Counter-Terrorism and Security Bill

Baroness Smith of Basildon Excerpts

Monday 26th January 2015 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I apologise that I was not here at the beginning of the noble and learned Lord’s remarks. I support the amendment and the remarks made by my noble friend Lady Kennedy of The Shaws. I have a question for the Minister. Members of the Joint Committee on Human Rights, of which I am one, with heavy heart agreed that we had to agree with the independent reviewer, but we said:

“We look to the Government to be proactive in bringing forward ideas about how to mitigate the alienation and resentment likely to be caused in some minority communities”,

by relocation. I would be very grateful if the Minister could give the Committee some idea of what ideas might be brought forward by the Government.

[Baroness Smith of Basildon (Lab)]

My Lords, it is always with some trepidation that I rise to speak in a debate where I am the only non-lawyer to contribute, so I was particularly grateful to hear my noble friend speak, so I am not the only non-lawyer contributing to this debate. All noble Lords have made the point that relocation with a TPIM should be an exceptional provision. That has been the case. We were very disappointed when the Government removed the relocation part of TPIMs and the old control orders. Nobody likes the idea. As the independent reviewer said, this is something that has to be done in the interests of public safety. My understanding is that they are used only rarely. If my information is correct, currently only one person is subject to a TPIM provision.

Not being a lawyer, I have a couple of questions for the noble and learned Lord, Lord Brown. I think one of the reasons why the Government have made changes here is because they consider that substituting,

“is satisfied, on the balance of probabilities”,

for “reasonably believes” is a higher legal test. The noble and learned Lord, Lord Brown, said that is not the case. I am not a lawyer, so I leave it lawyers to have that debate, but it would be helpful to have some clarity about whether that is in law a higher legal test than “reasonably believes”. The noble Lord, Lord Carlile, said that in effect this is already happening and is how the courts see their role at present. If that is the case, it would be helpful to have some facts on that.

My other point was alluded to by the noble Baroness, Lady Hamwee. It is about individuals subject to the relocation part of a TPIM having no connection. My understanding is that part of the reason would, in some circumstances, be that the person would have no connection with the area they were going to to ensure that they were not associating with people they had engaged with in the past who had led them into terrorism-related activities or potential terrorism-related activities. That is not an easy thing for anybody, and nobody welcomes somebody being moved to an area where they have no connection, but if we were to rule that out in all circumstances, that might be quite difficult. I would be interested to know a bit more about this. I think there is widespread support for a very high test that should be used only in exceptional circumstances, but I am interested in the Minister’s comment and welcome further clarification from the noble and learned Lord, Lord Brown.

[Lord Bates]

My Lords, I am grateful to noble Lords for having spoken in this debate. I say that I am grateful as a general courtesy. It has not been an easy debate to speak to, and I ponder whether my response will be sufficient to ease noble Lords’ and the noble and learned Lord’s concerns. I shall just raise some points with the noble and learned Lord on his amendment, but I give advance notice that this is one issue on which we need to reflect more.

I am particularly cognisant of the support that the amendment has received from my noble friend Lord Carlile, as a former Independent Reviewer of Terrorism Legislation, as well as from my noble friend Lord Macdonald, who reviewed the legislation in 2011. He looked at its adequacy, which led in a way to the introduction of the more focused TPIM. Then, of course, there is the noble and learned Lord, Lord Hope. So there has been a range of voices. I shall put some points and answer some questions and then take it from there.

I am grateful to the noble and learned Lord for raising this matter; he has tremendous expertise in this area. Replacing the previous text at the point in the Bill does not amend the standard of evidence that the Home Secretary must apply when considering whether the person is or has been involved in terrorism. I underscore the point that all noble Lords have made—the noble Baronesses, Lady Smith and Lady Kennedy, made it—that this is a regrettable necessity. The amendment would therefore have the effect of requiring, for TPIMs that include relocation, the court and the Home Secretary to make independent judgments on whether the person is or has been involved in terrorism, but on different bases. It is therefore highly likely to lead to some confusion. It also removes the enhanced safeguard of raising the standard to that of the “balance of probabilities” for TPIMs which do not include relocation.

The Government recognise that the enhancements to the TPIM Act in the Counter-Terrorism and Security Bill were not part of the package of measures agreed by Parliament in 2011. It is therefore right that we consider whether the current legal threshold of reasonable belief continues to be the appropriate test for the imposition of a TPIM. We have concluded that the threshold should be increased for all TPIM notices to recognise the stringent preventive measures that may be imposed. Given her remit in relation to a range of aspects of terrorism, the Home Secretary remains best placed to make the decision to impose a TPIM notice to protect the public from terrorism. It is therefore right and proper that it should continue to be for the Home Secretary to decide whether a TPIM notice should be imposed, as it has been since 2011 and as it was under the previous system of control orders established in 2005.

