Investigatory Powers
Lord Blencathra Excerpts(10 years, 8 months ago)
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Lord Blencathra (Con)
My Lords, the last time that the noble Baroness, Lady Jones of Moulsecoomb, and I discussed this matter we were in complete agreement, which was rather frightening to us both. I listened carefully to what the noble Baroness had to say and today I am only about 25% in agreement with her, which she will probably be relieved about as well.
I give a warm welcome to the Anderson report for two reasons. First, I believe that he has the recipe here for agreement by all sides. He has rejected adding more ingredients to the old RIPA stew and come up with a new recipe which can be palatable to those in the security services and police who want more powers; to the Home Office, which wants to grant those powers; to the groups who are concerned about the invasion of privacy; and to we parliamentarians who want the powers—whatever they may be—to be clearly spelt out and granted by Parliament. The Anderson report does that.
The second reason why I like the report is that it entirely supports the report and conclusions of the Joint Committee on the original snoopers’ charter Bill, which I was privileged to chair. I thank my noble friend the Minister for his typically overgenerous remarks about me as its chairman. I was just the chairman; the real work and thinking behind it were done by the excellent members of the committee from both Houses—from the Labour Party, the Conservative Party and the Liberal Democrats, along with that venerable Cross-Bencher, the wonderful noble Lord, Lord Armstrong of Ilminster, who was not economical with the truth in giving us advice.
I have always felt that some of my noble friends thought that I was a bit offside in not backing the draft Bill and that my behaviour, as a former Conservative Home Office Minister, had let down the forces of law and order. However, my committee rubbished the draft Bill for one reason only: it was rubbish. I am glad that its flawed clauses were not added to the Counter-Terrorism and Security Bill in the last Session by my noble friend Lord King, as it tried to add unacceptably wide catch-all clauses to an out-of-date RIPA. To be fair, the Home Office civil servants, whom I rate immensely, quickly caught on that the draft Bill was wrong and worked quickly to redraft it, so I am afraid I disagree with my noble friend Lord Strasburger—I think there was a sea change in attitude in the Home Office.
However, that draft did not find political favour in the coalition and did not make progress. Instead, we had the Anderson study. I have gone through the report, A Question of Trust, carefully and cannot find a single instance where he has disagreed with the findings of our Joint Select Committee. Indeed, his recommendations exactly match ours. I am not being arrogant and claiming he was guided by us—of course not—but he examined all the issues in detail, as we did, and came to the same conclusions. Of course, we did not deal with interception warnings as those were not in our remit, but I suspect that, if they had been, we might have come to the same conclusions.
What are the key points? Anderson rightly sets out the principles in chapter 13. Difficult though it will be, they will have to be translated into legislation as part of the Bill. It is difficult for UK Acts of Parliament to do this, as opposed to EU law or United Nations conventions, which can prefix the regulations with a million “Whereases”—“Whereas this”, “Whereas that” and “Whereas the other”. But if we want public and parliamentary acceptability, we have to balance the granting of exceptional powers with enshrined rights to privacy in a transparent system.
I warmly welcome recommendations 1 to 12, which call for a completely new and comprehensive RIPA, covering all aspects of communications and written in simple language. It has to set out clearly what powers we are granting the security services and key law enforcement agencies. That can be done without revealing operational techniques, and it is no excuse to say that the law has to be obscure in order to prevent the bad guys knowing what we are doing.
Recommendation 12 is particularly important. It is vital that we have revised definitions of communications data and their subdivisions into traffic data, use data and subscriber data. The contents of some of these categories, especially subscriber data, have changed dramatically since 2000, and so have attitudes to privacy. Young people—and some noble Lords—seem content to put enormous amounts of information about themselves on Facebook and have a more relaxed attitude to invasion of privacy than some of our generation. That is why we need to engage, as recommendation 12 says, with “all interested parties” to attempt to rank, in order of the extent to which privacy is invaded, the information which law enforcement agencies want and the different regimes they would need to comply with in order to get it.
I can give the House the two easy examples for a start. At the bottom end of the privacy scale is the name of the subscriber, and at the top end are the subscriber’s emails. All the stuff in between—the bank account numbers, the location of calls, the websites visited and dozens of other bits of information—needs to be classified into categories, each requiring various conditions to be satisfied before it can be accessed.
I welcome David Anderson’s support, in recommendations 15 to 18, for the Joint Committee’s recommendation on web logs and his call for a discussion with all parties on how to resolve this issue, which is the most difficult we will have to deal with in this legislation. It was the issue which most exercised the Joint Committee and upon which we found it very difficult to agree. The law enforcement authorities and the Home Office say that it is vital; privacy campaigners say there is a great breach of privacy. After much discussion and thought, our committee unanimously concluded that this matter has to be set out clearly in the Bill and both Houses given a chance to vote on it. Provided that the Home Office builds on the other safeguards proposed by Anderson, I will back the collection of web logs, and I think that the measure will get through Parliament as well. However, it will not get through if there is an attempt to sneak it in through some obscure drafting.
