Counter-Terrorism and Security Bill

Lord Bates Excerpts

Tuesday 13th January 2015 Lords Chamber

Moved by

[Lord Bates]

That the Bill be read a second time.

Relevant documents: 5th Report from the Joint Committee on Human Rights, 8th Report from the Constitution Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Bates)]

My Lords, the emergence of ISIL and its territorial gains in Syria and Iraq present a clear and present threat to our national security. Noble Lords will be aware that nearly 600 people from the UK who are of interest to the security services are thought to have travelled to the region since the start of the conflict. It is estimated that almost half of them have since returned to the UK. On 29 August 2014, the independent Joint Terrorism Analysis Centre raised the terrorism threat level from substantial to severe, meaning that an attack is highly likely. On 1 September, my right honourable friend the Prime Minister announced that legislation would be brought forward.

The horrific events in Paris last week were the latest in a long line of shocking terrorist attacks, following the brutal beheading of Fusilier Lee Rigby, the murder of four civilians at the Jewish Museum in Brussels last May, the shootings at the Canadian Parliament in Ottawa and the Sydney hostage crisis. They all demonstrate the threat posed by ISIL and other terrorist organisations, such as al-Qaeda, across the democratic world.

I know that the whole House will join me in paying tribute to the incredible and courageous work of the men and women in our law enforcement and security and intelligence agencies. Their tireless efforts to keep us safe have thwarted around 40 attacks since 7 July 2005. Since April 2010, 210 people have been charged and more than 140 have been successfully prosecuted for terrorism-related offences. It is those security services that tell us that the nature of the threat has changed and so must our response. It is against that backdrop that we bring the Bill before your Lordships’ House.

The Counter-Terrorism and Security Bill will help us to disrupt people who intend to travel abroad to fight, as well as their ability to return here without ensuring adequate protection for our citizens. It will enhance our ability to monitor and control the actions of those in the UK who pose a threat, and it will help to challenge the pernicious underlying ideology that feeds, supports and sanctions terrorism. Part 1 of the Bill contains two powers that will enhance our ability to restrict the plans of those suspected of travelling overseas to engage in terrorism-related activity. The first is the power for the police, or a Border Force officer acting under their direction, to seize a passport and, in so doing, temporarily to disrupt the ability of an individual to travel. This will allow the agencies to investigate and decide whether further disruptive action is necessary—for instance, criminal prosecution or cancelling their passport under the existing royal prerogative.

Chapter 2 creates the power for the Home Secretary to issue temporary exclusion orders. This will allow us temporarily to disrupt the return of a British citizen suspected of involvement in terrorism-related activity abroad, ensuring that when individuals return it is on our terms. In the light of the comments of the Independent Reviewer of Terrorism Legislation, David Anderson QC, and following the debates in the House of Commons, the Government have committed to considering judicial oversight for this power. We will return to this issue in Committee should the Bill be successful at Second Reading.

Part 2 of the Bill enhances the existing terrorism prevention and investigation measures—or TPIMs—regime. Here, we are again acting on the recommendations of David Anderson QC in his most recent report on the operation of TPIMs. This includes allowing us to relocate an individual subject to a TPIM order up to 200 miles from his or her current residence, to help disrupt terrorist networks. It also involves raising the legal test for imposing a TPIM, providing further reassurance that they are used only where absolutely necessary.

Part 3 relates to data retention, specifically the problem of internet protocol address resolution. This is a technical issue and we will get into the details in Committee. However, these provisions will deliver vital additional capability to the police and intelligence agencies, helping to address the ongoing degradation in the availability of communications data.

Part 4 covers aviation, shipping and rail security. It includes measures in three broad areas: our authority-to-carry or no-fly arrangements; systems for providing advance passenger information to the UK authorities; and enhanced security and screening measures. Carriers will have to comply with our requirements if they are to operate to the UK.

Chapter 1 of Part 5 creates a duty on a range of authorities—listed in Schedule 3 to the Bill—to have due regard to preventing people being drawn into terrorism. The detail of what this duty will mean in practice for the schools, universities, police forces and prisons that will be subject to it will be set out in statutory guidance. We have published that guidance in draft for consultation alongside this Bill.