I well remember the noble and learned Lord’s speech at Second Reading. He apologised, but I think that we were all immensely helped when he talked about his experience of how control orders were often struck down by the courts when they were actually brought forward. The TPIMs were therefore an attempt to limit the incidents in which they could be introduced on that basis, by introducing time limits and raising the threshold test, as well as allowing them to have access under supervision to the internet and telephony.

The court will continue to be required to review the Home Secretary’s decision as to whether the conditions for imposition of a TPIM are met—and the court must now, as part of its review, satisfy itself that the Home Secretary could make that decision at the higher legal threshold. This comes to the point raised by the noble Baroness, Lady Smith, who asked whether it is a higher legal test to have a “balance of probabilities”.

Although I tread deferentially in the company of distinguished lawyers, certainly my understanding is that you have reasonable suspicion, then reasonable belief and then, above that, a higher threshold of the balance of probabilities, which is where we are heading now. The courts will continue to apply an intense level of scrutiny to the decision-making process on the issue.

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[Baroness Smith of Basildon]

My Lords, this has been a long debate with some powerful and informed speeches. I take issue with one thing that the noble Lord, Lord King of Bridgwater, said at the beginning of his comments. I think he was referring to something that had been said to him about this being an unacceptable use of parliamentary time. I totally disagree. In fact, my criticism is that we do not spend enough parliamentary time discussing issues that are of primary importance to both our security and our liberty and to finding the balance between them. Your Lordships’ House has enormous expertise, interest and experience on these issues, which this debate has shown very clearly.

Whatever one’s views on specific amendments, it has become clear that the general view is that legislation is being outpaced by the speed of change in technology. We have had a serious and very thoughtful debate today about the balance between security and privacy in what our security services and police require, and how we can legislate most effectively from an informed position, with public understanding and consent. Technology changes rapidly. That means that we, as parliamentarians, have to respond to those changes and ensure that legislation meets the challenges that those changes bring.

Last July we brought in emergency legislation, the Data Retention and Investigatory Powers Act. My noble friend Lord West referred to a six-year delay. Some of the points he was concerned about were brought forward in that legislation, which was due to a European Court ruling that struck down something that we had put in secondary legislation rather than primary legislation. We were able to address that in DRIPA—as it is affectionately known—and we supported that Bill to ensure that the existing capability was maintained. However, we were then highly critical of the Government's use of the fast-track procedure, as they had ample opportunity to bring that legislation before the House sooner. We said then—and it was very evident—that an ad hoc, piecemeal approach to such serious and important issues using fast-track processes was unacceptable.

At our instigation all parties agreed on a thorough statutory review, to be undertaken by the Independent Reviewer of Terrorism Legislation, David Anderson, into the capabilities needed to meet changing technology, and on the oversight and the safeguards that are necessary to ensure that any legislation is both necessary and proportionate. In addition, the Intelligence and Security Committee is examining how we can properly balance both security and liberty in online communications.

However, a theme of this debate since we started it is the question of where the Government's plans to tackle this issue are. Over two years ago the Government withdrew their Data Communications Bill following serious criticisms from the Joint Committee of both Houses which had been set up, and was chaired, as we have heard, by the noble Lord, Lord Blencathra—a highly qualified committee of parliamentarians, including future and former Ministers. I reread this report over the weekend. The committee’s criticisms of the Government’s Bill were serious and far-reaching: the Bill’s provisions were too sweeping and too broad, it paid insufficient attention to privacy issues, and it went much further than it needed to. The report criticised the safeguards and the definition of communications data, and it was highly critical of the Government’s analysis of the costs and benefits, describing some of the figures as “fanciful” and “misleading”. It was also critical of the additional personal powers provided to the Home Secretary. That is very serious criticism.

At the same time, the committee was explicit about its necessity. The noble Lord, Lord Blencathra, in his powerful contribution, quoted it. It said that,

“legislation which will provide the law enforcement agencies with some further access to communications is needed”.

The committee suggested a more balanced proposal to be brought forward for consideration and recommended improvements to the Bill. As the noble Lord, Lord Blencathra, said, that information would be presented to Parliament and it would be for Parliament to decide that balance and where the line must be drawn. But that was over two years ago, and the Government have not brought forward any further proposals to give Parliament that opportunity to decide. Last week the Home Secretary told the other place that she had accepted the recommendations, but we have had no explanation as to why she has not come forward with revised provisions other than the limited measures in this Bill and those in the 2014 DRIP Act.

