Operation Conifer
Lord Armstrong of Ilminster Excerpts(6 years, 7 months ago)
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Lord Armstrong of Ilminster (CB)
My Lords, I beg leave to ask a Question of which I have given private notice.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, we are very clear that the police are operationally independent of government. It is quite right that chief officers should decide how best to fulfil their duty to the public and it is for the locally elected police and crime commissioner to ensure that chief officers are held to account for properly conducting their investigations. The vital principle at the heart of British policing is that the police can carry out their duties independently and make decisions free from political influence. As such, the commissioning of any independent review, judge-led or otherwise, would be a matter for the police.
Lord Armstrong of Ilminster
My Lords, the Minister has used that argument before, while the operation was still in progress, but it will not wash now that it is concluded and we have to deal with its consequences. Edward Heath’s reputation has been under a cloud of suspicion since August 2015, when an officer of the Wiltshire Police made an ill-judged public appeal outside Sir Edward’s house in Salisbury for victims of child abuse by Sir Edward Heath and others to come forward and make themselves known to the police.
The report of the investigation published last Thursday, more than two years later, does nothing either to justify or to dispel that suspicion since it leaves unresolved seven allegations on which the police say they would have interviewed Edward Heath, had he been alive. As he is dead, the normal provisions and processes of the law are not available to resolve the matter, and the cloud of suspicion remains hanging in the air indefinitely.
Justice delayed is justice denied. The dead deserve justice no less than the living. Does the noble Baroness not agree that the best—perhaps the only—way of arriving at some finality of judgment would be to set up an independent review of the police investigation by a retired judge with unrestricted access to all the evidence collected by the police?
Baroness Williams of Trafford
My Lords, on the first question, the police officer’s comments outside the home of Sir Edward Heath were probably ill judged. Matters of police conduct can be referred to the IPCC, and I understand that the Sir Edward Heath trust has done that. It was stated that Sir Edward Heath would have been interviewed under caution, but the bar for being interviewed under caution is very low and, as the report said, it in no way implies guilt on the part of Sir Edward Heath. As for the cloud of suspicion and whether an independent inquiry should be held, Operation Conifer is, as I have said, an independent police investigation. It is not appropriate for government Ministers to comment on an operationally independent investigation. Any decision to follow this by an inquiry would be a matter for the chief officer.
Child Sexual Abuse
Lord Armstrong of Ilminster Excerpts(6 years, 8 months ago)
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Baroness Williams of Trafford
My Lords, the Government will leave it up to the inspectorate to determine the use of funds and whether they are proportionate; they should be.
Lord Armstrong of Ilminster (CB)
My Lords, the noble Baroness recently told me that it was absolutely right to commission an independent review of Operation Midland, the operation by the Metropolitan Police to which reference has already been made. Does she agree that it would be no less absolutely right to commission an independent review of Operation Conifer, Wiltshire Police’s investigation of allegations relating to the late Sir Edward Heath, given the concerns expressed about the conduct of that operation?
Baroness Williams of Trafford
My Lords, I hear those concerns and I recall the comments that the noble Lord has previously made and written to me, and to the Home Secretary. I am sorry to reiterate the point but the police are independently operational of the Government, so it would not be appropriate for me to comment on a particular case. We are absolutely clear that, where allegations are made, they should be thoroughly and professionally investigated so the facts can be established.
Operation Conifer
Lord Armstrong of Ilminster Excerpts(7 years, 2 months ago)
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Lord Armstrong of Ilminster
To ask Her Majesty’s Government, in the light of the recent statement by the Chief Constable of Wiltshire Police, whether they will institute a judicial inquiry into that force’s Operation Conifer, with unrestricted access to all relevant information.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the police are operationally independent of government. The investigation of allegations of sexual abuse and how the police conduct those investigations, including whether to commission any form of internal inquiry, are operational matters for the relevant chief officer. It is for the police and crime commissioner to hold their force to account.
