Psychoactive Substances Bill [HL]

Lord Blencathra Excerpts

Tuesday 23rd June 2015 Lords Chamber

[Lord Blencathra (Con)]

I am not deliberately trying to oppose every amendment that the noble Lord, Lord Howarth of Newport, has proposed in Committee tonight. Indeed, if his amendment had simply said that all head teachers shall once per annum bring in an appropriate person to talk about the dangers of drugs, I would have supported it. Indeed, I wish I had thought of it myself.

The point that I am seeking to make is: who is an appropriate person? I discovered in the 1990s in the Home Office that there is not a single Member of your Lordships’ House, not a single Member of the other place, not a single policeman—no matter how young or old—and not a single teacher who would be regarded by young people and children as a legitimate person to preach about the dangers of drugs. I discovered rather late on in my term of office at the Home Office—I wish I had had more time or thought of it earlier, before the 1997 election—that the things that seemed to work were when a school got another teenager who would come in and say, “I am a drug addict, or I used to be a drug addict and look at me now. I can’t pick up boys or girls; half my nose has rotted off. I’m as skinny as a rat. I’ve been thrown out of my house by my parents and I have all these problems”. It was only with other teenagers who looked and sounded like them and came from the same area, rather than men or women in suits, that they believed in the dangers of drugs.

I worry that the noble Lord’s amendment is too state-oriented. It is maybe too bureaucratic. I am certain that if it were carried we would be spending more than £7 million on drug education. I am afraid that it would be snapped up by the Ofsteds, quangos and education bureaucrats who have wonderful programmes that sound good. They would be like the adverts that I thought we had prepared at the Home Office, with men in suits lecturing about the evils of drugs. Like those adverts, they will be completely ineffective. I say to the noble Lord and to my noble friend the Minister that I am very sympathetic to education in schools but it has to be kept simple and appropriate. If kids were cynical at my time in the Home Office in 1994 to 1996 they are a dashed sight more cynical now about being lectured by anyone who is older or outside their own cultural circle. I hope that the Minister will be able to respond to that if he cannot accept the amendment moved by the noble Lord, Lord Howarth.

[Baroness Meacher]

My Lords, I support very strongly the idea behind the amendment moved by the noble Lord, Lord Howarth, and the importance of education. However, I agree with the noble Lord, Lord Blencathra, that the type of education is absolutely all-important. He said that teenagers do not want someone coming in preaching about drugs. Absolutely—we know from all the research, most of which has been carried out in the US, that lecturing and didactic teaching does not work in the sphere of drugs. We know that. I was going to suggest that we need the words “evidence-based” in the amendment. We know from the evidence that peer involvement—certainly group work with youngsters who have already had or are now having terrible problems with drugs—is the method of education that works. Whether one wants to call it education or whatever, it ideally needs to go on in schools. It does not seem inappropriate therefore to use the word “education”. We all have to be clear what we mean by education but, as for the term “evidence-based”, the evidence points exactly in that direction.

Before you get to that sort of education and imparting —or whatever you call it—of information, there is work already being done in a number of schools up and down the country to improve the resilience of youngsters who are particularly vulnerable to drug addiction. An example is children who are not functioning well at school or have very difficult home lives. There are all sorts of reasons why those children lack resilience. There are very good programmes of resilience-building in schools and for me they are utterly central to the whole business of prevention of drug addiction. This sort of work is far more important even than all the stuff we were talking about earlier about legislation, passionate though I feel about having the right framework in which all these things occur. I would support at least some variant of the amendment from the noble Lord, Lord Howarth, because it is fundamentally important, but let us see if we can come up with something really good for Report. Even better, the Minister could take this away and bring back a well-framed amendment to cover this vital issue.

Queen’s Speech

Lord Blencathra Excerpts

Tuesday 2nd June 2015 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I will try to deliver my speech from this position. I am testing a new medication and I want to push it—and myself—to the limit. I pray for your Lordships’ understanding if I have to finish my seven minutes from a sedentary position.

Perhaps I might also add to the tribute paid by the noble Lord, Lord Paddick, to Charles Kennedy and be the first Conservative in this House to do so. The Prime Minister was right: he was taken from us far too young. In terms of returning a record number of MPs, he was the most successful leader the Liberal Democrats have ever had. I also pay tribute to the fact that he, more than anyone else, laid to rest the myth of the dour Highland Scot. There was nothing dour about Charles Kennedy. Having served with him in the other place, I know we shall all miss him.

I welcome most of the Bills announced in the gracious Speech—if I understand them correctly. In particular, I welcome the investigatory powers Bill if it is a rewrite of RIPA, which is now discredited and not fit for purpose. We need a new RIPA that incorporates the conclusions of the Joint Select Committee I was privileged to chair and the recommendations of David Anderson QC. However, I am concerned that in the big media briefing pack issued by No. 10 last Wednesday, the report by the Intelligence and Security Committee, which naturally was very supportive of everything the security services wanted, was included as a key background paper—but not my Select Committee report. I am not precious about it but I hope that that does not indicate any backsliding by the Home Office on its excellent redraft of the original, discredited snoopers’ charter.

I remind my noble friend the Minister that our committee had Members from both Houses and all parties and none. We had widely differing views, which we probably still have, but we ended up with a unanimous report. We achieved that because we agreed that we could not have some general, wide-ranging, inexplicable and obscure powers for the security services, which would make it impossible for us in Parliament sensibly to amend and vote on each power requested. That original obscure draft caused the widespread revolt against the Bill, so we concluded that if the key contentious elements, such as the collection of weblogs and third-party data, and new definitions of subscriber and communications data, were set out individually and clearly that would permit Members in both Houses to vote on these powers. They would have the stamp of informed parliamentary authority. Of course, the Government may be afraid that they would lose one of these powers but I honestly believe that if we come clean on exactly what the police and security services want, Parliament will narrowly agree.

What would be utterly unacceptable, I say to my noble friend, would be to pass some obscure powers and then have the Security Service pop up in a year’s time and say, “Aha, we have the power to do this, that and the other. Didn’t you realise it when you passed that vague clause?”. We have recently seen how the Americans have suddenly woken up to the fact that they have been lied to by the NSA. As the Times says today:

“Intelligence services should not be given a free pass, here or in the United States … The intelligence and security services … need to become much more open about their role and intentions. If they do, the public will be reassured”.

I think we would be reassured also. I hope therefore that the Bill will take up our other suggestion for a mechanism for rapid amendment as technology changes and create a standing committee to advise on that.

I turn now to the extremism Bill, and I choose my words very carefully. I support this measure, provided that it specifically targets the real problem of extremism and not all radicals. I consider myself a bit of a radical in some ways, and so do many noble Lords, so radicalism per se is not the problem. Instead the words “radicalisation” and “extremism” are euphemisms for the words we dare not mention: namely, political Islamism—the ideology—or Islamofascism. I do not often agree with Tony Blair, but I agree with what he said in April 2014. He said:

“At the root of the crisis lies a radicalised and politicised view of Islam, an ideology that distorts and warps Islam’s true message. The threat of this radical Islam is not abating. It is growing. It is spreading across the world. It is de-stabilising communities and even nations. It is undermining the possibility of peaceful co-existence in an era of globalisation. And in the face of this threat we seem curiously reluctant to acknowledge it and powerless to counter it effectively”.

In March, the Home Secretary announced a completely new strategy. She said:

“This strategy aims to tackle the whole spectrum of extremism, violent and non-violent, ideological and non-ideological, Islamist and neo-Nazi—hate and fear in all their forms”.

My fear about the Bill, therefore, is that the Home Office will want to appear to be even-handed, catching all extremists, and not target the real problem of politicised Islamism, the ideology. But where do the problems really lie? Do we have Buddhist suicide bombers? Are there Free Presbyterians beheading Roman Catholics in Benbecula? Are there jihadi Jehovah’s Witnesses? Of course not, so who then deserves to be caught in this wide net of extremists?

The other vile ideologies that I can think of are the BNP, neo-Nazis, UK Uncut, various other anarchists, all permutations of the Communist Party of Great Britain and the Socialist Workers Party. They would all like to bring down our liberal western democracy but, while we abhor their views and despise their expression of them, are they really a serious problem? As far as I can see from their websites, their active members have not got the guts or the guile, the wit or the wisdom—or a united religious fervour—to organise anything that threatens our liberal democracy. They have no coherent philosophy, except that they seem to hate each other even more than the country they despise. What really threatens our democratic way of life is a desire by political Islamists to impose a theocracy that would replace all the democratic rule of law that we have developed over 500 years in this country. It would impose the same brutality that Christianity imposed when it operated on Old Testament teachings of “an eye for an eye”, rather than loving one’s neighbour as oneself.

The Home Secretary went on to say that,

“the foundation stone of our new strategy is the proud promotion of British values. These values—such as regard for the rule of law, participation in and acceptance of democracy, equality, free speech and respect for minorities—are supported by the overwhelming majority of British people”.

