Counter-Terrorism and Security Bill
Baroness Kennedy of Shaws Excerpts(10 years, 5 months ago)
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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.
Counter-Terrorism and Security Bill
Baroness Kennedy of Shaws Excerpts(10 years, 5 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, I shall start by mentioning that I, too, serve on the Joint Committee on Human Rights—I am afraid that a whole flurry of us are getting involved in this debate. There certainly was a real consensus within the Joint Committee that applying this duty to universities would be detrimental to freedom of speech. We have been most concerned about it. One of the things that I think we have all now acknowledged is that freedom of speech is an absolute value to higher education. To interfere with that or to create a chilling effect is something that we should step back from. I endorse entirely all that has been said by others on this subject and want to add one or two things.
I have acted for a number of people involved in failure to fulfil their responsibilities in the criminal field, where they have not informed on those who seemed to be involved in terrorist activity. The duty to inform is real. The universities are very conscious of it, as are the student bodies. The concern that seems to be at the base of this—and which the public would want to see being at the base of this—is that, if you were to hear that people are planning and plotting things, there is a responsibility to do something about it. That already exists in law. It is the further steps that are involved in this that worry people.
Like the noble Lord, Lord Macdonald, and the noble Baroness, Lady Brinton, and others, I am involved in higher education, and I have been for some time. I too am the head of an Oxford college. Oxford University senior administrators have written to heads of house, such as Lord Macdonald and me, expressing their concern about this part of the legislation. This is partly because, as the noble Baroness, Lady Brinton, has said, it is almost impossible for us to oversee it sensibly. For example, in Oxford it would be hard to count the number of meetings that take place in any one week across the college structure and the whole of the university. I cannot imagine what the numbers might be. The noble Lord, Lord Macdonald, and I talked about the possibility of doing a review to see what the number was. We are certainly talking about hundreds. The same would be true in Cambridge and in universities around the country. The autonomy of student unions to invite their speakers quite independently of the governance of the university must not be forgotten.
I speak from my experience as a lawyer who has acted in the criminal courts in this field during the Irish Troubles, but most particularly in recent years around the recent phase of terrorism. I acted in the case that came to be known as the Crevice trial; the fertiliser bomb plot. I acted in the transatlantic bomb plot where seven young men were put on trial for trying to blow up aeroplanes. I have acted for a number of the different wives of men involved in terrorism in relation to their duty to report. I have acted for a boy who was groomed while he was on the internet in his bedroom in his parents’ house. I have acted for those who were involved in trying to dispose of evidence in the aftermath of the 7/7 bombings in relation to 27 July 2005. So I have acted in a whole series of these cases and I can honestly say that my experience is that these are not people who were radicalised in universities.
Radicalisation does not go on in universities. By and large I am talking about young men and it is about friendships and networks of friendship where people learn from each other and pass books and material to each other. It is not about closing down what happens in universities. It is really about what happens in our communities. So the work that is already going on in communities is probably the stuff that needs to be strengthened. All I urge is take a look at the real evidence of this. It is not enough to tick a box and say, “Some of these boys went to university, some of them were on access courses”. Many of our young around the country are going to university, but these boys were not radicalised because they were university students, in the way in which we think of university students. I see noble Lords nodding. That really has not been the case.
I go back to my concern about the chilling effect, which has been described by others. There is also the deterioration of trust effect, which is very important in the relationships between those who teach and those who learn. The other thing is that I spend time with the students in my college. I have them in regularly to gatherings. I do a regular meeting with sets of 12 at a time. We have discussions; they talk about all these things that are being described, some of them by the noble Lord, Lord Macdonald. They debate things such as, “Is democracy so wonderful, when it is bought wholesale by donations to political parties and where the small people do not get a voice? Is it right that religion can be denigrated?”. They want to debate things such as, “What is the point at which people are entitled to take up arms?”. I remember when I was president of SOAS, the School of Oriental and African Studies, there would be incredibly vital debates and arguments about the circumstances in which someone was entitled, as Mandela was in his time, to take up arms against the state. When is it appropriate? That is how young people learn about the nature of our society. It is where they learn and hear the counter arguments to some of the things that they feel seem so obvious to them.
This is not, by and large, where your radicalised young person is giving voice to his views. That is happening in the café down the road. It is happening in the kebab shop. It is happening in people’s rooms, but it is not happening in the universities in the way that somehow is imagined by this part of the legislation. I urge against it and ask that the bit about universities is taken out, because we are interfering with one of the most important freedoms that should be protected in our society.
Lord Pannick (CB)
My Lords, Oxford is well represented today. I declare an interest as a fellow of All Souls College. I find this a genuinely difficult issue. I am supportive of the Government’s general objectives in Part 5; far more supportive, I think, than some of the speakers who have addressed noble Lords this afternoon, particularly in the earlier debate.
It seems to me that the starting point has to be that there is a disturbingly large number of people out there who are prepared to take violent action for ideological and religious reasons. There is an even more disturbingly large number of people who are prepared to encourage or to condone such violence. For me, the most shocking part of the appalling events in Paris were not the attacks on the journalists and the kosher supermarket by deranged Islamists, it was that a minute’s silence for the victims was unenforceable in many French schools, because of sympathy for the murderers and their supposed cause from students and, presumably, their families. This demonstrates, I think, that in France there is an alarming failure to understand the basic principles of a liberal democracy; a democracy which protects the freedom of religion—rightly so—of those who refuse to recognise the basic rights of others.
My starting point is that the Government are rightly determined to prevent such developments here; developments which breed religion-inspired violence. Having said that, I share the concerns which have been expressed this afternoon about the impact of these provisions on freedom of expression and academic freedom in universities. My concern is very similar to that of the noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady Kennedy. It is that the duty which the Bill will impose is very difficult to reconcile with the very idea of a university whose primary role is to encourage academic debate and dissent. I think that a code which can be enforced by legally binding directions is far too blunt an instrument in the context of a lecture hall or a seminar room. If you try to wear a policeman’s hat and an academic gown at the same time, you are unlikely, I think, to perform either task adequately.
The Minister’s helpful letter to noble Lords on this issue makes the point that academic freedom is not absolute, even in a university. The Minister is absolutely right: the law already restrains freedom of speech, in universities as elsewhere, through the law of defamation, restrictions on threatening or abusive words or behaviour, and prohibitions on support for proscribed organisations. Universities have no exemption in that context, but this Bill would impose duties that are far more extensive and far more destructive of basic academic freedom than anything which is contained in current law.