Lord Armstrong of Ilminster (CB)
My Lords, having served in the Home Office for four years, I understand about the operational independence of the police, but this matter has gone beyond operational affairs; it has become a matter of confidence in the police and the police service. The chief constable of Wiltshire has gone beyond the police duties of investigating allegations and following up evidence and has pronounced a verdict of guilty on the late Sir Edward Heath in respect of allegations of child abuse even before his inquiry is complete. The officer in charge of the inquiry, having made a stupid mistake at the beginning, has now been obliged to be withdrawn because of ill health—I think he is having a nervous breakdown. The inquiry is being pursued in a way which looks to many people more like a fishing expedition than a serious pursuit of allegations and evidence. Is it not high time that this operation was reviewed independently either by a retired judge, as in the case of Operation Midland, or by a retired chief constable of recognised efficiency and integrity?
Baroness Williams of Trafford
My Lords, first, without talking about any individual investigation, I express my profound sympathy with the families and friends of people who have been wrongfully named in the press or who, after they have died, have had defamatory statements made about them. In any investigation, it is a matter for the police. On investigations of complaints against a chief officer, I know, because I took through the Bill that became the Policing and Crime Act, that we have strengthened the independence of the police complaints system and the accountability of chief officers. Any allegations of misconduct against a chief officer should be investigated by the IPCC.
Historical Child Sex Abuse
Lord Armstrong of Ilminster Excerpts(7 years, 11 months ago)
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Lord Armstrong of Ilminster (CB)
My Lords, I should like to express my total agreement with those who have congratulated the noble Lord, Lord Lexden, and thank him for raising this matter on his Motion today. It is a serious matter and his proposals for resolving the problem certainly need to be very closely considered. I can see that there are difficulties about such guidance, but it is very badly needed.
I will confine my comments to the case of Sir Edward Heath. Your Lordships will know that, in the absence of any close relatives of his, I have expressed publicly my view that Sir Edward Heath was not guilty of any criminal offences of child abuse, and that remains my view. It is not my view only but the view of many others, and that is the position from which I come. I fully acknowledge that that is not evidence, unless there is no other evidence which is contrary to it, but it remains my belief that Sir Edward Heath was not a child abuser in that way or, indeed, in any way.
Much has been said today about Wiltshire Police’s investigation—Operation Conifer, they call it—of Sir Edward Heath’s case, particularly of the way in which a senior officer of Wiltshire Police stood in front of Sir Edward’s house in The Close in Salisbury, in effect appealing for witnesses to come forward. Since I last spoke about this in the House, I have had the advantage of a long meeting with the chief constable of Wiltshire Police on the matter. It was a confidential meeting and I do not propose to breach that confidence but, in fairness to him, I should like to put it on record that he has apologised for the conduct of that officer outside Arundells and he repeated that apology in our meeting the other day. He cannot of course tell me, your Lordships or anybody else what allegations are being investigated, nor do I expect him to do so.
However, the fact is that the inquiry has been ongoing for some time and is very wide in terms of the number of people being interviewed in connection with the operation. I have described it as a fishing expedition, and the chief constable was not wholly able to convince me that it was otherwise. The police have interviewed, are interviewing, or have proposed to interview a great number of people. The operation has already cost £400,000 and is likely to run for at least another six—probably 12—months and cost more than £1 million. A number of retired policemen and other people from outside the force have been recruited to help conduct the investigation. From the number of people and the breadth of the interviews, it looks much more like a fishing expedition than an inquiry—indeed, if I may put it this way, a dynamite fishing expedition and not a skilful casting of the line, which would be entirely understandable and right in this situation. I am sure that the chief constable thinks that what is going on is proportionate; I have not been convinced of that myself. I hope that he will, as he has said that he would, keep a clear eye on that aspect of the operation.
The existence of Operation Conifer became known partly, but not only, because of the disgraceful activity of the senior officer standing outside Arundells. There were other reasons as well, such as the publication by the Independent Police Complaints Commission of a report as to whether another investigation had been put off or stopped on account of the possible damage to the reputation of Sir Edward Heath. That was found to be unfounded, but the publication of the report of course drew attention to the fact that the matter was being investigated.
