Counter-Terrorism and Security Bill
(9 years, 9 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee
“( ) A constable or qualified officer must, in carrying out the duty in sub-paragraph (8), provide the person with a summary of the reasons for the suspicion.”
Baroness Hamwee (LD)
My Lords, Schedule 1 to the Bill provides for the seizure of passports from persons suspected of involvement in terrorism. Paragraph 2 deals with the seizure of passports at a port, and paragraph 2(8) sets out what the officer undertaking this exercise must tell the person. He must tell him that he is suspected of intending to leave Great Britain or the UK—there is a slightly different provision for Northern Ireland—
“for the purpose of involvement in terrorism-related activity”,
and that the officer is entitled to exercise the power to seize. Reciting those statutory grounds does not seem to be enough. There is no provision on the face of the Bill for the person to be informed of at least the gist of the reasons for the suspicion.
The draft code of practice, which has been out for consultation, includes some notification requirements but it does not include this one. As the Joint Committee on Human Rights pointed out, the draft code provides that,
“where a senior police officer authorises retention”—
this is at a different stage—
“the individual must be given a written notice which should … inform the person that they may … request reasons for the retention of their travel documents … Elsewhere, the draft Code provides that a police constable exercising the power … must issue the person with reasons for its exercise … ‘if requested’ and if travel documents are returned within the”,
first period which is provided by the schedule,
“they are to be accompanied by a notice reminding the individual that they may formally request reasons as to why their travel documents were seized and retained”.
None of that addresses the need to tell the person straightaway.
I should like to see in the Bill the JCHR recommendation,
“that the Code should provide that a person subject to the exercise of the power should be informed of the reasons for its exercise at the earliest opportunity in every case, and not merely where the individual makes a request”.
That is very fundamental, not only to the exercise of the power but as to how it is perceived. We rightly spent a good deal of time in Committee—and will, I am sure, spend more time—on the difficulties of perception and perceived discrimination against certain groups, which perhaps is a different issue from actual discrimination but is a very real issue.
In Committee, the noble Lord, Lord Pannick, supported my point. He said:
“No one would suggest that all detailed reasons must be given, but if someone is told that their passport is being taken away they should be told the essence of the reasons why if this power is to be acceptable and not criticised as obviously unfair”.—[Official Report, 20/1/15; col. 1236.]
It was building on that phrase “the essence of the reasons” that I have provided in my amendment for a summary of the reasons and not for the detail. I am aware that there may be security issues around that.
In Committee, the Minister gave a very long response to the group of amendments of which this was one—I think that there were 24 amendments—so it was quite an achievement to cover the ground. I fear that I did not manage to extract from the response a reply to this specific point. At the end of his reply, I asked him whether some comments he was making applied to gisting, and he said that they did not. Therefore, it seemed to me appropriate to bring the matter back at this stage in the hope that I will hear that we could include something like this in the Bill but certainly in the hope of hearing a detailed defence of the Government’s position. I beg to move.
Baroness Buscombe (Con)
My Lords, I am a member of the Joint Committee on Human Rights and I should like to say strongly that I do not support this amendment. There was a very good reason why we said that reasons should be given “at the earliest opportunity”. We absolutely accepted that there will be occasions on which it simply is not reasonable, either on security grounds or because of the speed with which the information is travelling in relation to the possible perpetrators from whom the passport is being taken, to expect the police to have reasons to hand. The phrase “at the earliest opportunity” leaves it sensibly open for the police to be able to respond in good time with some information as to why this has taken place. The committee discussed at great length that to expect a summary there and then on the spot—which is what the noble Baroness is asking for—would probably be too difficult in certain circumstances.
We have to accept that some of the information will probably arrive without much notice to those who have the difficult task of removing the passport. Given that the person will already be at a port or an authority in order to leave the country, surely it is right that in such cases we give trust and time to the security services and the police to do what they have to do in an emergency—that is, to remove the passport—and then, at the earliest opportunity, state the reasons.
Baroness Ludford (LD)
My Lords, I meant to ask the noble Baroness a question before she sat down. My noble friend Lady Hamwee emphasised that this is about providing a summary of the reasons for the suspicion. That is not proof or anywhere near it—it is not even a great deal of detail—but a summary of the reasons for suspicion. The requirement has quite a low threshold and would at least provide a basis on which a person may comprehend why these powers were being exercised. It seems reasonable and not too high a threshold to expect of the security services and the police.
Baroness Buscombe
My Lords, this is the Report stage and in order for me to speak a second time it has to be accepted that the noble Baroness asked me the question before I sat down. The whole point of this is to allow for a reduced bar, in a sense, which is not sufficient for the power of arrest but is something less. It is wrong in any way to box in the security services and police in a difficult situation where, because of security reasons, they may not even know whether they can give the information.
I am trying to set the scene. We are talking about a different world from the one in which it is accepted that there would be a warrant for arrest and reasons given, where there would be understanding and matters would be beyond suspicion. All I am saying is: “Please can we give the security services and the police the freedom to act, sometimes with extreme speed, to stop someone leaving the country—someone who may want to do something on the mode of transport—without having to give such information?”. In any event, the summary probably would not satisfy—it is not meant to satisfy—the person from whom the passport is being taken.
Baroness Hussein-Ece (LD)
My Lords, I support the amendment and wish to address the comment made by my noble friend previously. It is quite a serious matter for a family, who may have spent a great deal of money purchasing tickets and planning a holiday, to arrive at a port or an airport to leave and then to have their passports, or one family member’s passport, seized. It seems to me quite reasonable to provide that person with a summary as to why their passport is being seized.
There is also the issue that there needs to be some accountability; otherwise, there is a danger of the whole system being seen as racially profiling people for whatever reason. We have learnt lessons from what happened with stop and search—there was not always sufficient intelligence or reasons given for people being stopped and searched. Further, a report published in 2013 by Her Majesty’s Inspectorate of Constabulary documented the poor training of officers who are exercising the power. It seems eminently sensible to have an extra layer which provides a safeguard and a degree of accountability around what is a no small matter of a passport being seized.
Recently I was travelling back from Paris with my son, who happens to have a Muslim name. He was questioned when we got to immigration control and we almost missed our Eurostar back home. He was asked whether he had been to Turkey recently. He does have family in Turkey and it would be entirely reasonable for him to go there, but he was singled out because of his name; there was no other reason. As it happens, he has not travelled to Turkey in the past year, but we were detained for some time and it was a worrying thing. His passport was not seized or anything like that, but the incident indicated to me that because of my son’s name, and for no other reason that I could see, he was questioned. My son is not a frequent traveller to Turkey and we had been on a day trip to Paris. He was questioned very seriously and we were within a minute of missing our train back. That showed me that this can be done quite randomly and with no proper intelligence.
Lord Harris of Haringey (Lab)
My Lords, this would be a safeguard without substance. What is required here is that a person is given a summary of the reasons for suspicion. The noble Baronesses who have spoken in support of the amendment have said that the summary obviously could not include the full intelligence, and quite rightly so. Presumably, the summary of the reasons will be, “There may be intelligence which suggests that”, which is hardly a reason that will satisfy anyone and seems essentially to be pointless. Surely the fact that someone is told that this is being done under Schedule 1 to the Counter-Terrorism and Security Act is all the summary of reasons that will ever be given. Dressing it up by saying, “You are being provided with a summary of the reasons: namely, that you are thought to be a person to whom Schedule 1 to the Counter-Terrorism and Security Act applies”, does not provide much of a safeguard. Is this not just gesture politics?
Lord Pannick (CB)
My Lords, this is not gesture politics. There are many areas of the law where an obligation to provide a gist of the reason is imposed precisely in order to try to achieve a compromise between the duty of fairness and the demands of security. In these areas of the law, providing a gist does give individuals the substance of the allegations against them. In this context, the constable can exercise the relevant power only if he or she has reasonable grounds to suspect. In general, the constable must be able to provide at the least a summary of the reasons why they have reasonable grounds.
I understand the point that there may be security reasons why the constable is either unable, or is concerned that he or she may be unable, to provide even a summary. I wonder whether the Minister might consider, prior to Third Reading next week, coming back with a revised amendment that would impose the obligation set out in the amendment moved by the noble Baroness, Lady Hamwee, but subject to an exception—if the constable believes that there are or may be security reasons not to provide the summary. In the context of the exercise of a power as serious in its implications as this—that is, seizing someone’s passport—surely there ought to be an obligation, at the time when the power is exercised, to tell the individual why it is being exercised.
Baroness Butler-Sloss (CB)
My Lords, following on from what the noble Lord, Lord Pannick, has just said, it may be possible to add to the amendment the words, “or in the case of emergency”.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to my noble friend for giving us an opportunity to discuss this issue again. It was part of a very large group of amendments in Committee, so I would like to put on the record some additional remarks which I hope will provide further reassurances about the circumstances in which the power may be exercised.
The Government are absolutely committed to the appropriate and proportionate use of the power to seize travel documents. The impact of this amendment would be to reduce the effectiveness of the power and the speed at which it could be used. We should remember that the context for this is that we have up to 600 people suspected of travelling to Syria and engaging in terrorism-related activities. It is in that context that we are seeking to disrupt, if not stop, such actions. This gets to the heart of the purpose of this power, which is to disrupt immediately the travel of individuals who are reasonably suspected of travelling for terrorism-related activity and to give the police time to investigate them.
It may of course be, as my noble friend Lady Buscombe mentioned, that this happens in the context of a tip-off, which might be from a security source or from a family member who at that point has some fear of the individual. There could be reasons why it is not possible to give more detailed reasons. However, a police officer of superintendent rank would have had to have been satisfied that the reasonable suspicion grounds had been met. It would be inappropriate to reveal the source or content of that information. There would need to be a full consideration of what the individual could be told, and this is likely to involve gisting—which I will come back to in a second.
Given the immediacy of the power, it would be impractical to conduct this consideration at port, and it would potentially damage prosecution prospects to do so at this point. However, if the police apply to extend the retention period, they must give as much information as possible about the reasons the individual’s passport was retained, without prejudicing national security. The Bill contains robust authorisation and review processes to ensure that the power is appropriately and lawfully used.
I did not make the following remarks in Committee—I am trying to add to the reply which I gave then. First, the reasonable suspicion test must be met. The use of reasonable suspicion as an evidential standard is used in relation to many other police powers. What constitutes reasonable suspicion will depend on the circumstances in each individual case, but there must be an objective basis for the constable’s state of mind, based on the facts, and it must be specific to the individual. At the point of seizure, the individual will be informed that their travel documents were seized because there were reasonable grounds to suspect that they were intending to travel overseas for the purpose of involvement in terrorist-related activity outside the UK. The police are not detaining the individual, nor are they permanently removing the individual’s passport privileges.
Secondly, the police are under a statutory duty to return the travel documents as soon as possible if the test is no longer met and investigations do not substantiate grounds to support further action being taken in respect of the person. Thirdly, a senior police officer of at least superintendent level must authorise the decision to exercise the power. Fourthly, this senior police officer’s authorisation is further reviewed by a police officer of at least the rank of chief superintendent, and this review must be started within 72 hours of the seizure. Fifthly, the reviewer’s findings must be reported to the chief constable of the force which exercised the power and he or she must consider those findings and take appropriate action. Sixthly, unless a court agrees to extend the retention period, the police must return the travel documents after 14 days from the point at which the documents were seized.
The whole process is further governed by a statutory code of practice, which my noble friend Lady Hamwee referred to in her introduction, which makes provision for how officers are to exercise the power and ensures proper use of it. The code also provides that a person who has had their passport seized may write to the police requesting that the reasons are provided for the exercise of the power. The police must respond, following detailed consideration of any sensitive information. Therefore, an individual can receive more detailed reasons as to why the power was used in their case, even when the passport is returned very promptly.
As the Bill stands, there is a clear threshold that must be met to justify the exercise of the power. The disclosure of any information relating to national security requires careful consideration on a case-by-case basis. This amendment would require such considerations to have taken place before the power could be exercised. A police officer at port would not be able to make this judgment. As I said, this would have the effect of preventing the power being used as intended as a disruptive measure. In the light of this and of the extensive and robust safeguards already in place to govern the exercise of this power, the Government believe that the change proposed in this amendment is not necessary and would have the consequence of inhibiting the use of this important power.
Baroness Hamwee
My Lords, the noble Baroness, Lady Buscombe, quite reasonably asked us to imagine a situation. I understand what she described. But perhaps we should also imagine the reaction of the individual—so the whole of the scene.
My noble friend the Minister talked about the return of documents as soon as possible, senior authorisation, the 72-hour limit, the role of the chief constable and the court, and so on. None of those is likely to satisfy the individual at the point at which they have been stopped. Let us say that you are an outraged, innocent traveller. Everything that has been described by way of safeguard is after the event. On the point about profiling and discrimination, perception is so important. The safeguards will not answer that point.
My noble friend said that the amendment was not necessary. It may not be necessary in terms of reasonable suspicion—that is not my argument—but something is necessary, even if it is difficult. On giving reasons at the earliest opportunity, I take the point made by the noble Baroness, Lady Buscombe, that the police may not know at this point. I can imagine that there might be an urgent phone call to the effect that so and so is likely to go through border control in 30 minutes’ time or on to such and such a flight, and the services will need time. However, that having been said, the code does not even provide for an explanation at the earliest opportunity. It talks about “requesting reasons”; it puts the onus back on the traveller. However, the officer may not know the reasons—so you can request them as much as you like but you will not be given them by somebody who has not been informed of them.
I take the point about security. I suspect that these situations might all be emergencies. To conclude, is there some way of encapsulating and dealing with this concern? If it is not in the Bill at Third Reading, could there be at the very least a change to the code to make the arrangement more human for the person affected? I would be very happy between now and next week to try and thrash out how this might be provided.
Lord Bates
On the latter point, of course the code is open to consultation. I certainly give an undertaking that my noble friend’s remarks will be fed into that consultation process.
Baroness Hamwee
I thank my noble friend and beg leave to withdraw the amendment.