I would prefer universities to be excluded from Part 5, but would be much reassured on this difficult subject if the Government would support Amendment 105, in the name of the noble Baronesses, Lady Lister of Burtersett, Lady O’Loan, Lady Buscombe and Lady Sharp of Guildford, or something like it. Their amendment would write into the Bill the protection for freedom of speech currently contained, as your Lordships have heard, in Section 43(1) of the Education (No. 2) Act 1986. I note that, in the Minister’s letter to noble Lords, he says that the duty under the Bill,
“is in no way designed to cut across the importance of free and open debate”,
particularly in universities. Good, I am very pleased to hear that. But then let the Bill say so expressly, to provide reassurance to the many good people in universities and elsewhere who are very concerned, and rightly so, about this issue.
Counter-Terrorism and Security Bill
Baroness Kennedy of Shaws Excerpts(10 years, 5 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, Amendment 75 is not a probing amendment. This is for real. Perhaps the most challenging feature of Part 2 of this Bill is the reintroduction of internal relocation orders into the TPIM regime, which many of us would regard as a regrettable necessity. Amendment 75 concerns what should be the appropriate level of judicial oversight in these cases and would, I believe, go some way to take the sting out of the highly toxic question of internal relocation.
The amendment is designed to give effect to one of the independent reviewer’s 10 recommendations made in his March 2014 report into TPIMs—recommendation 3. Put simply, although I fear I shall have to explain the amendment a little more fully in a moment because, on its face, it is less than crystal clear in its effect, the position is this. Under the present TPIM regime, one of the four conditions that has to be satisfied before a TPIM order can be made—it is called Condition A—is that the Secretary of State “reasonably believes” that the person concerned,
“is, or has been, involved in terrorism-related activity”.
That is the particular condition which is referred to in Section 3(1) of the 2011 Act, which in turn is what Clause 16(1) of this Bill relates to.
At present, if a TPIM order is made, the courts can review it or hear an appeal ultimately against it only on a limited basis. The court is expressly required by the statute to apply the principles of judicial review. In other words, the court decides only whether the Secretary of State was acting reasonably or perversely in reaching her belief. The court does not have the jurisdiction to reach its own conclusion. This would continue to be so if Clause 16(1) is enacted in its present form.
Personally, as I made plain in what I regret was my rather overlong speech at Second Reading, I can see no true distinction between the Secretary of State reasonably believing something and her being satisfied of it on a balance of probabilities. But the more important point for present purposes is this: even if there is a difference, the decision as to the person’s involvement in terrorism under Clause 16(1) as it stands, subject only to the limited scrutiny of judicial review, is one solely for the Secretary of State and not for the courts. Like the independent reviewer, David Anderson, I believe that the decision should be for the courts, especially—I emphasise “especially”—in those cases where the Secretary of State is to deploy that most disruptive of measures, now to be made available to her, internal involuntary relocation—“internal exile” as it has been called. Indeed, that was the term used at Second Reading by the right reverend Prelate the Bishop of Durham.
Make no mistake, these orders—because we used to have them in control order cases—are deeply resented, not least, of course, by the persons’ families, who can be very severely and very harshly affected. They contribute worryingly to what some civil liberty and minority groups call the “folklore of injustice”. At Second Reading , the noble Baroness, Lady Kennedy of The Shaws, called it the “folklore of oppression”. It was, said David Anderson, perhaps unsurprisingly, only “with a heavy heart” that he came to the recommendation that this measure should be reintroduced as now is provided for by Clause 12 of this Bill.
My amendment is tailored simply to apply to those TPIM orders that require relocation. It provides that in these particularly troubling cases it will be for the court to reach the final, substantive decision, on the balance of probabilities, as to whether the person being internally exiled is, or has been, involved in terrorism-related activity.
I should make it plain that there is nothing particularly novel or radical about this proposal. The Prevention of Terrorism Act 2005 introduced control orders in place of the original discredited Belmarsh regime of the internment of foreign suspects without charge and without trial on an indefinite basis. The 2005 Act, by 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”.
That is precisely the position which, I suggest, should be achieved here.
As Mr Anderson pointed out at paragraph 6.16 of his 2014 report, the Government had already accepted in relation to the earlier proposed ETPIMs legislation—the enhanced TPIMs scheme, which in the event never came into being—that at the High Court review of such enhanced orders the Home Secretary should be required to prove the suspect’s involvement in terrorism on the balance of probabilities—again, just as I suggest should be the position here.
The Joint Committee on Human Rights, at paragraph 4.14 of its report on the Bill just this month, welcomed the introduction of the balance of probabilities test, but added that,
“in order for this change to make a real practical difference, we recommend that the TPIM Act be amended to require the court also to consider whether the balance of probabilities standard was satisfied, in place of the current, lighter-touch judicial review standard. Such an amendment would give effect to the unimplemented part of the Independent Reviewer’s recommendation”.
Mr Anderson himself, at paragraph 6.17 of his 2014 report, having doubted whether his proposed change—from the Secretary of State reasonably believing the suspect’s involvement in terrorism to the court being satisfied of this on the balance of probabilities—would have made a difference in any of the earlier TPIM cases, importantly added:
“It would however help reinforce the legitimacy of TPIMs, by enabling the Government to say (as it cannot at present) that a TPIM notice may only be upheld if it is proved to the satisfaction of the High Court that the subject has been involved in terrorism”.
My proposed amendment, as I have explained, is in fact rather more limited than Mr Anderson’s recommendation. Rather than applying to all TPIM orders in future, it would apply only when internal relocation is one of the measures ordered. There is of course no such phrase as “internal relocation” or “involuntary relocation” in the Bill—it is not used in Clause 12 or indeed in paragraph 1 of Schedule 1 to the 2011 Act, which Clause 12 amends. Therefore my amendment, I hope accurately, has had to spell out the particular circumstances which constitute the internal relocation and where it would apply.
I hope that the House will support this amendment and indeed that the Minister may himself come to see its merits. It would, I suggest, send out an important message that we in this House recognise the very real problems that result from internal relocation orders and are concerned to balance the need for them, as best we may, by strengthening the safeguards against their inappropriate use. The court should be given this additional responsibility in its oversight role. The independent reviewer’s recommendation ought not lightly to be rejected. The fact is that I have yet to hear or read of any cogent, coherent basis for rejecting it. I beg to move.
Baroness Kennedy of The Shaws (Lab)
My Lords, I have spoken about internal exile, as I choose to call it, on a number of occasions in this House. I am persuaded by the independent reviewer that, because of the threat faced by this country at this time, there may be the rare occasion when one would want to disrupt the connections and associations in a particular place of someone subject to a TPIM order. It should be used on the rarest of occasions, and the standards that the courts should look to in making the decision should be high.
