. The issue here is that we are contemplating measures at a fairly late stage in a Bill which contains a number of measures which we desperately want to make sure get on to the statute book. We do not want to risk this Bill and all the provisions in it at present, as we think they are vital. In fact, we consider that they are more vital than the simple addition of these amendments—as desirable as we may see them individually—to the Bill. We do not want to do anything which would jeopardise the process. There has to be a recognition that the other place—I am sure the noble Lord, as a distinguished former Member, would recognise this—would feel that it was being required to look at 21 amendments, running to some 19 pages in a 53-page Bill, on a fast track and with ping-pong between the two Houses on consideration of Lords amendments. It might feel, rightly from a constitutional point of view, that that would be a difficult thing for it to agree to. I am simply airing the issues.
The noble Lord asked specifically whether the draft Bill which has been shown to the noble Lords, Lord Blencathra and Lord Armstrong, can be shared more widely. I have undertaken to the noble Baroness that I will go back to the department and discuss that, and I will certainly come back with an answer as to whether that is possible. However, for the reasons which I have articulated—while recognising and appreciating the spirit in which these amendments have been put forward, which we absolutely share—I ask the noble Lord to consider withdrawing his amendment at this stage.