Baroness Kennedy of The Shaws (Lab)
My Lords, I return in this set of amendments to matters that I raised in Committee. I do so as a member of the Joint Committee on Human Rights, which is concerned about the inadequacy of providing for the right to a fair hearing on these matters under Article 6 of the European Convention on Human Rights. I say immediately that we recognise the availability of judicial review but the availability of JR alone is not sufficient to satisfy the requirement of the right to a fair hearing under Article 6.
I remind the House that this Bill gives a significant power to the authorities to remove a passport and prevent someone travelling. It provides for a judicial consideration only after 14 days, so you do not go immediately to a court unless you seek judicial review. However, after 14 days the judge is under a duty to extend the period of retention of the passport for a further 30 days so long as he or she is satisfied that the investigation into the person is being conducted “diligently and expeditiously”. That is the only test for the judge at that point. We can well imagine someone turning up to say, “We need to keep this passport longer because we are still making our inquiries and working as fast as we can”. All of us who know how the courts work know that it is very hard for a judge to go behind the simple statements presented to the court.
The Bill provides for a closed material procedure at that hearing but makes no provision for the interests of the excluded party to be represented by a special advocate. You can ask for an extension, and for the person whose passport has been removed and the counsel representing them to remove themselves from the court. While in other circumstances that would immediately give rise to the special advocate procedure, here it does not.
It was the view of the Joint Committee that the best way to ensure compatibility with Article 6 was to amend Schedule 1 to the Bill so that it provides a genuinely judicial system of what we called “warrants of further retention”, directly analogous to the system of warrants of further detention of terrorism suspects in Schedule 8 to the Terrorism Act 2000. In fact, that has been used as the model in these circumstances, except for this set of provisions. I know that in Committee the Minister said that detention warrants were of greater seriousness than removing someone’s passport, but we would remind the House that interfering with family and private life by seizing someone’s passport is rather important and a significant intrusion into one’s liberties. However, the standards that we would expect seem to be absent.
The amendments put forward in my name fall under a number of different headings. The length of the period of retention concerns us; it should be seven days, not 14. The grounds that must be satisfied for a judicial warrant of further retention should be gisted and a summary of the withheld information, at least, should be provided to the court. That is different from the position proposed in the previous amendment because although lawyers would be involved at that point, a constable at the scene, say, could not be expected somehow at short notice to provide a statement that did not in any way risk disclosure of sensitive information. In this case, lawyers would have already been involved and gisting would have been perfectly possible.
Therefore, my set of amendments deals with these matters and reflects the amendments proposed in Committee. They provide for proper judicial oversight, which should happen speedily—not within 14 days but seven. We would expect, as in any other procedures whereby liberty and citizens’ rights were seriously being interfered with, there to be opportunities for knowing, at that point and in gisted form, the reasons for retention. If there are going to be closed procedures, the special advocate procedure should be invoked. That is what this set of amendments seeks to do. Given the seriousness of this matter—because it is a great intrusion—I hope that, having had some time to reflect, this House, the Minister and the Government will decide that that is the proper way in which to deal with such a significant interference with citizens’ rights. I beg to move.
Lord Bates
My Lords, I am grateful to the noble Baroness for again moving the amendment. At the outset, I should say that I recognise absolutely that we are talking about a serious matter here and that there should be safeguards. The issue between us—and the Joint Committee, for that matter—is on whether we believe that the safeguards are indeed adequate.
The noble Baroness is suggesting that taking a passport for up to 30 days is an infringement of liberty, and we accept that. However, for reasons that she pre-empted, we do not accept that that is equivalent to the pre-charge detention arrangements under Schedule 8 to the 2000 Act. This is very much a disruption technique. Of course we recognise that this is an infringement and it needs to be carefully monitored. Her amendment would name an extension of the seizure period a “warrant of further retention”, and seeks to draw an analogy with the Act to which I have just referred. I hope that noble Lords will agree that this is not an appropriate analogy, for the following reasons.
Individuals subject to this power will remain at liberty. Their passport privileges are not removed permanently. During the period that the police hold that person’s passport, the police and others need to work diligently and expeditiously to investigate further the nature of the information. Due to the nature of the hearing envisaged in a number of the amendments in this group, the court would need to provide for closed material proceedings with the appointment of special advocates. As the House will know, closed material proceedings are resource intensive; it would be challenging, if not impossible, for such a hearing to take place within that initial seizure period. Indeed, by the time that it is heard, the travel documents might already have been returned, or alternative disruption action might have been taken. This power is already subject to considerable safeguards, which are proportionate to the level of interference.
Let me briefly reiterate the measures in place to ensure that this power will be used in a fair, reasonable and lawful manner. First, the reasonable suspicion test must be met. I will summarise the points because they also relate to the previous group. This is a clear threshold that is well understood by the police to justify the exercise of the power. At the point of seizure, the individual will be informed that his or her travel documents are to be seized because there are reasonable grounds to suspect that he or she is intending to travel overseas for the purpose of involvement in terrorism-related activity outside the UK. The disclosure of any further information would require careful consideration on a case-by-case basis.
Baroness Kennedy of The Shaws
My Lords, I cannot pretend that the resistance to the argument that there should be proper judicial oversight is not disappointing. I know that the Joint Committee on Human Rights feels strongly that powers like these are very serious powers to take to the state. They also send out a message that is going to be received very negatively, because there will almost undoubtedly be occasions when people fail to travel to important family occasions and where the reasons for preventing that travel are based on information that is not satisfactory. There will be a real backlash, and we will find the communities affected feeling very alienated as a result. That is why having proper judicial oversight is so important. I am disappointed, but at this stage I beg leave to withdraw my amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendments 3 and 4 are also in this group. In Committee, I raised the issue not only of “arrangements”—the term used in the schedule—for persons unable to leave the United Kingdom after the retention of travel documents, but arrangements for their travelling companions. The Secretary of State can make arrangements for the person concerned, but often people do not travel by themselves, and those who are with them will be affected as well, as the noble Baroness just said. My noble friend Lord Ashton said that the debate had,
“highlighted a potential gap in the current provisions”,
and said that,
“the Government are committed to considering this issue in greater detail”.—[Official Report, 20/1/15; col. 1257.]
My question is, of course, whether the Government have now had a chance to consider the situation. If we do not refer to other people in the Bill, and if it is a fair point that arrangements for companions of the traveller in question should be considered, is there some other basis on which the arrangements could be made without the provision being ultra vires? I beg to move.
Lord Bates
My noble friend Lord Ashton indeed undertook to go back to consider whether the intention was that those travelling companions would be covered. The brief answer is that I can confirm that parliamentary counsel’s view is that that is indeed the case under the current wording. I hope that that will provide assurance, but for the purpose of the record, I can confirm that paragraph 14 of Schedule 1 already gives the Secretary of State sufficient scope in appropriate circumstances to make arrangements for travel companions of a person whose travel documents are retained. That is because such arrangements will relate to the person subject to the exercise of the power. An amendment to the Bill to apply that provision to travelling companions is therefore in our view, and that of counsel, unnecessary.
Amendment 3 would widen the ability of Paragraph 14 to include where a person is,
“unable to make the journey to which the travel relates”.
The additional wording is unnecessary, as it is captured in the current drafting of,
“unable to leave the United Kingdom”.
For that reason, we are unable to accept the amendment; but I hope, having had the opportunity to clarify that important provision, that my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, that is good news. I had not thought that the words “in relation to” the person could extend to “in relation to relations”, as it were. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 6 and 7. In Committee I raised the issue of people who might be travelling for humanitarian reasons rather than simply—if that is the right term—because they are involved in terrorist-related activity. I recognised the difficulties in this, as an individual could assert that he is simply travelling to give humanitarian aid. It is hard to untangle what constitutes support, as envisaged by the Bill, which is more than humanitarian assistance. To put it another way, showing that humanitarian assistance is not so intractably bound up with the activity in whatever country it may be is very difficult.
I therefore chose to base my argument on the position of reputable organisations such as the Red Cross. I had not anticipated the contribution from the noble and learned Lord, Lord Hope of Craighead, which extended the matter very usefully to issues that had come to his attention in his chairmanship of the Joint Committee on the Draft Protection of Charities Bill. He drew the committee’s attention to examples where there had been deterrence to those organisations—I think it is fair to say organisations rather than individuals —that were seeking to go to the areas in question for all the right and good reasons, but feared that they might be prosecuted under the terrorism legislation.
I take the point made by the noble Lord, Lord Harris of Haringey, and I think I took it at the time, that this is actually quite difficult to find one’s way through as a matter of practice. Rather than adding it to the Bill, I have suggested—and I am grateful that the noble and learned Lord has added his name to Amendment 5—that the training to be provided and dealt with in the code of practice should include identifying people to whom this applies; that is, persons intending to leave for humanitarian purposes, not for the purpose of involvement in terrorism-related activity. In other words, those who had exercised the immediate power should be assisted in this.
The other two amendments in the group take me back to the issue of equalities, discrimination and the perception of discrimination. At col. 145, my notes tell me, I dealt specifically with the Equality Act, which was mentioned in debate, as well as recording when the powers are exercised. There is a provision in the code about monitoring. I think that monitoring requires recording, and we are all only too aware, as my noble friend Lady Hussein-Ece has referred to today, of the problems of profiling and inappropriately stereotyping—well, any stereotype is probably inappropriate—and inappropriately identifying individuals who may be the subject of suspicion. I beg to move.
Lord Hope of Craighead (CB)
My Lords, the noble Baroness mentioned my name in her speech in support of this amendment. I put my name down to support it for reasons which I shall go into very briefly. As I mentioned in Committee, my attention was drawn to this problem by evidence which we received in the Joint Committee on the Draft Protection of Charities Bill. That evidence came in part from the independent reviewer, David Anderson QC, and in part from Muslim organisations which are interested in providing assistance to people who need humanitarian aid in places like Somalia which are difficult to penetrate without the assistance of the people who effectively run the country.
I shall make two particular points, without repeating what I said in Committee. First, David Anderson was critical of the definition in the legislation which he described as “monstrously” broad. It was broad for a particular reason, which one can see from looking at Section 1(5) of the 2001 Act, which contains the definition put into this Bill for its purposes. It states:
“In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation”.
It is that kind of scenario that may give rise to problems for a reason which was explained to us by one of the charitable groups. It said that when you go to these difficult countries, in order to get anywhere within those areas, you have to encounter and deal with the gate-keepers. The chairman of the Muslim Charities Forum asked:
“How can we go through the gatekeepers to reach the neediest people in Syria, Somalia or different parts of the world”,
if doing so would be caught by the Section 1(5) definition?
One can see how the thing might build up. The police might have information that the individual passing in front of them has previously gone to these areas and has provided money, as we were led to believe is necessary, in order to get through the gate. The proscribed organisation says, “All right. We’ll let you through, but you have to pay us a certain amount of money to do that”. It is a real trap. Of course, to give money to a proscribed organisation is prima facie assisting the purposes of the organisation, but the real reason for giving such money is to penetrate through the gate to provide the assistance which would otherwise not be available. These are my two points: first, the breadth of the definition and, secondly, what the evidence suggested to us is a very real problem in dealing with these areas.
Noble Lords will remember that in Committee we discussed an amendment to the primary legislation and, in particular in view of the contribution of the noble Lord, Lord Harris, I see that that is a very difficult thing to do at the moment without a good deal of further study and, no doubt, this is not the proper place for it anyway, although I suggest it may have to be dealt with sometime. What the noble Baroness is suggesting in her amendment is that there should be something in the code of guidance for officers so that they are alerted to this problem. Therefore, if they have that kind of intelligence, although what individuals say will not be conclusive, at least they will be aware that these people may have good reason for whatever they are said to have done which prima facie might seem to conflict with the definition in the statute.
On reflection, it would seem that the code is a better way of dealing with this without getting into the difficulties of amending primary legislation, which would go right across the board and might have rather deeper effects than we can contemplate at the moment. I suggest that the noble Baroness’s amendment is quite carefully crafted and there is real merit in the proposal that she has made.
Lord Harris of Haringey
My Lords, I have enormous respect for the noble and learned Lord, Lord Hope of Craighead, who has identified and talked about an issue that potentially has problems for humanitarian organisations under certain circumstances. However, the amendment remains irrelevant to that. While it may be quite attractive to use a code of practice as a means to identify this issue and make sure that officials are more aware of the potential complications, this code of practice relates to circumstances in which there are reasonable grounds for suspecting that person of the intention of leaving Great Britain for the purpose of,
“involvement in terrorism-related activity”.
It would be to stretch that definition to suggest that there is a suspicion that you are personally involved in terrorism-related activity because your organisation may have paid a sum of money to a gate-keeper in one of these circumstances, because this is about involvement in terrorism-related activity. I am therefore not sure that this is the right mechanism for addressing what I suspect is a real and valid problem that we need to find some way to address. Perhaps we can do that next time we revisit terrorism legislation, which will probably be in about four months’ time.
Baroness Ludford
My Lords, I urge the merit of these amendments very briefly. First, there has been a slight tendency in our discussions in the first part of this afternoon to assume that the actions by the officer at port would almost invariably be on the basis of intelligence that had been supplied before the person reached the port. However, the code stressed that there are two possible scenarios, which appear to be put on an equal footing. One is that information is provided to the police before or when a person arrives at port; or it can take place at port, on the basis of observation of behaviour,
“information obtained from any other source; or a combination of these”.
Therefore, there is fully in the code the scenario where observation of behaviour leads to the reasonable suspicion. That is the context in which these amendments play a part.
The draft code also stresses, in paragraph 24, the obligations under the Equality Act 2010 which police officers must bear in mind when exercising these powers. However, there is not really any reference to specific training on the use of these powers in this context as opposed to rather broad Equality Act obligations.
Finally, can the Minister consider strongly the need for the monitoring of the individual exercise of the powers—not just to monitor them broadly but to record? There is a difference between monitoring in a broad sense and recording when and in what circumstances these powers are exercised.
Baroness Smith of Basildon (Lab)
My Lords, I will speak briefly to Amendment 5, which, if I have understood correctly, is to do with training under the code of conduct specifically with regard to humanitarian aid.
