Counter-Terrorism and Security Bill

Lord Armstrong of Ilminster Excerpts

Monday 26th January 2015 Lords Chamber

It is perfectly possible for the House, with the Government’s help, to pass a piece of legislation that is apposite, which takes us further forward than we are now and which gives us some powers that we do not currently have. I hope it will. I am sure that we will then return to this issue in the data communications legislation—there will be matters there that we cannot cover in this legislation. It is not simply a matter of removing from the future data communications Bill all the legislation applicable to terrorism and national security, but we could take an important part of those powers and incorporate them into legislation in the Bill. I hope the Government will help us to do that.

[Lord Armstrong of Ilminster (CB)]

My Lords, the issue raised by this group of amendments, long as it is, is straightforward enough. We rely on the police and the intelligence and security agencies to protect us and our liberties from the threats to our way of life presented by terrorism. Their ability to do so depends to a large extent on their ability to have access to the data derived from the use of communications by the would-be terrorists.

The regulation of the use of communications data was last reviewed 15 years ago. Since then there have been great changes, as many speakers have said, in the technology of communications, the significance of which, for the regulation of communications, needs urgently to be reviewed.

The threat from terrorism has unquestionably increased. The sophistication of those who use communications for malign purposes has also increased. As we have been told, the efficacy of the activities of the police and intelligence and security agencies in this area have been impaired by the activities of Mr Edward Snowden.

The Government published the draft of a new Communications Data Bill earlier in this Parliament, two or three years ago. That was scrutinised by a Joint Committee of the Houses of Parliament, chaired by my noble friend Lord Blencathra—since I was a member of that Committee, perhaps I may call him that. That committee made extensive criticisms of and recommendations for the draft Bill and the Government accepted almost all of them.

There is reason to believe—indeed, as my noble friend Lord Blencathra has already said, he and I have seen—that the Home Office produced a revised version of the draft Bill, to take full account of the Joint Committee’s recommendations. Unfortunately that revised Bill has not been allowed to see the light of day, let alone been submitted to Parliament for consideration. That will not now happen until there is a new Parliament. If a revised Bill is not introduced until after the election, it might be that it cannot be passed until well into 2016. That would be another year’s delay, which we can ill afford.

The present Counter-Terrorism and Security Bill provides an opportunity to put into effect, within the next few months, the measures proposed in the revised Communications Data Bill, insofar as they affect the response to the enhanced threats from terrorism and the agencies responsible for countering those threats. That is what the amendments seek to achieve. The amendments also provide for a sunset clause that would ensure that the whole matter is reviewed early in the new Parliament. Since we do not have the revised version of the draft Communications Data Bill, those responsible for these amendments have had to rely on the original Bill. No doubt the amendments are to that extent defective. But Parliament should not be denied the opportunity of considering whether and how to achieve the changes required immediately and without the delay consequent upon waiting until the next Parliament.

I expect—though I cannot commit them—that those who are putting forward these amendments would be prepared to withdraw them if the Government would undertake this evening to introduce on Report revised versions, taking account of the criticisms and recommendations of my noble friend Lord Blencathra’s pre-legislative scrutiny committee, but also adopting the proposals in the amendments for confining the changes to the police and intelligence and security agencies and providing a sunset clause ensuring that the issue has to be considered in the wider context of a review of the regulation of communications data by the new Parliament. With that qualification, I fully support the amendments proposed by the noble Lord, Lord King, and his colleagues.

These amendments provide an opportunity to address without delay acknowledged shortcomings in the effectiveness of the present regime. It is suggested that they would be an unacceptable intrusion on the liberty of the citizen. That can be much exaggerated. It is not government agencies that will store the data, and those agencies will be able to obtain access to the stored data only subject to demonstrable need and justification and subject to rigorous procedures and controls that were examined and found fit for purpose by the committee—as my noble friend Lord Blencathra has said.

Even so, they will of course represent some potential interference with the freedom of action of those whose data are extracted from the store. But those are or may be the people whose freedom of action we wish to limit or restrain, because their intentions are malign and, if realised, will compromise the life, liberty and happiness of the rest of us. The price of liberty is eternal vigilance, but if vigilance fails or is frustrated, it is life, liberty and the pursuit of happiness that pay the price.

[Lord Strasburger (LD)]

My Lords, I confess that I do not really know where to start. I think it is true that all the previous speakers are former members of what I would call the security establishment: they are former policemen, former Home Office Ministers or former spies—I am not sure in which category I would put the noble Lord, Lord Armstrong. I think I am the first to speak more as an individual and a non-politician; my history before I came to this House was quite outside of politics, in business.

As we have heard, these amendments regurgitate large parts of the utterly discredited draft communications data Bill. They seek to slip into the Bill large parts of the highly controversial snoopers’ charter, word for word. With just one exception, the amendments fail to correct any of the many significant, fundamental and deal-stopping flaws identified by the Joint Select Committee on the draft Bill that reported at the end of 2012. I had the honour of being a member of that Select Committee under the very able chairmanship of my noble friend Lord Blencathra. The committee sat for five months; it met 20 times, including three times in the Recess; it interviewed 54 witnesses and received 19,000 e-mails from members of the public. As we have heard, its members included two former Cabinet members, Lady Thatcher’s Cabinet Secretary, one noble Lord who has since become a government Minister, an ultra-loyal Conservative MP and a former Conservative Home Office Minister. That was hardly a hotbed of lefty liberals. The committee reached a unanimous verdict that the draft Bill was badly written, far too broad in scope and badly costed, and noted that the security agencies would do better to make better use of the information they already had.

That last observation is made particularly pertinent by the revelations following the atrocities in Woolwich and Paris, in which all the terrorists were well known to the security agencies long before the events. In all, there were about 100 criticisms of the draft Bill in the Select Committee’s report and many of them were serious and fundamental. As far as I can see, these amendments deal with just one of those criticisms, which means that they are still infested with the remaining 99 flaws. I will not detain the House by going through each of them, but noble Lords may read about them at their leisure in the report, which I commend to the House.

When Edward Snowden released his revelations, about six months after the Select Committee reported, we learnt that GCHQ’s Project Tempora is the world’s first “full-take” data interception system, collecting 100% of internet traffic—content as well as metadata. Former committee members were surprised, and some were angered, by that revelation because during the committee’s proceedings Home Office officials had three times claimed that there was a 25% capability gap in what the agencies could collect—although those same officials were not able to justify that figure of 25%, even in private sessions. Snowden showed that the 25% so-called gap probably does not exist at all and that in fact the agencies are already, and have been for some time, acquiring far more data than the draft Bill would have delivered—and without the knowledge or consent of Parliament and the people.