I support what the noble and learned Lord, Lord Brown, has said. We should see this idea as a huge departure from what we would consider normal. For people to be taken away from their families and the place that they know and sent to live somewhere else in the country is a very hard thing. We have to recognise that sometimes it will disrupt good associations as well as negative ones, so that they are no longer with their mother or father, or with some of the people who are voices of sanity as distinct from siren voices. It surely makes sense to say that this is such an exceptional step that there should be this additional safeguard, which has been proposed by one of our most senior retired judges.
Counter-Terrorism and Security Bill
Baroness Kennedy of Shaws Excerpts(10 years, 5 months ago)
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Baroness Warsi
Following on from my noble friend’s comments, would our response and assessment of what would amount to reasonable grounds differ depending on the country that was making that request and on the laws of that country?
Baroness Kennedy of The Shaws (Lab)
My Lords, I declare an interest as a member of the Joint Committee on Human Rights.
I have a number of amendments in this group and they all relate to judicial oversight of the powers to remove passports and travel documents. They are all ways of giving weight to the right to a fair hearing, as provided by Article 6 of the European convention. Basically, they are ways of making the oversight of the power procedurally fair and it is on procedural fairness that I want to make this contribution.
The relevant parts of Schedule 1 provide for a judicial role and are modelled to some extent on the provision made for warrants for further detention in Schedule 8 to the Terrorism Act 2000. That governs the detention of a person arrested on reasonable suspicion of being a terrorist. If you make a close comparison of the two schedules, it becomes clear that the procedural safeguards that were introduced into the Terrorism Act are not present in this Bill. This makes it significantly weaker as a result.
When Schedule 8 to the Terrorism Act was procedurally strengthened it was as a result of some of the recommendations of the previous Joint Committee that I was not on. That kind of coherence should be there in legislation of this sort. At the moment Schedule 1 is not compatible with the European Convention on Human Rights; the requirements on fair hearing are certainly not. I want to outline where the weaknesses lie, which is why I have tabled my amendments.
Amendment 24 refers specifically to,
“a warrant of further retention”,
to draw that analogy with the warrant for further detention that exists in the previous terrorism legislation. I have an amendment relating to gisting too. I repeat what others have said: a person who is having this power exercised against them really should know the basis on which the documents have been taken and there is the need for an extension. It is just not good enough to say, as it does in the Bill, that we should be preventing people dragging their feet or not being diligent enough. While we want to ensure that people are acting diligently and expeditiously, there has to be more to it. There should be some requirement to consider the grounds for the retention of the documents, so I have inserted that into my Amendment 27.
This is all drawing on the report of the Joint Committee on Human Rights. With regard to Amendment 29, I urge the Committee to recognise how important it is to have oral argument in something as important as this. To have it done just in writing is not good enough. This is all fair hearing stuff. I really urge the Government to have regard to the ways in which this has been done in previous legislation.
With regard to Amendment 30, I am very concerned that while the Bill provides for a closed material proceeding at the extension hearing, there is no provision for special advocates. I am no great fan of special advocates— that process of having secret hearings—but I certainly feel that if you are going to have a closed material proceeding, you really must have protections for the person who is having their documents taken. I urge the Government to look at this again because I do not think that Strasbourg is going to think that it is compliant. Strasbourg has accepted the procedure that we have introduced here but one of the things it sees as being an important element is the role of the special advocate. There is a case waiting to come up in Strasbourg—Duffy—but I think we will find that this is going to fall foul of our obligations. Having special advocates involved is a very important element here.
Amendment 31 is really just tidying up in order to make the procedures parallel with those in Schedule 8. Amendment 32 says that if the court allows closed material proceedings, the state must provide a summary. Of course, if the state does not want to do that and there are special reasons why the intelligence agencies do not want it to be in the public domain, it is open to the state to withdraw. I think it is important that we use the model of other legislation that we have to help us get the best kind of legislation that the Government are seeking in this set of circumstances.
Those are the reasons for my amendments. I support the reduction to seven days that is being proposed by the noble Baronesses, Lady Hamwee and Lady Ludford, and the noble Lord, Lord Thomas of Gresford. I hope that the Government will see why it is important that we create fair proceedings around this special set of powers.
Lord Macdonald of River Glaven
My Lords, I support what the noble Baroness has said. There cannot be any doubt that the power to exclude British citizens from their own country is a wholly exceptional power of the sort that we have not seen before. In fact, it is warranted by the threat that emanates from the globalisation of terror and the ease with which young men in particular, but some young women as well, can pass in and out of parts of the world that are controlled by terrorists, and of course the threat that they represent to us when they return from those zones.
However, it is the exceptional, drastic nature of this power, warranted though it is, that requires that procedural fairness is absolutely guaranteed by the processes under which the power is exercised. It is because the power is so extraordinary that it is so important, in order to avoid the scenario that the noble Baroness was talking about at the outset of this debate, that we observe the highest degree of procedural fairness. To that extent, I support what she has been saying.
Counter-Terrorism and Security Bill
Baroness Kennedy of Shaws Excerpts(10 years, 6 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, I share the horror that has been expressed in this House about the events that took place last week in Paris. They followed on the real revulsion that we all shared about the barbaric killings by ISIL in northern Iraq. Those were the precursors of this Bill. It would be all too easy to write a blank cheque to Government to do whatever it takes to counter terrorism when we have just had these experiences. However, we should be deeply aware of the risks associated with erosions of civil liberties because once we create paradigm shifts inside the law, the reality is that they are very hard to reverse.
I have seen this over laws that were introduced at the time of the Irish troubles in the 1970s when I started doing work in terrorism cases. You actually find that the changes that are introduced inevitably leach into the system as a whole. We see that more recently with the secret courts, which were introduced as an isolated and extreme measure. We have now seen institutional creep and that “exceptional” process is moving into other parts of the system. Our commitment to open justice is thereby being eroded. We must be clear that emergency legislation can never be vacuum-packed. It permeates attitudes and standards—and, I am afraid, rarely to the good.
The Bill was introduced to deal with the threat of radicalised young people leaving the United Kingdom for places such as northern Iraq, Syria or Somalia, participating in terrorism abroad and then returning to this country highly trained to wreak further harm. Those were the concerns that motivated this legislation, and the ones that we can all understand. The Joint Committee on Human Rights, on which I serve, accepted that preventive steps should be taken to stem the flow of travel to join those insurgencies. There was also a very real recognition by the Joint Committee that we have to use the law in these cases. We all felt particular horror at the idea of young women going off to make themselves available to this jihadist struggle by becoming jihadist wives. One wonders whether they are finding it quite as idealistic and romantic as they imagined it would be when they started out.