So my worry is that a generalist, catch-all definition of extremism will result in some idiot police forces arresting a couple of ladies from the WI and a traditionalist Church of England vicar who has said something radical —for example, that he actually believes in God. I justify the term “idiot police force” by reminding noble Lords that after the appalling Charlie Hebdo massacre in Paris, Wiltshire police sprang into action and demanded to know the names of local people in the village of Corsham who had bought the commemorative edition.

We have seen how police forces up and down the country, unfortunately, have ignored reports of thousands of children being raped and raped again because they did not want to offend a section of society. We cannot trust them to use properly any wide, generalist powers we may have in this Bill, and we need to spell out exactly what and who we want them to target.

I believe that, as legislators, we have a duty not just to spell out clearly the philosophy of British values but to give clear and unequivocal guidance to those who will have to enforce our intentions. We cannot afford to get this wrong, not only because we will miss the real extremists we need to catch but because we will then prejudice the British public against our efforts if our police forces persist in failing to take appropriate action against them. I look forward to seeing the text of the Bill in due course.

Counter-Terrorism and Security Bill

Lord Blencathra Excerpts

Monday 2nd February 2015 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I am the first Peer to speak against the amendments. I am very sorry that I have to disagree with my noble friends Lord King of Bridgwater and Lord Carlile of Berriew and the noble Lords, Lord West of Spithead and Lord Blair of Boughton. They have tremendous operational and political experience of dealing with terrorism and of working the legislation. I deeply respect their motives and their integrity but I respectfully suggest that they are wrong.

I and five other noble Lords and six MPs spent six months going through these amendments before us today with a fine toothcomb, but, in those days, they were in the draft communications data Bill. I say to my noble friend Lord Carlile of Berriew that they are largely the same amendments. There are some tiny changes, but they are largely, almost word for word, the same. When we started on the Joint Committee, we all had widely differing views. We had views at different ends of the spectrum, ranging from those who were totally committed to privacy at all costs to those who were committed to security at all costs. However, after six months of scrutiny, we produced a unanimous report.

I give noble Lords some examples of what we said about these clauses as they appeared in the draft communications data Bill and which are before us today as Amendment 11A and the other amendments in this group. We said that the 25% gap was misleading and unhelpful, part of the gap was due to a lack of ability of law enforcement agencies to use the data properly, and that there had been a failure to consult all the CSPs. We also said that there can be meaningful consultation only when there is clarity about the aims of the legislation and that no aims were specifically stated. We further said that Clause 1, or Amendment11A before us today, should be redrafted with a much narrower scope and that amendments to Clause 1 should be dealt with only by the super-affirmative procedure. We added that the Bill should be redrafted to enable Parliament to address web logs which are at the heart of this legislation, and they still are today. We suggested that the Home Office commitment that third party provisions would be invoked only after the original data holder has been approached should be given statutory force and that the operation of the request filter should be transferred to the National Crime Agency. We added that new safeguards should be introduced to guard against the request filter being used for fishing expeditions, and that—although I agree entirely with my noble friend—any public authorities which make a convincing case to get communications data should be listed in the Bill—that is, the important deserving ones such as the police, the security agencies, the FSA, the United Kingdom Border Agency, the NCA and HMRC. We said that any changes to this list should be made by super-affirmative procedure. We recommended that the Government should consult on all the permitted purposes for access to communications data and that the Bill must be redrafted with new definitions of communications data, especially subscriber data, which is a catch-all for everything and helped to give it the name the “snoopers’ charter”. We said that a new hierarchy of data types needed to be developed and that data needed to be divided into categories which reflect how intrusive each type of data is, and therefore the different agencies which could have access to different levels of it. We said that content was not even defined in the draft Bill and that it should be expressly excluded from all categories of communications data.

I will stop there. That is enough to be going on with, although we had another 20 criticisms of the Bill. However, we did not just criticise; we also made suggestions on how to make a better Bill.

[Lord West of Spithead]

Does the noble Lord agree that, in two months of working on this issue and on the amendment, one could come up with something that covers and makes up for those errors and get something that makes us safe and puts those things right?

[Lord Blencathra]

I take the noble Lord’s point but I want to make it clear to the House—I apologise if I gave a misleading impression earlier—that I did not see an all singing, all dancing final draft of a revised Bill. However, I saw some very important revised clauses which went to the heart of the matter we are discussing. I do not believe that the Home Office can legitimately hand over those clauses now because the Government and their coalition partner do not have full agreement on everything that needs to be in the Bill and we have not seen David Anderson’s report. David Anderson may have some key points to make which will require the Home Office to rewrite the measure again. Therefore, I do not think that we can take forward some new clauses, bash them into this Bill with two months to go and bounce them into the Commons.

About half the criticisms that I have just listed apply to the proposed new clauses before us today. Nothing has changed. Indeed, the Home Secretary has confirmed that we got it about right in our Joint Committee report and she wants to bring forward a new data Bill incorporating our recommendations. I say to my noble friend Lord Carlile that the Home Secretary did not say that she wanted the old draft data communications Bill with all its flaws, warts and all; she has made it constantly clear in her statements that she wants a new data communications Bill, but incorporating many of the amendments suggested in our report.

In those circumstances, I think that this House would be committing a grave error of judgment if it accepted these 18 proposed new clauses, which everyone agrees are thoroughly flawed. Of course, there is an imperative for new legislation in this area, but it has to be the best legislation which government and Parliament can invent. The risk of a terrorist attack is severe, but that is no justification for bad law, even if we had a sunset clause of just six months, or one month for that matter.

I am glad that my noble friend is not going to push this to a vote. I hope that other noble Lords will accept that. When we return to this matter in the new Parliament we will need a fully redrafted Bill that takes onboard Mr Anderson’s recommendations, which has had full consultation with the communication service providers that will have to implement it, and which has had a detailed Second Reading debate in the other place and in your Lordships’ House. The Home Secretary has made it clear that she wants new legislation but better than the clauses we have before us today. If we try to take any other shortcut, rather than new, properly worked out legislation, we will be seen to be acting in bad faith. That will make it infinitely more politically difficult for a new Government to bring in balanced measures that give the police and the security services the additional powers they need while protecting the fundamental privacy of the 60 million UK citizens who are not a terrorist threat. If it comes to a vote I reluctantly urge the House to vote against the amendments.

[Lord Howard of Lympne]

My Lords, it is always a pleasure to follow my noble friend Lord Blencathra, with whom I worked so closely and for so long in government. I am afraid that on this occasion I have to disagree with the contents of his speech. It seems to me that the answer to the points that he made was given by the noble Lord, Lord West, during his intervention. These amendments are not meant to be the last word on the provisions that the final Bill should contain; they are meant to give the other place an opportunity to reconsider these matters.

I am afraid that I was unable to be present at the debate in Committee, but I was able to listen to an exchange on the radio a few mornings ago between the noble Lord, Lord West, and the noble Lord, Lord Paddick. I found the arguments put forward during that exchange by the noble Lord, Lord West, wholly persuasive. That is why I came along this afternoon ready to support the amendment in his name and in the names of his co-sponsors. I have to confess to your Lordships that my determination to do so was reinforced in some measure by the belief—it is still not clear to me to what extent it was well founded—that the Conservative limb of the coalition was anxious to proceed with these proposals but were being prevented from doing so only by the pesky Lib Dems—I am so sorry, by my noble friends who sit on the Liberal Democrat Benches. That remains not entirely clear.

It seems to me that the case made by the four noble Lords who have sponsored this amendment is very compelling. It is clear from what my noble friend Lord King has said that we cannot take the matter further today and that, sadly, this legislation will not be put on the statute book before the general election. However, I join with those who have urged the Government and both of the major parties that might form the Government after that election to proceed with these measures with all possible haste.

Counter-Terrorism and Security Bill

Lord Blencathra Excerpts

Monday 26th January 2015 Lords Chamber

I am sure that numerous amendments to this amendment need to be debated, as the noble Lord, Lord King, mentioned, and added before this can become law. But if we have the will, there must be time to do it. The other place, more so than the Lords, has almost no serious business before the general election and can surely create time to get this legislation right and put into law. The urgency over communications data legislation, described by the Prime Minister as “crucial” for national security, is pressing. Do we really need more studies? They sometimes seem to me to be a way of kicking difficult issues into the long grass. Our nation’s security is too important to play that game. It has been six years so far, with almost no movement. This could end up making even Chilcot seem fast. Surely, in the two months available, Parliament, in particular the other place, can mobilise itself to pass legislation, with all the right protections, that ensures that we remain able to prosecute those who would do society harm but which looks after the privacy of the individual.