I am sure that no one in your Lordships’ House would want to deter those who wish to give such support or aid from doing so. We have a proud history in this country of people—whether as individuals, or through organisations, their churches or charities—who risk their own lives to help and support others. Therefore, we understand what we are seeking with the amendment. My concern is that I would assume that the training to be given to those who would exercise power under this schedule would want them to correctly identify those who are going for terrorism-related purposes. Part of that should include identifying those who are going for humanitarian reasons. That does not necessarily need to be in the Bill; I can think of other groups, for example. I was talking to a friend yesterday evening who some years ago went to Afghanistan as a photojournalist, and he asked whether we specified journalists in the legislation.
The assurance that we seek, which it may not be necessary to put in the Bill, is that, after undertaking the training, those who exercise powers under this legislation fully understand exactly what they are looking for. We want to ensure that those who are going overseas for legitimate reasons—because, even when there are travel advisories out, there are people who would risk their own lives to help others, or to report back to people at home and in other countries—are not excluded or caught under this legislation. I am not sure whether this amendment is the correct way in which to do that, or that it fully identifies all those whom we would not want to be caught under the legislation. My anticipation would be that the training would include the proper use of the powers. If the Minister could confirm that, that would be helpful.
Baroness Hussein-Ece
On the point that the noble Baroness has just made, I was just thinking how difficult it must be to distinguish those who are genuinely going abroad for humanitarian reasons to support people in desperate need. We do not want to deter people who want to do that—it would be a sorry state of affairs if we thought that they should not do that. Perhaps in the guidance for those who are engaged in that work and want to do it, it might be helpful to let them know or give out some information as to what sort of things would be required to demonstrate the purpose of their trip, rather than officers trying to ascertain it when they are at border control. Perhaps we could give advice to what would be predominantly Muslim charities —I can openly say that here—that would be affected by the legislation, to let them know what would be expected of them when leaving the country to engage in the work that they are doing. Perhaps we could give them more information, rather than leave it to an arbitrary officer at the point when they are leaving to ascertain whether this person is going for true humanitarian reasons or for other, terrorism-related instances.
Lord Ashton of Hyde (Con)
My Lords, I am grateful to my noble friends for tabling these amendments, which cover issues concerning the statutory code of practice that governs the exercise of the power to seize travel documents.
To take the last point first, my noble friend Lady Hussein-Ece asked what was expected of charities, rather than just turning up at the airport and finding themselves victims, if you like, of these powers. I shall take that back and ask whether that is suitable, but at the moment I have no knowledge of a particular government draft for charities. But I shall take that back—and I take the point.
As your Lordships will be aware, a public consultation on the draft code of practice for officers exercising functions under Schedule 1 was launched on 18 December and closed last week, on 30 January. We continue to review and consider the consultation responses and any required amendments to the code. In summary, responses have been broadly positive concerning the extent to which, for example, the code appropriately describes who is subject to the new power, the test for exercising the power, how information is provided to people subject to the power and the safeguards against repeated use of the power. Respondents have commented on issues such as the need for an authorisation process and the time this might take, the availability of legal aid for individuals subject to the power and whether the specified police ranks for the authorisation and review functions are set too high. We have, of course, also considered the contributions of noble Lords and Members of the other place to debates on this chapter of the Bill throughout its consideration in the context of that consultation.
We agree with a number of respondents on issues such as the availability of legal aid and clarifying whether family members may access temporary support arrangements, if required. We will revise the code to reflect these points and other additional points that we consider appropriate. A summary of the consultation responses will be published in due course.
I recognise my noble friends’ intention, in tabling Amendment 5, to require the police to receive training so that they may distinguish between individuals travelling for humanitarian purposes and individuals travelling for involvement in terrorism-related activity. That point was made by the noble Baroness, Lady Smith.
Lord Hope of Craighead
Could the noble Lord clarify one point? I may have done so incorrectly, but I took him to say that, if a humanitarian organisation paid money to a gate-keeper that happened to be a proscribed organisation, that would be taken as assisting that organisation. The humanitarian organisation would therefore be open to prosecution and to the seizure of passports, which the amendment deals with. It is important to be clear on this because there are people listening—those from the Muslim charities in particular —who are deeply concerned about whether they are at risk. That might not have been quite what the Minister meant to say, but I would be grateful if he could clarify that.
Lord Ashton of Hyde
The Government’s position is that we do not want people to pay money to terrorists for any reason, so I think that what the noble and learned Lord said was correct.
Baroness Hamwee
My Lords, there were a few nuggets in that, for which I am grateful, so I shall not spend time on Amendments 6 and 7.
I absolutely take the point that there might be other entirely legitimate reasons for going to Syria or wherever, as the noble Baroness, Lady Smith, suggested. It made me realise how important gisting is, or an explanation of the reasons for many powers being exercised, because the reasons may come out in an exchange at that early point—the noble Baroness is right about photojournalists and many other completely proper reasons.
The Minister said that the Government do not want people to use humanitarian reasons as a pretext. I did not use that term, but that was exactly what I meant. I think I said that someone could assert that they were going out for that purpose. I agree with that. As to whether officers need training, let me just say that I put question marks against that rather than ticks.
Not being aware of prosecutions does not entirely answer the point. The noble and learned Lord, Lord Hope, talked in Committee about the chilling effect. I fear I have not followed up his references, but he also pointed us to legislation in Australia and New Zealand, which, as I understood it, he felt dealt rather better with that point. The noble and learned Lord nods at that.
I had hoped that we might have been able to take the matter a little further today. On some points we have, but I think that this may remain a real issue. Having said that, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 8 takes us back to the subject of gisting, but in the context of the imposition of a travel exclusion order. Clause 4 requires an explanation of the procedure for applying for a permit to return. I would extend that explanation to a summary, bearing in mind the security issue of the reasons for the imposition. I am not seeking a detailed explanation, but for reasons to be given that give an outline, so far as it can be given, for the individual to understand what is being imposed on him.
Amendment 9 would insert a reference to not having a reasonable excuse when failing to comply with a condition attached to the permit to return. In Committee, I referred to a “material failure to comply”. The Minister pointed to the provisions in Clause 10 dealing with the offence which would flow from breaching the condition—in particular, that an individual subject to a TEO would be guilty of an offence if he returned without reasonable excuse. I am seeking to align the provisions and to attach similar wording to the provision that deals with the invalidation of a permit. I beg to move.
Baroness Warsi (Con)
My Lords, I want to add words of support for the noble Baroness, Lady Hamwee. Providing the “gist”, as it was referred to by the Joint Committee, would certainly dispel some of the concerns that could arise about the potential random use of these powers, even if they were not so used. Providing that little bit more information, with individuals having direct experience of the reasoning, rather than the oversight process that would follow, would have a useful purpose.
Lord Bates
My Lords, I am grateful to my noble friend for moving this amendment and for giving me the opportunity to put further remarks on the record in relation to the imposition and operation of temporary exclusion orders. The amendments tabled by my noble friends seek to make provision for the Secretary of State to provide a temporary exclusion order subject with a summary of the reasons for the decision to impose the order on them. They also seek to ensure that a permit to return is not invalidated if the individual who fails to comply with a specified condition has a reasonable excuse.
My noble friend tabled an amendment similar to Amendment 8 during Committee. I responded at the time by providing the reasoning for the decision on the subject of the temporary exclusion order. In her previous amendment, she sought to oblige the Secretary of State to disclose the reasons behind her decision. In Amendment 8 she seeks to oblige the Secretary of State to disclose a summary of these reasons. However, the very nature of the information on which the Secretary of State is likely to base the decision to impose a temporary exclusion order means that its disclosure, whether in full or as a summary, could damage national security and might put lives at risk.
As I told the Committee when we discussed this matter previously, it is of course important that the individual is informed that they are subject to a temporary exclusion order, that that is done as soon as possible and that they are given an indication of why this is the case. However, again this must be balanced against the implications of the disclosure of such information. The Government take very seriously the decision to impose counterterrorism measures on individuals and the responsibility to provide those individuals with an indication of why the measure has been imposed. However, the Government also have a responsibility to protect the national security of this country and to ensure the safety of our citizens, which could be put at risk by the disclosure of such sensitive information.
I therefore trust that your Lordships will understand that it would not be appropriate for a temporary exclusion order subject to be provided with a summary of the reasoning behind the Secretary of State’s decision. Any notice given to the individual will state that the Secretary of State has reasonable suspicion that they have been involved in terrorism-related activity abroad. We believe that that is sufficient disclosure and that it informs the individual of the basis for the decision, while protecting sensitive information.
Amendment 9 would prevent the permit to return being invalidated where the individual had given a reasonable excuse for failing to comply with the conditions of the permit. Again, this is similar to an amendment tabled by my noble friend in Committee, during which my noble friend Lord Ashton assured her that the amendment was unnecessary. If a temporary exclusion order subject fails to comply with the conditions of the permit to return due to circumstances outside his or her control, the individual would be able to show a reasonable excuse for returning other than in accordance with a permit to return. In those circumstances, the person would not be criminalised. The objective of the amendment is therefore already achieved by the current drafting relating to the offence.
In the event that the individual failed to comply with a condition of the permit to return before travelling back to the UK, the Government would apply discretion to issue a new permit without the condition in question. Any other failure to comply due to the actions or decisions of the individual would understandably result in the invalidation of the permit to return. The Secretary of State will only place conditions on the permit to return that she deems necessary to manage the safe return of the individual and minimise the threat that he or she poses to the UK. Failure to comply with any of these conditions is a serious matter and must be handled accordingly.
Baroness Hamwee
My Lords, I thank the Minister for that. I certainly had not envisaged putting any ideas into an individual’s mind as to what might be effective to explain his position. On a more general point in response to the comments on gisting, an individual who is subject to these processes is likely not to be wholly open-minded as to the reasonableness of the Secretary of State. Issues of transparency are important here as well. The Government rightly talk about a balance and I do not disagree with that. However, having in mind the need for a balance, I am sorry that the Government have not been able to produce a provision dealing with gisting at the various points at which it might—or to my mind should—arise. My attempts are very amateur. It is a shame that the Bill does not reflect the Government’s approach, which of course, on the issue of balance, I fully share. Having said that, I beg leave to withdraw the amendment.
Lord Brown of Eaton-under-Heywood (CB)
In moving Amendment 10 and speaking to Amendment 11, I am returning to an unimplemented recommendation made in his March 2014 report by the independent reviewer about which I spoke at Second Reading and in Committee. These are the only amendments which relate to Part 2 on TPIMs. I want to make just five points.
First, the main and certainly the most contentious change in the TPIM regime brought about by Part 2 is the provision for internal relocation orders—internal exile, as it is being called. In short, it gives the Secretary of State power to require someone who is suspected of involvement in terrorism to move as far as 200 miles away from their present home. Not surprisingly, these highly disruptive kinds of order—which, in years past, used occasionally and contentiously to be made in control order cases—are deeply resented. Occasionally, however, I accept that they are a regrettable necessity.
Secondly, one of the conditions to be satisfied before any TPIM order can be made is that the individual in question is or has been involved in terrorism-related activity, which is known as condition A. Under the present legislation, the 2011 Act, that condition is met if the Secretary of State “reasonably believes” that that is the situation. Clause 20(1) of the Bill would substitute for the requirement of reasonable belief on the part of the Secretary of State the requirement that he be satisfied on the balance of probabilities that the person is involved in terrorism.
Thirdly, to my mind there is no practical difference between those two tests, hence the effect of Amendment 10 would simply be to leave out Clause 20(1), which substitutes one for the other. But far, far more important than Amendment 10 is Amendment 11, which is directed to the court’s oversight powers with regard to TPIM orders. Under the 2011 Act as it stands there is provision for initial review hearings of these orders and later for appeals by the High Court in each case. However, for reviews and appeals, the 2011 Act expressly provides that:
“The court must apply the principles applicable on an application for judicial review”.
Amendment 11 would widen the court’s jurisdiction so that it would be for the court to decide for itself whether the person in question was probably involved in terrorism and not merely for the court, as now, to ask itself whether the Secretary of State’s conclusion about that was one that he could reasonably arrive at or whether it was, on the contrary, perverse.
Fourthly, this strengthening of the court’s oversight powers was specifically recommended by Mr David Anderson, the independent reviewer, in his report of last year. In his recent oral evidence that he gave in November and December respectively to the Joint Committee on Human Rights and the Home Affairs Committee of the House of Commons, he expressly regretted that his recommendation had not been implemented. In fact, Amendment 11 is more limited than Mr Anderson recommended. He recommended that in all TPIM cases the final decision on whether the person is or has been involved in terrorism-related activity should be one for the court rather than for the Secretary of State, subject only to judicial review. My amendment would secure that this is so only in those most troubling of cases that I have already mentioned where the suspect is to be relocated far away from his own home.
Fifthly and finally, I should note with gratitude that last Thursday, after the debate in Committee at which widespread support was shown for my amendment, the Minister was kind enough to see me to discuss this question. Essentially, as I understand it—he will correct me if I am wrong—the Government’s position is that this amendment is not necessary because case law shows that the court interprets and applies its review powers in such a way as to suggest that in effect the court already takes the final decision itself. If that remains the Government’s view, I would challenge it for these reasons.
First, it postulates, necessarily, that the court is disobeying the express statutory prohibition placed on it by the 2011 Act against exercising any fuller or wider jurisdiction than that of judicial review. Secondly, I must ask rhetorically why the independent reviewer would make this recommendation and, indeed, regret its rejection if in truth it is quite unnecessary. Thirdly, given that the Government accept that what they suggest is the court’s actual present approach to these cases—namely, that of deciding the question for itself— why on earth not write that into the statute and thereby, as Mr Anderson himself put it in his report,
“help reinforce the legitimacy of TPIMs”,
and reassure a sceptical public and a worried minority community that the court is indeed playing its full part in safeguarding those at risk of these orders against the inappropriate use of this draconian power?
Amendment 11 is the important one. Amendment 10, as I indicated in Committee, is really an optional extra. I beg to move.