The prevention of travel is supported by the parents and families of young people. However, it must be pinned down with real safeguards and not operate on the hunches of officers at ports, with the risk of misuse being great and the risk of mistaken use being considerable. We on the committee therefore accepted that there was a need to look at that and that there were gaps in what was legally available to the authorities.
We were also sympathetic to the idea of managed return. We have to find ways to enable the return of those who bite off more than they anticipated—the people who go to those places, see “The horror! The horror!”, to quote Conrad, become sickened by what they see, and who must want to return to the sanity of their lives in this country. Therefore opportunities to bring those people back and find ways to bring them back into our communities should be found.
What is often not understood by many people is that, unlike in previous generations or in previous times, people who are currently in Iraq are in communication with their families—that is the nature of modern media—so their families are able to phone them and say, “Please, come home”. They are able to contact them by e-mail. Their e-mails may be being intercepted, but they certainly communicate quite frankly, and some of them do not realise the extent to which the things they say might be a source of evidence against them on their return.
We should therefore be thinking about different categories of people. There are those who are undoubtedly committing horrible crimes over there. We have a responsibility as a nation to prosecute them should they come within our jurisdiction. If we have the opportunity to do so, they should be put through the legal processes, prosecuted, found guilty and imprisoned as our nationals for committing crimes aboard. That should be one of our priorities. We have to ask ourselves whether we will enable that by the introduction of the system we are currently looking at.
We also have to try to prevent people coming back who might commit further crimes. They may very deliberately come back, claiming that they just want to come home, but have ulterior motives. It will be important that the authorities are able to examine those possibilities, so we have to look at procedures that could be created to help us to deal with all that. We need to revisit a number of elements in the Bill but all the time we have to have two important things at the back of our minds. The first is the importance of avoiding the erosion of civil liberties and doing things that are not proportionate to the need. The second thing we have to think about is whether, if we risk miscarriages of justice or the misuse of some of the new powers that are given, we will end up alienating large numbers of law-abiding, decent Muslims in our communities, who are important to us in trying to find solutions to the problems we currently face. Collective punishments are what people feel, and if people feel or perceive injustice, it leads to very negative consequences. We have to have that high in our minds as the Bill goes through the House.
I want to consider the issue of removal of passports when people are leaving the country and there is reason to believe that they may be going to places where they are going to engage in terrorism in one form or another. Is the seizure of a passport from someone suspected of travelling to become involved in terrorism proportionate? We would say yes, but it depends on the safeguards that surround the exercise of the power. The Joint Committee on which I sit noted that while Schedule 1 provides for a judicial role to govern this power, it is not, for example, as strong as the safeguards that are provided in the judicial oversight of warrants of further detention, when someone is detained on reasonable suspicion of being a terrorist. It seems sensible to have parallel provisions. There is no provision, for example, for gisting: giving people an entitlement to having the gist of what the reasons are for removing their passport and not allowing them to travel.
The Bill provides for judicial consideration only after 14 days, at which point the judge is under a duty to extend the period of retention of the passport to 30 days. That is on the basis that he has to be satisfied that the investigation has been conducted diligently and expeditiously. Is it really good enough that he just thinks they are moving fast enough or that they are being hard-working enough? Should we not be expecting more to be in the judge’s mind? It also provides for a closed material procedure at the hearing—the secret process that I have mentioned before—and yet there is no provision for the excluded party to be represented by a special advocate. Warrants of further retention should be just the same as warrants of further detention. The Joint Committee on Human Rights recommended that application for the extension of retention should be within seven days, not 14 days, and the judge should be able to issue a warrant only if satisfied that not only was the investigation being pursued diligently and expeditiously but also that there were reasonable grounds to suspect that the person intended on leaving the country to become involved in terrorism or related activities. The person should be informed of the reason for the exercise of the power against them. It should be done at the earliest opportunity and not once they have got a lawyer further down the line and during a process of disclosure later on. That gisting should be referred to on the face of the Bill as it is so fundamental to due process.
If you have secret hearings, there has to be a provision for special advocates. I urge the Minister to look at that. There should also be legal aid and compensation should be available in serious cases where it becomes clear that there has been some misuse of the powers; for example, where the opportunity for someone to go to their grandmother’s funeral or to a family event has been completely destroyed and cannot be revisited ever again.
The most serious power is the temporary exclusion order. As your Lordships know, the Joint Committee on Human Rights has made it very clear that it considers that this is an inappropriate power. We should be thinking about managed return, which is an important thing for the Government to be engaged with. Denmark is doing very successfully and there are many things that we can learn. However, I heard a number of Members of this House being dismissive of the idea of a notification of return to the UK being expected from anybody who wants to return. I go back to the fact that most of the young people in question are in touch with their families from time to time. Those families are trying to persuade them to come back so they could very easily give the authorities notification that they want to come back. Therefore, you could go through the process of having an order made of notification that they want to come back and then the procedures in the Bill could be adapted to fit a notification order. That would replace what is there already without very much surgery to the Bill. It would avoid us getting involved with all the difficulties described by the noble Baroness, Lady Berridge, and others regarding our relations with other countries.
It is not enough just to talk to Turkey. People will not come back on the same routes; they might come back in many different ways, through other countries. We will find ourselves becoming very much the outlier with other countries if we are the people who depart from international law in the protections provided by having a passport. That seems to me a very sensible option, and to dismiss it out of hand is a failure of government. The Government have clung to the temporary exclusion order because, initially, they wanted to take people’s passports away from them. They then realised that that was not on because of our international obligations. So now these temporary exclusion orders are being proposed when in fact they do not have to go that far in any circumstances. The notification of return orders could be substituted and I would urge that this be done.
I also ask the House to consider the cost of having people over there, interrogating people who come to ports, and having to arrange with the authorities there for housing people on a temporary basis if they want to manage their return. We should consider the implications of all that financially—and we are saying that the reason we are doing it is that we cannot afford supervision or surveillance. That seems a very strange consideration of the financial problems that we might have.
I again urge the introduction of a judicial role in all this. The independent reviewer again expressed his concerns about the temporary exclusion order and said that judicial scrutiny using judicial review was pretty unlikely if someone was abroad. So we want to encourage people to look at the whole business of the judicial role prior to the making of the temporary exclusion order or, indeed, the notification of return order. There should also be a renewal requirement to enable Parliament to consider whether there is a case for continuing these powers once they have been reviewed by the independent reviewer and he has assessed how they have been conducted. I have great reservations about all this because of what it does in relation to our international commitments. We really are making a big mistake, and I do not think that people who have said with great coolness that we need these powers have thought through the implications for our international relations and the standards that we are trying to set around the world.