It has been said that such operations should be conducted in confidentiality and that there should not be revelations to the media. What happened in the case of Sir Cliff Richard—and, likewise, what happened with the officer standing outside Arundells—was shameful. If you are going to conduct an operation such as Operation Conifer, with a wide range of interviews, it is perhaps optimistic to hope that the existence of the operation can remain confidential. A number of people are being interviewed, and they will talk among themselves. It is almost inevitable these days that some echo of that will reach the media and the police force concerned will find itself pursued by the media.
I think the chief constable would allow me to say that he assured me that his force was not proposing to search the archives of Sir Edward Heath, which are now in the Bodleian Library. They would only wish to find out, if they could, details of his diary—where he was on particular days. Some of that information from when he was Prime Minister certainly exists in the National Archives. I do not know whether anything of it is left in the archives in the Bodleian Library.
The chief constable emphasised to me that the duty of the police in these matters is not to judge but to produce evidence—to find and pursue evidence that will corroborate other evidence. It is not their business to judge the results of that; that is for the prosecuting authorities and, ultimately, for a judge and jury. But of course, in the case of a man who has been dead for over 10 years, that is almost a travesty of justice. As the noble Lord, Lord Lexden, pointed out, we are at risk of turning upside down the standard principle that you are innocent unless you are proved guilty.
The police inquiry could produce evidence only if Sir Edward was still alive; no doubt that evidence would come before a court if it was sufficient, and it would be tested in the procedure in the court. That is impossible, because Sir Edward has been dead for over 10 years. We have the judicial inquiry led by Justice Goddard, and no doubt the result of the Wiltshire inquiries will eventually go to that body. However, that is not a very good substitute but a separate assessment of the balance of probability on the evidence; the best one can hope for is in effect a verdict of not proven. The situation seems very unsatisfactory in that historical allegations—which in this case have to be more than 11 years old, and are probably much older—are still floating around, being pursued, and reflecting on the memory and the probable innocence of a man of the stature of Sir Edward Heath.
Counter-Terrorism and Security Bill
Lord Armstrong of Ilminster Excerpts(9 years, 3 months ago)
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Lord Armstrong of Ilminster (CB)
My Lords, I declare an interest as a former Permanent Under-Secretary of State at the Home Office and as a former chancellor of the University of Hull. I have therefore listened to this debate with great interest and concern. I find myself in a situation that was described in Committee by the noble Lord, Lord Pannick. I agreed with everything he said then, although I shall not repeat it.
The debate has swayed around the issue, and it seems very difficult for us to try to assign primacy between the duties under the Bill and the duties towards freedom of speech. The duty of preserving freedom of speech is, as so many speakers have said, of fundamental importance. However, we have seen that it is possible for people who wish to do so to be rather successful in radicalisation within the restrictions on freedom of speech within the law, so I have sympathy with what the Government are trying to achieve.
The merit of Amendment 14A proposed by the noble Lords, Lord Macdonald and Lord Pannick, and Amendment 15D proposed by the Government is that while the duties obviously conflict, the ultimate choice of what to do is left to the universities. No primacy on one or the other duty is expressed. The decision is left, presumably case by case, to the universities. That seems to be almost the only position possible if we are to retain some kind of inhibition on radicalisation in places of higher education.
Lord Scott of Foscote (CB)
My Lords, there have been some memorable speeches this evening. I want to add just a word or two. I have an interest: I have four children, two of whom are Muslims, and 12 grandchildren, seven of whom are Muslims. They are as indignant as anybody else about the outrages that are committed from time to time by members of their religion. They would be wholly supportive of everything that has been said in this debate.
Amendment 15D, as proposed by the Minister, seems to deal satisfactorily—with some exceptions which I propose to mention—with the main issue in this debate; that is, to reconcile the conflict between, on the one hand, the duty on universities to encourage and allow freedom of expression, and, on the other, the Clause 25(1) duty to protect people from being influenced into terrorism. Amendment 15D seems to deal with that, subject to some grammatical points on its second subsection where it refers to the two relevant duties.