Recommendations 24 and 25 on extraterritorial effect are also important, and David Anderson has homed in on the mutual legal assistance treaty—MLAT to its friends. Our Joint Committee liked MLAT as a principle but the Home Office said that it was far too slow. We said that a new treaty should be negotiated “forthwith.” We said,
“the Government should take advantage of the special relationship with the United States to ensure that bilateral arrangements with them are expedited”.
At this point, I will jump to judicial warranting because it is relevant to a point I want to make about MLAT. Mr Anderson recommended replacing the Home Secretary’s warrants with judicial ones. The judges—with all due respect to noble and learned judges—will be no better or worse than the Home Secretary. The submissions will still be drafted by the same highly qualified civil servants, based on the same evidence. On some rare occasions, the decision by the Home Secretary or the judges will be wrong and an incident may occur. That is an inevitable consequence of decisions made by human beings trying to guess the motivations of other human beings. As has been often said, the security services have to be lucky all the time; the terrorists have to be lucky only once. I now support judicial warranting for interception except for those rare cases that may involve national security and the agents of foreign powers. Some have said that the Home Secretary will be blamed if judges make the decision and an incident occurs. I disagree; that is nonsense. Not even our nastiest press or bloggers will get away with trying to blame the Home Secretary for a decision made by independent judges.
While I see no extra insight resulting from judges doing warranting, there are two major advantages. First, it gives a flavour of impartiality to the process and will be seen as a counterbalance to giving the security services and police the extra powers they want. This is quite different from the SPOC process, which we do not want magistrates anywhere near. Secondly—this shows the relevance to extra-territorial jurisdiction—American CSPs are familiar with judicial warrants and will happily hand over information to the FBI and CIA if a judge issues a warrant. However, they do not like handing over information because a British politician asked for it. That is where the noble Lord, Lord Scriven, and the noble Baroness, Lady Neville-Jones, are absolutely right. This is the pattern in the rest of the world and it is the case with our major ally, the United States, where most of the information is stored. Therefore, coming back to ordinary investigatory powers, we should extend judicial warranting for interception purposes for all requests, however minor, to the USA CSPs. In those cases, our judges should merely rubber-stamp the requests and route them through a newly negotiated MLAT that must take no more than five days, rather than five months, as at present.
There is something else we must do with the United States—stand up to them. Imagine if we had a giant United Kingdom company—a British Apple or Google—that stored vast quantities of information on US citizens. Imagine if the FBI or CIA asked this Brit company for information and it said, “Oh, sorry, can’t do that—need a warrant, you know. You need X, Y and Z and it will take six months”. What would happen? The Americans would round up every Brit in the States, issue international arrest warrants for every other Brit connected to the company and they would get 20 life sentences each. We have seen the Americans impose their Lex Americana on the world and we must do likewise if—a big if—we decide that Google or Apple holds information in California that we must have here. We should also serve the warrant for information on their UK-based executives and have the same sort of penalties for lack of co-operation. We may even very privately tell the USA that the feed they get from GCHQ is not guaranteed or that MUSCULAR will be down for a few weeks for essential maintenance. They play hard ball—whatever that is—with us and we should have the guts to do likewise. I know that my noble friend the Minister cannot even acknowledge those points without the risk of special rendition and waking up in Diego Garcia tomorrow morning, but we must think of playing by American rules if we are in the same game as them.
I have a few final points. The SPOC system works. Our Joint Committee probably started with the prejudice that it was incestuous and not rigorous, with one friendly policeman sitting beside another and rubber-stamping it. We assumed that magistrates would be a better choice. We were surprised to find we were utterly wrong. As operated by the Metropolitan Police, the SPOC system is absolutely first class. The same goes for the other big users which can allocate highly trained specialists to do nothing other than SPOC work. Indeed, we think that all smaller police forces should combine their operations into regional units or let the Met and other big forces competitively bid to do it. This is an example of where being big is good; the more cases they handle, the more professional they are.
The SPOC regimes operated by the other big players, the United Kingdom border agency—or whatever it is called this week—HMRC and the security services are also impeccable. All other smaller non-police users must be compelled to go through a professional process, such as the national anti-fraud network, rather than trying to do their own thing.
There is one issue which Mr Anderson has not picked up, and that is the ability rapidly to amend the law for new technological advances. Some may say that a new RIPA should be future-proof and encompass everything. I say no, absolutely not, not unless it is so widely written that it would lack transparency, like Clause 1 of the original flawed Bill. Our Joint Committee recommended—and I recommend it here—the creation of a new technical sub-committee working under the new ISIC. I should point out that our Joint Select Committee report said:
“Consideration should be given to a new unified Surveillance Commission reporting to parliament with multi-skilled investigators and human rights and computer experts.”
So thank you, Mr Anderson. We are again not just on the same page but are singing the same tune.
The ISIC role, as defined by Mr Anderson, does not focus on emerging technology. We need a sub-committee which can act quickly and recommend to ISIC that a new process, software or gizmo needs to be added to the Act. Then ISIC would recommend to the Home Secretary that an urgent amendment should be made. Then we need the second part of the solution: fast parliamentary approval using the parliamentary super-affirmative procedure, which exists, but is hardly used, and which we recommended in our report.