On TPIMs, I have always resisted the idea of relocation, because I have seen it up close and seen the effect on families. I saw a young mother giving birth to her second baby while her first child was still unable to walk; they were being moved out of London to Leicester, to live on the 18th floor of a multi-storey block, where they had no family and where she had no support systems at all, with none of her sisters living there, or her mother. We have to have real consideration for what this does to families, and we have to remember the impact on what is described as the folklore of oppression as it is seen by the Muslim communities. This is not a sensible route to go down. I know that the independent reviewer said that he had a heavy heart in thinking that it was necessary sometimes. I hope that it is used with great limitations, if it is used at all. I always thought that it was one of those things only ever used by totalitarian regimes—sending people to Siberia or Pinochet sending people to the remoter parts of Chile. I really regret that we are even thinking about doing it here.
Finally, I want to talk about universities. I am the head of an Oxford college and I know that, across Oxford, there is real concern about the introduction of this power. Others have spoken to it, so I am not going to repeat what they have said, but academic freedom is very important. The idea that an academic will feel in some way obliged to report on a student whom she feels is asking questions or expressing views that seem inflammatory is a really worrying thing for academic freedom. It would destroy the trust that is so important between the student and the academic, which is where learning is at its best—the point where people are experimenting and thinking the unthinkable. That is where you beat it down with good argument. The idea that we should not have freedom of expression in our universities and that we will have people reporting each other, or that when we go to speak at a university we will have to declare and send ahead the notes of our speeches, is really not workable. I ask the Government to think again and at least to remove universities from the list. I actually think that the whole Prevent project should be looked at again.
A real issue is undoubtedly presenting itself to us as a society, but I say to all of us, “Beware”, because we can give away the most important things if we are not careful—the things that we are most proud of.
Modern Slavery Bill
Baroness Kennedy of Shaws Excerpts(10 years, 7 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, I conducted an inquiry into trafficking for the Equality and Human Rights Commission in Scotland, and it was extended beyond sexual trafficking to migrant workers and domestic servitude. I went to Scotland imagining that it was unlikely that I would come across cases of domestic servitude, because the experience I had had in this field had usually been in the diplomatic area, when ambassadorial families had brought to this country people who had then fled the domestic setting, claiming serious abuse. But one of the things that came to light was a particular case involving a very wealthy family who had businesses in Scotland but had originally come from the Indian subcontinent. They would regularly bring young girls from back home, where their relatives still lived, to Scotland to work for them and care for their children. We can well understand any family wanting to have someone to care for their children who, for example, speaks the language of the place they come from, can continue certain traditions, and can cook in a style that the family might find more appealing.
The shocking thing was that the young woman had fled from the home of this family and given an account similar to the ones that we have heard—sleeping on the kitchen floor on a mat, not being allowed out of the house, not having access to her passport, and so on. But it was even worse than some of the circumstances that we have heard, in that her family back home were the people who received payment, directly from accounts presumably kept alive back in Bangladesh. The problem was that she did not have access to money; she only discovered that she might have rights because, on one occasion when the family allowed her to accompany the children to the park, she met someone else from back home, who had a discussion with her about her circumstances and her rights. It was through the intercession of the other person that, in fact, police went to her house and the girl’s circumstances were discovered.
Baroness Kennedy of The Shaws
My Lords, I support these amendments. I see them as a corollary of our concerns about supply chains. Increasingly in my work, I am looking at issues concerning the corporate world and human rights. Many leading figures in the corporate world are anxious to address these issues because of the implications for their brand and damage to their reputation internationally if they are seen to be participating in activities which breach human rights.
Outsourcing is similarly an area where there are risks of high levels of abuse. There needs to be a real awareness that, as with supply chains, in outsourcing aspects of a business there is often a risk that those who are providing labour are going to be exploiting and abusive of those they are bringing in. As I mentioned, I chaired an inquiry in Scotland for the Equality and Human Rights Commission. The whole of the central belt of Scotland is a provider of soft fruits and brings in migrant labour from abroad. It was the Gangmasters Licensing Authority that helped to eradicate some of the abusive practices that were happening there. The workers were living in the most terrible circumstances and there were issues around not just what they were being paid but how they were being treated. It falls to the Gangmasters Licensing Authority to raise standards as well as to bring prosecutions. The inspectors within the GLA are often former police officers. I was very impressed with their commitment and with their evidence to the inquiry. As we have heard, this is moving beyond food and agriculture and into construction. It is also moving into care, as the noble Baroness, Lady Kennedy of Cradley, mentioned. In this area, the ill treatment of workers is great, as it is in the outsourced elements of hospitality, such as cleaning and laundry.
I urge the Government to look at this. I accept, as do others, that there are financial constraints and that there would need to be resourcing. I support the idea of enabling legislation so that when the time is right we will not have to take up more parliamentary time and the expansion of the Gangmasters Licensing Authority’s remit can be speedily introduced.
Lord Whitty (Lab)
My Lords, I will intervene very briefly because I agree with almost everything that has been said. I was the Minister who brought in the Gangmasters Licensing Authority. At that time there was considerable scepticism as to whether we could use administrative means to clean up what was broadly recognised as an exploitative situation within horticulture and agriculture. I wished then that it had been slightly broader than that because, even more than 10 years ago, it was evident that some of these terrible practices extended to some other industries. Indeed, the same workers were being used. However, we decided to focus on horticulture and agriculture. The general message is that, although we have not entirely eliminated exploitation, bad living conditions and illegality from those sectors, they are a lot cleaner than they were. The effectiveness of the GLA is widely recognised.
The important point that has not really been emphasised is that the GLA has the ability to sanction the users of the labour. It is not just the gangmasters who are in the frame but the farmers and the horticulturalists as well, and that has driven a change of behaviour and attitude which has been backed up by those who use the produce—the retailers and the processors. There is a whole supply effect because the direct employer of labour that is being provided under these terrible conditions can be sanctioned.
This situation pre-eminently applies in parts of construction and it very evidently applies in catering and hospitality and in the care sector. If pressure is not put on the apparently respectable users of that labour then the sanctions, although not entirely ineffective, are less than complete. I recognise, as other noble Lords have done, the need for more information and more resources but we must use this legislation to enable the Government to extend this kind of approach to these other sectors at the appropriate point.
Modern Slavery Bill
Baroness Kennedy of Shaws Excerpts(10 years, 7 months ago)
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Baroness Lister of Burtersett
I support Amendment 85A in the name of the noble Lord, Lord Patel, to which I was pleased to add my name. I also express my support for the case made by the noble Lord, Lord McColl, and pay tribute to him for his role in bringing us as far as we have got.