Lord Howard of Lympne (Con)
My Lords, I oppose Amendment 11. I shall be brief, but I appreciate that what I am about to say runs the risk of disturbing the relative tranquillity of this afternoon’s proceedings. Amendment 11 seeks to transfer the responsibility for the making of a crucial decision in this process from the Secretary of State to the courts. It is but another skirmish in the turf war between some judges on the one hand and Ministers and Parliament on the other hand which has featured so extensively in recent debates in your Lordships’ House, not least in the context of judicial review. It is my contention that decisions as important as the one we are currently contemplating should be made by the Secretary of State and not by the courts, so I hope that the view which was ascribed by the noble and learned Lord to the Minister about who is to take the final decision is based on a misapprehension. That is because I am firmly of the view that it is the Secretary of State who should take the decision.
My reason is very simple. It is the Secretary of State who has the responsibility of protecting the people of our country from terrorism and terrorism-related activities, and it is the Secretary of State who is accountable to the people of our country for the exercise of that responsibility: accountable to the electorate both in their capacity as an individual Member of Parliament and in their capacity as a member of the Government of the day.
It is right, as the noble and learned Lord has acknowledged, that the decision of the Secretary of State should be subject to the normal processes of judicial review. That is a feature of the current proposals. But it is the Secretary of State whose decision it should be, not a decision of the courts.
Lord Tebbit (Con)
My Lords, I rise to say how much I agree with my noble friend Lord Howard. He is absolutely right, and I find myself becoming irritated today as I hear this dancing around pins on some of these amendments. What we have to remember are the rights of those who are at risk of being murdered. A number of noble Lords in this House have lost friends to terrorism. I have lost five friends in particular who were murdered by terrorists. Unlike the BBC I am not ashamed of calling them terrorists—that is what they were. Every time I go home, I look at my wife, who was almost savagely murdered by terrorists. I suffer not a little myself from the effects of terrorism. I get bored and irritated by those who do not seem to understand that the most important human right of all is the right not to be murdered.
I hope noble Lords will get on with it and get this Bill through as quickly and expeditiously as possible, and give the Government the powers with which to deal with those who wish to murder other people.
Lord Hylton (CB)
My Lords, we can all sympathise with the noble Lord, Lord Tebbit. I apologise for daring to intervene—
Lord Tebbit
I do not ask for sympathy. I ask for action to prevent other people being murdered by terrorists.
Lord Hylton
The noble Lord might recall that this Bill is being dealt with under fast-track provision. I support Amendment 11, which was spoken to by my noble and learned friend. Before 2011, banishment or internal exile—sending someone to Siberia—was unknown as a penalty or punishment in this country. I believe that most of the general public trust judges rather more than they do Secretaries of State.
Lord West of Spithead (Lab)
Perhaps the noble Lord will give way. I just feel that phrases like “sending to Siberia” do not help very much. When I was a Minister, I used to send people occasionally to Gloucester from London, but it is hardly in the same category, I would suggest.
Lord Hylton
Gloucester is rather nearer to London than 200 miles, which is a possible distance. Having said that, I reaffirm my support for the amendment.
Baroness Hamwee
My Lords, at the last stage I supported the noble and learned Lord. I had not thought it would be appropriate to come in at this stage because I had to deal with something else while remaining in the Chamber, so I was not able completely to concentrate on what he said. However, as one of those who, I suppose, must be regarded as having danced the most during the earliest part of this afternoon, I reaffirm my support. I trust the courts to take a proper attitude to the issues which come before them, which is what this amendment is about.
Lord Woolf (CB)
Before the Minister rises, I will just say that, as I understand what is proposed by my noble and learned friend Lord Brown, he is not saying that the courts’ powers should be in any way unusual. This is really giving them an ordinary responsibility within the scope of judicial review as I have always understood it.
Lord Bates
I am grateful to the noble and learned Lord for moving the amendment. I was conscious of disagreeing with only one element of what my noble friend Lord Howard said. He said that he was going to disturb the tranquillity of the proceedings. From the perspective of the Government Whips’ Office and of Ministers, tranquillity is quite a sublime quality in debate on these matters. These matters evoke strong feelings on all sides of the House. My noble friend Lord Tebbit brought home from his personal experience the point that we are dealing with real threats to real lives. That is the ultimate threat to liberty that we are seeking to legislate for in the Bill before us.
I said that I would reflect on the point made by the noble and learned Lord, Lord Brown, last week, as I took it as seeking clarification. I was grateful to him for the time which he gave me, my officials and the legal team from the department in reviewing this matter. However, as the noble Lord, Lord Howard, put so succinctly, this is a matter of principle. It is a well observed principle that, in the realm of national security, the Executive have ultimate power, responsibility and accountability. That is the way that it has been, whether it is in relation to exercising royal prerogative over passports, temporary exclusion orders, interception of communications, excluding foreign nationals or deprivation of citizenship for those with dual nationality —I could go on. The principle is this: when it comes to national security, the Executive have to take the responsibility. That is an onerous responsibility to take. It is also entirely right, as the Bill provides for, that there should be an ability to challenge such a decision of the Secretary of State by way of judicial review and the courts.
I promised the noble and learned Lord that I would seek to put some additional words on the record which might give him some comfort. They are in relation to the technical legal point that he touched on, as did the noble and learned Lord, Lord Woolf, but they do not seek to move away from the fundamental grounds on which the Government are resisting this amendment, that of not wanting to sacrifice the principle that it is the Secretary of State who should decide.
As part of the review of the TPIMs imposed in the cases of CC and CF, their legal representatives argued that in TPIM cases the reasonable belief test,
“requires that at least the foundation of past facts upon which the belief is predicated must be proved on the balance of probabilities”.
As part of Lord Justice Lloyd Jones’s consideration, he applied Judge Collins’s judgment in the case of BM, who said that,
“to found a reasonable belief that a subject is or has been involved in TRA”—
that is, terrorist related activities—
“and that a TPIM is necessary does not involve the requirement to establish involvement in specific TRA to any higher standard than that which can properly give rise to such a belief. No doubt some facts which go to forming the belief will be clearly established, others may be based on an assessment of the various pieces of evidence available. But there is certainly no requirement that particular TRA needs to be established to the standard of at least more probable than not”.
Based on this precedent, we expect that the courts will see the balance of probabilities as a higher standard and that this will impact on their consideration.
As the noble and learned Lord will be aware, the court will also seek to interpret the difference in wording, as it is entitled to do. His amendments seek to differentiate between the test which the Home Secretary is required to apply and that which the court is to apply. Given her remit in relation to a range of aspects of terrorism, the Home Secretary remains best placed to make a holistic decision to impose a TPIM notice in order to protect the public from terrorism. The Government hold firm to that principle, which has had cross-party support. I express my gratitude to my noble friends who have spoken against the amendment, I hope that, with that additional explanation, the noble and learned Lord will see why the Government take the position that they do and will not be able to support the amendment if it is pressed.
Lord Brown of Eaton-under-Heywood
My Lords, I am grateful to all those who contributed to this debate and to the Minister for the words which indeed provide a little comfort. Perhaps my gratitude to the noble Lords, Lord Howard and Lord Tebbit, is slightly less pronounced than to others. I venture to suggest that the logic of their position would be that one should revert to the original test that the Secretary of State set for him or herself as to whether to make these orders: not one of reasonable belief but the lesser test of reasonable suspicion. The question in the present proposed Bill is simply, “Who ultimately should be satisfied on the balance of probabilities that this person is or has been involved in terrorism-related activity?”.
We are all against terrorism but we are also—I venture to believe and hope—all in favour of basic human rights and not making orders too readily against those who may well be as innocent as the day is long. In fact, Mr Anderson said in making this recommendation that it was in large part to give legitimacy to the process that we should make the court the final arbiter. He said that in fact he thought it would have made no difference to any of the earlier TPIM cases—but just think what assurance the public would have that only the right people were targeted.
As to the Minister’s point about it being invariably a matter of principle that the court’s powers did not go beyond those of judicial review, with respect—as I ventured to point out in Committee—that is not so. In the 2005 Act, Section 4(7)(a) provided in terms that the court could confirm a derogating control order only if,
“it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism related activity”.
However, there it is. Given what may be thought to be the somewhat inactive—I restrain myself from saying “pusillanimous”—stance adopted by the Opposition here, clearly I will not divide the House. However, I suggest that there remains time, with a week before Third Reading, where the Minister could still come to recognise that there is much to be said in favour and, on true analysis, very little to be said against this amendment.
Lord Bates
In terms of the Government’s position on this, it is a principle. We gave it a great deal of reflection and that is the position. I am afraid that I am not able to give any commitment that the government position will change between now and Third Reading. Therefore, should the noble and learned Lord wish to test the opinion of the House, he should do so now.
Lord Brown of Eaton-under-Heywood
I was not relying on any reconsideration as a basis for not dividing the House. I merely say that it still remains open to the Government if they suddenly see the light. In the mean time, I take such comfort as I can from the words uttered today by the Minister. I beg leave to withdraw the amendment.
Lord King of Bridgwater
“Part 3AEnsuring or facilitating availability of dataEnsuring or facilitating availabilityPower to ensure or facilitate availability of data
(1) The Secretary of State may by order—
(a) ensure that communications data is available to be obtained from telecommunications operators by relevant public authorities in accordance with Part 3B, or(b) otherwise facilitate the availability of communications data to be so obtained from telecommunications operators.(2) An order under this section may, in particular—
(a) provide for—(i) the obtaining (whether by collection, generation or otherwise) by telecommunications operators of communications data,(ii) the processing, retention or destruction by such operators of data so obtained or other data held by such operators,(iii) the entering into by such operators of arrangements with the Secretary of State or other persons under or by virtue of which the Secretary of State or other persons engage in activities on behalf of the operators on a commercial or other basis for the purpose of enabling the operators to comply with requirements imposed by virtue of this section,(b) impose requirements or restrictions on telecommunications operators or other persons or provide for the imposition of such requirements or restrictions by notice of the Secretary of State.(3) Requirements imposed by virtue of subsection (2) may, in particular, include—
(a) requirements (whether as to the form or manner in which the data is held or otherwise) which ensure that communications data can be disclosed without undue delay to relevant public authorities in accordance with Part 3B,(b) requirements for telecommunications operators—(i) to comply with specified standards,(ii) to acquire, use or maintain specified equipment or systems, or(iii) to use specified techniques,(c) requirements which—(i) are imposed on a telecommunications operator who controls or provides a telecommunication system, and(ii) are in respect of communications data relating to the use of telecommunications services provided by another telecommunications operator in relation to the telecommunication system concerned.(4) Nothing in this Part authorises any conduct consisting in the interception of communications in the course of their transmission by means of a telecommunication system.
(5) In this section—
“processing”, in relation to communications data, includes its reading, organisation, analysis, copying, correction, adaptation or retrieval and its integration with other data,
“relevant public authority” has the same meaning as in Part 3B.
(6) See—
(a) section (Application of Parts 3A and 3B to postal operators and postal services) for the way in which this Part applies to public postal operators and public postal services, and(b) section (Interpretation of Parts 3A, 3B and 3C) for the definitions of “communications data” and “telecommunications operator” and for other definitions relevant to this Part.”
Lord King of Bridgwater (Con)
My Lords, I will speak also to the other amendments in the group, Amendments 11B to 11T, in my name and those of the noble Lords, Lord West, Lord Carlile and Lord Blair.
In Committee, we had a full debate on the subject of these amendments. It was then generally established that there was pretty widespread agreement among the majority in this House, with some caution and reservations from the Benches behind me about adequate safeguards, that there was an urgent need for proper access and improvements that have been loosely and generally described in the draft communications data Bill.
There has been adequate and clear evidence, and statements by the Prime Minister, the Home Secretary, the shadow Home Secretary and the former director-general of MI5, the noble Lord, Lord Evans, in a maiden speech in this House. Other previous directors-general of MI5, including the noble Baroness, Lady Manningham-Buller, agreed on this, as did the noble Lords, Lord Butler and Lord Armstrong, who also spoke in the debate. They all recognised the problem we face, which is that our legislation has failed to keep pace with the rapid growth of the new technologies around the internet and the complications in the whole field of social media communication. One should recognise—it is common ground—that the extraordinary speed of ISIL’s southwards advance across Syria and into Iraq was achieved on WhatsApp, which is able to communicate with thousands of people at the same time and get messages across much more efficiently than was possible with some of the old military communications systems, as anyone who has been a soldier will recognise.
It is against that background that we have heard the clearest warnings. The noble Lord, Lord Evans, in an impressive maiden speech said that in 2013, when he was director-general, he thought that the worst was over. He now admits that he was wrong, and anyone who looks at the current situation and the threat that we face in this country and more generally in the world from terrorism will realise what he meant. Chillingly, he also said that the threat was increasing but our capacity to meet it was diminishing. That gets to the whole purpose of what I and noble Lords who join me in this enterprise have sought to bring before this House. This Bill, by chance, deals with an aspect of data collection; and the opportunity therefore arose to take the steps that the previous Government sought to recognise. The noble Lord, Lord West, referred to his experience in that Government and recognised the need for this perhaps six years ago; it was certainly needed three, four or five years ago. This Government recognised it and published a draft Bill two and a half years ago that sought to address the issue, which was then the subject of examination by the Joint Committee of both Houses, under the chairmanship of the noble Lord, Lord Blencathra, who is in his place today.
By the end of the Committee debate on this issue, we had provided an opportunity for this House to take a decision that would then give the other place the chance, if it wished, democratically to incorporate the essential provisions of the draft communications data Bill into this counterterrorism legislation in the recognition that they were an important part of the counterterrorism needs of this country at this time. The point was made absolutely fairly by the noble Lord, Lord Blencathra, that his Joint Committee criticised a number of aspects of the draft Bill. We sought in our amendments to deal with a couple of the more specific and difficult aspects that had attracted particular criticism.