[Lord Blencathra (Con)]

My Lords, I am afraid that it falls upon me to be the first to break the all-party consensus. I disagree, reluctantly, with the amendments in the names of my noble friends Lord King and Lord Carlile and the noble Lords, Lord Blair and Lord West. The 21 amendments would incorporate practically the whole of that original draft communications Bill—called at the time the snoopers’ charter—into the Bill before us and into law. Before any noble Lords think I have gone soft and wet on terrorism, I will quote the introductory remarks of the conclusions of the Joint Committee’s report:

“It is the duty of government—any government—to maintain the safety and security of law-abiding citizens, so that they may go about their lives and their business as far as possible in freedom from fear. This is not only in the public interest; it is in the interest of law-abiding members of the public. For this the law enforcement authorities should be given the tools they need. Reasonable access to some communications data is undoubtedly one of those tools”.

That is what we said two years ago; I stand by it today. What we said in looking at that draft communications Bill is relevant today because, with 21 proposed new clauses, this is almost a Second Reading:

“Our overall conclusion is that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data, but that the current draft Bill is too sweeping, and goes further than it need or should. We believe that, with the benefit of fuller consultation with CSPs than has so far taken place, the Government will be able to devise a more proportionate measure than the present draft Bill, which would achieve most of what they really need, would encroach less upon privacy, would be more acceptable to the CSPs, and would cost the taxpayer less. We make detailed recommendations accordingly”,

on how to do that. That is what we said two years ago; I still stand by it.

The problem we faced a couple of years ago when looking at the Bill was that, with the best will in the world and with the right intentions, the Home Office misdirected itself. Its main concern was to make sure that the Bill was future-proof. RIPA was passed in 2000, while our Joint Committee was looking at this in 2012. The Home Office concluded that it was not going to get a new RIPA every year, so if we were to pass a Bill in 2012 or 2013 it would have to be so wide-ranging in scope that it could encompass every new technological gizmo which might come along. Bear in mind that the ghastly—that is not the committee’s opinion but mine—Facebook and Twitter were invented only between about 2005 and 2007, years after RIPA was passed. The Home Office rightly considered that, if we passed a Bill in 2013, we should make it so that it could encompass any future technological change which came along. That was a fatal mistake at the Home Office and, because it made the breadth of Clause 1 so obscure and so wide to capture everything, people called it the snoopers’ charter. That was not pompous rubbish. The way the Bill was drafted meant that it could be called the snoopers’ charter if the agencies wished to make it so.

Initially the Home Office could not tell us what its real concern was on the grounds of confidentiality, and not letting the terrorists and the bad guys know. Within a couple of weeks most organisations that came before us, including the police, said that all they wanted were “who”, “where” and “when”, the things they used to get from the original telephones and the mobile telephones. They did not want all the wide-ranging theoretical powers which Clause 1 and the proposed new clauses here could give them. When we came to look at that in terms of the internet, we came across the crucial areas of contention, which were IP addresses and web logs up to the first forward slash. It would seem quite straightforward for someone on my committee to say yes to permitting access to web logs up to the first forward slash. Even if someone was checking up on me and I logged on to bbc.co.uk, that is all you could get. You would not know what else I was on to because after that came the content—the “what”—of the communication.

It was also pointed out to us that if I was logging on daily to Alcoholics Anonymous, you could not see the rest of the pages, but that in itself could give a message that this person was logging on to that website on a daily basis, and there was a bit of content involved in that. My committee determined—absolutely rightly, in my view—that it was for Parliament to decide on those issues. We could not allow the draft Bill with its very broad-ranging Clause 1—which my noble friend has replicated here—to stand without Parliament being able to say specifically, “Yes, we like that bit and we want to have IP addresses and web logs” or not. It was impossible to extricate that. If noble Lords wish to put down an amendment to ban web logs, it would be impossible to draft the amendment because we have no clue to which bit of Clause 1 we should do it.

Our recommendation was that that clause should be split up, with a specific sub-clause to give the House of Commons and us in this House a chance to vote yes or no on whether we want IP addresses or web logs. I took the view that if we did it that way then on balance, with a bit of grumbling in both Houses, the Government would probably have got web logs and IP addresses in that Bill, because Parliament would have been deciding. My committee did not want to pass some general obscure Clause 1, pat ourselves on the back that we had balanced freedom and responsibility and given the security services the powers they needed, to find a few months later a policeman or someone from the Security Service popping up and saying, “Aha, what you did not realise is that we have this additional power hidden in here”.

That was what caused people to call the provision the snoopers’ charter. We were very fortunate in that the Home Office took on board most of our recommendations. I was privileged, and I believe my noble friend—well, I call him my noble friend—Lord Armstrong of Ilminster was also privileged to see some of the revisions that the Home Office made. I would say that it took on board 95% of what the Joint Committee recommended. If that measure had then gone on to become law—it hit political problems in the coalition—no one could rightly call it the snoopers’ charter.

In paragraph 292 of our report we said:

“Whether clause 1 should allow notices that require CSPs to retain web logs up to the first ‘/’ is a key issue. The Bill should be so drafted as to enable Parliament to address and determine this fundamental question which is at the heart of this legislation”.

I believe that the revised Bill the Home Office were working on would have given us that opportunity. We do not have that opportunity today and it is damaging to go forward with these proposed new clauses—

[Lord West of Spithead]

I am interested in why the noble Lord believes there is no opportunity for us now, within this two-month period, to actually utilise the work that the committee has already so admirably done, and the work that has been done in the Home Office, so that it can be incorporated into a sensible new Bill that covers all these worries?

[Lord Blencathra]

If the Home Office were to come along with a whole range of those clauses as proposed in our Select Committee report, I would be the first to commend them and to propose them. In the political climate coming up to the election, it may not be possible to produce those clauses and get the consent of both Houses of Parliament. There may be time, but there is severe political difficulty in trying to bounce those new clauses on an unsuspecting public or legislature at this stage.

I congratulate my noble friend on some other key issues in his proposed new clause. He is right to dump all those extraneous public bodies which our committee was very concerned about. The Home Secretary repeatedly says, and rightly so, that she needs the data Bill to tackle terrorism, paedophilia and serious crime. That is the mantra. The committee agreed, but there should not be 600-odd public authorities in the Bill which are allowed to use some of the powers. They do not have the full powers of MI5 and M16—of course not—but it tarnishes the importance of the big players getting access to data if local councils are in there. Of course local councils say that serious crime is involved. They say that fly-tipping is not just someone chucking an old mattress over the hedge of a farmer’s field because gangs are making millions from it, so it is serious crime and local councils want to be in there. I say that they should use other measures rather than a Bill which has constantly been touted as dealing with paedophiles, terrorists and serious crime. In that case, the organisation which is responsible for putting the little lion on British eggs should not be included either. It is: it made a case to be included because apparently, if it is done improperly or wrongly, the EU may cut off £20 million of our funds, and therefore it is serious crime. A distinction has to be made between serious crime related to gun running, people trafficking and big money and the rest of crime.

My noble friend has included the police and the two security services. My committee recommended that we should include the National Crime Agency, HMRC, which also does a lot of work on this, the United Kingdom Border Agency—or whatever we call it now—and the FSA, whatever that is called now too. Those big bodies make up 99% of all requests for data. The other 1% are all the extraneous other bodies.

The committee also made some other very important recommendations which touched on many other aspects of my noble friend’s proposed new clauses. The committee believed that the SPOC—single point of contact—system is far better than anyone ever expected. Nearly all of us on the Joint Committee felt that we could not have the SPOC system as it would be one policeman going up to another and saying, “Hey, Sarge, sign this on the nod and we’ll get access to data”. When the committee visited the Metropolitan Police, we were delighted—perhaps I should have said amazed first—to find that the system was exceptionally good and exceptionally well run and should be no cause for concern. The police, being the police, of course invented a computer program. No one officer can move on to the next stage to authorise the collection of data until all the boxes have been filled in—not ticked, but filled in. Then another policeman has to review it. In some ways, we should have guessed that the inevitable bureaucracy of the police would come up with a system which was pretty fool-proof and pretty safe. In fact, the committee recommended that the police system was so good that the other extraneous organisations should go through the police and the system should go out to tender. I hope the Met would get it. If the Met got that tender, it would be running a rather good SPOC system in the rest of the country. I hope that placates the noble Lords, Lord Blair and Lord Condon, because I am opposed to some of the rest of the proposed new clauses.

If we go ahead with my noble friend’s proposed new clauses, I am very concerned that we will hit a huge storm of criticism that we are introducing the snoopers’ charter by the back door.

[Lord Rooker (Lab)]

So far, no one who has spoken in this debate has referred to the final amendment in this group, Amendment 99. It is the sunset clause for 31 December next year. So it will go, but it will go because the other legalisation goes anyway. In other words, after the election, we know that both Houses have got to spend a lot of time on this because of the sunset clause. Surely putting the sunset clause in this group, plus the other amendments from the Home Office, meets a lot of the objections that anyone could make to this because this is not a free-for-all for ever. We are legislating to say that at the end of next year it goes and Parliament has to replace it.