The Joint Committee on Human Rights made the case for a guardian or advocate system for all unaccompanied migrant children in its report Human Rights of Unaccompanied Migrant Children and Young People in the UK. In that report we pointed out that,
“the UN Committee on the Rights of the Child called for the establishment of a system of guardianship in its General Comment No. 6. It says a guardian should be present in ‘all planning and decision-making processes’ to provide ‘the continuum of care required by the child’. The presence of a guardian was also a specific recommendation to the United Kingdom in the UN Committee on the Rights of the Child’s State Report in 2008, which called for an independent system to ensure that a child’s best interests was considered throughout the decision-making process. The UNHCR insisted that a guardian would help ‘best interests remain a primary consideration throughout the procedure’”.
We repeated our recommendation in our report on the Modern Slavery Bill. In essence, the argument is very much that put by Sarah Teather MP in the Public Bill Committee that any unaccompanied child is vulnerable. This is recognised in other European countries, including Scotland. Indeed, these children become vulnerable to trafficking, a point made by the EU Agency for Fundamental Rights. It argued that unaccompanied children and children without parental care living in residential institutions are at higher risk of being trafficked. In response to the question raised by the noble Lord, Lord McColl, I suggest that that is perhaps one reason why it is appropriate for this amendment to be in the Bill.
I understand the Government’s fear, as expressed in the Public Bill Committee, that this would risk diluting the advocates’ skill set and expertise and that spreading the expertise too thinly could mean trafficked children not receiving the support that they need, a point made by the Minister, Karen Bradley. However, I think that this argument is weakened by the powerful argument put by the noble Lord, Lord Patel—it is an argument that civil society groups, particularly those in the Refugee Children’s Consortium, have put to us—that we do not always know who is a trafficked child. In order to ensure that trafficked children are not falling through the net, it is important that the advocate or guardian is not restricted only to helping trafficked children. Again, I hope that that meets the reservation expressed by the noble Lord, Lord McColl. It is essential for trafficked children for this to be widened. I hope that the Minister will address this argument and think a bit further about the argument about dilution, which I think is misplaced.
Baroness Kennedy of The Shaws (Lab)
My Lords, I support these amendments, including the amendment in the names of the noble Lord, Lord Patel, and the noble Baroness, Lady Lister. I, too, pay tribute to the noble Lord, Lord McColl, and the noble and learned Baroness, Lady Butler-Sloss, who have been at the forefront of this commitment to there being an advocate for children.
I want to emphasise some of the things said by the noble Baroness, Lady Lister. I, too, sit on the Joint Committee on Human Rights and we took evidence on unaccompanied migrant children. The concerns about dilution are somewhat misplaced because the experience of people who are doing this kind of work—and I am speaking about colleagues at the Bar—is that children, like adults who have been trafficked, in the first instance because of fear of those who have trafficked them, do not immediately disclose. It is often after some trust has been developed that children will eventually disclose matters that show that they have, in fact, been trafficked and that they are precisely the kind of child whom we should be concerned about. If a child is unaccompanied, almost invariably there is a back story and it takes time to gain the confidence of the child for the full story to become clear. It is important that we recognise that the role of the child advocate should be from the very point of dealing with the child arriving in the country or identified in the country as being unaccompanied but being a migrant.
I want to reinforce some things that were said by the noble and learned Baroness, Lady Butler-Sloss. Local authorities often, I am afraid, fail to understand or respond adequately to the needs of trafficked children. Of course, they have their own problems now financially and so they are feeling particularly hard-pressed. A legal advocate has to have powers to compel the council to act; otherwise we will see real gaps in the provision for these children, who need to be properly assessed and supported. Without having that power, the advocate will be no more than a pleader to local authorities and there will be times when children will fall through the net.
I also press on the Government the importance of having a power to instruct legal representation. These things are complicated. The law around this is not simple and I think at quite an early stage there is going to have to be support from experts in the field of immigration law. Invariably it is about immigration law but also children’s law. If the power is not there to be able to access the right kind of legal representation for a child, then the child’s rights may not be properly argued. We often talk about international conventions. It is an area of law that is not straightforward. I hope that the Government will listen to the pleas being made by noble Lords moving these amendments, which I strongly support.
Baroness Howe of Idlicote
My Lords, clearly things have moved on a little since we debated the Immigration Bill on 7 April. Nevertheless, there is clearly a long way to go. I am particularly grateful to the noble Lord, Lord McColl, who I thought made a brilliant speech, and to the other noble Lords who signed this amendment and again brought this issue before your Lordships’ House with Amendment 86H. I am pleased to support them.
While I welcome the action of the Government in trialling the delivery of a child trafficking advocate system, I am disappointed that they are not being bolder in their statement of the principles that would underpin the role of the advocates. I agree with the Joint Committee on the draft Bill, which said that pilots are not,
“a substitute for a statutory advocacy scheme”.
Since that report, the UN Committee on the Rights of the Child has recommended that the UK prioritises,
“the appointment of a competent and statutory guardian as expeditiously as possible to safeguard the best interests of the child during the criminal justice process and ensure that a child victim is referred to asylum-seeking or other procedures only after the appointment of a guardian”.
There are many pages of recommendations from well established and respected international organisations on how a guardian advocate system should function, which would allow us to set out a framework that could be adopted by the Bill.
Modern Slavery Bill
Baroness Kennedy of Shaws Excerpts(10 years, 7 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, I congratulate the Government on their recognition of the seriousness of this issue and I welcome the Home Secretary’s determination to see that the United Kingdom leads the international community in tackling one of the most serious human rights challenges in the contemporary world. As others have said, in this area there can be unity in this House and a strong, coherent piece of legislation can be produced which has cross-party support.
There is nothing new about the exploitation of human beings by their fellow man. Slavery is of ancient vintage, as we know. What is new is globalisation. While many people have been lifted from poverty by the expansion of markets, many others live on the dark side. All the advances in technology and communications which stimulate the operation of global markets, from cell phones to connection through e-mail and the internet, from the electronic transfer of money to ease of travel—all those things which help markets to work also feed the murky underbelly of the market with equal assiduity. I know this from my work in the criminal courts. Globalisation has brought in its wake an explosive increase in illegal trade—in arms, drugs, fissile material, human organs, genetic material such as human eggs, babies for illegal adoption, women, children and young men for sex or for domestic servitude or forced labour, as others have said. There is nothing that cannot be sold and I emphasise that law is fundamental in addressing this, both nationally and internationally.