The first of those was that the draft Bill set out a whole range of purposes for which data could be collected. Given the urgency of the situation, we decided to delete all those that involved local authorities, the health service, the Inland Revenue and a number of very worthy bodies that might otherwise have been included and might have a case for collecting data. But in the short-term, stop-gap measure needed in the immediate months ahead, we limited our proposal simply to national security and serious crime. Moreover, we recognised that this was not perfect legislation and that it needed improvement—as the noble Lord, Lord Blencathra, said in a number of criticisms—so we put a sunset clause on it. In the mean time, to make sure that we deal with another concern, we have also asserted that it would be subject to affirmative-procedure orders of both Houses of Parliament, whenever the Secretary of State wished to make such an order under this legislation.
Against that background, we then learnt during the course of debate that the Government did a significant amount of work on the previous draft communications data Bill and the noble Lords, Lord Blencathra and Lord Armstrong, had the opportunity to see some of that. The noble Lord, Lord Blencathra—I do not think I am misquoting him—said that he was satisfied that 95% of the Joint Committee’s criticisms had been met. So we entered the Committee stage with the challenge to the Government to pick up our original, older amendments to the draft communications data Bill and either replace them with the present improved versions that are apparently sitting in the Home Office, or make them available to noble Lords for us to table to meet the criticisms that these amendments are not as good as they should be.
I think it is now common knowledge that the Government have not felt able to offer these improved versions—and I understand that there is a problem, because they feel that further work needs to be done—because it was decided not to proceed with the draft communications data Bill, so it has not been given the priority that others might have hoped it would be given in having further work done on it.
The position is further complicated because, I understand, both the Government and the Opposition reached an agreement through the usual channels that the Bill that we have before us would be fast-tracked, but the condition of agreeing to the fast-track arrangement was that no substantial additions would be made to the Bill. One understands why that was put in, against the background to agreeing the fast-tracking of legislation of this kind, but my point is simply that that was decided before Paris and before the events in Belgium, and before the almost certain knowledge that access to social media, which the French security authorities have but which we do not, was crucial in so quickly tracking down the people responsible for that outrage in Paris. The Home Secretary and the Minister were put on record as believing that that was almost certainly the case.
I understand that both the Government and the Opposition will oppose my amendments today, so I will just say this to the House. I start with quotations from the Home Secretary herself in a Statement that she made to the House three weeks ago:
“Let me be absolutely clear: every day that passes without the proposals in the draft Communications Data Bill, the capabilities of the people who keep us safe diminish; and as those capabilities diminish, more people find themselves in danger and—yes—crimes will go unpunished and innocent lives will be put at risk … Quite simply, if we want the police and the security services to protect the public and save lives, they need this capability”.—[Official Report, Commons, 14/1/15; col. 871.]
Noble Lords can find that Statement by the Home Secretary in Hansard and check it right through. It was echoed by two people on the Back Benches who know much about the subject, in the shape of Mr Jack Straw and Sir Malcolm Rifkind, who both emphasised the importance of getting access to those communications data to handle the challenge of the new technologies, which at the moment is not adequately available to us.
We are now faced with a significant gap. A lot of days are going to pass. I understand that the Prime Minister and the Home Secretary have made it clear—I think that the noble Baroness leading for the Opposition and the shadow Home Secretary also made it clear on behalf of the Opposition—that this legislation would have a high priority in the next Government, whomever they may be. But look at the situation. We in this House have no idea who the next Government will be. We do not have much idea how long it may take to form that Government. I recall the days spent trying to form coalition agreements when this Government came to office.
I also remember that, many years ago, when I was more closely involved, we won an election. We had something called L Committee, which was the legislation committee. The Government arrived full of enthusiasm, full of manifesto pledges and guarantees that had been given at one stage or another from one department or another. Enthusiastic Secretaries of State went into their new department to be embraced by officials saying, “We are delighted that you have given the top priority to our legislation. L Committee will meet next Tuesday and you must ensure that you come out top of the list”. So those pledges made here that this or that will be the first priority, when we do not know which Government there will be, are obviously the most uncertain that we could face at this time.
We shall fail to take what I see as this exceptional opportunity presented to us, which could have gone to another place for its consideration, and the risk will continue for longer than it need to have done. Noble Lords who have been present in the past few minutes in this House will have heard the contribution from the noble Lord, Lord Tebbit, and the concerns that many have. As a fellow occupant of the Grand Hotel in Brighton on that night, I know exactly what he meant. We face a very serious threat from terrorism.
I understand that the Government and the Opposition feel honour-bound to hold to their position, but we will lose an opportunity to put in place a temporary, stop-gap measure which could have reduced the threat to our nation from terrorism at present. We just have to pray that we do not pay too high a price for that. I beg to move.
Lord Lloyd of Berwick (CB)
My Lords, I support the amendment. Like others, I have been involved with national security for many years—longer, I suspect, than anyone else in this Chamber, except my noble friend Lord Armstrong. I worked with the Security Service when it did not even exist, so in my first report, I had to refer to the Security Service, SIS and GCHQ en bloc as “the agencies”. I continued to work closely with the Security Service until I gave up being chairman of the Security Commission in 1999. Others referred in Committee to their first contact with the Security Service. I remember an occasion long ago when I visited its premises in Gower Street. The door was opened by a young lady I knew and we said simultaneously, “Fancy seeing you here”. Her name was Elizabeth Manningham-Buller, and I think we all agree that she has done very well. I would very much like the noble Baroness, Lady Manningham-Buller, to be aware of that but she is not in her place, and I am sorry that she is not here to hear me say it.
Lord Phillips of Sudbury (LD)
Before the noble and learned Lord, Lord Lloyd of Berwick, sits down, perhaps I may say that I always listen immensely carefully to what he says, by dint of his experience, but I am not fully clear why he is adamantly against the Bill as a whole. I understand that it is largely due to its potential counterproductivity, as he sees it. However, I am not clear why he is in favour of this set of amendments.
Lord Lloyd of Berwick
For the very reason that, as I have tried to explain, I can see no reason for the Bill to be brought forward now. I hope the noble Lord will understand that. Therefore we have, in any event, a gap. Much more important than that, however, is that the other Bill will save lives; this Bill will not.
Lord Carlile of Berriew (LD)
My Lords, I shall make a few very brief comments in supporting my noble friend Lord King. It is not right that we should replay the whole of the debate in Committee.
The first is that, as I understand it, the Government acknowledge—and by that I mean the whole of the Government—that there is a gap in the facilities which are necessary for the proper prevention and detection of terrorism. I understand it to be acknowledged by the whole Government that that gap is recognised as being in the field of communications data. The issue is what should be used to fill that gap. I am very disappointed, if I may say so with great respect to my noble friend the Minister, in the response—or rather, the lack of response—that has been given to last week’s debate in Committee. I say that for this reason.
My understanding—following the committee so ably chaired by my noble friend Lord Blencathra—is that, following severe criticism by his committee of the communications data Bill, from which these amendments are derived, though not copied exactly, a further draft Bill was prepared. We were told last week that that further draft Bill was shown to my noble friend Lord Blencathra, and to another member of his committee, the noble Lord, Lord Armstrong, whom I am delighted to see in his place. The judgment made by my noble friend and the noble Lord was that nobody could decently describe the draft amended Bill as a snoopers’ charter at all, and that it went 95% of the way towards meeting the need. One derives from that that it was recognised as a good Bill which met almost all the requirements set out in its criticism by my noble friend’s committee.
Lord Blair of Boughton (CB)
My Lords, I was brought up to believe that politics was the art of the possible. As a supporter of this amendment, it seems to me that we have reached a position whereby politics is the art of the preposterous. I exempt from that charge those noble Lords who object to this amendment on principle; they will mainly be Liberal Democrats and Cross-Benchers, but there will be other objections on principle. They and I disagree, but I suggest that both positions are perfectly respectable. It is not the same position as what I understand to have been happening in the case of the Conservative and Labour Front Benches.
Let us consider what we are all agreed on. I am not going to rehearse the arguments in detail. We are all agreed that jihadist terrorism is a real and present danger and that it is an increasing danger, indicated by a threat level of severe. We are all agreed that we have a degrading technological ability to monitor and intercept communications data, vital to the disruption of terrorist attacks. There is a gap, as the noble Lord, Lord King, has said.
What do I mean by preposterous? The provisions of this amendment, previously the stalled communications data Bill, go back in principle to the concerns of a Labour-controlled Home Office in 2007-08 about the degradation of our technological capability. So this had a Labour birth. The provisions were then adopted by a Conservative-led but not entirely controlled Home Office. In either 2010 or 2011, I was personally briefed in the most positive of terms about the communications data Bill by one of the Conservative noble Lords, who carried the Home Office ministerial brief in your Lordships’ House. I will not name him because he is not in his place. So it had a Labour birth and was a Conservative-supported Bill before the Paris attacks. Then, as we have heard, the current Conservative Home Secretary lamented the lack of progress on the Bill in a Statement to the House of Commons. And then in your Lordships’ House we discovered, in Committee, the existence of the Bill in the Home Office.
The noble Lord, Lord King, has made it clear to the House that we would table the amendment only once, and if it was sent to the other place we would not indulge in ping-pong. We just want the Commons to have the opportunity to consider this matter again. Despite this, the Conservative and Labour Parties are prepared to do precisely nothing at this stage about this gap. I do not understand fully the nature of the usual channels, but the next Government will be principally led by either the Labour Party or the Conservative Party —so they do not need to worry any more about letting each other down over a fast-track procedure. One of them will be responsible for doing that, and the other one would be agreed anyway. So why do we not put it forward?
In closing, I remind this House that elections and changes of Government are of great interest to jihadi terrorists. In 2004, they killed more than 190 people and injured a further 2,000 in bombs on trains in Madrid. They changed the course of the Spanish general election as a result. In 2007, they planted major car bombs in the Haymarket and bombed Glasgow airport to mark the day when Gordon Brown became Prime Minister. Had the London bombs exploded, hundreds of young people would have died in a night club. We face an election now and, who knows, we may have another one shortly afterwards; we may have a multi-party coalition assembling with a whole range of views on the subject of this amendment. I am acutely disappointed by the decisions of both Front Benches to refuse to accept this amendment or, better still, propose a better one, on a matter of such national interest. I urge both Front Benches tonight publicly to commit to bringing forward legislation about communication data monitoring as an urgent priority for the next Government and, particularly, I assume, their L Committee.
Lastly, I hope with all my heart that today’s decision does not result in some utterly preventable disaster somewhere on the streets or in the skies above Britain. I was not present to hear what the noble Lord, Lord Tebbit, said about the Brighton bombing, but what one has to remember about it was that afterwards a spokesman for the provisional IRA said,
“we only have to be lucky once. You will have to be lucky always”.
The Minister said that this is about real threats to real lives, and it really is.
Lord West of Spithead
My Lords, I support the amendment and make no apologies for reiterating some of the things that have been said. Why do I support the amendment? I do so because there is a clear and present danger to our people in this country. The threat level is severe, as has been said, and there is no doubt whatever that there will be more attempted plots and, I am afraid to say, there may well be a successful plot, so people will die. We have lost data. We knew that we would lose data and the ability to get intercepts on these people as far back as six or seven years ago. Intercept is absolutely crucial in these terrorist crimes. When I was a Minister, every single one of the plots that we unravelled was done initially through intercept information. I think I am correct in saying that has been the case with every major plot that we have unravelled.
As the noble Lord, Lord King, said, the Prime Minister, the Home Secretary, the head of GCHQ and the head of the Security Service have all said that this Bill is urgent, and I do not think that one should take what they say on security lightly. The traitor Snowden has made us all less safe. Terrorists are now much cuter about using data in ways which mean that our law enforcement people cannot get hold of them. As an aside, it is rather amusing or ironic that Snowden is living in a country which is such a paragon in terms of ensuring that its people are not snooped at and looked at, but that is a different issue.
The fact that the fast-track Bill is very important does not mean that we should miss this opportunity to tackle this issue. The noble Lord, Lord Carlile, put it very neatly when talking about the amendments drawn up for the Joint Committee. It is absolutely extraordinary that we have not been allowed to see those. We understand that there will be more amendments given that we had emergency legislation last summer. Why did we have that? It was because we did not have a communications data Bill. We have a fast-track Bill now which includes data provision. Why is that? It is because we do not have a communications data Bill. How much better the situation would be if we had had a proper communications data Bill.
There is a two-month period now. In two months we formed a task force, sailed to the Falklands, recaptured them and said that we had won. We have two months in which the other place is doing almost nothing at all. Perhaps it could stop working a two-day week, take this Bill seriously with all the amendments, do all the necessary amending, and give itself enough time to provide the necessary safeguards for our people—it is right that they should have privacy safeguards—but also make them safer. I doubt very much that there will be another two months in which to do this in the other place after the election, as has already been touched on by a number of speakers, as things will start to happen then and we have to have new legislation by December 2016. That sounds very far away but it is not; it is very close. Therefore, it is highly likely that there will be more fast-track and emergency legislation, as my noble friend Lord Harris said, because we are missing a trick in getting this done.
I hope that the Conservative Party and the Labour Party will put this issue in their manifestos and make it a manifesto commitment. If the Liberal Democrats did so I would be absolutely delighted, but I fear that at the moment they do not seem to know which way is up on this issue. Will the Minister give that commitment?
Lord Blencathra (Con)
My Lords, I am the first Peer to speak against the amendments. I am very sorry that I have to disagree with my noble friends Lord King of Bridgwater and Lord Carlile of Berriew and the noble Lords, Lord West of Spithead and Lord Blair of Boughton. They have tremendous operational and political experience of dealing with terrorism and of working the legislation. I deeply respect their motives and their integrity but I respectfully suggest that they are wrong.
I and five other noble Lords and six MPs spent six months going through these amendments before us today with a fine toothcomb, but, in those days, they were in the draft communications data Bill. I say to my noble friend Lord Carlile of Berriew that they are largely the same amendments. There are some tiny changes, but they are largely, almost word for word, the same. When we started on the Joint Committee, we all had widely differing views. We had views at different ends of the spectrum, ranging from those who were totally committed to privacy at all costs to those who were committed to security at all costs. However, after six months of scrutiny, we produced a unanimous report.