Finally, we really have to dump all the other hundreds of authorities which can access, even in a limited way, investigatory powers legislation. The Home Secretary rightly says that we need it to catch terrorists, paedophiles and serious criminals. The public will buy into that, but not when they hear that Slough council used it to catch people selling fake trainers or Cambridgeshire County Council used it to catch fraudsters, which is in the Anderson report. We all know that these ancillary organisations have only very limited access to subscriber data, but it prejudices the public against communications data per se. If the crimes are so serious, as in the case studies quoted by Anderson, why in the name of goodness is trading standards dealing with them? They should have been handed over to the police or the National Crime Agency to prosecute. We cannot have vital powers required by the police, security and state agencies tainted because far less important agencies are in the loop as well.
I look forward to seeing the new draft communications data Bill. We need to see it quickly and to pursue it in draft form quickly. Then we can move forward to a proper Bill. If it adopts the recommendations of Mr Anderson and the Joint Committee then it can never be called a snoopers’ charter and it will deserve parliamentary approval.
Psychoactive Substances Bill [HL]
Lord Blencathra Excerpts(10 years, 8 months ago)
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Lord Kirkwood of Kirkhope (LD)
My Lords, I make a very short intervention simply to support this group of amendments ably moved by the noble Lord, Lord Norton, and in particular to support the plea of my noble friend Lady Hamwee for a better explanation vis-a-vis the advisory council—a point made eloquently by the noble Lord, Lord Howarth of Newport. When I read the Bill, I was astonished to find that the advisory council had been sidelined to the extent that it had. If it is to be sidelined in future, this is an extremely important change.
Speaking for myself, I will be looking very carefully at what the Minister says in reply to the previous speeches made on Amendment 47 because, if he is not careful, he might find another plethora of amendments being tabled at later stages to restore the advisory council to its rightful role, which it has discharged with distinction in my view since the 1971 Act. This is not an insignificant moment for me. If the Minister can persuade the Committee that these are simply incidental circumstances indicating that the advisory council has been put to one side for the temporary purposes of this Bill, that is one thing. However, if this is a systematic attempt to reduce its significance in future policy-making in this important area, I think noble Lords will want to return to this during later stages of the Bill.
Lord Blencathra (Con)
My Lords, I will make just a brief point on the amendment in the name of the noble Baroness, Lady Hamwee. I would be surprised and appalled if the advisory committee was not one of the consultees in the Bill. But I am not sure it is necessary to actually mention it. The Secretary of State is under an obligation to consult such persons as appropriate, and clearly, the advisory committee is one of the top ones on the list to be consulted. If the Home Office failed to do so, in my experience we would be in court on a judicial review within minutes and the Secretary of State would lose the case for failing to consult an appropriate body.
It is one thing having a duty to consult, but that is quite different from being under an obligation to carry out all the advice the committee can give. It is perfectly legitimate for the Government to consult the advisory committee but then reject some of its advice after due consideration. If it is not given due consideration, again, that is a case for judicial review. While I agree that the committee must be consulted, I am not sure it is really necessary to put that in the Bill. Perhaps the Minister will clarify that in his response.
Lord Rosser (Lab)
We very much support the points that have been made by the noble Lord, Lord Norton, and the Constitution Committee, and we await with interest the Minister’s response to them. I thank the Minister for his letter of 15 June, which followed up on the Second Reading debate, and in particular on questions that I and three of my noble friends had asked about the role of the Advisory Council on the Misuse of Drugs in relation to the Bill.
We are a party to Amendment 20, spoken to by the noble Baroness, Lady Hamwee, which relates to Clause 3 on “Exempted substances”. Clause 3(3) says that before any regulations to amend Schedule 1 are made,
“the Secretary of State must consult such persons as the Secretary of State considers appropriate”.
The purpose of the amendment is to add the reference to the Advisory Council on the Misuse of Drugs. I note the point that the noble Lord, Lord Blencathra, has just made but one could interpret the Bill as saying that there is no statutory requirement for the Secretary of State to consult anyone because it is open to them to conclude that they consider no person appropriate, despite the importance or significance of amending Schedule 1 and getting any such decision right. No doubt the Minister will comment on the point that in reality, under Clause 3(3) the Secretary of State could not get away with consulting nobody at all and that it obliges them to consult at least somebody. That is the point that the noble Lord, Lord Blencathra, made and I would like to hear a very specific response, on the record, as to exactly what Clause 3(3) means in that regard.
Referring to another point made by the noble Lord, Lord Blencathra, the Minister’s letter of 15 June 2015 states:
“The ACMD is required by statute to be consulted before any amendment by Order in Council is made to Schedule 2 to the Misuse of Drugs Act 1971”.