I had the privilege of acting as the investigative commissioner for the Equality and Human Rights Commission in Scotland, which reported on human trafficking. It was the UK Equality and Human Rights Commission that had charge of this inquiry. We looked at Scotland because it gave us an insight into a smaller area that could provide lessons for the whole United Kingdom. I also sit on the Joint Committee on Human Rights and have acted in a professional capacity as a lawyer for trafficked women. This is, therefore, a field in which I have a special interest and perhaps some expertise.
I, too, would like to see this Bill being more victim-focused—at the moment it is not. The reason prosecutions are difficult to bring and convictions hard to secure is that victims are in abject terror. I have taken evidence from victims of trafficking, and you can feel the fear in the room when they give their accounts. Their fear is not just for their own lives but those of their children—if they have children back home—of their parents, and of other people they love. They know the kind of people they are dealing with. They know the consequences of involving the authorities. They are often also fearful of authority, because they come from places where authority is not to be trusted. It is fair to say that they do not know who to trust.
The way to secure better outcomes and to end this vile abuse of human rights is to concentrate on the victims. That is how you get successful prosecutions; that is how you get to the traffickers. So there should be a statutory right to assistance—as others have said in this Chamber—with a requirement to conduct individual assessments, case by case, of those who we fear have been trafficked.
The national referral mechanism has to be reviewed and the time for reflection extended to—I agree on this with the noble Lord, Lord McColl—at least 90 days. People who are afraid and who start giving their account need time to reflect on the implications of it. They have to be sure what the future will hold for them before they can feel confident enough to commit themselves to giving evidence in court against those who have trafficked them. Victims need reassurance that they will be well catered to. As the noble Lord, Lord McColl, says, this should be spelt out in the Bill. I agree with him—I thought he made one of the most powerful speeches in this debate.
There are lots of good things in the Bill. I welcome the special measures extension to trafficked victims: that they should be able to give their evidence via video and avoid all contact with those they accuse. However, I am very concerned about the problems in securing the welfare of victims while they are waiting, before there can be any prosecutions. They need support, housing and legal aid for many other matters they have to deal with. I would like to see special arrangements. I welcome the suggestion by the right reverend Prelate that there should be some privileging of the position of those who have been trafficked.
In the months before a case comes to trial many witnesses are traduced by their traffickers—they are found. It is amazing how it happens, but they can often be traced. Family members of the trafficked person are prevailed upon to seek to induce them to take their evidence away. We have to find ways of providing the right kind of support before a matter comes to trial. I have had evidence from women of the ways in which, even in the aftermath of trials, they have had pressure put on them or threats made to their lives.
I, too, would like to see a greater synergy with Northern Ireland and what is being drafted in Scotland. I think it right that we have been ousted by Northern Ireland’s progressiveness on this. As I understand it, in Scotland, too, the First Minister, Nicola Sturgeon, is giving this priority and will shortly be announcing the Bill that will be going through the Scottish Parliament. Again, there should be much greater coherence among the different parts of the United Kingdom.
I agree with other noble Lords about the need to strengthen the powers, scope and remit of the Independent Anti-slavery Commissioner, which really are not framed well enough at the moment. I also agree with others in being somewhat disappointed that the noble and learned Baroness, Lady Butler-Sloss, who is such an authority on issues to do with abuse, children and so forth, is too accepting of what arrangements are in the Bill, which could be greatly strengthened. When the Joint Committee on Human Rights reported on this, it made some very sensible suggestions.
On children, I agree with the criticisms made by other noble Lords. We should have a special offence in relation to the exploitation of children—and, as a lawyer, that is not to deny the problems that there are in defining exploitation. That will not be easy but we have to take a crack at it. I would like to see greater powers and independence in the role of the child advocate, in the way that was described by the noble Lord, Lord McColl.
On the Gangmasters Licensing Authority, I, too, want to see an expansion of its powers. When I took testimony from it, I was greatly impressed by the work that it was doing. It really is one of the keys to improving the working conditions of exploited labour and I emphasise some of the points raised about how important it is.
On supply chains, very quickly, when the Rana Plaza collapsed in Bangladesh, 200 companies in the clothing retail sector got together with their competitors to say that there had to be inspectorates, support for health and safety audits and so on. Corporates are engaging with human rights issues, which matter to their brands. The UN has produced some principles, which are called the Ruggie principles after the professor of law at Harvard who put them together with help from places such as Oxford University, where I am based. We put together a set of principles to which the corporates are now signing up. I support what my noble friend and namesake Lady Kennedy said about the importance of this part of the Bill and how it can be strengthened.
There are many entrenched and vested interests in all this, some of which might to be do with businesses that are not so highly ambitious as some of the corporates. However, men and patriarchy have to be addressed, too. The idea that there is an entitlement to sexual servicing is one of the problems in all this. Men could play a vital role in ending the kind of sexual exploitation which I have seen trafficked women experience. I urge all noble Lords to try to get the Bill to a better place. It is highly important as its subject is serious human rights abuse.
Data Retention and Investigatory Powers Bill
Baroness Kennedy of Shaws Excerpts(10 years, 11 months ago)
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Lord Paddick
My Lords, I want to say just two things. The majority view of this House yesterday at Second Reading was dissatisfaction with the lack of time for public consultation and parliamentary scrutiny of this legislation, not dissatisfaction with the sunset clause. The last thing we need to do is to recreate that problem by not allowing enough time for public consultation and parliamentary scrutiny of the whole area of RIPA and the associated legislation.
Baroness Kennedy of The Shaws (Lab)
My Lords, I support the amendment to have the timetable brought forward because two and a half years is a very long time. While I want to put to one side ideas of conspiracy theories, I do think that there is a hope that somehow the current high level of interest in this will dissipate and that the usual British torpor about what happens with the security services will settle itself back on to our society and we will become unquestioning again. This is about kicking it into the long grass; this is really about postponing it for as long as possible because by that time people will have forgotten the disclosures that we recently had through Snowden and others. We should be concerned to ensure that we act while people are interested and concerned about these issues because they are pressing and very important to a vital and vibrant democracy.
It is important that we have proper scrutiny of the activities that are done in our name at whatever level in our society, and we have to have proper controls. What I am concerned about is when I hear about the setting up of Joint Committees and so on because we always know that the people who are put on to such Joint Committees are hand-picked. There was a period in my life where I remember this happening with the vetting of juries. They are hand-picked to be people who are already very much on the side of protecting the security services.