One of the duties, imposed by Clause 25(1), is to protect people against terrorism; the other, under the Education Act (No. 2) 1986, is to allow and encourage freedom of speech. Those two duties are often in conflict, and the reconciliation between them is sought to be done with subsection (2) of the proposed new clause in Amendment 15D. It says:
“When carrying out the duty imposed by section 25(1)”—
which is the protection against terrorism, “a specified authority”, such as a university,
“to which this section applies must, if subject to the duty imposed by section 43(1) of”,
the Education Act,
“have particular regard to it”.
I read that several times as I was quite uncertain which of the two duties the “it” referred to. I hope it was referring to the freedom of speech duty but, as a reading of the subsection shows, it is grammatically perfectly capable of referring to the Clause 25(1) duty. That really ought to be sorted out before this amendment becomes final. It could be dealt with perfectly easily by ending subsection (2) with the words: “having particular regard to the freedom of speech duty”.
In subsection (3) of the proposed new clause, there is again this ambiguity as to what “that duty” refers to. There are two duties and it might be referring to either. I think that the duty being referred to in subsection (3) is probably the Clause 25(1) duty. These might be described as pedantic points, but they are the sorts of points that a chancery barrister, as I was when I began my legal career, would love to make in taking up the time of a judge in court. Goodness knows what answer the judge would give: different judges might give different answers, and that would mean that the legislation had a flaw in it. It is an ambiguity that needs to be corrected.
Counter-Terrorism and Security Bill
Lord Armstrong of Ilminster Excerpts(9 years, 4 months ago)
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Lord Armstrong of Ilminster (CB)
My Lords, at this stage there is no need for me to rehearse all the arguments in favour of this group of amendments. The terrorist threat has increased and is increasing, and those upon whom we rely to prevent and detect terrorist crime depend on access to the communications data of those intending and planning to commit terrorist crime. I will not go in detail into everything that the noble Lord, Lord Paddick, has said, although I do not think that the noble Lord, Lord Blencathra, or I could agree with all of it.
Those agencies have been increasingly conscious that the provisions in RIPA 2000, now nearly 15 years old, badly need updating to take account of technological changes. The agencies have enjoyed the voluntary co-operation of many of the service providers, but many of the companies concerned, as we heard in the committee chaired by the noble Lord, Lord Blencathra, would like to see that voluntary co-operation underpinned by statutory provision. There are no doubt some who are reluctant to co-operate without there being statutory provision.
The Bill provides us with an opportunity to put in place some of the statutory provisions which would have been provided by a revised—“Blencathrated”, if I may call it so—communications data Bill, for the introduction of which we shall now have to wait until the next Parliament. These amendments are designed to take advantage of that opportunity. Their scope has been reduced since similar amendments were proposed in Committee. We have been denied the possibility of Blencathrating these amendments because the Home Office is not willing to produce a revised communications data Bill or the relevant parts of it. Therefore, these amendments are no more than a stop-gap, as the noble Lord, Lord King, described them, and they are no more than temporary to fill a stop-gap because there is a sunset clause which ensures that they will disappear in their present form in December 2016. Most of this limited stuff is taken up with safeguards, and more than three pages are taken up with an interpretation clause of definitions.
We know that the police and the intelligence and security agencies feel the need for these provisions and would welcome these amendments, limited and imperfect though they are. As has already been said, in passing these amendments your Lordships would not be deciding that they would be part of the Bill before us when enacted; we would be giving the other place the opportunity to take that decision. Surely that is where the final decision should lie.
If the noble Lord, Lord King of Bridgwater, were to decide to press these amendments, I would support them because I would not wish to have on my conscience any sense of shared responsibility for what might ensue if failure to include these provisions in the Bill resulted in failure to prevent a terrorist attack which might have been prevented, as well as all the consequences which might result from such an outrage, as was vividly and notably referred to by the noble Lord, Lord Tebbit.