Chapter 2 of Part 5 also provides a statutory basis for the existing programmes for those at risk of being drawn into terrorism. As many noble Lords will be aware, in England and Wales this is known as the Channel programme. These provisions will ensure that such programmes are consistently available to all local areas.

Part 6 amends two provisions in the Terrorism Act 2000. The first ensures that UK insurance companies cannot reimburse the payment of a ransom to a terrorist organisation, putting the existing law beyond doubt. The second relates to the examination of goods at ports under Schedule 7 to the 2000 Act. It will clarify the law relating to where goods can be examined and the examination of goods comprising postal items.

Along with other miscellaneous provisions, Part 7 allows for the creation of a Privacy and Civil Liberties Board to support the work of the Independent Reviewer of Terrorism Legislation. We are at present conducting a further consultation on this proposal, prior to bringing forward regulations for Parliament to consider.

I welcome the cross-party support for this legislation in this House. I know that the Home Secretary has appreciated it in the House of Commons. I particularly want to thank the noble Baroness, Lady Smith of Basildon, and my noble friend Lady Hamwee for their constructive approach in negotiations about this legislation.

I am also aware that there is a very long and distinguished list of Peers seeking to speak in this debate. I am sure that noble Lords are particularly keen to hear the maiden speeches of the noble Lords, Lord Evans of Weardale and Lord Green of Deddington, who bring considerable knowledge and expertise to these matters. I do not, therefore, intend to detain the House any longer, but will of course respond in greater detail to the points which—

[The Marquess of Lothian (Con)]

I am grateful to my noble friend for giving way. I am intervening because I cannot stay for the rest of the debate. I welcome his statement that he will consider introducing judicial authority over control orders. Does he accept the general constitutional principle that, where such control orders are to be introduced, they should be under judicial control rather than under the control of politicians?

[Lord Bates]

I referred to that earlier. In another place, the Minister, James Brokenshire, said that we would look at it and seek to bring forward amendments, should the Bill go into Committee. We will do that.

I was saying, in conclusion, that I will address the points made in the course of this debate, perhaps at greater length, in my closing remarks.

We are in the middle of a generational struggle against a ruthless terrorist ideology that challenges the core values of our society. Those charged with our security must be properly equipped to do the job that we ask of them to maintain a free, open and tolerant nation. That is what the Bill is designed to do and I commend it to the House. I beg to move.

--- Later in debate ---

[Lord Bates]

My Lords, I echo the words of the noble Lord, Lord Rosser, in viewing this debate as calm and measured. In the words of my noble friend Lord Phillips of Sudbury, it has been the House at its best, as it is on many occasions of this nature. A lot of issues have been raised and I shall do my very best to get through them. Essentially, they have grouped around nine main thematic areas: the nature of the threat; the procedure and legislative process; passports, and their seizure; temporary exclusion orders; funding and resources; international co-operation; IT and data retention; Prevent powers, particularly in relation to universities; and the Privacy and Civil Liberties Board.

I turn to the first of those—the nature of the threat. I thought that the debate was aided immensely by the contributions in our two new maiden speeches, which were both focused on the particular expertise that the noble Lords, Lord Evans and Lord Green, have in their respective roles. The noble Lord, Lord Evans, referred to a jolt of energy that has gone through the terrorist networks; they are enlivened, bold and audacious in how they undertake their attacks. The noble Lord, Lord Green, from his immense experience in the Middle East, spoke of what he regarded as that region descending into a chaotic situation. He chillingly viewed the situation as being the worst that he could recall in 50 years. That is of course because of what is happening through ISIL in Iraq and Syria. I pay tribute to the work of my noble friend Lady Neville-Jones, who pointed out that it is not a static threat but an expanding one, and that ISIL is now very much on the borders of NATO in Turkey. It is growing and dynamic.

The noble Lord, Lord King, has immense expertise, which I was grateful that he could draw on while speaking in the gap. He reminded us that ISIL is different and distinctive from anything that we have seen before. The noble Lord, Lord Marlesford, talked about its international nature in referring to Boko Haram and attacks elsewhere, including Pakistan. The noble Lord, Lord Rosser, referred to the horrific attack on the school in Peshawar, which led to the death of 132 schoolchildren. It is of course not just happening far away; it is happening with the active and determined support of British citizens—a small and determined band. That is what makes it different.