[Lord Blencathra]

The noble Lord makes a very good point about the sunset clause, which might reassure many of us in this House and perhaps in the Commons, but I do not think it would reassure the masses outside, who are concerned about the so-called snoopers’ charter coming back. If a sunset clause introduced all the flawed measures—and they were flawed in nearly every clause of the draft Communications Data Bill—some would be concerned that that sunset clause would be added to a year later, amended and put in again and again. Once those flawed measures were on the statute book, I would have little confidence that any Government would wish to remove them. After a huge battle, when they had got them on to the statute book, why would they go back and rewrite it? Perhaps I am being slightly too cynical there.

We would do enormous damage to the cause of getting a proper rewritten RIPA if we went ahead with these new clauses today. Of course my noble friend is right: I would be subject to enormous criticism if, by opposing these amendments today, there were some terrorist incident in the next 18 months that could have been prevented if the Security Service had access to some Facebook pages that my noble friends’ amendments would have facilitated. However, I am more concerned about the long-term damage. If we go off at half cock with these clauses today, we may create a climate whereby it may not be possible to bring in a proper, rewritten RIPA in a few years’ time. Everyone agrees that RIPA needs to be rewritten; it is long past its sell-by date. We need a really good new Bill, and these new clauses should not be part of it—with all due respect to my noble friend.

[Lord Carlile of Berriew]

My Lords, it is a great pleasure to follow such a cogent and interesting speech by the noble Lord, Lord Blencathra, who has immense knowledge of this area of work as a result of his chairmanship of his committee, which produced an excellent report. I will return to what he said presently.

I do not know how many of your Lordships have had the opportunity to watch the remarkable German film, “The Lives of Others”, which depicted the dangers that the Stasi brought on its whole country of a society bedevilled by surveillance at every level. It is a lesson to us all. Surely we all start from the position that any unnecessary surveillance and invasion of privacy by surveillance, interception of communications or looking at metadata that illegitimately affects the rights of individuals must be avoided. That is certainly the position that I start from. I think that almost everybody in this House starts from that position, whether or not they agree with these amendments, which I support.

The fact is that there is a gap in the capacity of the relevant services at the moment, as the noble Lord, Lord Blair, with his great experience of the police, illustrated very clearly. That gap has not been filled. I am not sure why it has not been filled, or why the Government are so reluctant either to take on board these amendments or to produce an alternative. I hope that it is not party politics. My plea to your Lordships, whether they belong to a political party or not, is not to allow party political considerations to interfere in an issue about national security, which surely must be judged only on the merits and without political prejudices taking part. That is certainly my approach to this matter.

We heard during the course of the very helpful opening speech from the noble Lord, Lord King, that for the country to be safe, a very limited number of relevant authorities, for a limited purpose, should have these powers. The noble Lord, Lord Rooker, as he so often does, put his finger on an important aspect of the amendments: we are not asking that these amendments should endure for ever; we are simply filling a gap that exists until the sunset clause comes into effect. That gives plenty of time after the election in May for both Houses of Parliament to reconsider these matters and to produce what may be more enduring provisions.

There is one peculiarity about what has happened in recent months. In July in this House, both the noble Lord, Lord Blencathra, and the noble Lord, Lord Armstrong, referred to the fact that the Home Office—indeed, the noble Lord, Lord Blencathra, said this earlier—had been very co-operative in considering and dealing with his committee’s criticisms of existing proposed legislation. As he reminded us just now, and as he said in the House in July, it had accepted 95% of the changes recommended by his committee. The noble Lords, Lord Blencathra and Lord Armstrong, told us at that time that they had seen a draft Bill, and they put that on the record. Nobody else has seen that draft Bill, but the noble Lord, Lord Blencathra, said at that time that he had seen a draft Bill that by no stretch of the imagination could be called a snoopers’ charter. Those were his words. I see him nodding in agreement.

It is my view that the Government should now produce that draft, amended or replacement Bill so that we can see what was offered, and so that if they object to the provisions in these amendments we can come back next week and table amendments which the noble Lord, Lord Blencathra, and others have agreed are not a snoopers’ charter, meet requirements and fill the gap of which I have just spoken. Indeed, if that draft Bill was made available, and we were able to consider it, and possibly table amendments by next Monday, there may be no need to reconsider matters after the general election, although, speaking for myself, I would still prefer to see a sunset clause requiring an affirmative resolution of both Houses so that we could be sure that what had been enacted was fit for purpose and was safe.

I close by, I regret, repeating something which I said a few days ago in your Lordships’ House, because I think it merits being repeated. I absolutely congratulate whoever thought up the term “snoopers’ charter”. Rather like the term “poll tax”, it was a piece of branding genius. Unfortunately, unlike the term “poll tax”, it does not remotely accurately describe what was being suggested. It presupposes malignancy in that distinguished service that has served this country so well and that was recently headed by the noble Lord, Lord Evans, who I am glad to see in his place opposite. The term “snoopers’ charter” implies that the noble Lord would rub his hands in the morning and say, “Now let’s have a look at Alex Carlile’s shopping list and credit card purchases—oh, and who he’s been calling and what internet sites he has been on, because it would be fun to know what he’s been up to”. That is simply a caricature of what the Security Service and the police do.

Today, some figures have been published on the number of people who have gone to take part in violent jihad in Syria in recent months, country by country. I will not trouble the House with the full table, but it is alarming because it shows that there are other countries in the European Union and elsewhere from which violent jihadists have gone in greater proportionate numbers than even the United Kingdom—the Netherlands is one example—although the United Kingdom figures are alarming. When the successor to the noble Lord, Lord Evans, Mr Parker, who has given us his warning on these matters, gets up in the morning, they are the kinds of people he is concerned about. They are the kinds of people to whom attention is given in attempting to ascertain the metadata and, as a result, their movements.

Your Lordships will recall that as a result of the Paris incident, it was revealed, as the newspapers rather naively put it, that the wives of the two brothers involved had communicated about 50 times with one another on their mobile phones. I doubt very much that it was the wives who had been communicating, although certainly their mobile phones had been used for the purpose of communication. I venture to suggest that if that information, given the history of those two brothers, had come to the attention of the Security Service here and had been acted upon—and, of course, those are two important ifs; I do not mean to criticise the French services, which I think the noble Lord, Lord Evans, would confirm are generally very competent indeed—it is just the sort of information that could have prevented an attack in the United Kingdom. However, there is a gap and it needs to be filled.

I close by saying to the Minister that if he is not prepared to accept these actually rather restricted amendments, which have been offered in good will to try to protect the national security of this country and the safety of its citizens, let him now tell us what alternative the Government have agreed to so that we can now deal with this issue once and for all, without darning the sock.

Data Retention and Investigatory Powers Bill

Lord Blencathra Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I too thank the Minister for the excellent letter his officials prepared overnight. I am very glad to see that the quality of Home Office civil servants remains as high as it was when my noble friend and I served in the Home Office. I do not wish to follow exactly the point made by the noble and learned Lord, Lord Hope of Craighead. I did not put down an amendment to remove this provision from the Bill, but I hope that your Lordships will permit me to make a few remarks related to the enforceability of Clause 4 overseas. As I understand it, the whole point about Clause 4 is—as we said yesterday—to give reassurance to the huge American service providers, largely based in California, that they have a legal duty of some sort to comply with. That would allow them to say to all their customers that, while they religiously protected their data, they had been served a judicial warrant or some form of legal prescription from the United Kingdom with which they had to comply.

When the Minister goes back to the department, I would like him to look again at the MLAT system. I do not want a detailed reply from the Box today, just an assurance that he will read about what MLAT does. MLAT is the mutual legal assistance treaty, and we have many of these bilateral treaties with many countries, including one with the United States.

When my committee asked the Home Office why it could not use MLAT for enforcement, it said—rightly—that it was a bit bureaucratic and a bit slow. The Home Office also said that the main problem was that gaining assistance from the United States Department of Justice under MLAT required initiation by the CPS, not the police. It therefore did not regard MLAT as a real, live tool which it could use on a day-to-day basis to investigate crime. The response of my committee was, “Well, if that is what has already been agreed with the United States, but the tyres on that vehicle are flat”—to borrow the metaphor used yesterday by the noble Lord, Lord Armstrong of Ilminster—“and it is going too slowly, go back to the United States and renegotiate a new, faster MLAT as a bilateral treaty”.

I conclude by urging my noble friend not to respond in detail but to give me an assurance that the Home Office will once again take seriously paragraph 253 of our report, in which we ask the department to address this problem forthwith, go to the United States, use our special relationship and see if we can get a faster-working MLAT, which would again be a backstop to help Clause 4 to be enforced in some way in the United States.

Data Retention and Investigatory Powers Bill

Lord Blencathra Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I support the Bill, which is an essential stop-gap measure.