Lord Harris of Haringey
My Lords, this is something of a mess. I was certainly alerted—and I know that other noble Lords will have been alerted at the same sort of time—to the developing problem of a gap in terms of communications data eight or nine years ago. It was so long ago that I can no longer remember exactly when it was. The gap is occurring because of the nature of the way in which communications take place using the internet, and it is a gap which is worsening and getting bigger.
Communications data, as opposed to intercept, are used in virtually all major crime and terrorist cases. They are an essential component, concerning who was there, who was where and who was communicating with whom. That is nothing new; what has changed is the way in which those messages are transferred from one place to another. It is a fact that it is no longer easy, using conventional means and conventional mechanisms, to keep track of that information, and that is causing the problem. It is a problem and a gap which has been getting worse over the last few years.
Something urgently needs to be done to remedy that gap, but it has not happened. The previous Government and this Government have failed to do something about it. We are now moving inexorably towards a general election, which is a few weeks away, and it will be down to whichever Government are in place after that to deal with this. I share the concern of the noble Lord, Lord King, that, following the election, that may not be a rapid, simple or straightforward process.
What do we do now? The first thing is not to oversell the importance of either these amendments or the mythical Blencathra’d amendments that may or may not exist somewhere else. The amendments will not be a magic bullet. The mere passage of these proposed new clauses, or a version of them, does not mean that terrorism will be prevented or that serious crime will stop, but they would be an essential and necessary tool in trying to minimise the risk. Let us not pretend that the failure to include them will automatically mean that there will be a terrorist atrocity. However, it will mean that such an atrocity will be that bit more likely and that it will be that much more difficult to deal with it and stop it.
This is not just a question of the legislative provisions and the fact that we are being dilatory in getting round to dealing with this issue. I understand and have all sorts of sympathy for Ministers in the context of a coalition where one side of the coalition is less keen on such a provision than the other and starts to position itself in advance of a general election. I have lots of sympathy for all that, but the fact is that collectively Governments over the past eight to 10 years have failed to address and deal with this issue.
There is a second vital element, which is that there is a degree of public support for and public buy-in to the changes that have been made. That is why not pretending that this is a magic bullet is so important. In the past, security measures have been oversold as the one necessary thing that will stop all these atrocities, and every time that excuse is used it has bred public cynicism about these measures.
Part of what has to happen is a proper public debate about why these powers are needed, why they matter and why they do not constitute the infringement of civil liberties and personal liberty that some people assume. Failing to have that debate has been a wasted opportunity over the last few years. When the Joint Committee produced its report, the Government should have used that as the opportunity to say, “Let’s have that public debate”. Had they done so, we might now be in a position where there was a public understanding of these issues and a readiness to go forward.
The reality is that if the noble Lord, Lord King, presses his amendments, people will say that the parliamentary process has been abused, and we have no doubt already had dozens and dozens of emails and letters saying precisely that. It is an abuse of the process because it does not allow the normal times for debate, but we have failed to give ourselves the time for that, and that is why we are in such a mess.
Should we agree to these amendments? No, because they do not incorporate the views of the Joint Committee; no, because we have not had an opportunity for the public debate; and no, because we have not had the report of the Independent Reviewer of Terrorism Legislation. I do not want to get into why we have not had all those things but the fact is that we have not. It would therefore be wrong to press ahead with these amendments at this stage, much as I personally believe that something along these lines is necessary and much as I personally believe that we should have taken action much sooner. However, the reality is that those other things are not in place. I blame the Government—of course I would because I am on this side of the House—for failing to have those other elements in place and for failing to ensure that there has been the necessary public debate. However, to press today without public support and public debate, and in the absence of having the views of the independent reviewer, clearly would be a mistake, particularly in the context in which people would see that the legislation had been rushed through by some sort of legislative sleight of hand.