I give noble Lords some examples of what we said about these clauses as they appeared in the draft communications data Bill and which are before us today as Amendment 11A and the other amendments in this group. We said that the 25% gap was misleading and unhelpful, part of the gap was due to a lack of ability of law enforcement agencies to use the data properly, and that there had been a failure to consult all the CSPs. We also said that there can be meaningful consultation only when there is clarity about the aims of the legislation and that no aims were specifically stated. We further said that Clause 1, or Amendment11A before us today, should be redrafted with a much narrower scope and that amendments to Clause 1 should be dealt with only by the super-affirmative procedure. We added that the Bill should be redrafted to enable Parliament to address web logs which are at the heart of this legislation, and they still are today. We suggested that the Home Office commitment that third party provisions would be invoked only after the original data holder has been approached should be given statutory force and that the operation of the request filter should be transferred to the National Crime Agency. We added that new safeguards should be introduced to guard against the request filter being used for fishing expeditions, and that—although I agree entirely with my noble friend—any public authorities which make a convincing case to get communications data should be listed in the Bill—that is, the important deserving ones such as the police, the security agencies, the FSA, the United Kingdom Border Agency, the NCA and HMRC. We said that any changes to this list should be made by super-affirmative procedure. We recommended that the Government should consult on all the permitted purposes for access to communications data and that the Bill must be redrafted with new definitions of communications data, especially subscriber data, which is a catch-all for everything and helped to give it the name the “snoopers’ charter”. We said that a new hierarchy of data types needed to be developed and that data needed to be divided into categories which reflect how intrusive each type of data is, and therefore the different agencies which could have access to different levels of it. We said that content was not even defined in the draft Bill and that it should be expressly excluded from all categories of communications data.
I will stop there. That is enough to be going on with, although we had another 20 criticisms of the Bill. However, we did not just criticise; we also made suggestions on how to make a better Bill.
Lord West of Spithead
Does the noble Lord agree that, in two months of working on this issue and on the amendment, one could come up with something that covers and makes up for those errors and get something that makes us safe and puts those things right?
Lord Blencathra
I take the noble Lord’s point but I want to make it clear to the House—I apologise if I gave a misleading impression earlier—that I did not see an all singing, all dancing final draft of a revised Bill. However, I saw some very important revised clauses which went to the heart of the matter we are discussing. I do not believe that the Home Office can legitimately hand over those clauses now because the Government and their coalition partner do not have full agreement on everything that needs to be in the Bill and we have not seen David Anderson’s report. David Anderson may have some key points to make which will require the Home Office to rewrite the measure again. Therefore, I do not think that we can take forward some new clauses, bash them into this Bill with two months to go and bounce them into the Commons.
About half the criticisms that I have just listed apply to the proposed new clauses before us today. Nothing has changed. Indeed, the Home Secretary has confirmed that we got it about right in our Joint Committee report and she wants to bring forward a new data Bill incorporating our recommendations. I say to my noble friend Lord Carlile that the Home Secretary did not say that she wanted the old draft data communications Bill with all its flaws, warts and all; she has made it constantly clear in her statements that she wants a new data communications Bill, but incorporating many of the amendments suggested in our report.
In those circumstances, I think that this House would be committing a grave error of judgment if it accepted these 18 proposed new clauses, which everyone agrees are thoroughly flawed. Of course, there is an imperative for new legislation in this area, but it has to be the best legislation which government and Parliament can invent. The risk of a terrorist attack is severe, but that is no justification for bad law, even if we had a sunset clause of just six months, or one month for that matter.
I am glad that my noble friend is not going to push this to a vote. I hope that other noble Lords will accept that. When we return to this matter in the new Parliament we will need a fully redrafted Bill that takes onboard Mr Anderson’s recommendations, which has had full consultation with the communication service providers that will have to implement it, and which has had a detailed Second Reading debate in the other place and in your Lordships’ House. The Home Secretary has made it clear that she wants new legislation but better than the clauses we have before us today. If we try to take any other shortcut, rather than new, properly worked out legislation, we will be seen to be acting in bad faith. That will make it infinitely more politically difficult for a new Government to bring in balanced measures that give the police and the security services the additional powers they need while protecting the fundamental privacy of the 60 million UK citizens who are not a terrorist threat. If it comes to a vote I reluctantly urge the House to vote against the amendments.
Lord Howard of Lympne
My Lords, it is always a pleasure to follow my noble friend Lord Blencathra, with whom I worked so closely and for so long in government. I am afraid that on this occasion I have to disagree with the contents of his speech. It seems to me that the answer to the points that he made was given by the noble Lord, Lord West, during his intervention. These amendments are not meant to be the last word on the provisions that the final Bill should contain; they are meant to give the other place an opportunity to reconsider these matters.
I am afraid that I was unable to be present at the debate in Committee, but I was able to listen to an exchange on the radio a few mornings ago between the noble Lord, Lord West, and the noble Lord, Lord Paddick. I found the arguments put forward during that exchange by the noble Lord, Lord West, wholly persuasive. That is why I came along this afternoon ready to support the amendment in his name and in the names of his co-sponsors. I have to confess to your Lordships that my determination to do so was reinforced in some measure by the belief—it is still not clear to me to what extent it was well founded—that the Conservative limb of the coalition was anxious to proceed with these proposals but were being prevented from doing so only by the pesky Lib Dems—I am so sorry, by my noble friends who sit on the Liberal Democrat Benches. That remains not entirely clear.
It seems to me that the case made by the four noble Lords who have sponsored this amendment is very compelling. It is clear from what my noble friend Lord King has said that we cannot take the matter further today and that, sadly, this legislation will not be put on the statute book before the general election. However, I join with those who have urged the Government and both of the major parties that might form the Government after that election to proceed with these measures with all possible haste.
Lord Paddick (LD)
My Lords, to address the comments made by my noble friend Lord King of Bridgwater and other noble Lords, in my opinion there is no doubt that we all face a very serious threat of terrorism. There is also no doubt at all that, because of the way that technology has moved on, there is a gap that means that the police and the security services cannot now get the information on mobile phone communication that they used to, due to changes in the way that people communicate via the internet. The first issue is: where does the balance lie between measures that would close that gap and the freedoms and civil liberties that we all enjoy? The second is: how do we fill that gap technologically?
Noble Lords will be pleased to hear that I have done some homework over the weekend. Obviously, I am not a technology expert, but this is what I have been told by technology experts. I am very grateful to the noble Lord, Lord Blair, for saying that he has no issue with people who argue on the basis of principle. One of the effects of these amendments, as my noble friend Lord Blencathra alluded to, would be to require communications service providers to store 12 months of web logs—the history of every website visited by everyone who uses the internet in the UK. The Joint Committee that my noble friend Lord Blencathra chaired said that this has considerable implications for the privacy of everybody who lives in this country and who uses the internet. I am sure that that is immediately obvious to noble Lords across the House.
What has not been mentioned is what I have learnt since we were in Committee. When people use web-based means of communication such as WhatsApp—according to my noble friend Lord King of Bridgwater, ISIL is one of the groups that uses this means of communicating —Facebook Messenger or any others, all these communications are encrypted. The vital data that the police and the security services need are held on servers that are mainly in the United States of America. Even if these amendments were agreed to, and even if these web logs were kept, there are serious doubts as to whether the American companies would comply with the UK legislation.
Another aspect of these amendments, and of the draft data communications Bill, would require United Kingdom communications service providers to skim off the encrypted data transmitted to and from the secure servers in the United States, in case the Americans decided that they were not going to play ball. This would cost in excess of £1 billion, and it is unlikely that the UK-based communications service providers would do so. Because of the levels of encryption, and because companies such as Facebook are constantly reviewing their encryption and making it more and more difficult to decipher, even if that data were captured there is serious doubt that the UK communications service providers would be able to make head or tail of it. Plus, they would not be able to decide what part of that encrypted data was the content of messages or Facebook pages and how much was simply who sent the message to whom, from where and at what time—that is what these amendments and what the draft data communications Bill was about. The noble Lord, Lord West of Spithead, talked at length about intercept evidence. These amendments and the draft data communications Bill have nothing to do with interception. They are about only what is on the envelope of the message, if you like, not its contents.
So what do we do? Obviously, something has to be done to try to get that data. That is why the coalition Government have appointed Sir Nigel Sheinwald as special envoy on international data sharing to sit down with the US Government and US companies to identify ways to overcome legal jurisdictions so that we can tackle crime and terrorism without compromising the privacy of the law-abiding majority. This is not a situation where these servers in the United States are beyond our reach. In 2013, US companies processed around 30,000 requests for “envelope” data from UK authorities. There is already consultation and collaboration and it is producing results.
These amendments are disproportionate, are likely to cost billions of pounds and certainly cannot be implemented immediately. Almost all communications service providers in the UK do not currently keep this data and have no storage capacity and capability to store it. That would be a long-term project; nothing of use would come out of it in the six months that my noble friend Lord King of Bridgwater talked about as a stop-gap measure. These amendments are likely to jeopardise the collaboration that we already have with the Americans, which is serving the police and the security services reasonably well.
Mention has been made of a debate that the noble Lord, Lord West of Spithead, and I had on BBC Radio 4 at the weekend on “Week in Westminster”. During that programme, the noble Lord said that the amendments tabled last week were too broad and that, if it had come to a vote last week, he certainly would not have voted for them. As these amendments have been changed hardly at all since last week, I assume that the noble Lord, Lord West, will not vote for his own amendments.
Lord West of Spithead
Having shared that with only 11 million people, I am shocked that the noble Lord should do so in here.
Lord Armstrong of Ilminster (CB)
My Lords, at this stage there is no need for me to rehearse all the arguments in favour of this group of amendments. The terrorist threat has increased and is increasing, and those upon whom we rely to prevent and detect terrorist crime depend on access to the communications data of those intending and planning to commit terrorist crime. I will not go in detail into everything that the noble Lord, Lord Paddick, has said, although I do not think that the noble Lord, Lord Blencathra, or I could agree with all of it.
Those agencies have been increasingly conscious that the provisions in RIPA 2000, now nearly 15 years old, badly need updating to take account of technological changes. The agencies have enjoyed the voluntary co-operation of many of the service providers, but many of the companies concerned, as we heard in the committee chaired by the noble Lord, Lord Blencathra, would like to see that voluntary co-operation underpinned by statutory provision. There are no doubt some who are reluctant to co-operate without there being statutory provision.
The Bill provides us with an opportunity to put in place some of the statutory provisions which would have been provided by a revised—“Blencathrated”, if I may call it so—communications data Bill, for the introduction of which we shall now have to wait until the next Parliament. These amendments are designed to take advantage of that opportunity. Their scope has been reduced since similar amendments were proposed in Committee. We have been denied the possibility of Blencathrating these amendments because the Home Office is not willing to produce a revised communications data Bill or the relevant parts of it. Therefore, these amendments are no more than a stop-gap, as the noble Lord, Lord King, described them, and they are no more than temporary to fill a stop-gap because there is a sunset clause which ensures that they will disappear in their present form in December 2016. Most of this limited stuff is taken up with safeguards, and more than three pages are taken up with an interpretation clause of definitions.
We know that the police and the intelligence and security agencies feel the need for these provisions and would welcome these amendments, limited and imperfect though they are. As has already been said, in passing these amendments your Lordships would not be deciding that they would be part of the Bill before us when enacted; we would be giving the other place the opportunity to take that decision. Surely that is where the final decision should lie.
If the noble Lord, Lord King of Bridgwater, were to decide to press these amendments, I would support them because I would not wish to have on my conscience any sense of shared responsibility for what might ensue if failure to include these provisions in the Bill resulted in failure to prevent a terrorist attack which might have been prevented, as well as all the consequences which might result from such an outrage, as was vividly and notably referred to by the noble Lord, Lord Tebbit.
Lord Harris of Haringey
My Lords, this is something of a mess. I was certainly alerted—and I know that other noble Lords will have been alerted at the same sort of time—to the developing problem of a gap in terms of communications data eight or nine years ago. It was so long ago that I can no longer remember exactly when it was. The gap is occurring because of the nature of the way in which communications take place using the internet, and it is a gap which is worsening and getting bigger.
Communications data, as opposed to intercept, are used in virtually all major crime and terrorist cases. They are an essential component, concerning who was there, who was where and who was communicating with whom. That is nothing new; what has changed is the way in which those messages are transferred from one place to another. It is a fact that it is no longer easy, using conventional means and conventional mechanisms, to keep track of that information, and that is causing the problem. It is a problem and a gap which has been getting worse over the last few years.
Something urgently needs to be done to remedy that gap, but it has not happened. The previous Government and this Government have failed to do something about it. We are now moving inexorably towards a general election, which is a few weeks away, and it will be down to whichever Government are in place after that to deal with this. I share the concern of the noble Lord, Lord King, that, following the election, that may not be a rapid, simple or straightforward process.
What do we do now? The first thing is not to oversell the importance of either these amendments or the mythical Blencathra’d amendments that may or may not exist somewhere else. The amendments will not be a magic bullet. The mere passage of these proposed new clauses, or a version of them, does not mean that terrorism will be prevented or that serious crime will stop, but they would be an essential and necessary tool in trying to minimise the risk. Let us not pretend that the failure to include them will automatically mean that there will be a terrorist atrocity. However, it will mean that such an atrocity will be that bit more likely and that it will be that much more difficult to deal with it and stop it.
This is not just a question of the legislative provisions and the fact that we are being dilatory in getting round to dealing with this issue. I understand and have all sorts of sympathy for Ministers in the context of a coalition where one side of the coalition is less keen on such a provision than the other and starts to position itself in advance of a general election. I have lots of sympathy for all that, but the fact is that collectively Governments over the past eight to 10 years have failed to address and deal with this issue.
There is a second vital element, which is that there is a degree of public support for and public buy-in to the changes that have been made. That is why not pretending that this is a magic bullet is so important. In the past, security measures have been oversold as the one necessary thing that will stop all these atrocities, and every time that excuse is used it has bred public cynicism about these measures.