My noble friend Lady Neville-Jones and the noble Lord, Lord Butler, referred to the fact that in the case of the horrific attacks in Paris, the attackers were using skills and training that they had experienced in training camps and active service elsewhere. The noble Baroness referred to Yemen, where they had learnt those deadly skills that we need to counter. The noble Lord, Lord Carlile, talked from his immense experience about the actions of a determined minority that were jeopardising free speech. When we have a debate about the Prevent duties for universities—which I will come to in a minute—it is important that we also remember this enemy’s absolutely determined war on free speech.

The noble Lord, Lord Rooker, offered me some professional sympathy, having been a distinguished predecessor in this role, and talked about a group of people who were intent on destroying our very way of life. For these reasons, and others, the noble Lord, Lord Hannay, adjudged fairly that the Government had entirely and convincingly made the case for the necessity of legislation. On the nature of the legislation and its process, a couple of noble Lords, to whom I will not refer directly, questioned whether it was a knee-jerk reaction. They used terms such as “window-dressing” and questioned whether it was meaningful and would have a real effect in tackling a real problem. At my very junior level in the Government, I have an overwhelming sense of the need to consider such matters as: are you overlooking something; are you upholding safety; are you correctly balancing security, civil rights and freedom; are you doing all that you can? I can only imagine what the weight and pressure must have been for the Prime Minister when he was informed, on 29 August, of the view of the Joint Terrorism Analysis Centre—not of his committee, not in his judgment—that the threat level should be raised from substantial to severe. It therefore determined that an attack was highly likely. I guess he responded as most of us would do on 1 September, when he said that he wanted to be absolutely sure he had done everything in his power to try to keep our citizens safe. That is the genesis of the legislation.

As to the legislative process before us, the Government are committed to ensuring the effective parliamentary scrutiny of the legislation. The noble and learned Lord, Lord Goldsmith, talked about the use of fast-track in a very thoughtful speech, which showed an incredible understanding of the wrestling and agonising which is going on across government about how to strike the balance and frame the legislative approach. The noble Lord, Lord Rooker, said that he did not feel that the term “fast-track” was appropriate. In some senses it is not, because we are talking here about a limitation of the intervals, not limitation of the debate. The signal of intent came at the beginning of September; the Bill was introduced at the end of November; we have had hearings by the Joint Committee on Human Rights; it has been scrutinised in another place; it will have three days in Committee, then go on to Report and Third Reading. There are also five or six parallel consultations on different aspects of the Bill. We can make the case. I know that the noble and learned Lord, Lord Lloyd, brings immense expertise to this area. He made a very thoughtful speech in which he raised concerns on this point and I listened carefully to them. However, I feel that in this case of necessity we have got the balance about right in terms of the legislative process.

The noble Baroness, Lady Smith, to whom I express my gratitude for her support as we work through the Bill, asked about the sunset clause. There are certain provisions within TPIMs and the Data Retention and Investigatory Powers Act which are subject to sunset clauses. However, the view is that it would be inappropriate to add a sunset clause for some of the other provisions—for instance, where they simply clarify existing legislation or where an industry, such as the aviation sector, needs certainty if it is to implement new technical systems. Noble Lords will wish to note that the Constitution Committee, which took a great interest in such issues, did not recommend a sunset provision in this regard.

My noble friend Lord Jopling and the noble Lord, Lord Rooker, talked about preparedness. My noble friend Lord Jopling also spoke about the chemical, biological and nuclear attacks which could arise—and about the chilling side-effects of Botox, which, if they were made known in the market, would lead to a dramatic fall in sales. However, it is right that preparedness is a key part of what the Government are seeking to do here. In 2014, more than 120 people were arrested for alleged offences relating to Syria while seven individuals were convicted for Syria-related terrorist activities, which shows that the Government are prepared in this regard.