The principle of the ACMD being required by statute to be consulted is thus not new, and I do not see how it can be argued that somehow it is unnecessary to put it in the Bill, given that the Minister’s own letter refers to that already being a requirement. If the Minister is going to oppose Amendment 20, I hope he will explain the reasons for doing so in some detail. In his letter he says that the Government are,
“ready to consider carefully any recommendations the ACMD may have about other aspects of the Bill”.
Has a response been received from the ACMD? Has it said whether or not it wishes to be consulted as per the terms of Amendment 20, to which we are a party? What difficulties does the Minister believe there would be if the ACMD had to be consulted as per this amendment, and who exactly might the “such persons” referred to actually be?
Finally, to come back to the point I made earlier and which the noble Lord, Lord Blencathra, has already made, does the Minister think it right that the Secretary of State could apparently make a change to Schedule 1 without taking expert advice? That is what Clause 3(3) apparently enables the Secretary of State to do, unless the Minister is going to tell me that I have misunderstood it.
Baroness Meacher (CB)
My Lords, we will return to the subject of decriminalising possession of all drugs a little later in relation to other amendments, and I will speak then. I applaud the noble Lord, Lord Paddick, for this amendment. This is an incredibly important issue and I want to say a few words about Portugal.
The crucial issue that I think the Government have to consider is whether it is more important to reduce social use. For example, if an alcohol policy results in rather more people having a glass of wine or beer on a Saturday night, does that really matter? I do not think so. What really matters is addiction, and a policy that reduces addiction is, for me, a good policy.
As I understand it from all the research—of which there has been a lot—into the Portuguese decriminalisation of possession and use of all drugs, there has been a bit of an increase in social use in Portugal, but under the scheme fewer young people are addicted to any drug. As I understand it, the right-wing political parties were against decriminalisation when it was introduced, but Dr Goulão, the wonderful doctor who spearheaded this reform—he is terrific; I know him very well and he is splendid—is thrilled that all political parties in Portugal now support the policy. It is true that Portugal is going through terrible economic issues, so I am not sure exactly what is happening to the policy right now, but it has been proved that a policy of decriminalisation wins the support of all political parties once it is seen in action, and it is all about addiction.
My question to the House and to the Minister is: why are fewer young people in Portugal now addicted to all drugs, not just one? I believe that it is to do with the psychology of young people. They like to be cool. When I was at school I used to break the school rules. I thought it was a terrific thing to do, although I do not think that I broke the law. If all young people have to do is get a spliff to break the law, they think that that is cool. In Portugal it is not cool. Why is that? It is because if you are referred to a dissuasion commission, you see a psychiatrist, a social worker or a lawyer who determines whether you are addicted. You are then referred for treatment. That is not cool; it is a mental health treatment, and it is not cool to have a mental health problem.
I believe that Governments of all political persuasions should think about the psychology of young people when they think about drugs policy, because it will only be when we get inside the minds of young people that we might come up with a policy that makes sense and works.
Lord Blencathra
My Lords, as someone from the highlands of Scotland, I like to be cool as well, but I suspect that it is a slightly different interpretation.
I was not quick enough on my feet to ask this of the noble Lord, Lord Paddick, before he sat down. I readily acknowledge his great practical expertise in these matters and I acknowledge my own ignorance. Is there a definition, in statute or in case law, of how much is a “small amount” of drugs for personal use? One needs to know how much a person could get away with by claiming, “This is just for my personal use, guv”. Or is it rather like the cross-channel ferries, where people can come back with 10,000 cases of cigarettes and lots of booze and claim that they are a heavy drinker and smoker, and possibly get away with it?
The noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, quote favourably from the Portuguese experiment, and there are some debatable results there. I would also refer them to the trendiest, most socialist and liberal country in the EU—Sweden. Sweden has a zero-tolerance policy on drugs and, admittedly, a big back-up self-harm programme behind it. Although one can quote Portugal favourably, one can also quote Sweden and its no-tolerance policy favourably. I hope that noble Lords have seen the reports from Sweden, as I have, and if I am wrong, I am happy to be reminded and amended later on.
Lord Howarth of Newport
My Lords, like the noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, I too have been impressed and encouraged by the evidence emanating from Portugal. Just before I add a few words on the subject of Portugal, I would say to the noble Lord, Lord Blencathra, that if he looks at the incidence of drug-related deaths in Sweden, he will find that they are exceptionally high. People are ignoring these draconian policies that the Swedes do indeed operate, but not with happy consequences. One of the reasons is that criminalisation and the panoply of very severe penalties in operation in Sweden deter people from seeking treatment and help. Personally, I think that that is ill advised.
The Portuguese took another route when they faced a real crisis of drug abuse at the beginning of the century. They consulted an expert panel, which recommended the depenalisation—I think that that is perhaps the term—of small amounts of drugs for personal use. Again I say to the noble Lord, Lord Blencathra, that under the Portuguese legislation, those “small amounts” of each drug are very precisely defined, so it can be done in legislation. At the same time, they invested very significant resources in treatment, education, programmes of social reintegration and the disruption of supply. It was a coherent strategy that appears to have worked very successfully.