We must continue with our current powers and the 12-month retention period until we pass new legislation which tackles the so-called capability gap, deals with the vexed question of IP addresses and strikes a proper balance between the needs of the security services and the police on the one hand and the privacy of the individual on the other. For the moment, that means the Bill that we are considering today, and it means more Elastoplasts on the broken and bleeding RIPA 2000. Also, we must attempt to persuade our United States service providers to co-operate with us—the extraterritoriality clause.

I do not want to sound like a second-hand car salesman as I return yet again to extol the virtues of the report of the Joint Committee on the Draft Communications Data Bill, which I had the privilege of chairing 18 months ago. We were fortunate to have the noble Lords, Lord Armstrong of Ilminster, Lord Strasburger and Lord Jones, my noble friend Lord Faulks and the noble Baroness, Lady Cohen of Pimlico, as well as six excellent colleagues from the Commons. Our task was to scrutinise the draft Bill, which was then commonly known as the snoopers’ charter. We all started with some fairly strongly held beliefs, some of which we discovered were quite wrong, and we held widely different views on key issues. Nevertheless, we agreed on a unanimous report, which I commend to the House and the Home Office as a blueprint for new legislation to replace RIPA. It is only £15.50 and I have lots of remaindered copies.

To be fair, just after we reported, the Home Office showed me and the noble Lord, Lord Armstrong, the framework for a new Bill, which incorporated about 95% of the recommendations we made in the report. Unfortunately, that new draft did not find favour with all members of the coalition, but I will not be critical. However, it is essential that after the next election measures along the lines we suggested should proceed expeditiously. Why, you may ask? It is simply because RIPA is no longer fit for purpose and should not be the framework on to which we patch amendments to catch up with technological changes. The Home Office says that there is a capability gap of 25% in the information it collects now as compared to 2000. My committee was highly sceptical about that.

In 2000, I had a top-of-the-range Nokia phone which held about 100 phone numbers and 120 short text messages. I wish I had that phone back. In 2000, only 50% of UK adults had a mobile phone. In 2012, that figure was 92% with 81.6 million mobile subscriptions. What does your iPhone or Galaxy hold now? A thousand times more information, as it can also handle all web and e-mail traffic. Facebook was invented on 4 February 2004 and Twitter on 1 March 2006 and both have added billions of bits of new information to the airwaves. After Twitter was launched, we were told that it took three years before the billionth tweet happened. Now there are a billion tweets every two days, God help us. That is why my committee said that,

“the volume of communications data now available is vastly greater than what was available when RIPA was passed. The much quoted figure of a 25% communications data gap purports to relate to data which might in theory be available, but currently is not. The 25% figure is, no doubt unintentionally, both misleading and unhelpful”.

Clause 2 of the Bill defines “communications data” and gives them the same meaning as Section 21 of RIPA, but what exactly are communications data? There are three parts to this. First there are traffic data, identifying the location of the device to or from which the communication is sent. Secondly, there are use data, which are anything other than content about the use made of a service. Finally, there are subscriber data which are data, other than traffic or use, held by a service provider about the persons to whom it provides the service. Traffic and subscriber data are absolutely vital for law enforcement authorities, as we have all heard, since they give the location, name and address of the subscriber, their bank account details and stuff such as that. At least that was all they did in 2000, when half of communications were by land line. However, RIPA was drafted in such a way that every bit of information one supplies to a service provider is automatically classed as subscriber data unless it is in the narrow category of traffic or use data. Subscriber data have, therefore, accidentally become a catch-all for everything not called traffic or use. That is one major reason why there was widespread criticism of the draft Bill and why many people called it the snoopers’ charter.

However, there were other reasons. The original Bill was exceptionally widely drafted, for the best of intentions. That was a tactical mistake by the Home Office. It wanted to make the legislation technologically future-proof. Facebook and Twitter came out a few years after RIPA was passed and the Home Office, Ministers and many of us who served there know that although one can get a crime and justice Bill in nearly every Queen’s Speech, there was little likelihood of a new RIPA being passed every year. So the Home Office tried to make the legislation in the draft Bill as wide as possible, taking into account any new gizmo, widget, app or service that some brilliant geek might invent in his bedroom many years hence. Inevitably, that very wide scope concerned many people and rightly so. My committee said that no area of technology was moving faster than communications technology and that if Parliament wanted more control of legislation in this field, we had to have a very efficient means of annually, if necessary, amending the legislation to keep up with technological advances. That was the quid pro quo; if this House or the other place wanted narrowly focused measures requiring parliamentary approval, we had to give the Government a rapid mechanism to approve changes.

The other major tactical mistake that the Home Office made originally and later corrected—but by that time the damage was done—was not to spell out exactly what were the crucial bits of information it really wanted in the new measures. Opponents were rightly pointing out that the draft Bill wanted to capture and store every communication, including the content of all e-mails and records of every website visited. We were told that the reasons could not be revealed because of secrecy, hence the very wide drafting of Clause 1. Initially, the Home Office would not tell us what data types it was looking for. However, when we talked to the police and others, it soon became clear that 98% of the time they needed only location, name, address, bank details and numbers. This is basic traffic, use and subscriber data—the who, what and when stuff.

When applied to computers and the technology we have now, that meant three slightly different things. Subscriber data would include IP addresses, but that is no different, in principle, from telephone numbers. The second, highly contentious items we wanted were data identifying which services or websites are used on the internet up to the first forward slash. Thirdly, there were data from CSPs based overseas, which are addressed in Clause 4 of the Bill. The Home Office confirmed to my committee on 24 October 2012 that those three items were the capability gap it wanted to plug.

The extraterritoriality provision in Clause 4 attempts to deal with the difficulty of obtaining information and co-operation from giant service providers based mainly in California. I am with very distinguished and learned noble Lords but that clause is a little bit of wishful thinking. We are legally powerless to compel Google or Apple, or any of the rest of them in California, to give us information held on their servers outside the UK. However, in 2012, we heard fairly powerful evidence that they co-operated all the time with the British Government—nudge, nudge, wink, wink: we do all that co-operation stuff—but they wanted a comfort blanket of something judicial or semi-judicial that they could rely on. That is what they get in the States. The FBI gets a judge to approve a warrant and then the CSPs will hand over everything straightaway. So they wanted this fig leaf of some British warrant so that they could say to their customers, “We do not want to give anything away, we will keep everything secret, but we have this judicial warrant so we have to hand it over under the law”. It is great if they do that, but do not expect United States service providers to feel legally bound by the power we are putting in here. It is a good little fig leaf; it is ours and we should give it a go.

The one mega item that my committee wrestled with was internet protocol or IP addresses and web logs. There is deep division in the country and in Parliament about the state collecting and storing all these and how far that impinges on personal liberty. This is not the time to go into it but it is the core of the concerns raised about the earlier Bill. This Bill, rightly, does not touch on it, but we will have to return to this issue early in the next Parliament. My committee concluded that a new Bill should be drafted in such a way that this one item could be voted on in both Houses of Parliament and a definitive decision reached on it. We did not want it hidden away in some obscure legal or technical jargon that would cause suspicion of the Government’s motives, as well as confusing every single one of us who were supposed to vote on it.

I am proud to say that my committee was thorough and meticulous, not because of me but because of the others who served on it. We savaged the Home Office draft Bill and I make no apology for that. However, we drew up a framework for a better Bill. I pay tribute to Home Office Ministers and officials who rapidly took on board 95% of what we suggested. The noble Lord, Lord Armstrong, and I were fortunate enough to see some of the revised draft. That draft did not get full coalition support but, in my opinion, it dealt with all the problems. If that Bill were to be presented again, it could never be properly called a snoopers’ charter. It targeted the gap, narrowed the scope and built in protections.

Turning to Clause 7 and the independent reviewer, I shall send Mr Anderson our report since we have done most of the work for him—at least, on items concerning Clause 7(2)(b) to (f). We were not allowed, and we did not want to have, the power to comment on current and future threats to the United Kingdom. There is a clear case for new legislation to replace RIPA to give our security services, the police and others the powers that they need, but that has to be based on parliamentary approval of all aspects of all the powers. The public will consent to quite large levels of intrusion so long as the powers to do it are clear, open and proportionate, and have had proper democratic scrutiny. I hope that when Mr Anderson reports we will not be faced with a heavily redacted report on which the Government may wish to base the reasons for new legislation. That simply would not get through this House.

Noble Lords will be pleased to hear that that leads me to my final point. I think I heard the Home Secretary say that there will be a scaling back of the organisations that could get access of some sort to the data. On our committee, I think we were all surprised and appalled to discover that more than 600 organisations, including 400 councils, could use RIPA to access data. None of them is in RIPA except the police, SOCA, which is now the National Crime Agency, HMRC and the security services. That was another fundamental presentational mistake that the Home Office made and is still making. We have the repeated mantra from Ministers and the Government that access to communications data is essential to deal with terrorists, paedophiles and serious crime, and that these organisations need the exceptional powers granted in RIPA to deal with them. We all agree on that and there is no argument there. But when one finds that local councils are included as relevant authorities, and that one used RIPA to catch out a parent outside a school catchment area, and that others use it to catch fly tippers, no wonder people simply do not believe that the Government were thinking only of taking exceptional powers to deal with terrorists, paedophiles and serious crime.