Now, as the general election looms and despite the excellent work of the Joint Committee, the Prime Minister and the Home Secretary have started to speak out about the need for new powers but have not produced any evidence to Parliament, have not initiated a serious debate on the detail, and in more than two years have not produced, so far as I am aware, a new draft Bill. But we have heard today that there is a draft Bill. The noble Lords, Lord Blencathra and Lord Armstrong, have seen it, but has anyone else? Has the Minister seen the draft Bill, which apparently the Government have sitting on the shelf?

I say to those who want to characterise this debate as being about either those who care about security or those who care about liberty that they are doing the public a serious disservice. I really do not like the term “snooper’s charter”; the issue is bigger and far more serious than that. The police and our agencies need the capacity to capture intelligence information that will foil terrorist attacks. They need to be able to respond quickly to identify, for example, the last known location of a missing child or a murder victim. They need to know who sends abusive images of children, and they need to monitor potential terrorists. They also need to build their capability to tackle online fraud and cyberattacks, which are escalating all the time.

Some of the tools, particularly in relation to the retention of communications data, are controversial and cause concern. If we want the public to support such powers, we need to provide more information about why they are needed, how they will be used and how privacy will be protected. That is why we have to be prepared to have an open and honest public debate about the framework, the principles and the safeguards to ensure that these powers cannot be abused. Obviously such a debate has to be sensitive to the necessity of not exposing intelligence capabilities and should recognise the fact that some details must remain secure so as not to endanger national security or criminal investigations. Any legislation has to be necessary and proportionate, and it has to strike the balance between security and liberty. It is not an either/or. The public are entitled to expect both, and they are entitled to expect us to determine that balance from an informed position.

It is widely accepted that there has been a technical revolution in how we communicate and that the law and the oversight framework are now out of date. We need to understand how far and how quickly new technologies are outstripping the legal framework. We also need to understand how the use of new technologies has blurred the distinction between communications and content, as well as between domestic and international communications using mobile phone and tablet apps. The last debate we had on this in your Lordships’ House showed that many noble Lords are still confused about the difference when communicating through web apps. The noble Baroness, Lady Lane-Fox, referred to the challenges posed by the dark web. How many of us here today, apart from the noble Baroness, can claim to have the expertise that is needed to consider all the details of these issues? We need to understand not only the legal implications but the privacy and technical implications.

David Anderson’s report examined the details of issues such as authorisation, access, storage, technical capabilities, checks and balances, safeguards and so on. We are clear that following both that report and the report of the Intelligence and Security Committee, the Government must take action. Indeed, there is a time imperative to do so before the DRIPA provisions expire in 2016, at which point new legislation must be in place and fully operational. The Counter-Terrorism and Security Bill introduces further measures to address the issue of identification of a device that is used for communications at an IP address, given that in many circumstances multiple users will be sharing the same IP address. We support those changes. We have been clear that we are willing to work with the Government to discuss capabilities and safeguards, the powers that are needed, and the checks and balances that are required to ensure that the detail between protecting our liberty and protecting our security is right, and we want to engage the public in that debate.

But the Government have not initiated that debate. They have had the opportunity to do so, and apparently the legislation for that is on the shelf in the Home Office, gathering dust. That is why noble Lords have tabled their amendments today. However, what they have been unable to do in the time available and without access to the resources and information of government is what the Home Secretary has promised, and that is to adapt the original proposals to take account of the concerns and criticisms of the original Bill. I appreciate that the noble Lords have made the judgment, which is justified in part, that people are more accepting of measures that deal with terrorism and serious crime. However, when we look at some of the detail and examine the report of the committee, we can see that there are a number of other issues to which the attention of the Committee should be drawn.

Interestingly, one of the criticisms in the report was not of the purposes of the Bill, although the noble Lord, Lord Blencathra, did say that the number of organisations that can have access should be limited, but of something that goes much deeper. The Government’s view was that wider powers may be needed in the future, but the committee rejected the notion that Parliament should grant powers on the precautionary principle and thus without a current and pressing need.