As an aspect of that strategy, dissuasion commissions were set up so that somebody apprehended in possession of an amount of a drug—a psychoactive substance—would have to go before the dissuasion commission. As the noble Baroness said, it consists of a clinical psychologist or psychiatrist, a social worker and a lawyer; it is a fairly formidable panel to have to face. But if you are brought before that panel, you are not charged with a criminal offence. It does have power to impose administrative sanctions but its main focus is on getting people into treatment.
The central principle of the Portuguese legislation is that drug abuse is a health issue and not a criminal issue. I would suggest to the House that the results have been most impressive. Over five years, the number of people injecting drugs halved; drug-related deaths and new HIV infections more than halved; drug use among the 15 to 24 year-old age group fell; there was no rise in use in the older age groups; very importantly, the rates of continuing use, year-on-year use as opposed to occasional use, fell below the European average; and the numbers seeking treatment doubled, while the costs to the criminal justice system plummeted. All this is documented—there is plenty of evidence to tell us about the success of the Portuguese experiment, which has been going for 15 years. As the noble Baroness noted, the global financial crisis and the extraordinary pressure on the public finances of Portugal made it difficult to persist as fully as they would have wished with the education and treatment dimensions of the strategy. None the less, they have continued with the policy, and as she said, it has become accepted right across the political spectrum. I know that Home Office representatives have visited Portugal to learn at first hand from Dr Goulão and others about how it has worked. It is puzzling and disappointing that more lessons have not been taken on board.
Amendment 23 in the name of the noble Lord, Lord Paddick, would create powers such that,
“a senior officer or a local authority may require the person to attend a drug treatment programme or drug awareness programme”.
“May require” is quite a prudent element in the drafting, only because—and I fully endorse the policy of encouraging people to go to such programmes and benefit from them—the scale of drug-taking is, sadly and very worryingly, large in this country. A survey of Cambridge students found that 63% had taken illicit drugs, half of them before they had reached the age of 16; 45% of them had bought drugs for their friends; and 14% said that they had at one time or another sold drugs for a profit. A survey in 2011 of people in management jobs in London found that one in 10 took illegal drugs at work or at social events associated with their work. Mostly, they used class A drugs—cocaine and ecstasy. Of course, the use of cocaine and other class A drugs can lead to serious addiction, illness and death, so we should congratulate those such as Dr Owen Bowden-Jones, one of the members of the noble Lord’s expert panel, who set up Club Drug Clinic at the Chelsea and Westminster Hospital—and other such clinics have been established across the country—which is particularly focused on helping young professionals who become addicted in this kind of way. I am simply describing the scale of the challenge we face if we seek to make drug awareness and drug treatment programmes available universally to people found in possession of drugs. It is estimated that some 350,000 children in this country have a parent who is a drug addict. I understand that one-third to one-half of those entering prison are already problem drug users. In 2010, there were 2,182 drug-related deaths. So it is a colossal challenge whatever strategy is adopted. Helping more drug users find the healthcare treatment they need will be a challenge on a large scale.
This is not a new dilemma. Back in 1924, the Government of the day established the Rolleston committee. Its recommendation to the Government certainly was that penal elements of policy were important, but it also said that addiction should be treated primarily as a disease. I would suggest that the moral imperative is not to stigmatise or to punish but to help those who are sick. We must communicate facts accurately, precisely and honestly if young people are to respond constructively, seriously and respectfully to the policy and the legislation. In 2000, Lady Runciman and her colleagues said that,
“the most dangerous message of all is the message that all drugs are equally dangerous. When young people know from their own experience that part of the message is either exaggerated or untrue, there is a serious risk that they will discount all of the rest”.
One of the difficulties with this legislation is that it fails to discriminate between the harms at different levels of psychoactive substances. I understand the problem that, with the proliferation of psychoactive substances on such a scale and at such a pace, this is a very difficult thing to do, but it remains an important objective of policy.
When the previous Labour Government were being tough on the causes of crime and sought to get more people into treatment, they found that it was not plain sailing. The Home Office identified at one point 320,000 so-called problem drug users and invited them to undergo voluntary testing in the hope that it would offer a route away from the revolving door of crime and addiction and into treatment. If I remember aright, the Home Office reallocated a very large sum of money—some £600 million; it was a PES transfer, if that is the right terminology—from the Home Office to the Department of Health and the National Treatment Agency. The Drugs Act 2005 set up the drugs intervention programme, expanding the drugs treatment and testing orders and making it compulsory to test on arrest or when an ASBO is issued so that a defendant was offered the choice of treatment or jail.
Lord Brooke of Alverthorpe
My Lords, had I spoken at Second Reading I would have supported the Government’s aims of trying to avoid the harms which arise from legal highs and to prevent them wherever possible. However, like the noble Lord, Lord Norton of Louth, I would have gone on to ask why the Government are so inconsistent in their approach. Ethyl alcohol is a psychoactive substance. There is no question whatever about that—the Government cannot disagree. It will be very interesting to hear why they believe it should be treated differently.