The noble Lord, Lord King, gave the Government a week’s opportunity to move forward. The Government have not taken that opportunity. For the very reasons I have given about not having public support or having built things up, I do not believe that they should have responded to the noble Lord’s amendment last week by bringing forward their own amendments to do all this overnight. But it would have been an enormous step forward, and still would be an enormous step forward, if before Third Reading the Government were to publish the revised versions of the legislation that they have, even if they are not the final product, so that that public debate can start. Some of the myths about communications data and what the Government are trying to do could be dispelled.
We are in a sorry mess. Frankly, I do not think that the amendments in the name of the noble Lord, Lord King, solve the problem. They could conceivably make it worse. But for goodness’ sake, we need to treat people like adults, not pretend that this is a magic bullet, and allow the public debate to take place.
Counter-Terrorism and Security Bill
Lord Armstrong of Ilminster Excerpts(9 years, 4 months ago)
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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.
Counter-Terrorism and Security Bill
Lord Armstrong of Ilminster Excerpts(9 years, 4 months ago)
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Lord Armstrong of Ilminster (CB)
My Lords, we have had a long debate with very many thoughtful contributions. I certainly do not propose to try to sum them all up. I would like particularly to thank the two noble Lords who made their maiden speeches; theirs were notable contributions to the debate and we look forward to hearing from them both. If I pick particularly on the speech from the noble Lord, Lord Evans of Weardale, it is because I come from a generation of public servants for whom the Security Service was not allowed to exist. It was like the girl in the song:
“Oh! no! we never mention her,
Her name is never heard”.
The director-general’s identity and name were the most profound state secrets, and the director-general’s voice was never heard in public. Things have changed, and they have changed to our advantage: we had the present director-general making a speech that we read last Thursday and we had two noble Lords who are former directors-general of the Security Service contributing to our debate this evening with all the authority of their experience.
The people of this country have a right to be able to go about their lawful business freely and in freedom, and in private if they so wish. They also have a right to be able to go about their business in safety and without fear. Parliament and the Government have to try to resolve the conflict between these duties, since measures to provide safety and security almost invariably and inevitably limit freedom and erode privacy. How the balance should be struck at any given time has to be decided by Parliament, and should be decided by Parliament. The Government can and must propose, but people will expect Parliament to decide. It is a serious and heavy responsibility.
The rights to freedom and privacy, although they might have to be qualified, are none the less absolute. They should be qualified or limited only to the extent necessary for the purpose of maintaining or improving safety and security. We must therefore be ready to accept limitations on freedom and privacy where they can be shown to be essential for maintaining—or preventing a deterioration in—safety and security. If and when we are satisfied that the nature of the threat has changed, so as to make it unnecessary to retain measures that were hitherto regarded as indispensible, we need to be ready to dispense with those measures.
We have once again reached a stage when the balance needs to be reconsidered and restruck in the light of new threats to safety and security. I believe that the Government had established a case for the new measures proposed in this Bill before the shocking events in Paris last week. Those events have served to strengthen that case.
No doubt we shall go through the Bill in detail and consider the relevance and effectiveness of each of the measures but, subject to that examination, I hope that the House will give the Bill a Second Reading today and eventually pass it. We owe it to the law enforcement and intelligence and security agencies on whose vigilance and effectiveness we depend to provide them with the powers, authorities and resources that they need for the purpose of providing us with the best possible protection from threats to safety and security, as we now perceive them.
As for the detail of the Bill, I shall only briefly mention that I await to see what is said about the temporary exclusion orders and the role of judicial review. I also await to hear what is said about the Privacy and Civil Liberties Board. On that matter, my respect and admiration for the Independent Reviewer of Terrorism Legislation, Mr David Anderson, is possibly slightly less—but hardly less—than that of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Carlile of Berriew. It is very great. We shall need to ensure that nothing in the Bill dilutes or diminishes his responsibilities. We shall need to ensure that he has the range of duties that he thinks he needs and the resources to fulfil them. We shall need to watch that very carefully as the Bill proceeds.