Part of what has to happen is a proper public debate about why these powers are needed, why they matter and why they do not constitute the infringement of civil liberties and personal liberty that some people assume. Failing to have that debate has been a wasted opportunity over the last few years. When the Joint Committee produced its report, the Government should have used that as the opportunity to say, “Let’s have that public debate”. Had they done so, we might now be in a position where there was a public understanding of these issues and a readiness to go forward.
The reality is that if the noble Lord, Lord King, presses his amendments, people will say that the parliamentary process has been abused, and we have no doubt already had dozens and dozens of emails and letters saying precisely that. It is an abuse of the process because it does not allow the normal times for debate, but we have failed to give ourselves the time for that, and that is why we are in such a mess.
Should we agree to these amendments? No, because they do not incorporate the views of the Joint Committee; no, because we have not had an opportunity for the public debate; and no, because we have not had the report of the Independent Reviewer of Terrorism Legislation. I do not want to get into why we have not had all those things but the fact is that we have not. It would therefore be wrong to press ahead with these amendments at this stage, much as I personally believe that something along these lines is necessary and much as I personally believe that we should have taken action much sooner. However, the reality is that those other things are not in place. I blame the Government—of course I would because I am on this side of the House—for failing to have those other elements in place and for failing to ensure that there has been the necessary public debate. However, to press today without public support and public debate, and in the absence of having the views of the independent reviewer, clearly would be a mistake, particularly in the context in which people would see that the legislation had been rushed through by some sort of legislative sleight of hand.
The noble Lord, Lord King, gave the Government a week’s opportunity to move forward. The Government have not taken that opportunity. For the very reasons I have given about not having public support or having built things up, I do not believe that they should have responded to the noble Lord’s amendment last week by bringing forward their own amendments to do all this overnight. But it would have been an enormous step forward, and still would be an enormous step forward, if before Third Reading the Government were to publish the revised versions of the legislation that they have, even if they are not the final product, so that that public debate can start. Some of the myths about communications data and what the Government are trying to do could be dispelled.
We are in a sorry mess. Frankly, I do not think that the amendments in the name of the noble Lord, Lord King, solve the problem. They could conceivably make it worse. But for goodness’ sake, we need to treat people like adults, not pretend that this is a magic bullet, and allow the public debate to take place.
Baroness Ludford
My Lords, I cannot resist the opportunity to add my ha’penny-worth, to respond to my noble friend Lord Howard of Lympne, and to acknowledge proudly the label of pesky Liberal Democrat. I also thank the noble Lord, Lord Blair, for saying that he at least does not disagree that the Liberal Democrats have a position of principle here. However, I disagree with him about the 2004 Spanish election. The Partido Popular did not lose the election because of the bombing being by Islamists. It lost because it tried to misrepresent those bombings as being by ETA, which was against the advice of its own intelligence services.
My noble friend Lord Paddick has put extremely well, and much better than I could, all the objections of principle. The storage of everyone’s web browsing for 12 months, even if it is only up to the first forward-slash, would blur the boundary between communications data and content. It could reveal an awful lot about people’s health, sexual characteristics, political views, marital problems and other potentially embarrassing personal information. This is simply too much power to give to the state. Yes, 12 months’ storage of everyone’s web browsing history is an objection of principle.
I also stress the practical difficulties of scooping up third-party data and setting up a transatlantic jurisdiction on a war which we are destined to lose. From my time as a Member of the European Parliament in the last few years, I have some experience of this in the wake of the Snowden revelations and the whole impact that had on the attempt to get data sharing across the Atlantic without the framework of a transatlantic data-protection agreement. The noble Lord, Lord Cashman, who is not in his place, will remember those debates. We need to work co-operatively with US-based companies rather than try to overreach ourselves in terms of jurisdiction. I fear that the reaction to that, which already has happened in the last few years, is that it could lead to fragmentation and balkanisation of the internet. The glory of the internet is that it is global. We in the West look askance at what is happening in China and Russia in trying to cut themselves off from the global internet. I foresee that that could happen transatlantically as well. Companies in the United States are under a great deal of pressure to comply with at least the safeguard provisions of US law, partly as a result of the lively public debate there in the last 18 months, which is unlike in this country where there has not been so intense a public debate. Of course, we know that they are going faster and faster down the route of encryption, with all the problems that my noble friend Lord Paddick mentioned.
Baroness Neville-Jones (Con)
My Lords, the noble Lord, Lord Harrison of Haringey, said that there is a danger of people being cynical about this legislation. It is also a danger that people will be cynical if, having been warned of an increasing threat and the growing capability gap, the then Government fail to take action. It has a danger of casting doubt on the seriousness of the warnings. The noble Lord, Lord Paddick, also raised a series of objections to what is being proposed today. I entirely agree with him that the legislation when it comes forward will not provide a complete answer. It certainly will not because technically it is not possible for it to do so. There is no doubt that we will need international co-operation. He is also right about the importance of Nigel Sheinwald’s mission.
Encryption undoubtedly makes the task a great deal more difficult and we will not get around some of it. The noble Lord, Lord Paddick, is also right to say that it is a long-term task. However, I do not conclude that that is an argument for delay—rather the contrary—nor is the argument that because we cannot do everything we should do nothing.
I am unhappy with the situation at which we have arrived and it is clear that we shall not make progress today. However, data communications are central to our future capability in counterterrorism. It is an important matter and we should not engage in further delays. I am unhappy that the Government could not find a way of producing legislation that we could have looked at seriously. They could have found a way had they wished to but, if they are not going to, I hope that whichever Government come to power after the election will honour the commitment to priority and that early and good legislation will be passed.
Baroness Smith of Basildon
My Lords, we had a full, thorough and interesting debate on this issue last week, as we have had today. When the noble Lord, Lord King, suggested that he had been criticised for bringing it forward, he will recall that my criticism is that we have not had enough opportunity to discuss legislation on this issue over the past two and a half years.
Last week’s debate was, in some ways, a Second Reading, which was a sensible approach to take. This is a controversial and complex issue. These are detailed amendments—18 amendments over 14 pages—and there is a lot to consider and discuss. It is highly unusual to have amendments on an issue such as this introduced at the Committee stage of a semi fast-tracked Bill that has already been through the Commons. It is for that reason that I felt it was sensible to have the kind of debate that we had last week. We are now talking more about the detail.
I strongly object to the comments of the noble Lord, Lord Blair. He described the debate today and the political debates as the art of the preposterous and suggested that there was some kind of cosy arrangement or deal between the Front Benches. If he has read my comments or heard them in the debate last week when we discussed this, he will know that we were clear in our views on these specific amendments. Nothing has changed and his comments contrast sharply with those of the other noble Lords whose names are on the amendment. No other noble Lords, from all parties or none, have cast any doubt on the willingness and determination across your Lordships’ House to tackle terrorism and on the need to constantly keep under review the proposals and provisions we have in place. We have made our position clear and the suggestion that there is no good reason to oppose these proposed new clauses is incorrect and unfounded.
I do not want to repeat all the comments I made—it is not necessary—but I reiterate that I understand why noble Lords have brought these amendments forward for debate. When the Government published their draft data communications Bill it was, as we have heard from the noble Lord, Lord Blencathra, seriously criticised by the Joint Committee of both Houses set up by the Government as defective in many ways. We went into the details of that last week and the noble Lord, Lord Blencathra, has raised some of those issues today. Basically, it was far too broad, a point made also by the noble Lord, Lord West, lacked safeguards and inadequate penalties for abuse in some areas, and serious concerns were also raised about the accuracy of information and the costings of the draft legislation. The Government accepted that criticism.
I hear a telephone ringing. That will be the Home Secretary phoning the noble Lord, Lord King.
However, we now understand that, although there may not be a new draft Bill, there are drafted amended clauses to the Bill. However, they have never been presented to Parliament and we have never seen any further detail or evidence of them. The noble Lord, Lord Carlile, agreed—he has not seen anything either. I said to the Minister last week that it would be helpful if not only the noble Lord, Lord King, had seen them but also the Official Opposition, who may be in position to legislate on these issues in government.
The Government have never sought to introduce an amended Bill. They have brought forward the Data Retention and Investigatory Powers Act, which was fast-tracked last summer, and the clauses in this Bill. When DRIPA was debated, all parties agreed to our proposal that there should be a full and thorough investigation and report on this issue by the Independent Reviewer of Terrorism Legislation and that this should be on a statutory footing. In the two and a half years since that report, there has not been a wider debate or a fuller public consultation, a point raised by the noble Lord, Lord Harris, on the new proposals.
The Government have never sought the views of Parliament on the proposals they have picked up on following the report of the Joint Committee but now, just prior to an election, they have said that they want to revisit the issue after the election. What has happened in the past two and half years? Why has this issue not been brought forward? Both the Home Secretary and the Prime Minister have said that something has to be done to address changes in technology and how this is used, but legislation, debate and any proposals have to be far more specific than “something has to be done”.
A statement to the effect that we will have to return to these issues later in the year after the general election is not a particularly dramatic pledge. Any Government will have to do so. We made clear our commitment to that in the last debate. It is why we insisted that David Anderson’s report should be produced prior to the election. DRIPA expires in December 2016. New legislation not only needs to be debated before then but needs to be in place and operational. It is a matter of the highest priority for any Government who take office, and David Anderson’s report will be crucial. He will have presented his report in May.
The public are entitled to expect both security and protection of liberty. They are not mutually exclusive unless we take both to an absolute position on either side, but we do not. We seek to balance both those objectives and the public expect us to bring our good judgment from an informed position. In many ways, the debate around these kinds of amendments is best addressed in your Lordships’ House. It has the experience, the expertise, the commitment and the interest of noble Lords to provide the probing and scrutiny needed to fully examine these amendments and to consider the changes needed.
However, today we are asked to consider them without the opportunity to make other amendments or any significant changes and without the kind of scrutiny that your Lordships’ House is used to providing. The amendments are largely based on the ones that were so heavily criticised—a criticism accepted by the Government—and then withdrawn. I do not know whether noble Lords see the irony in this that I do. It is not unheard of for the House of Commons to pass flawed, inadequate legislation because when it gets to the House of Lords, “They will sort it out up there”. It happened with this Bill in regard to judicial oversight in Part 1. Ministers asked MPs in the other place to reject our amendment on judicial oversight on the ground that they would table something and sort it out when it got to the House of Lords. This is the first time I have been aware of the House of Lords being asked to pass defective legislation so that the House of Commons can then sort it out. I hope it will not be a trend.
I appreciate the comments about there being two months left of this Parliament. It remains open to the Government—as it always has over the past two and a half years— to provide the detail, the evidence and the time but it appears now that the changes to the Bill are not ready.
I thank the noble Lords, Lord King and Lord West, for their courtesy in discussing their amendments and sharing their views with me. However, most of the changes they have made and the proposals they have put forward do not address the criticisms made by the Joint Committee. I appreciate the point about organisations having access—I agree with it—but limiting the purpose of the Bill to national security and serious crime was not criticised by the Joint Committee. It thought its purposes—to save life, for example—were justifiable.
I also note that those proposing the amendments may have expected greater co-operation from the Government and to have sight of the work previously undertaken on the draft Bill. The noble Lord, Lord Carlile, raised that issue, as did the noble Lord, Lord King. However, that has not been the case. The noble Lord, Lord King, made clear that the Government consider that further work is needed—that this had not been a priority for the Government. Moreover, noble Lords have had these discussions with the Home Office and possibly the Home Secretary, and they have far greater access to security information than we do as Her Majesty’s Opposition. Given the quote from the Home Secretary used by the noble Lord, Lord King, did he also ask why this has not been a priority if she considers the threat to be that great?
My noble friend Lord Harris made a powerful speech in which he said that we govern by consent, but in the two and a half years that the report has laid on the table gathering dust, we have not had an opportunity to have the public debate that would ensure that we have public consent and approval for any measures which are brought forward on data communications and retention.
We know that legislation in this area has to be kept up to date, it has to be necessary, and it has to be proportionate. Following the election in just a few months’ time, when David Anderson has reported and we will have had the report from the Intelligence and Security Committee, there is a time imperative to replace DRIPA and to ensure that our legislation is fit for purpose. We will have to consider new legislation. It may be that some of the provisions in the draft Bill and the suggestions in the report of the Joint Committee are already being outpaced by the advance of technological change—given the time lag we have already had over the past two and half years. But what is clear is that we will need an evidence-based approach from the Government. We will need to explain to and engage the wider public in the debate, and your Lordships’ House will have to scrutinise any proposed legislation to ensure that it addresses both the security issues and those of public liberty. The proposals must do just what they are intended to do—we have often debated their workability—and they have to be proportionate and necessary. We will debate exactly what the provisions would do and their impact.
However, that is not what we are being asked to do today. We are being asked to support these specific, flawed amendments with no guarantee that the Government will provide any additional time in the House of Commons for them to be debated in full. No doubt the Government delay has wasted time, but these amendments do not resolve that. I am grateful to all the noble Lords who have put them forward because we have been given the opportunity to hold two very good debates on both the principles and the substance. However, if the amendments are put to the vote today, I regret that on the information we have, we will be unable to support them.
Lord Bates
My Lords, this has been an excellent debate. The points which have been raised have in effect focused on six main areas: the threat, the power, the amendments themselves, the draft Bill, the technology and the procedure. With the leave of the House, I will use those as the outline for my remarks.
I shall first say something about the nature of the threat because context is all in the legislation we are bringing forward. The noble and learned Lord, Lord Lloyd of Berwick, expressed his concerns about the nature of the threat. It is important to remind ourselves that since April 2010, more than 750 people have been arrested for terrorism-related offences. More than 210 have been charged and over 140 have been successfully prosecuted. In Committee, the former Director of Public Prosecutions, Lord Macdonald of River Glaven, outlined some of the content of those cases and the intended acts of terrorism which those who were prosecuted had intended to carry out. We were horrified at the list he presented. Let us be clear: we are seeking to address a very real threat.