When one considers the differing approaches the Government take to alcohol these days, one sees the great sledge-hammer—that is the best way to describe it—that has been brought in to deal with an issue that, although worrying, is a nut compared with the boulder that is alcohol and the problems it creates for our society. The noble Lord, Lord Norton of Louth, just described those problems, so I will not repeat them. The Government should think long and hard about moving, fairly quickly, on some of their policies on alcohol if they want to carry the confidence of this House in trying to make changes of this nature. They have a responsibility deal whereby, in partnership with the drinks industry, they seek to reduce the volume of alcohol consumed in this country. They have targets, yet the Chancellor stands up in March and announces a freeze in duty on wine, beer and cider and a reduction in some other areas, including a 2% reduction in the duty on spirits.
The Government will not use pricing as a mechanism to try to discourage drinking, and the drinks industry sees that such pricing effectively discourages people from buying its products, so it lobbies the Government to reduce duties, which the Government, in turn, do. On the one hand we have the responsibility deal, with its targets that seek to reduce the consumption of alcohol, while on the other hand we have the statement made by the Chancellor. As the Government documents produced after the Budget prove, he will in fact increase the volume of alcohol that is sold, which, in turn, will increase the harms that arise for people who abuse it. So, a conflict does arise. I want to persuade the Minister to think ahead about what might be happening with alcohol and alcohol-related substances, and about whether there is a case for making a change to the schedule.
As long ago as last summer, I wrote to the noble Earl, Lord Howe, about a powdered white alcohol called Palcohol which is being marketed in the United States. Powdered alcohol has been around in Europe for quite some time. It was produced in Germany and then in Holland about seven or eight years ago but was not marketed. It is now being produced and marketed in the States. I wrote to the noble Earl to find out what the Government were doing in their conversations with the drinks industry at the responsibility deal level. The reply was:
“The Department has not discussed the import, production and sale in the United Kingdom of Palcahol and its European equivalents with partners in the Responsibility Deal”.
I also wrote to the noble Lord in the Home Office to ask,
“what assessment they have made of the decision of five states in the United States to ban the sale of Palcahol”.
He replied:
“The Government is aware of powdered alcohol from media reports and the banning of the product in five states of the United States of America. The Government is not aware of powdered alcohol being marketed or made available to buy in England and Wales”.—[Official Report, 6/1/15; col. WA 107.]
I followed that up with another Question:
“To ask Her Majesty’s Government what assessment they have made of the status under the Licensing Act 2003 or the Misuse of Drugs Act 1971 of imports from the United States or Europe of alcohol powders”.
The noble Lord, Lord Bates, told me:
“Although the Act refers to liquids and this product is sold in solid form, it is intended to be drunk as a liquid”.
I tell the Minister that he is not quite up to date with what people are doing with this powdered drink. They are not simply taking it as a liquid; it can be snorted. Admittedly it is an uncomfortable experience, I understand, but it can be snorted. More particularly, it can be baked into cakes or go into confectionary and a whole range of products that people are now contemplating using it in. The noble Lord went on to say:
“The Government is not aware of powdered alcohol being marketed or made available to buy in England and Wales, although we are aware of its sale in other countries. In the event that there is a proposal to market powdered alcohol in England and Wales, the Home Office will make a formal assessment of its legal position”.—[Official Report, 7/1/15; col. WA 223.]
I would argue that this is the day when the Government can start to look at the legal position of Palcohol and at whether they are prepared to see it come into the country. If so, how are they going to handle it? It will shortly be available on the internet and imported through the internet, because that is how it will be marketed. It is already spreading on a wide scale within the US and, as night follows day, it will come to the UK.
Therefore, I suggest that the Government go back to the Answers that they sent me. I suggest that they look at what is happening in the United States at the moment, the problems that are arising there and the reasons why some of the states have banned it. If they are not prepared to accept in totality the amendment moved by the noble Lord, Lord Norton of Louth, which I support—although I suspect that the Government will not—I also suggest that they look at whether they are at least prepared to consider whether this is a borderline area in which they should take some action, which they could do under this legislation. If they are sensible, they will look to the future, lay the ground, put this substance into the schedule and ban it, in the same way as they are banning legal highs. I hope that they are prepared to consider that.
Lord Blencathra
My Lords, I could never hope to give my noble friend an intellectual answer as to why all alcohol is exempted, but perhaps I can try to give him a legal one and a practical political one.
Most alcohol policy in the United Kingdom is now controlled by the EU and we have a few little bits left. I refer the Committee to the last report conducted by EU Sub-Committee F on the EU alcohol strategy. It was an eye-opener for all of us. Given the parts of alcohol policy we control, if we were to be completely consistent, there would probably be an increase in the price of Scotch whisky. However, that cannot be done for a variety of reasons—not least, it would probably feed into nationalism. With regard to the other parts of the policy, cider is desperately underpriced. No Government have felt it appropriate—no doubt for political reasons—to increase the price and disadvantage manufacturers in the West Country. It may be that with only one Member left in the West Country—I am not meaning to be snide here—a future Labour Government may, in due course, feel it more politically acceptable to put up the price of cider.