Among the 200 other organisations is my favourite bête noire: the Defra egg inspectorate is on the list because its job, through its Veterinary Medicines Directorate, is to investigate the serious crime of stamping the little lion on the wrong eggs. I kid you not. I checked on the website this morning and—I do not know how this can be put in Hansard—I can give the Minister the pages from the website, including the picture of the little lion on the eggs. That is still being done. I make that slightly silly point because these organisations are on the list and they undermine the argument that we need RIPA powers to deal with the serious crimes. I ask the Minister to get rid of all these other organisations, which account for less than 2% of the access requests to RIPA but do enormous discredit to the main argument. I know that they cannot get access to intercepted communications data and that they are more limited in what they can get access to, but they get some form of access. Let us restrict the new RIPA powers to the police, the security services, the FSA, the NCA, HMRC and the United Kingdom Border Agency—the big players. If we do that, we will go a long way to removing the snoopers’ charter label. The British people and this Parliament will be happy to grant exceptional powers to these important organisations to access all data if it is to catch terrorists, paedophiles and serious criminals. But the quid pro quo is that they, and only they, should have access to these powers. I appreciate that some of these matters are not for this Bill but they are part of the broken and bleeding sore that is RIPA just now and which this Bill is trying to patch up. We need the Bill but we need a new RIPA even more. I apologise for taking so long.

Serious Crime Bill [HL]

Lord Blencathra Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Blencathra (Con)]

My Lords, it is a privilege to follow the excellent, detailed and knowledgeable speech of my noble friend Lady Brinton. When I was Home Office Minister, I dreaded speeches like that when I tried to put through a Bill relating to Home Office matters. We called them Christmas tree Bills because every department wanted to hang its own very important bauble on the tree—to deal with terrorism, children and various other aspects. Inevitably, as a Minister, one had to have a grasp of a huge range of subjects and when the Bill came to your Lordships’ House it brought out all the experts from every section. The other reason why I detested Bills like this is that one had to amend the original Act and one was required to have about five different Acts open on the table in front of one and six fingers on each hand to understand them. The final introductory comment I would make is to say to the noble Baroness, Lady Smith, that she handled nine Home Office Bills in four years. In the final couple of years that I was in the Home Office, in 1996-97, in that frenzy to pass legislation, I think I handled 15 Bills, including Private Members’ Bills. I am not sure whether it did me or the Government any good at the time.

I begin with the proceeds of crime part, which is very important. I am completely supportive of the intention here. I remember talking to policemen. Every single policeman of every rank that I spoke to said that the vital thing that mattered to criminals was cleaning out their money. They factored in going to prison for a few years or even up to 10 years if they had enough money stashed away to live on when they came out. They did not worry about prison. What they really worried about was losing their ill-gotten gains. I would say to colleagues that it is not about the Chancellor making more money, good though that may be, it is about cleaning out criminals and their profits from crime because that acts as a deterrent and a punishment.

Under Clause 10 there is a maximum of 14 years for defaulting on fines of more than £1 million, if the court imposes that maximum penalty, which is then automatically halved or reduced on early release. However, if the money is more than £10 million, the early release provisions do not apply. I admit that sums are not one of my strengths, but it seems that if one had salted away up to £9 million where the maximum 14 years applied and there was early release, and suppose that one was let out after seven or eight years, if the person had invested it reasonably at 7% interest, they would come out to an annual return of about £630,000. That is not bad. I also assume that if the police and enforcement authorities had not been able to track down that initial £9 million, they would not be able to track down the £630,000 per annum—or perhaps the taxman could do it instead. I should be grateful if my noble friend could look at that point and see whether I am almost right. I ask him to revisit the whole area of the figures and the length of prison terms because I do not think that it is adequate.

Clause 36 deals with confiscation orders by magistrates’ courts. Again I suggest that possibly the £10,000 figure may be too low in certain cases. Of course, if the magistrates’ court is attempting to sentence a criminal and feels that its powers are not great enough, it can refer them up to the Crown Court for sentencing. However, I can imagine cases where someone is convicted of burglaries, lower level drugs offences or dealing in stolen goods, where the magistrates may consider that it is not worth while sending it up to the Crown Court for greater sentencing—and the Crown Courts might not like it—but at the same time the only assets those people have may be their BMWs or their cars, which are worth considerably more than £10,000. One needs to look at this clause again to see whether, in certain circumstances, magistrates could have a power to impose penalties greater than £10,000. I understand that at the moment the Metropolitan Police is awash with Ferraris and Porsches that have been impounded because people have not paid their insurance. I am sure that the Metropolitan Police would be quite happy to impound vehicles from drug dealers and others whose vehicles could also add to its resources.

I am totally supportive of Clause 37 on computer misuse, but I am not clear who is capable of understanding it all and prosecuting. Is it the police who prosecute for computer misuse under the 1990 Act? The proposed new Section 3ZA carries a penalty of up to 14 years—or up to life if national security is involved—but the rest of the penalties in Section 3 of the Computer Misuse Act are for up to two or five years. Will my noble friend confirm that those other penalties in Section 3 of the Computer Misuse Act 1990 have also been upgraded to 14 years, or possibly life, in prison?

Parts 5 and 6 of the Bill deal with the protection of children and terrorism. I dislike the term FGM because I do not think it carries the right connotations or expresses the seriousness of this vile, barbaric practice. I recall that for years we talked about people trafficking. It was only when colleagues in this House and in the other place began to talk about modern slavery that we got traction on it—that the rest of us woke up to what it was about. The use of the term modern slavery as opposed to people trafficking really gave more life to that horrible practice. I do not mean to be derogatory here but FGM sounds like a food additive. It is too nice a term. It is vile, evil child torture. I would like those who have spent their lives trying to deal with this to consider whether we should think of using a more vicious terminology which properly describes what it is about.

I conclude my remarks on this business of terrorism, paedophiles and serious crime, because that is the mantra that the Home Office has been using for the past few years to demand better and greater RIPA powers. I have heard that mantra used again in the past few days by the Home Office. It says that unless it has greater powers there will be a data gap in tackling terrorism, paedophiles and serious crime. The noble Lord, Lord Harris of Haringey, is not quite right in saying that nothing has been done on this. I had the privilege a couple of years ago of chairing the Joint Committee on the Draft Communications Data Bill. The committee was made up of noble Lords from this House and Members from the other place. Members of the committee had widely differing views. There were those who wanted the police to get every power under the sun and those who took a view that privacy of the individual was far more important. However, we ended up with a unanimous report and concluded that the draft Bill produced by the Home Office then—which was nicknamed the snoopers’ charter—was far too sweeping and we were rightly critical of most aspects of it. However, we did not simply crucify the Bill, say it was a load of rubbish and leave it at that; we made considered suggestions on how to draft a better Bill. Our overall conclusion was that there was,

“a case for legislation which will provide the law enforcement authorities with some further access to communications data, but that the current draft Bill is too sweeping, and goes further than it need or should. We believe that, with the benefit of fuller consultation with CSPs than has so far taken place, the Government will be able to devise a more proportionate measure than the present draft Bill, which would achieve most of what they really need, would encroach less upon privacy, would be more acceptable to the CSPs, and would cost the taxpayer less”.

[Lord Harris of Haringey]

My Lords, I stand corrected. It was wrong to say that nothing was done. A Bill was produced and a Joint Committee looked at it. Unfortunately, nothing very much has happened since then, which I think makes my point. It sounds as though the noble Lord did all the work for the Home Office and somehow it still has not happened. I suspect that this comes back to my earlier point about dysfunctionality.

[Lord Blencathra]

The noble Lord is getting closer to the possible political reality. To be fair to the Home Office, it studied our report carefully. I and one or two others had the privilege of seeing the revised draft Bill, which took into account everything we had said and delivered about 95% of what our report suggested. Unfortunately, that revised Bill did not find favour with all the members of the coalition and therefore it has not emerged in that form.

I say to my noble friend the Minister that if in the next Parliament the Government produce a Bill largely along the lines of the redraft, I am certain that it will have a chance of getting through both Houses of Parliament. But if they are encouraged from any quarter to go back to the original so-called snoopers’ charter, they will merely tack on more powers to a discredited RIPA. In my opinion, RIPA is no longer fit for purpose. It was designed at a time when we had push-button telephones that could hold two or three messages at most, not the modern communications machinery that we have today. If they go back to that old charter, they will face massive opposition in the country and in Parliament, and they do not need to because the blueprint for a better Bill exists.

