Counter-Terrorism and Security Bill

Baroness Buscombe Excerpts

Tuesday 13th January 2015 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, I begin by echoing the words of my noble friend the Minister in paying tribute to our security services, who do an amazing job under the most difficult and, I suspect, at times, hugely frustrating circumstances. Along with the police and our Armed Forces, much of what they seek to do is often compromised, for all the right reasons, to protect our fundamental freedoms of free speech, a free press, our rule of law and our human rights—as well as protecting our lives. For terrorism, a constant is change and we need to give our agencies the tools that they need to adapt to change.

In addition, and to the best of our ability as a legislature, we need to anticipate and thereby try to future-proof measures to counter the activities of those who seek to thwart us. This is not a knee-jerk reaction to what happened in Paris last week. Some of the measures are concerned with how we confront British nationals who are highly organised and intent on acts of terrorism both within our midst and beyond our borders, including in mid-air and with the aid of the internet, and who are not necessarily concerned for their own safety.

As shadow Minister for the Home Office in 2001, I was very much involved in taking a counterterrorism Bill through your Lordships’ House. From rereading some of the debates, it is clear that we are now in a different place from 2000 and 2001, requiring some different tools and defences, particularly in relation to communications, because of the speed of change in technology.

Turning to the Bill, I want to focus my contribution on just some of the more controversial measures. It is important to say at this point that we are all making judgments about the proposals in, to some degree, a vacuum, as we do not know—nor should we—all that our intelligence services know and seek to know. What is clear is that the threat is real and, as we see on our screens here in Parliament, it is considered severe.

I declare an interest as a member of the Joint Committee on Human Rights, but I must say straightaway that I do not agree with all that is contained in the report that we published yesterday. It is important to note that the committee did not invite a briefing from the intelligence services prior to publishing its report. I have been briefed by the security services, and that brief has given real context to the proposals in the Bill.

Time for consideration by the Joint Committee on Human Rights and other interested parties has been a constraint—although even on that point I must say that, although the report states that not enough time has been given for scrutiny, we have had a lot more time thus far than allowed post 9/11, when we accepted that we had to support the then Labour Government and the work of our security services. To all those who say that these measures are just about being seen to be doing something, I say that I wish that that was true, but it is not.

In addition, I want to put on record that the press release issued by Justice saying that the JCHR report is highly critical of the Bill is just wrong. In its haste to make headlines, Justice obviously has not read the report properly. In many ways, the report supports the Bill and is thoughtful and measured in its response.

We must trust our security services to seek to do the right thing. I, for one, wholly support the measures in the Bill, with a few provisos, particularly in relation to judicial oversight to keep our Executive in check and to allow the independent reviewer the ability to review the working of the additional preventative measures to assure us that they are necessary and proportionate in all the circumstances.

I say “preventative” because that is what the measures are: making prevention a statutory duty on several levels. First, the Bill is focused on British nationals who are travelling to Syria and Iraq with the aim of carrying out terrorist activities. Some of those who we know have returned will probably have committed heinous crimes abroad and are now living in our midst. In most cases, those individuals will have been radicalised and may encourage others to follow their path.

Travel to and from Iraq and Syria can be quick and straightforward. The Bill is intended to assist our intelligence services in their task of tracking those individuals and to try to prevent them from becoming radicalised in the first place. The ability to communicate for harmful purposes via the internet through social media and other means is also addressed in the Bill, as well as the means of travel which are vulnerable to attack.

With regard to specific powers, in Part 1, Chapter 1, the power enables the police to seize and retain a person’s travel documents at a port where there is reasonable suspicion that the person is travelling outside the UK for the purpose of involvement in terrorism-related activity. The key is the ability to allow our enforcement agencies to act quickly where speed may be of the essence, always bearing in mind the speed of communications that can benefit and protect the identity and whereabouts of the individual concerned, making it much harder for the police to track them.

It is important to stress here that, although the travel documents are seized for an initial period of up to 14 days, the individual would not be detained. In addition, once consideration of further disruptive action has been completed, or 14 days after the day on which the travel document was seized, whichever comes first, the travel documents must be returned to the individual if no further action is being taken against the individual and a court has not approved a further retention period. To me, that all makes sense and is entirely reasonable, given that judicial oversight kicks in regarding any extension to the initial 14-day period.

Turning to Chapter 2 of Part 1, relating to the introduction of temporary exclusion orders, I must declare that I distance myself from the report of the Joint Committee on Human Rights, as I entirely disagree with the committee’s stance. Unlike my colleagues on the committee, I am not opposed in principle, or indeed in practice, to the removal of passports from British citizens on a temporary basis. On the contrary, I entirely support the logic of the introduction of TEOs, given the nature of the threat and the fundamental importance of recognising the desire on the part of some of these individuals to commit acts of terrorism on our transport network.

For example, currently if our intelligence services have reason to believe that an individual may have the intent to commit an act on an aircraft outside our jurisdiction, there is nothing they can do to stop them other than talk to other authorities outside our jurisdiction. If the individual complies with the process of a TEO—

[Lord Clinton-Davis (Lab)]

Does the noble Baroness consider that there should be any rights of appeal at all about a decision?