The parts that are controlled by the EU mean that, for example, we see on wine and spirit bottles in this country how many units of alcohol are in a glass and how many are in the bottle. That is a purely voluntary system because we are not allowed, under EU rules, to make it compulsory. We also discovered on the committee that some young people—mainly women, although men as well—may be on some form of crash diet and think they can avoid fatty food and sugars and just drink white wine instead. We are not allowed to put the calorific value of a glass of wine on the bottle, except by some voluntary means.
In Scotland, they are trying to conduct an excellent experiment on unit pricing. There may be considerable merit in unit pricing and I think that the Government in England are watching carefully to see how they get on. But of course they have been taken to the European Court, where it may be regarded as a constraint on trade —so Scotland may be prohibited from using unit pricing under EU rules. I could go on, but I will not, because I do not want to be seen to be too mischievous on this. However, there are a lot of other aspects of alcohol policy that we are no longer completely in charge of.
The other, more serious point is that all of us on EU Sub-Committee F, including my colleagues, noble Lords and Baronesses who are much more experienced than I, began the report a year ago thinking that alcohol abuse was out of control in this country, that everyone was drinking more and that we had a terrible problem. We were very surprised to discover that alcohol use is declining, particularly among young people. We cannot have an EU alcohol strategy because every country has a completely different problem. They all have problems with binge drinking, but different age groups are bingeing on different kinds of alcohol. What we discovered is that a small minority are drinking more to excess. I think that I am right in saying that alcohol deaths through cirrhosis of the liver have increased, but it is a smaller minority drinking extraordinary amounts—one or two bottles of vodka or scotch a day, so long as they can afford it. But overall, alcohol reduction policies are working.
In conclusion, I say to my noble friend that if he wants to really have more control over alcohol policy and be able to implement his amendment, he will need to vote no in the referendum when it comes.
Baroness Meacher
My Lords, I want to make a brief but important point. In responding to the noble Lord, Lord Norton, will the Minister address his mind to not only the illogicality but the danger of exempting alcohol from the scope of the Bill while banning relatively very safe psychoactive substances? If this ban works at all—the Minister knows that I am pretty sceptical about it—the Government would, in effect, be preventing or discouraging very strongly young people from taking relatively very safe substances while encouraging them, one could argue, to drink alcohol, which we know is a killer drug. Therefore, I ask the Minister, in responding the noble Lord, Lord Norton, to address that particular point about the danger of banning substances while leaving alcohol exempt.
Lord Blencathra
I must say to my noble friend the Minister that I have considerable sympathy with the amendments in the name of the noble Lord, Lord Kirkwood of Kirkhope. This seems to be entirely the same sort of situation as providing drugs outside schools—perhaps even more so. I accept the argument that, per head of population, the people in what I would call a children’s home—I do not know the modern, politically correct term for a children’s home, but those in residential care or whatever—are more vulnerable than the generality of kids in schools. As the right reverend Prelate has just said, some of the children in there will already have had problems of potential criminality or being vulnerable.
I discovered at the Home Office that once you put children together in a residential place like that, they are not locked up at night; in the main, they are free to come and go, and then they are liable to be preyed on by every sort of predator in sight, for sexual abuse and drug use as well. If my noble friend the Minister is going to reject the amendments at this stage, I hope he and his officials will give them very careful consideration because they are an absolutely sensible, logical extension of the policy towards selling drugs outside schools to children. These children are even more vulnerable.
Lord Mackay of Clashfern
My Lords, I support both sets of amendments, on prisons and vulnerable children. It strikes me that these are quite clearly aggravating factors and we should do everything we can to prevent these drugs being introduced to prisons and to vulnerable children.
Lord Blencathra
The bad guys know where the children’s homes are, even though they may not be marked on the map or have a sign up. The people we are dealing with are clever drug dealers and if they wish to make drugs available to children in a children’s home, they will be able to do so. I suggest to my noble friend that the lack of knowledge of where the home is is not relevant.
Lord Bates
Of course, and I remind my noble and learned friend Lord Mackay of Clashfern that, within the sentencing guidelines, there would be the ability for some of these factors to be spelled out. The awareness would be there and I am very sensitive to that. Having used the case of Canterbury, where one of these head shops was within 100 yards of the King’s School—just across the road from it—that is precisely the type of circumstance we are trying to get to. But in the normal way it would be open to the sentencing court, having regard to the relevant sentencing guidelines, to take any other aggravating factors into consideration. In updating its guidelines, the Sentencing Council in England and Wales may wish to reflect on the points raised in this debate. I might add that any prisoner who commits any offence under the Bill could be subject to additional punishments and restrictions through existing prison disciplinary procedures. For the purpose of the Bill we should be guided by the equivalent provision in the Misuse of Drugs Act, notwithstanding Amendment 108, which seeks to bring the 1971 Act into line with Amendment 42.