Finally, I will make a couple of observations that may be slightly more contentious. As we were deliberating on the powers the police needed to look at e-mails and other data in order to capture paedophiles, stories began to emerge of police forces around the country—for example, in Bradford or Leicester—which had ignored complaints over the past 15 years from hundreds of young girls of systematic and habitual rape. The police turned a blind eye to those cases and have only now started prosecuting. I believe that they turned a blind eye because the perpetrators were mainly from the Pakistani community and they did not want to prosecute because of political correctness. Of course the police and security services must have the powers they need to deal with paedophiles on the internet but they must also prosecute hard cases of children being raped and brutalised in reality in this country.

My very final point, which again comes from my experiences on the Bill, is that we discovered that police training was often inadequate to deal with the amount of communications data available. The executive from Twitter told us that she would often get a request from the police saying, “Give me everything you have on Blencathra’s tweeting”, when the answer was, “Look on the net yourself”. We do not need a special order for that. It is out there in the public domain, and they were not fully aware of that. There is a range of things that our modern iPhones and other Samsung-type devices have and the police need to get up to speed on the information that is currently available on the world wide web before seeking some draconian powers to look at a few hundred million e-mails each year.

With those little caveats and pieces of advice to my noble friend on how to take forward serious crime measures and a new data communications Bill, I warmly welcome the Bill.

Security Services: Supervision

Lord Blencathra Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I congratulate the noble Lord, Lord Soley, on securing this debate. I deeply wish that it were not necessary, but in my view, the legal basis under which the security services operate—RIPA—is no longer fit for purpose. I say that as the Peer who had the privilege to chair the Joint Select Committee on the Draft Communications Bill last year, the so-called “Snoopers’ Charter”. We considered the rapidly changing technology, and no area is changing faster than this. I refer the Minister to our conclusion in paragraph 289, where we recommend the super-affirmative procedure.

I pay tribute to all my colleagues in both Houses who have not been properly and publicly thanked for the excellent job they did on that Joint Select Committee. We made a pretty good job. We decimated the draft Bill and came up instead with workable solutions which were unanimously agreed by the whole committee, even though many of us had very different views on the balance between security and privacy. The conclusions we came to in our report were as follows:

“It is the duty of government—any government—to maintain the safety and security of law-abiding citizens, so that they may go about their lives and their business as far as possible in freedom from fear. This is not only in the public interest; it is in the interest of law-abiding members of the public. For this the law enforcement authorities must be given the tools they need. Reasonable access to some communications data is undoubtedly one of those tools. But the Government also have a duty to respect the right of citizens to privacy, and their ability to go about their lawful activities, including their communications, without avoidable intrusions on their privacy”.

We went on to say:

“Our overall conclusion is that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data, but that the current draft Bill is too sweeping, and goes further than it need or should”.

Those were the conclusions we came to last year in the light of what we knew then. Although Prism and Tempora were at the centre of what we were being asked to look at, we were deliberately kept in the dark about them. It is my personal view that the draft Bill was clearly an attempt to legitimise what the security services were doing already. Of course, they may be talking publicly about it, but they refuse to come to Parliament to tell us about the Bill they were demanding that we pass. This situation cannot be allowed to continue. We need a wide-ranging debate about the balance that we described in our conclusions. We said that they should have reasonable access to some communications, not uncontrolled access to anything they liked or beyond what Parliament intended. This is the key point: whether the security services were technically operating under some part of RIPA is irrelevant. What is wrong, as we have discovered over the past few months, is that they were doing things way beyond the imagination of Parliament and which we did not know about. I have no brief for the Guardian and its general, Polly Toynbee, bleating for someone else’s money to be spent on its favourite causes, but in my opinion the newspaper has done a service by revealing the reach and the extent of what was being done in our name.

I detest traitors who reveal secrets which endanger national security, but there is a greater threat to our freedom when powerful agencies of the state feel that Parliament must be kept in the dark about the parameters under which they operate. I say “parameters” because we do not need to know, nor should we know, the operational techniques and methodology of the security services, but we should have known that they had the Prism and Tempora capability and were using it under rules agreed by Parliament.

In the early 1980s, I sat in a trench in Germany and asked my commanding officer, “What is my mission, Sir?”. “Your mission, Maclean”, he said, “like the rest of us, is to try to hold them back for 48 hours to give the politicians time to nuke ‘em”. In those days, breaching national security could have resulted in the complete nuclear annihilation and destruction of the western world, and that was what traitors like Burgess, Philby and the other Maclean were doing. It is preposterous for senior figures now to suggest that Snowden is in the same league as those traitors. He is not, and that should be obvious. There is also a need for a debate about what is national security now. Clearly a dirty nuclear bomb in central London which renders the capital unusable and uninhabitable for 50 years is a mega threat to national security. However— and I choose my words very carefully so that I am not misunderstood—much as a terrorist bomb that kills 100 people is an abominable evil and we should try to stop it, is it a threat to national security in the same way as nuclear annihilation in the 1980s? Is it a threat that requires the communications of 56 million law-abiding people to be collected in case there is an evil terrorist among them? I do not know, but I do know that this Parliament—your Lordships’ House and the other place—must debate it and collectively strike the balance between reasonable access on the one hand and privacy on the other. We must have replacement legislation for RIPA along the lines recommended by my committee, with proper checks and balances on the security services. We need that debate, it must be wide-ranging, and we need it soon.

Rainforests

Lord Blencathra Excerpts

Tuesday 13th September 2011 Lords Chamber

[Lord Blencathra]

Does my noble friend agree that biodiversity and loss of species are even more important than climate change? With a huge amount of resources and tremendous effort, it is possible eventually to reverse climate change, but once a species is lost, it is gone for ever, and the damage could be irreparable. Does she also agree that this is not just a matter of polar bears, tigers or even red squirrels, but that many of the boring little unsexy species that could be lost by deforestation could actually be valuable to human life and existence?

[Baroness Verma]

My noble friend has put the case perfectly for why we need to work incredibly hard. That is why the UK has supported developing countries to participate in the United Nations study on the economics of ecosystems and biodiversity which estimates, as I have said, that the financial cost is immense but the cost to species is even greater, and the initial long-term impact will be on us.

Police Reform and Social Responsibility Bill

Lord Blencathra Excerpts

Thursday 9th June 2011 Lords Chamber

Moved by

[Lord Blencathra]

233: After Clause 95, insert the following new Clause—
“Application of health and safety enactments to police
(1) No police and crime commissioner nor chief officer of police shall be liable for prosecution under any health and safety enactment in the performance of their duties.
(2) No police and crime commissioner nor chief officer of police shall be liable for damages or compensation for any injuries caused as a result of a breach of health and safety law in the performance of their duties, save where it is proved that the individual acted maliciously or with reckless disregard for the safety of others.
(3) A police officer in the execution of the officer’s duty who believes that an action or actions are necessary—
(a) to prevent crime,(b) to prevent risk to the health and welfare of others, or(c) to save the lives of others,shall not be prevented from taking that action or actions by the intervention of any other public official, of whatever rank, who alleges that there is a health and safety risk to the officer.(4) It shall be an offence for any public official to obstruct a police officer in the execution of the officer’s duty when the officer has decided under subsection (3) that an action or actions are necessary.
(5) A police officer who has come to a decision under subsection (3) shall have no authority to compel others to join with the officer in the action or actions.
(6) Sections 1, 2 and 5 of the Police (Health and Safety) Act 1997 are repealed.
(7) Her Majesty’s Inspectorate of Constabulary shall issue general guidance on health and safety matters to all police forces for every police area listed in Schedule 1 to the Police Act 1996 (police areas).
(8) A breach of the guidance issued under subsection (7) by any officer of the rank of constable may result in disciplinary action but shall not result in any prosecution or civil action.
(9) A police and crime commissioner shall not be liable for prosecution nor civil action because of any breach of the guidance issued under subsection (7).”

[Lord Blencathra]

I need to correct a mistake I made in 1996-97. It was not the only one I made then, but it is the only one I may have a chance to rectify at the present moment. Putting the police under the statutory provisions of the Health and Safety at Work etc. Act was my policy and my responsibility. I was the Police Minister at the time; I was the guilty man. Admittedly, I was aided and abetted by the whole of ACPO, the Police Federation, the Police Superintendents’ Association, the whole police department of the Home Office and all the police authorities. In this House, the late Lord McIntosh of Haringey said that it was his duty to oppose things but that there was nothing in the Bill that he could find to oppose.