I comment briefly on Part 3. It will allow the Government to require communication service providers to retain data that will allow the authorities to link the unique attributes of a public internet protected address to the person or device using it at any given time. It will not enable the authorities to obtain access to the content of such communications; that will continue to require the authority of the Secretary of State.
The power to be able to access such data and, often, to be able to do so as a matter of urgency, is, as we have heard this evening, an indispensable and vital tool in the investigation and detection of terrorist threats and crimes—and of other serious crime. It was one of the provisions contained in the Government’s draft Communications Data Bill, which was given pre-legislative scrutiny two or three years ago by a Joint Committee of both Houses under the chairmanship of the noble Lord, Lord Blencathra, of which I was a member. The Joint Committee recommended a number of changes to the draft Bill, but accepted this provision.
For my part, I regret that the current Government were unable to reintroduce a communications data Bill that incorporated the Joint Committee’s recommendations. Such a Bill is needed to reflect fast-moving changes in communications—particularly internet—technology since the Regulation of Investigatory Powers Act 2000, 15 years ago. Parliament should be asked to return to the subject very early in the new Parliament. I am glad to learn that the Prime Minister has said that if he is still Prime Minister after the election, he intends to introduce such a measure. A similar commitment from the leader of the Opposition and other party leaders would no doubt be welcome.
Indeed, I believe that the new Parliament will have to give early consideration to these issues, as Part 3 includes a sunset clause which provides for its repeal at the end of 2016, at the same time as the repeal of the Data Retention and Investigatory Powers Act 2014. In the mean time, thankful for small mercies, I welcome and commend Part 3 to the House.
Data Retention and Investigatory Powers Bill
Lord Armstrong of Ilminster Excerpts(9 years, 10 months ago)
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Lord Butler of Brockwell
My Lords, having supported the Minister on the point made by the noble Lord, Lord Davies, may I now say to him that he is being unnecessarily negative about this? He has explained why he thinks the amendment is unnecessary, but he has not explained what the positive arguments are against it. It seems to me that it can only be helpful. Unless there is some positive reason for rejecting the amendment, I would urge him to consider again before Report. The problem is that we cannot repeat this amendment exactly on Report, and it would be difficult to improve on the wording already suggested by the noble and learned Lord, Lord Hope. I ask the Minister whether he could consider again the idea that this amendment is designed to be very helpful to the Government. The fact that it may not, in the Government’s view, be strictly necessary, does not seem to me a convincing argument as to why it should be rejected.
Lord Armstrong of Ilminster (CB)
My Lords, we are talking about what the Secretary of State considers. I wonder whether the difficulty could be resolved if the Minister were to state formally, on the record in Hansard, that the Secretary of State must consider that,
“for objective reasons the requirement is strictly”
necessary.
Lord Howard of Lympne (Con)
My Lords, I rise with some temerity to disagree with the views expressed from the Benches opposite, but it seems to me, as a matter of principle, that when the Government and the Parliament of the United Kingdom consider how to introduce legislation consistent with a decision of the European Court of Justice, it is the substance of what the Government and the Parliament of the United Kingdom are providing which is important. It should not be necessary, and it would not be a healthy precedent, if Parliament took the view that every time we had to amend our legislation in order to comply with a judgment of the European Court of Justice, it was incumbent upon us to adopt language identical to that found in the judgment. So there is at least the vestige of a point of principle here, and that point of principle leads me to support the view expressed by the Minister.
Data Retention and Investigatory Powers Bill
Lord Armstrong of Ilminster Excerpts(9 years, 10 months ago)
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Lord Armstrong of Ilminster (CB)
My Lords, I do not propose—indeed I am not qualified—to comment on the ruling of the European Court of Justice which has made it necessary to introduce the legislation that we are considering. But as a consequence of what I learnt as a member of the Joint Committee for pre-legislative scrutiny of the Government’s draft communications data Bill, chaired by my noble friend Lord Blencathra, I am sure that it is important—indeed necessary—that there be no doubt about the legality of requirements placed on communications service providers to make communications data other than the content of communications available, mainly for the detection and prevention of serious crime and of terrorist outrages, but also for other purposes, particularly child protection, and to retain those data for longer than they would need for their own commercial purposes.