The security services are vital to the interests of our nation but they need to be questioned. They need to be questioned with some scepticism at times and I am not sure that we get that when people become comfortable in the security committees, as we have seen, and scrutiny is not of the level that it should be. So if we are going to set up these committees and so on, I hope we will see on them the noble Baroness, Lady Kidron, the noble Lord, Lord Hodgson, and some of the people who have been niggling at these issues and asking the questions that were not asked about rendition and so on. There was a complacency in this House and elsewhere about some of the things that happened, which we should have been much more scrupulous about. I hope that when we come to set up committees we will see a greater variety of presences than the ones we have seen until now.
I do not think that two and a half years is the right period of time; 18 months would be perfectly satisfactory and I urge that we look to a shorter period because it concentrates minds while minds are concentrated on this issue.
Data Retention and Investigatory Powers Bill
Baroness Kennedy of Shaws Excerpts(10 years, 11 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, like the noble Lord, Lord Hodgson, I have some problems with the Bill. It is utterly wrong that the Bill is being introduced as emergency legislation. Others may be quite sanguine about that but I am not. It has involved drawing down this expedited procedure when no emergency need has existed at all as there was plenty of time in the past three months to have dealt with this expeditiously. That is a serious abuse of Parliament. The use of emergency procedure to enact laws that are controversial and have a significant impact on individual rights is happening too often. This is not the first time it has happened and it is the sort of rubber-stamping that makes for careless law.
It is my concern that the Bill is seeking to provide a lawful basis for the unlawful exercise of power by the UK security agencies. I say that because the Snowden disclosures showed that in fact there was a sharing of information by GCHQ with the American security services. They were looking into metadata in ways that none of us knew about and which were certainly not covered by RIPA. It meant that the security services were involved in activities that were not covered by law. It is right that there should be new legislation but this is not the way to do it. It is deeply regrettable that we are having a bite at it in this way.
I am concerned that the excuse being made is that companies would have rushed out and somehow destroyed material in response to the judgment of the European Court of Justice. However, the Government were involved in deep and amicable consultations with provider companies. Indeed, their involvement in those consultations was given as the reason for the delay. Provider companies want to co-operate with the Government. It is in their interests that they have the support of government for many of their activities. I do not believe for a minute that undertakings could not have been given that there would be no rush to destroy material in the knowledge that legislation was in the pipeline.
Although it is generally accepted that RIPA is not fit for purpose—as the noble Lord, Lord Macdonald, said, it was enacted when the internet was in its infancy and no one anticipated that technological changes would enable government agencies to obtain enormous quantities of data on the personal activities and lives of individuals—I do not think it is right to embark on legal reform without full and well informed debate. The noble Lord, Lord King, is right. There is still inadequate understanding by the public of what this legislation will mean, but it is no wonder when there is not proper parliamentary debate and public discussion about giving the state intrusive powers about which they should be concerned. Information is not being given to the public.
When all three main parties agree to a piece of legislation behind the arras, the smell of rat regularly permeates Parliament and it is usually a signal that something else is up. The claim is made that this legislation merely maintains the status quo until a sunset clause expires in December 2016. How does the status quo comply with the ruling of the European Court of Justice that the UK’s data retention directive was contrary to law? And why is the sun setting so far in the distance?
I understand that the main political parties do not want accusations being made of being soft on terrorism and do not want finger-pointing. That is why this is being dealt with in this way. That is the truth and the reality of why we are rushing the Bill through Parliament now. It is a sad reflection on the quality of debate about terrorism that there is so much finger-pointing. We live with the fear that we would be blamed if a particular party were to say, “Hold on a minute”.
Legal experts in this field are clear that the Bill now being rushed through Parliament does not even try to comply with the ECJ judgment. Furthermore, DRIP does far more than replace the data retention regulations. It makes substantive changes to the interception warrants, interception capability and communications data access provisions of RIPA. We should always remember that it is the practice of those who draft legislation about the functions of the security services to make it as complex and impenetrable as possible, and that is what this legislation is—obscurantist lawmaking at its height. It is very difficult to fathom what is going on here. One of the tricks is to mix definitions. If Europe uses one set of definitions, we will find that the drafters of legislation here invent their own. If an old law exists, drafters choose to create new language but at times slip into old legislative usage just to confuse.
What we are definitely seeing here is a broadening of RIPA definitions. It is also important to know that words such as “facilitating” flag up to any lawyer that we are moving into “broad interpretation” territory. On 13 July the Sunday Times reported the Home Office as saying:
“The bill clarifies how the current definition should be interpreted, but this cannot change or extend the meaning of the definition in RIPA to capture new services”.
The lawyer Graham Smith says that this is “twaddle”, while the Explanatory Notes attached to the Bill say explicitly that it is intended that webmail and other internet-based services should be caught. There is a suspicion among many experts in the field that something else is going on here and that a significant change is being made without properly explaining the purpose behind it. That should be a matter of concern to this House.
The Minister tells us that it is important to be able to access communication data that can help to place a person in a certain vicinity at a particular time through their phone records. I agree with those who have spoken, who are criminal lawyers like myself, or who have been involved in very serious cases, that there is no doubt that it is invaluable to be able to access this kind of material. In my view, it is right that there should be the retention of data and interception, but with proper warrants and proper controls.
We should all recognise that our phones and other technological equipment are enormously revealing about our movements, activities, associations and interests, and that crime warrants are sought for this kind of material. However, we have to recognise that the disclosures of Snowden showed that we are regularly seeing programs such as Trojan or backdoor programs enter into our material without, one suspects, those kinds of warrants being obtained. Similarly, clouds can be accessed and captured so that they can be used for intelligence purposes without proper procedures being applied. If that were to be the case, we should know about it, and we should be insisting on proper controls. There is no doubt that there are important issues here requiring primary legislation, but they should not be subject to rushed law and they certainly need proper debate.
There is another matter of concern. It was announced in the past few days that there will be a privacy and civil liberties board, which will have four members. That may be very welcome but it will replace David Anderson, the independent reviewer of terrorism legislation. Will the new board have the same access to sensitive intelligence? I am glad that the noble Lord, Lord Carlile, is in his place and will be speaking shortly. The argument was always made that having just one trusted individual made that office effective and watertight. I would be interested to know whether it will be the same with the new board.
Secrecy is required for certain aspects of state function, but too often secrecy is overclaimed. It can be a cover for abuse, which is what we are seeking to prevent. That is why safeguards are essential and it is why Parliament has such an important role. The procedures that we are discussing today should have had the opportunity for much greater scrutiny. Civil liberties have to be protected and they require constant vigilance. They are eroded usually by creep, in small slices at a time, and we have to be the guardians of civil liberties and our constitution as well as our security.