Many literary allusions were made in the debate. The noble Lord, Lord Hennessy, referred to Karl Popper, and I was grateful that he struggled with the relevant text as that made me feel less guilty. We have also had references to Joseph Conrad, Voltaire, Henry James and others. Noble Lords have struggled with the texts of philosophers in trying to get the right balance between privacy and security. That issue was helpfully touched on by the right reverend Prelate the Bishop of Durham, who said that it is not how we live but how we live together that matters, and that we need to be careful about taking away security and civil liberties. The noble Lord, Lord Armstrong of Ilminster, talked about the need to restrike the balance between the two concepts in the face of the new threat. That balance is constantly under review. My noble friend Lord Carlile, in a very powerful and eloquent speech, which was full of insight, said that the Home Office was far from caricatures portraying a cadre of people seeking every opportunity to restrict the freedoms of others. In his experience and in mine, the Home Office is full of incredibly professional people who agonise, along with everybody else, about whether they have struck that balance correctly.

My noble friend Lady Shields and a number of others spoke about the international discussions that are going on. I can inform the House that active discussions are taking place bilaterally with Turkey and France, as one would expect, but also with EU partners. This underscores the fact that we are facing these threats having taken the decision at the end of November to opt into certain justice and home affairs issues. One can only imagine what people might be thinking, and how insecure they might feel if, in the face of the terrorist attacks in Paris, we did not have any legislation currently in train. We are debating it and that is part of our preparedness.

The noble Lord, Lord Condon, referred to lessons from Denmark. My noble friend Lord Carlile painted a picture of a phalanx of international leaders arm in arm on the march on Sunday. The international community needs to move forward and to ensure that we send a collective message, but we also need to work with each other to counter this very serious threat. My noble friend Lord Roberts and I are attracted to the suggestion of my noble friend Lord Carlile that religious communities can be part of the solution, not part of the problem. My noble friend Lord Marlesford talked about political Islam but religions are very much part of the solution. The picture of the Albanian Christians and Muslims marching together in Paris certainly showed that the terrorists have not won.

Several noble Lords, including my noble friends Lady Berridge and Lady Buscombe, referred to passport seizure for longer than 14 days. They talked about the Joint Committee on Human Rights report. There is an important point here. My noble friend Lady Buscombe said that to characterise this as a universally critical statement on the Bill, as perhaps some of the press releases that have surrounded this debate did, was absolutely wrong. The report took a fair and balanced approach. Again, it reflected the fact that everybody is wrestling with this. The difference in views between the noble Baroness, Lady Kennedy of The Shaws, and my noble friend Lady Buscombe reflects the scale of debate that is happening not just in the Joint Committee on Human Rights but across the Floor of the House. In fact, it is happening across the country.

At 14 days, the police’s investigation should have progressed to the extent that a court can meaningfully consider whether the investigation has been conducted diligently and expeditiously. Any evidence provided at a court hearing should not differ too greatly from that which caused the decision to seize a passport in the first place. This is done on a case-by-case basis. The noble Viscount, Lord Hanworth, reminded us that each individual has a different route to ISIL or wherever they are going. We need to treat them as individuals, case by case.

In terms of reasonable suspicion, I am sure that my noble friend Lord Thomas of Gresford did not mean that officials would seize a passport on a hunch. We are in consultation over a substantial document—a code of practice. It goes into exhaustive detail about the circumstances, assurances and processes that must be gone through before such a serious step as temporarily taking away someone’s travel documents is taken. I can assure the House that that power would be used only on a case-by-case basis, where the police reasonably suspect that a person is travelling overseas for terrorist purposes. It would probably be circumscribed by a number of stringent safeguards, with a check by a senior officer above superintendent level and an additional check by a more senior officer independent of the investigation for up to 72 hours; an initial retention period of only 14 days; and a court review of the ongoing need to retain a passport, allowing a judge to extend that period up to a maximum of 30 days if the police needed more time for their investigation.

My noble friend Lady Hamwee asked whether we could seize foreign as well as UK passports. The answer is yes and it feeds into the point that my noble friend Lord Marlesford raised about notifying people when they have more than one nationality. The noble Lord, Lord Thomas of Gresford, asked about the JCHR’s proposal for notification of the turnovers, and I feel that my noble friend Lady Buscombe dealt with that effectively. We are all searching for the right approach.