Yesterday, the Minister described the Bill as a puncture repair to keep the car on the road, not a new tyre. I accept that the Bill does no more than restore the legal cover to the state in which it was, or was believed to be, before the European court’s judgment, and as such I believe that noble Lords can and should approve it. I also believe that the case has been made for extraterritoriality, as was said by my noble and learned friend Lord Lloyd of Berwick. But I remember an occasion in 1993 when the late Lady Thatcher, in a visit to the United States, took the US Secretary to the Treasury robustly to task for the US Government’s attempt to impose their powers extraterritorially. It was so robust that when she had finished the Secretary to the Treasury said, “Margaret, you need to watch your blood pressure”, to which she answered, “I should like you to know that my blood pressure is extremely low”.
The inquiries made by the Joint Committee chaired by my noble friend Lord Blencathra persuaded me, and I believe other members of the committee, that a strong and effective system is in place for ensuring that only communications data essential for a specific and justifiable investigation are required from the communications service providers. As another noble Lord has pointed out, this is a real safeguard to protect the privacy of the ordinary citizen going about his or her ordinary business.
In this business, there is constant tension between the need to respect and so far as possible to protect the right of the citizen to privacy in the conduct of his or her life and business, and the duty of the Government to protect the safety and security of the citizen as he or she goes about that life and business. In this tension, there are no absolutes as to how the balance between them should be struck. That balance changes as circumstances change, as the technology of communications changes and develops, which it does with great rapidity, and as new threats to safety and security emerge.
The state of legislation on communications data needs to be constantly reviewed as those changes progress. But, in the end, it is Parliament that must strike the balance. Parliament last reviewed the balance during the passage of the Regulation of Investigatory Powers Act 2000. To save myself stumbling over that in future, I will call it RIPA. The world of communications has changed—as the noble Lord, Lord Macdonald, pointed out—almost beyond recognition in the 14 years since 2000. The determination and ingenuity of those who commit serious and organised crime have not diminished. New threats, or potential threats, of terrorism have appeared in this country. It is high time to look again at the balance and to introduce new legislation to take account of those changes. We are asked today to approve a puncture repair. We should be looking at a new set of tyres.
The Government produced a draft communications data Bill earlier in this Parliament. The committee of the noble Lord, Lord Blencathra, thought that the draft Bill had not got the balance right, and made recommendations for changing it to rectify the balance. The Home Office then revised the draft Bill in the light of those recommendations and made improvements which, in the judgment of many of us, went a very long way towards meeting those recommendations and striking a proper contemporary balance between the right to privacy and the need to protect safety and security. Unfortunately Parliament was denied an opportunity to consider that revised draft Bill.
There will now be no opportunity, this side of the forthcoming general election, for Parliament to consider a full-scale and up-to-date new Bill, finding and striking a new balance between the right to privacy and the requirements of safety and security in this area of communications data. However, there will be a pressing need to do so early in the life of the new Parliament, because of both the lapse of time and the pace of technological change since RIPA was passed in 2000, and now because of the sunset clause in this emergency Bill.
I welcome the proposal, as provided for in Clause 7, to set up a review by the independent reviewer of terrorism legislation. I have one query about that. The independent reviewer is the reviewer of terrorism. It is not clear from the Bill whether his remit would extend to the use of the communications data regulations for purposes other than countering the terrorism threat, including the detection of serious crime and the other purposes set out in Section 22 of RIPA 2000. I hope that the independent reviewer will have the remit to go that far—he is well equipped and qualified to do so. However, the point should be made absolutely clear.
To change the metaphor, today's Bill, though urgently necessary, does no more than patch the sleeves of the existing and old-fashioned jacket. What is required by the end of 2016 is a brand new jacket cut in the latest fashion.