All the great and the good, and even I, thought this Bill was the right thing to do. It was a jolly good move and put the police on the same basis as other workers, and we thought there would be no problems. In that frantic legislative climate at the end of 1996-97, heading up to the election, the Police (Health and Safety) Bill was given to a Back-Bencher in another place to introduce as there was no time in the government programme—I believe I had led on about 15 Home Office Bills in that last Session. It was bounced through on the nod in another place at 2.30 pm on a Friday, not having received any debate whatever. It then got 45 minutes in Committee, on a Friday. There was no Report or Third Reading. When it got to this House, it had 19 minutes of debate at Second Reading and, since no amendments were moved, it had no Committee stage, no Report stage and no Third Reading stage; and it passed into law. I am not being critical here, because I put through Bills with even less scrutiny. However, this Act received a total of 64 minutes’ scrutiny in both Houses of Parliament. From a total of about 1,400 Members of both Houses, only one Member queried its provisions. So, I pay tribute to Mr Michael Fabricant MP, who at the Committee stage in another place, said:

“The other area that disturbs me is that my right hon. Friend the Minister of State at the Home Office”—

that was me—

“is reported … as telling a seminar: ‘One of the difficulties in moving towards a statutory regime’—such as this—‘has been the fact that policing duties and the environment in which they are carried out are so different from those which generally apply in factories, offices and other static premises’”.

Mr Fabricant went on to say,

“that concerns me deeply … That question must be dealt with, however, as it is at the heart of the Bill”.

He went on to ask what action officers should take when faced with danger. Do they retreat or intervene? He queried the potential conflict between the operational independence of chief officers and the powers of the health and safety inspectors. He said:

“Those problems have not been properly addressed by the Bill”.

For an answer, Mr Fabricant was given the reassuring line to take which I had prepared and approved, having apparently changed my mind in the intervening period since I had addressed the seminar. That answer was:

“A potential conflict remains between the requirements of health and safety and the operational requirements of the police service but it is well understood by all parties. I am optimistic that those conflicts will always be resolved in a sensible manner against the background of the statutory provisions of the Bill”.—[Official Report, Commons, 14/2/97; cols. 578-584.]

Yet, just six years later, two of the finest Metropolitan Police Commissioners who I have ever had the privilege to work with stood in No. 2 dock at the Old Bailey, in the same dock where people are tried for murder and treason, defending themselves against a criminal offence because a brave police officer, PC Kulwant Sidhu, died when pursuing a criminal in the course of his duties and because another police officer had been injured in another incident.

I take this opportunity to apologise publicly to the noble Lords, Lord Condon and Lord Stevens, for the injustice that they suffered from a law that I was responsible for and which went through with inadequate scrutiny. That prosecution was outrageous, wrong, misguided, expensive and so lacking in common sense that it convinces me that one cannot leave a provision on the statute book which can be abused by bureaucrats—admittedly, well-meaning bureaucrats. It should be amended.

I am not alone in thinking that, thank goodness. Your Lordships will be aware that my noble friend Lord Young of Graffham stated in his report, Common Sense, Common Safety:

“Police officers … should not be at risk of investigation or prosecution under health and safety legislation when engaged in the course of their duties if they have put themselves at risk as a result of committing a heroic act”.

The Health and Safety Executive, ACPO and the CPS, my noble friend concluded,

“should consider further guidance to put this into effect”.

My noble friend Lord Young is absolutely right in coming to his analysis of the problem and I believe that the principle of what he has enunciated is now government policy. With respect, however, my noble friend has misdirected himself in his last sentence. He has suggested that the Association of Chief Police Officers, the Health and Safety Executive and the Crown Prosecution Service should get together and ensure that police officers should not be prosecuted for a possible breach of the law. That is not the right way to go about it. If it is the law, it should be enforced. What signal does it send if a cosy deal has been done between the CPS, ACPO and the HSE not to prosecute police officers? No—the approach must be: if we do not want to see police officers in the dock and being prosecuted for that sort of breach, we must amend the current law which allows it to happen.

I believe that my proposed new clause, while no doubt inadequately drafted and with some technical flaws, attempts to do just that. It seeks to ensure that chief officers are not prosecuted for a health and safety breach while trying to ensure that ordinary police officers are not disadvantaged and receive full employment law protection. At the same time, it does not leave a big black hole with no health and safety guidance whatever, because I want HMIC to promulgate non-statutory guidance.

I turn to the specific subsections of the clause. Subsection (1) says that,

“No police and crime commissioner nor chief officer … shall be liable for prosecution under any health and safety enactment”.

Perhaps I should have added, “Nor any other person holding the rank or office of constable” because I do not want anyone, of any rank, to be prosecuted by the HSE for a breach of health and safety.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, I thank all noble Lords who have taken part in a very useful, serious and worthwhile debate. It is appropriate to say from the government Front Bench that we will take away the points made and consider whether we have got the balance right. On that basis, I will ask the noble Lord to withdraw his amendment. I note that prolonged service as Chief Whip does not adversely affect one's rhetorical skills.

The noble Lord, Lord Condon, talked about the need for a sensible balance, and that is what we all want to achieve. The noble Lord, Lord Stevens, rightly said that policing is all about taking risks. My wife and I were invited to attend the Leeds police awards dinner some months ago and the award for bravery was given to a constable from Northumbria who had been blinded when stopping an offender in his car. It was quite an emotional experience.

My only close experience with the Health and Safety Executive was when the parliamentary choir was due to perform in Westminster Hall in 2003. On taking the portable organ into Westminster Hall and playing the 16-foot stop, bits of wood began to fall off the roof. Our first response was to say, “The Minister responsible for the HSE is a contralto in the choir, surely we can override the rules”, but the HSE pointed out that in addition to parliamentarians, there would be senior civil servants in the audience, so it would clearly be dangerous to go ahead with the concert and we had to make do with performing in Westminster Abbey instead.

We all recognise the culture of health and safety that has evolved through the media. I regularly read the Daily Mail, which demands that there should be nil risk to the public in anything that is undertaken in a public place. It then sets out to attack the regulations that were drawn up in response to those demands. That is how we have got to where we are now.

The proposal to repeal this clause would have to go significantly further than the noble Lord, Lord Young, recommended in his independent review of health and safety last year. He did not call for the duty to be removed as it serves both to,

“protect employees and ensure that activities carried out do not adversely affect the health and safety of other people”.

Of course the Government recognise the need to strike a balance between protecting the police and the public while acknowledging that it is in the nature of police duty that officers take risks and should not be at risk of prosecution under health and safety legislation when engaged in their duties.

Following the report of my noble friend Lord Young, the Crown Prosecution Service issued guidance in March—which the noble Lord, Lord McKenzie, quoted—under the title, Heroic Acts by Police Officers and Firefighters, which clarifies the legal situation and highlights the fact that the public interest would not be served by taking forward the prosecution of police officers who act in heroic ways when decisions are likely to be taken in fast-moving and dynamic situations. The Government will carefully consider the extent to which the recommendations of my noble friend Lord Young's report have been adequately met through the CPS guidance. We will institute a dialogue, if it is needed, between the police, the Home Office, the DWP and the HSE, as suggested. We recognise that this has to be a question of balance and we will assess whether the balance has now been struck in the most sensible place.

[Lord Blencathra]

My Lords, I am so pleased in retrospect that I tabled this new clause, because it has enabled me and the House to hear such excellent speeches from noble Lords such as the noble Lords, Lord Harris of Haringey, Lord Hunt of Kings Heath, Lord Condon, Lord Stevens and Lord Dear. Tomorrow when I read Hansard I will come to the same conclusion that I came to when I heard their speeches, namely that between them they have got the solution to this problem.

I do not want the whole police service exempted en bloc from health and safety legislation, or even from its statutory duty. However, neither do I want a situation in which we rely mainly on guidance, so that one day, somewhere, a prosecutor or an HSE person, possibly not following that guidance, will create a situation where a Metropolitan Police commissioner could still be in the Old Bailey in the circumstances that I described, and which the noble Lords, Lord Condon and Lord Stevens, witnessed first hand. I say to the noble Lord, Lord McKenzie of Luton, that common sense did prevail—but in the jury. To me, that was a couple of steps too late; I wish it had prevailed in the HSE and in those who brought the prosecution.

I am perfectly content to withdraw my new clause and will not come back to it on Report. However, I urge Ministers to go back to the Home Office tomorrow with the Official Report and initiate that dialogue, because I am not convinced that the guidance at the moment is enough. I would like to see a few more steps taken to make sure that there is a deeper understanding. The noble Lord, Lord Harris of Haringey, was so right to say that the person responsible for health and safety should not be the health and safety officer but every manager of every organisation, thinking it and doing it. There must also be an understanding in the HSE and the prosecuting authorities of the special, unique nature of the police service.

I conclude by saying that if at the end of the day, after all the dialogue, we still face the possibility that a brave police officer may get a bravery award one day while their commanding officer may be prosecuted for that act, that will be wrong. No matter how many million words of guidance and advice we have, we cannot have a situation where a chief officer is still liable to prosecution for a brave act by one of his officers. Let us initiate a dialogue. I am not volunteering to participate; I have done my inadequate duty.

I was always told that when one went to the House of Lords, one would hear expert speeches. I have had the privilege today of listening to such speeches from all sides, which proves that this House should continue in its present form, because we would never have heard these speeches from elected politicians. I beg leave to withdraw the amendment.

Amendment 233 withdrawn.