The noble Lord, Lord Harris of Haringey, asked whether the temporary exclusion orders will be retained indefinitely. The clause makes it clear that there is a duty for the Secretary of State to issue to the subject of a temporary exclusion a permit to travel within a reasonable period if the subject applies for one. This is a key provision for a temporary exclusion power. It is about managing the return, to which a number of noble Lords have referred.

I was asked specifically about what is meant by “considering further action” and the judicial oversight of that process. The only language that I am able to use at present, which may not be satisfactory—noble Lords will have to read between the lines—is that we will visit this in Committee. Noble Lords understand how legislation works. I hope they will understand that that is more than a general statement; it is something of a statement of intent.

On temporary exclusion orders, if people want to return we will decide whether to impose a temporary exclusion order on a case-by-case basis. A temporary exclusion order does not prevent individuals from returning to the UK. It ensures that they return in a controlled manner and subjects them to additional measures on their return. It can be in operation for up to two years because of those additional measures; it is not that the process of their return will take two years.

I now move on to funding. I hope the House will bear with me just a little bit longer, given that I was chastised by the noble Baroness, Lady Smith, for being a little bit brief at the beginning. She is perhaps beginning to regret that statement now, as I am sure the House is. I will try to get through this, but I will certainly finish within the next few minutes. I give that undertaking. Not a great many questions were raised on finance, but the noble Lord, Lord Harris, asked me about it. I have that finance available. I am happy to write to the noble Lord about that. I absolutely underscore the point made by the noble Lord, Lord Thomas of Swynnerton, the noble Baroness, Lady Brinton, and my noble friend Lady Berridge that finance is critical to the way that this terrorist organisation is growing. It is a rich organisation, as the noble Lord said. We need to attack its finances as well as its ideology and its human resources.

I think the point on control orders is now accepted. We have seen the remarks of the Independent Reviewer of Terrorism Legislation, David Anderson. He has made his position very clear on this and we are listening very carefully to him.

I was asked by the noble Lords, Lord Carlile and Lord Butler, about the oversight board and whether it was the case that we had somehow changed our position. I think that was the suggestion. We are currently consulting on the powers. The document is out there and that consultation is live until 30 January for people to offer their views on the shape of the board. We do not want to pre-empt the end of that process at this stage. We are determined to go forward in the light of the consultation. If it goes forward, the establishment of the board will be by means of the affirmative procedure, as the noble Lord, Lord Phillips, asked. The timing of this will be subject to the availability of parliamentary time. I cannot say a great deal more on that, but I assure noble Lords that we will have more to say on that in Committee.

A number of points were made on Prevent. I will use this as an opportunity to plug the fact that we have a meeting at 2.30 pm on Thursday 15 January to deal with this matter, particularly relating to universities, in Committee Room 4A. Most noble Lords have been written to about this. The only point I would make on universities is that a copy of the Official Report of this debate should be required reading in all universities. That is not a regulation; it is just a suggestion. I do not want to stir things up too much further.

On the Data Retention Act, I want to thank my noble friend Lady Shields in particular for her work and for her helpful comments. During the scrutiny of the draft Communications Data Bill, both the Intelligence and Security Committee of Parliament and the Joint Committee on the Bill concluded that legislation is required to address the ongoing capability gaps that this narrow provision will not fill. We talked about the gaps in current capability. The noble Baroness, Lady Manningham-Buller, referred to that as well.

I have covered as many points as I can. The first duty of any Government is to ensure that their citizens are safe. That means not only the wider elements of how we talk about and tackle the culture that is giving rise to this problem but also effective policing, as my noble friend Lord Wasserman pointed out. I agree with noble Lords that we must protect our civil liberties alongside our rights to safety and security. The range of safeguards in this Bill and those we propose to add in Committee will do that, ensuring that these new powers are used in a necessary and proportionate way. The varied and detailed contributions from noble Lords have enabled us to cover a full range of issues during the course of today’s debate and I and my noble friend Lord Ashton of Hyde look forward to returning to these issues in detail in Committee. I commend the Bill to the House.

Bill read a second time.