I will not go into the detail about the individual clauses before us today because other noble Lords have spoken about them, but it is clear that they have not been able to take into account the recommendations for changes made by the Joint Committee. Perhaps I may mention just one because it raises a serious issue. In the detail of the amendment before the Committee today, no provision is made for the recommendation of the Joint Committee that any legislation should provide for the wilful or reckless misuse of communications data to become a specific offence that is punishable, in appropriate cases, by imprisonment. That is a recommendation of both the Justice and the Home Affairs Select Committees of the other place. Although if passed these amendments would be returned to the Commons, they have not been properly discussed and debated. This is complex and detailed legislation that requires proper scrutiny and expert advice. To have such clauses in fast-tracked legislation whose Report stage will be taken next week makes that difficult.

I have already referred to the assessment being undertaken by the independent reviewer, David Anderson. His review needs to address the serious points that have been raised by the noble Lords, Lord King, Lord Blair and Lord Carlile, and my noble friend Lord West. He also needs to deal with the points raised by the Joint Committee more than two years ago. We insisted on that statutory review and all three parties supported it. It is extremely unfortunate that we are in a position today where the Home Secretary has made no proper public or parliamentary response to the Joint Committee on the independent review, which was started just last summer at our instigation and where currently we have no proper process for consultation or the detailed scrutiny of proposals. That was yet another complaint of the Joint Committee.

The noble Lord, Lord Condon, talked about a road map. The Government need to set out a proper process for this. We need to see detailed legislative proposals from the Government, along with a summary of the capabilities and the safeguards to take account of the issues raised last time. We need to ensure that the measures are sustainable and enjoy broad public consent, otherwise we will undermine confidence in the vital work that the agencies do, and companies whose co-operation is needed will find themselves under pressure from their customers to find ways around the legislation. So although we do not think that these amendments are the right ones—I think this was acknowledged by the noble Lord, Lord King, who spoke of the amendments that he would be prepared to incorporate for the Joint Committee report—because they do not fit into a wider government process, we do think that this is an extremely serious debate. I look forward very much to the Minister’s response.

[Lord Bates]

My Lords, this has been an extremely good debate, and in that spirit the actual sequence of events here is worth considering for a moment.

The Government brought forward the Bill currently before the Committee seeking a broad, cross-party approach to these matters. I and the Home Secretary are grateful that the Opposition agreed to the semi-fast-tracked procedure and a shortening of the intervals between the various stages so that it could make its way on to the statute book and thus give the security services and the law enforcement agencies the extended powers which they have been seeking. These include the temporary seizure of passports, temporary exclusion orders, the right-to-carry schemes on the air side, the IP addresses that we have been talking about, as well as the Prevent strategy measures. Basically, in approaching this, we have tried to listen to the various bodies that have spoken to us. We have listened to the views of the Independent Reviewer of Terrorism Legislation, and we have brought forward the legislation which is now before your Lordships’ House.

Going further, we of course recognise that the Regulation of Investigatory Powers Act, as was mentioned by several noble Lords, is something that is desperately in need of review. People recognise that. The world has moved on since the year 2000. There is a real fear that the pace of technology, in the phrase of a number of noble Lords in this debate, is outstripping the legislative and security capabilities of our country to keep us safe. That is the context in which we find ourselves.

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[Lord Bates]

That is a more difficult question, which I am sure is why the noble Lord has pressed me on it. That is not something I feel able to give a commitment on at this stage. However, he is certainly right to put his finger on the point that we have someone there in David Anderson, the Independent Reviewer of Terrorism Legislation, whom we have charged in statute with a particular responsibility. Of course he should have sight of all information which would be relevant and pertinent to the requirements that we asked him to undertake on our behalf last year.

[Baroness Smith of Basildon]

I note the Minister’s response to the noble Lord, Lord Carlile. Can I ask for an assurance that the Official Opposition will also be given sight of the draft Bill? When we return after the election, whichever Government are in power, they will want to start work on this immediately. It would help if all sides of your Lordships’ House and the House of Commons had access to the detail of the draft Bill.

[Lord Bates]

The noble Baroness will perhaps understand if I need to just check with people on a slightly higher pay grade whether that is a commitment which I can make. I will certainly look at the issue with regard to the independent reviewer. I will certainly give an answer by Report to the very reasonable question which has been put forward.

A number of questions have been addressed in this debate, but I am conscious that we have spent considerable time on it. I will give an undertaking and say that this is not something that we want in any way to be seen to be distancing ourselves from. We want to put it under active review, and it is under active review. The contributions which have been made in the debate this afternoon on these amendments have afforded us an opportunity to air these issues and to identify where the gaps in agreement are, as well as where the gaps in capability are. We will reflect on those. I may have more to say at Report on that, but in the interim—