[Baroness Buscombe]

I would hope that the noble Lord would wait a moment. I am about to come to judicial oversight. I am talking now about the ability in principle and practice to have a TEO. If he can wait, I think he will be pleased to hear what I have to say following.

If the individual complies with the process of a TEO—this is a very important point and I hope it is helpful—they could be able to return to this country within two days under a managed return. The JCHR is concerned to make the process less onerous, but onerous for whom? The passengers on that aircraft? These orders would make it unlawful for the individual to return to the UK without engagement with the UK authorities and that would be supported by the cancellation of the individual’s travel documents and inclusion of their details on watch lists. It allows for the imposition of certain requirements on the individual once they return to the UK.

The JCHR proposes an alternative to TEOs, which is to introduce “notification of return” orders, requiring UK nationals who are suspects to provide advance notification of their return to the UK on pain of criminal penalty if they fail to do so. I have tried hard to draft a measured response to this proposal, given that it simply does not recognise the minds and nature of militarised and/or radicalised individuals whom our enforcement agencies may be dealing with. In any event—and we will probably look at this more in Committee—I suggest that the committee’s proposed alternative may contravene Article 6 and the right to prevent self-incrimination.

Where I do agree with the JCHR report is in its desire to support these measures with some form of judicial oversight, if that oversight is humanly possible, given the speed of communications available to the individual concerned. Already our agencies operate in effect with one hand behind their backs in order to meet HR obligations and the rule of law; I will not support a measure which means both hands are tied. I am pleased that my noble friend the Minister has said in his opening remarks that he is now committed to considering some form of judicial oversight in relation to TEOs.

Perhaps it is helpful to add that we now know that those whom these measures are aimed at are rarely carrying out these acts of terrorism in a vacuum. Most of them have a very professional, well financed, powerful and evil force supporting, funding and directing them, even though they may appear in practice to be acting alone. The difficulty is to ensure to the best of our ability that innocent people are not caught and impeded by these measures, although realistically that may not always be possible. But then that is why there are safeguards in place to minimise free movement where the individual co-operates and is indeed innocent. In addition, I support the proposal of the JCHR that the operation of these measures should be reviewed over time by the independent reviewer.

Turning to Part 2 of the Bill, relating to TPIMs, I entirely support the Government’s proposals to locate a TPIM subject away from their home address, given that this would be of real practical assistance to the police and MI5 in distancing individuals from their associates. The effect of amending the definition of terrorism-related activity in the TPIM Act would be to increase the threshold at which conduct is considered to be a terrorism-related activity. The proposal also to prevent individuals subject to TPIMs from acquiring and/or owning firearms, offensive weapons or explosives is overdue, coupled with a new power to require TPIM subjects to meet with statutory bodies specified by the Secretary of State. I think anyone beyond your Lordships’ House, hearing that these measures to support our agencies are not already in place, would be amazed.

Part 3 of the Bill relates to communications data—data which can help identify who has made a communication and when, where and how. It can include the time, and duration of a phone call, the phone number or e-mail address which has been contacted and the location from which a call has been made. It does not include the content of a call or e-mail—it is not hacking. It was interesting listening to the excellent and very thoughtful maiden speech given by the noble Lord, Lord Green of Deddington, where he made this very point—it is not hacking.

The new measures relate to IP addresses which are shared by multiple users, and IP resolution is the process of identifying who used an IP address at a given point in time which can then be used at any point in time to identify who has accessed a particular service or website. The Bill seeks to require communications service providers to retain data showing which device used which IP address at which point in time. Again, in my view this is overdue, given that capability in this area is increasingly undermining the ability of law enforcement agencies to use communications data to keep us safe. The data can be retained for up to a maximum of 12 months. I notice that in his very excellent maiden speech the noble Lord, Lord Evans of Weardale, said that access to communications data falls short of what is required. I think it is a great shame that he is unable to take part in further debates on this Bill, as his experience would obviously help us a great deal.

Turning now to Prevent duties in relation to activities in universities, I have concerns in line with those set out in the JCHR report. Universities and all other institutions where young people gather away from home present opportunities for young people to socialise freely among different faiths and cultures—to listen to other points of view, other ideas, other perspectives on life. Living side by side is not enough; the chance to communicate openly without fear of reprisal is of critical importance. That said, I want to hear more from the Government about the objectives and the safeguards contained in the Bill. Indeed, there is a meeting with Ministers for interested Peers on Thursday this week to discuss this matter, which I will attend and I encourage others to do so in order to further consider these particular proposals.

Finally, I want to add my support to the proposals for more assistance for the work of the independent reviewer and for the power of the Secretary of State to establish, by regulation, a Privacy and Civil Liberties Board to provide advice and assistance to the Independent Reviewer of Terrorism Legislation in the discharge of his functions.

In conclusion, achieving the right balance is difficult and made more so by recent events. Debate, particularly in the media over the past few days, has been too often characteristically and depressingly skin deep with poor analysis. Fixed opinions do not work well in a changing world. Human rights are, to some degree, subjective and in considering the measures in this Bill, I believe our first priority should be to support our enforcement agencies which work tirelessly in their incredibly difficult quest to protect our fundamental freedoms.