Other noble Lords, including my noble friend Lord Paddick, have made reference to the use of technology. Perhaps I may put this into context for the benefit of the noble Baroness, Lady Smith. Certain caricatures are not helpful here. Clearly she dealt with one, but let me deal with another one, which is that this legislation has somehow been left on the shelf to gather dust. That is not the case because of the Data Retention and Investigatory Powers Act 2014—legislation that came directly out of the draft communications data Bill. That legislation was taken through this House on a fast-track basis last July. The IP and the technology elements contained in this Bill are also drawn from the communications data Bill. Moreover, since the start of this Government, the Counter Terrorism Internet Referral Unit has secured the removal of 65,000 items from the internet that were encouraging or glorifying acts of terrorism. More than 46,000 of those items have been removed since December last year. At present, content relating to ISIL, Syria and Iraq represents around 70% of the unit’s caseload. I do not want the House to be under any misapprehension as to the seriousness of the threat or that the police and the security services are not making daily efforts using the powers they have to keep us safe, and we should express our gratitude to them.
It is worth making another important point here. To say that taking forward measures of this nature to attack terrorism might somehow be seen as alienating the Muslim community—which was the example that was given—could not be further from the truth. Bombs and bullets do not discriminate between religions and faiths, as we saw in Paris where the personal protection officer for one of the journalists who was also murdered was a Muslim. We need to remember that as we move forward, and we also need to remember that we might not just be looking at terrorism by jihadists. Mohammed Saleem, an 82 year-old Muslim from Birmingham, was stabbed to death by a far right extremist who then went on to try to bomb mosques in Walsall, Wolverhampton and Tipton. These threats cross cultures and religions. We have talked about republican terrorist threats in Northern Ireland, but those are different. What we are talking about here are the specific acts of people who seek to subvert the democratic process and curb people’s freedom and liberty by undertaking violence in order to advance their cause.
Those are the points I wanted to make in relation to the threat, because it is real. Is there a gap? Yes, we believe that there is a gap, and that has been repeated on many occasions. The security services believe that these additional powers are absolutely necessary as a matter of urgency in order for them to work on closing the gap. We must recognise that the nature of the threat is mutating, if I may use that term, on almost a daily basis, such are the advances in the technologies and in the capricious use of them by those who seek to do us harm.
Perhaps I may turn now to the draft Bill which was under consideration. My noble friend Lord Carlile dwelt heavily upon this. We did have a debate in Committee and during that debate I did say that I would look again at what we could actually share with the House at that point. I have to say that we tried—again, I do not want to be caricatured by the notion that the Government took away a request that was made by a highly respected source, the noble Lord, Lord Carlile, and then somehow forgot about it. We worked on that very seriously. When we looked at it carefully, there was a view that the amendments which had been shared with the noble Lords, Lord Blencathra and Lord Armstrong, were draft clauses and in many cases had been superseded by legislation which was contained in the Data Retention and Investigatory Powers Act and in this Bill. It was therefore felt that it would be unsafe to do anything at that stage. Moreover, those particular clauses were under the active consultation and review of the Independent Reviewer of Terrorism Legislation, as well as that of the police and the security services. For a whole host of reasons, it was felt that they would not be advisable. We did try to secure the review for noble Lords, but we were not able to do so at that time.
I turn now to the amendments which are before us. The amendments are significant, and I pay tribute to my noble friend Lord King, who has been tenacious in the way he has advanced his cause and pressed us on this issue over the past week. When a phone went off and the noble Baroness, Lady Smith, commented that it could be the Home Secretary for my noble friend, that might in fact have been the first hour that has gone by over the past week when there has not been a telephone conversation—not that the content of them could ever be disclosed, under any circumstances, under present legislation. There has been regular contact.
My right honourable friend the Prime Minister has said very clearly that he regards this as a priority and as a pressing need. The Home Secretary has said it is a priority and a pressing need. The important thing to say is that we do regard it as a priority, but not the amendments before us at this stage. This is a principal part of what we say to the sponsors of these particular amendments. It is perhaps made more difficult because of the legislative stage we are at with the Bill. We would be faced with sending the 14 pages and 18 or 19 clauses down to the other end, not for them to consider at Second Reading or to discuss and run through in Committee, but for them to vote on in a fairly truncated parliamentary procedure. That might be something which would cause concern. I am simply placing pieces of a jigsaw here to try to explain to my noble friend why, reluctantly, the Government feel that they are not able to support these amendments in their present form.
Then, of course, there is the procedure that we move on to from here, which has been settled. Section 7 of the Data Retention and Investigatory Powers Act says:
“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 … current and future threats to the United Kingdom … the capabilities needed to combat those threats … safeguards to protect privacy … the challenges of changing technologies … issues relating to transparency and oversight … the effectiveness of existing legislation (including its proportionality) and the case for new or amending legislation”.
That commitment was made in legislation and has to be delivered by 1 May. Further consideration is under way by the Royal United Services Institute, in addition to further consideration undertaken at the present time by the Intelligence and Security Committee, of which my noble friend is a distinguished former chairman. That work will be extremely important in informing us all in Parliament what the scope and content of that Bill should be.
Finally, I want to come to the point about timing. This is probably the strongest argument which my noble friend Lord King has put forward. The threat is real, and the need is now. We cannot see this as something which can be kicked into the long grass; it has to be a priority for the new Government. I believe that there is just reason to claim that that might be the case and that it may not be subject to the kind of experiences that I acknowledge he may have had with previous legislative arrangements. The Data Retention and Investigatory Powers Act is sunsetted to the end of December 2016. If we work back from that, as we have done, we realise that we need legislation to replace that well in advance of that date, as there certainly cannot be any gap in the coverage of that very important power. If it needs to be in place before that, it necessarily needs to be introduced very early on in the next Session, to allow it to follow its appropriate course through Parliament.
Lord West of Spithead
I thank the Minister for giving way. Is he saying then that this will be a manifesto commitment?
Lord Bates
The noble Lord will recognise that I am a little too junior to actually write the manifesto. What I can say for absolute certain is that the Prime Minister and the Home Secretary have made clear, in the most forthright terms, their personal belief that this legislation is needed and that it must be introduced as a matter of urgency in the new Parliament. I hope that that will deal with some of the scepticism which there might be about the power.
I was trying to set out that there is a particular legislative need. Whatever Government are there after the general election, they will have to start to do something very early on, simply because it will take seven to nine months to actually get it in place. However, when it does start, it will start with due consideration of the Joint Committee’s work and the excellent work of the noble Lord, Lord Blencathra. It will start with the excellent debates and consideration that we have had, thanks to my noble friend’s putting forward these amendments in Committee and now again on Report. It will have the benefit of the input of the Independent Reviewer of Terrorism Legislation, of the Intelligence and Security Committee and of other individuals who work in this area. It will be a better piece of legislation for that, providing that it is enacted.
With these comments, I am trying to be as frank as I can in explaining, in a transparent way, where we have got to—where we are—and where we need to be as a matter of urgency in the next Parliament. I hope that my noble friend will see that the Government are grateful for his urging and that we have responded by being more forthright than perhaps we have been before about our intentions. In that spirit, I hope that he will feel reassured enough to be able to withdraw the amendment at this stage.
Lord King of Bridgwater
My Lords, we have had another most excellent debate in what the whole House, I believe, recognises is an extremely serious and dangerous time. It is right that the House should be addressing this issue. I start by thanking the Minister for the way he has responded successively to two very important debates, first in Committee and now on Report. I thank him also for the extremely courteous and constructive way in which he has responded to the representations that I and other noble Lords have made. I thought that we were going to fall out for a moment, because I thought he said I had been tendentious—but I was corrected very quickly by my noble friend beside me, who told me that the word he had used was “tenacious”, which is certainly much more acceptable.
I will just address some of the comments that have been made. I do not mean to be unkind to the noble Lord, Lord Blencathra, but he rather repeated the speech that he made in Committee. He spent some time criticising the amendments we have put down, but these are not the amendments that we wanted to move. As he knows, we tried to change them but the Government did not feel able to co-operate in that respect, so we had to make do with what we had. I also draw some comfort from this quote from his own Joint Committee’s report:
“Our overall conclusion is that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data”.
I will be the first to say that that sentence then has various other qualifications about the need for improvement—the committee had lots of worries and concerns about it—but that is the basis on which we went forward.
My noble friend Lady Neville-Jones answered the noble Lord, Lord Paddick, very well. The noble Lord’s weekend of research brought out very clearly how difficult this issue is, how complicated it is and how much will have to be done before this can actually be brought in. Some might argue that if you have all those complications before this gap—which has been generally recognised to exist—can be closed, leaving open the inability of our country and our security agencies to necessarily meet the threats that they may face, then we had better get cracking on that now. Dealing with the international complications and the issues around encryption are very important points which need to be dealt with.
The noble Baroness, Lady Ludford, who I get the impression is against the idea of having any Bill at all—although I may be misrepresenting her—slightly misrepresented the position taken by the noble Lord, Lord Blair. He did not say that the terrorist attack in Spain caused the change of government. He made a very interesting point that I had not quite focused on. In the context of the time in which we live, as we move towards an election, I understood him to be referring on the Spanish connection to the way in which terrorists have often used election time, a time of political uncertainty, to cause an outrage. That would appear to have been the case in Madrid.
Our debate has brought out some general concerns. I do not think that there was any argument whatever about the threat. The noble Lord, Lord Harris, made a most interesting and constructive speech on the challenges that have to be faced, including the challenge of looking at both sides of the problem. Of course, we are aware at all times of the risks of overstepping the mark and of alienation. I lived through a time in Northern Ireland when the measure of internment without trial—a necessary measure at one time—had undoubtedly significantly increased the problems of terrorism that we then had to face. We in this House and others have a responsibility as legislators to get that balance right.
I am impressed by the statements of the Prime Minister, the leader of the Opposition, the shadow Home Secretary, the Home Secretary and both Front Benches, who make no apology for saying that the threat is severe. That is its standing at the moment. For anybody who did not understand what “severe” meant, those statements were made before events in Paris and Belgium. We are undoubtedly in a time when we need to be able to ensure that our defences are as strong as we can make them.
I understand that it is unusual for such a substantial amendment to be put down at the Committee stage of a Bill in this House. I was not sure whether the noble Baroness, Lady Smith, was suggesting that it is for this House only to do modest revisions to what comes from the Commons and not for it to be on occasions an initiator, inviting the Commons to give their views on what we are putting forward. I certainly do not sit in this House on the implication that I am not allowed to initiate good ideas if I think them necessary, particularly if I think that they will support the security of our nation—but I may have read too much into that.
What we have got out of this debate is not, unfortunately, co-operation on the tabling of more up-to-date amendments which might have given the House of Commons a chance to consider whether they could be incorporated in the Bill. We now move forward to an uncertain time: an election time with no certainty as to who the Government may be or how long it will take to undertake any of the new legislation which I think everybody—certainly, all those in positions of responsibility in the major parties—believes is essential. At such a time, we have to ensure that in every way we can we give support to our security and intelligence agencies in their work. My noble friend Lord Howard said in debate on an earlier amendment that the security of the nation is the first responsibility of the Home Secretary. She has made it absolutely clear that she wishes to see this legislation in place as soon as possible but has set out her own timetable for it. I am quite clear what the positions of the Government and the Opposition are in not supporting these amendments, but at least we have given the opportunity for these matters to be thoroughly examined.
I do not think that when this Parliament resumes, in whatever guise it is, people will have any excuse for not knowing what the strength of feeling is on this issue. I think that a number of us, who fortunately do not have to stand for election, will be on their tails in this matter. We will be able to resume the charge and try to ensure that, at the earliest possible opportunity, the security of our nation is supported in the best way we can. Against that background, I beg leave to withdraw the amendment.
Lord Ashton of Hyde
“Authority-to-carry schemes: entry into force etc
(1) An authority-to-carry scheme comes into force in accordance with regulations made by the Secretary of State by statutory instrument.
(2) The Secretary of State must not make regulations bringing a scheme into force unless—
(a) a draft of the regulations and the scheme to which they relate have been laid before Parliament, and(b) the draft regulations have been approved by a resolution of each House.(3) If the Secretary of State revises an authority-to-carry scheme, the revised scheme comes into force in accordance with regulations made by the Secretary of State by statutory instrument.
(4) The Secretary of State must not make regulations bringing a revised scheme into force unless—
(a) a draft of the regulations and the revised scheme to which they relate have been laid before Parliament, and(b) the draft regulations have been approved by a resolution of each House.(5) Regulations under this section may include transitional or saving provision.”
Lord Ashton of Hyde
My Lords, we move now to Part 4 of the Bill—I hope, briefly—dealing with aviation, shipping and rail. I hope that these government amendments will find favour with your Lordships. During Committee, I acknowledged the concern of noble Lords that the Bill as drafted provided only for indirect parliamentary scrutiny of an authority-to-carry scheme made under Clause 22. The Delegated Powers and Regulatory Reform Committee expressed a similar concern in its report on the Bill.
In recognition of your Lordships’ concerns, the Government undertook to consider further how we could provide for more direct parliamentary scrutiny of such a scheme. I am pleased to inform the House that Amendment 12 provides for direct scrutiny by laying before Parliament regulations subject to affirmative procedure which bring a scheme, or a revised scheme, into force. With this approach, the scheme comes into force by regulation. This will allow for schemes to be similar in format to the 2012 scheme, which carriers will be familiar with and where the use of plain English makes it more easily accessible to foreign-registered carriers. Amendment 12 enables this. Amendment 13 is a consequential amendment to Clause 23. I beg to move.
Lord Rosser (Lab)
We had an amendment in Committee when this issue was discussed, in the light of the report of the Delegated Powers and Regulatory Reform Committee in particular, its view that Clause 18 constitutes a significant delegation of powers to the Secretary of State and that the Bill should be amended so that the powers are exercisable by statutory instrument. In their response, the Government said that they were considering the report of the DPRRC, would reflect on the concerns expressed in the debate and then return to this issue on Report. The Government have done that with their Amendments 12 and 13, which we support. We thank them for their further consideration of this issue.
Lord Ashton of Hyde