There is also one government amendment in this group. Amendment 43 is a technical amendment that seeks to correctly reference the second aggravating offence in Clause 6 with the corresponding offence in Clause 5. Clause 6 creates two aggravating conditions which a court must consider when passing sentence. It states:
“Condition A is that the offence was committed on or in the vicinity of school premises at a relevant time … Condition B is that … the offender used a courier who, at the time the offence was committed, was under the age of 18”.
Amendment 43 relates to condition B.
Clause 6(6)(a) provides that a person uses a courier if the person,
“causes or permits another person … to deliver a psychoactive substance”.
However, and rightly, a person can commit an offence of offering to supply a psychoactive substance in Clause 5(2) without there being any psychoactive substance in existence. The offence would be committed if an offer was made to supply a psychoactive substance but a non-psychoactive substance was in fact supplied. As we discussed in the previous group, it could be a packet of some benign white powder being passed off as a psychoactive substance. In such a case the requirement in Clause 6(6)(a) would not be met. Amendment 43 simply ensures that condition B operates as intended.
I hope that I have been able to reassure the noble Lord, Lord Tunnicliffe, that the Government are actively tackling the issue of new psychoactive substances in prisons and that, on that basis, he will be content to withdraw his amendment. Within that, I extend to the noble Lords, Lord Rosser and Lord Tunnicliffe, the same offer which has been extended to other Members: to have that meeting with the Children’s Society to explore this area and, having heard its experiences, to consider whether further action is needed.
Lord Howarth of Newport
My Lords, I support this amendment. I think it is going to be very difficult in practice to implement the kind of regime that the noble Lord and his cosignatories call for, but I share his view that it may well be of much more questionable benefit than the Government suppose to close down the existing head shops en masse. I suspect that they vary very much in terms of the responsibility with which they deal with their clients but am pretty sure that, as the noble Lord, Lord Paddick, said, there are head-shop proprietors and staff who take a responsible view of the risks that their clients may run and the desirability of ensuring that they do not come to harm. It is very difficult to know how to prevent anyone coming to harm, not least because it is very difficult to identify the exact nature of the substances sold, even for the head-shop importers and proprietors, and there is not the evidence to tell us about the long-term effects of the use of new psychoactive substances.
However, I agree with the noble Lord, Lord Paddick, that there is a lesser danger in this than there is in consigning the users of new psychoactive substances to street dealers and to online sources based outside this country operated by people who have no scruples at all. The consultation process that the noble Lord has proposed would be problematic, because people in the neighbourhood of head shops tend not to like them and it would be very difficult to get local public assent to the licensing of head shops, but a responsible local authority ought to undertake that kind of exercise.
I was very interested to note that, in the briefing from the Local Government Association on this amendment that I think we have all received, it makes some very practical points:
“We would oppose councils being made responsible for licensing because of the difficulties in assessing if a product is of low overall risk. Unless there was a full scale testing and risk assessment regime in place covering health and other risks the safety of a product could not be guaranteed”.
It is absolutely right about that, which is one of the reasons why, on another amendment, I have argued for the provision of a network of testing facilities. We ought to aim at that. We should encourage responsible conduct by people who would seek to supply psychoactive substances to the market in this country. There is evidence that many people operating cannabis cafes in the Netherlands for example, particularly because they are under pretty close police and other supervision, take good care to ensure that the products that they offer are relatively safe and that they guide purchasers to buy the products that may be least dangerous and least unsuitable for them. One might even say, for those who favour the taking of cannabis, it is positively suitable for them—but I am neutral on that point. We have all the time to think practically and realistically and, in tabling this amendment, noble Lords are doing just that.
Lord Blencathra
I rise briefly in response to a point made by the noble Lord, Lord Paddick, when he mentioned that the closure of the head shops in Ireland had resulted in the whole trade going underground. I am not sure whether my noble friend has had a chance to see it or research it, but my Google alert this morning said that some new report had been published by some doctors or professors in Ireland—maybe it was Dublin university, or something—that suggested that, quite the contrary, use of psychoactive substances overall had declined dramatically with the head shops ban and it had not gone underground, as people had feared. I have not had a chance to Google it and study it all but, if my noble friend is not aware of it, perhaps he and his assistants in his office can swot up on it. I am sure that it is a measure that will be addressed again at Report. We had a big debate last week on the situation in Ireland, so it would be worth while studying this academic research to see whether it is kosher.
Lord Rosser
As the noble Lord, Lord Paddick, said, the amendment would introduce a system of licensing to sell psychoactive substances determined to pose low overall risk, which is contrary to the objectives of the Bill as it currently stands, which is to provide for a ban on new psychoactive substances. My noble friend Lord Howarth of Newport has already referred to the views of the Local Government Association and its lack of enthusiasm for this amendment, saying that it would oppose councils being made responsible for licensing because of the difficulties of assessing whether a product is a low overall risk. My noble friend Lord Howarth went on to refer to the further comments that the LGA made about the need for a very thorough regime to be in place if we were to go down the road that was being suggested in this amendment. The Government’s expert panel also said that it would be difficult to define low risk from a legislative and harms perspective and, even if it could be done, a mechanism for controlling new psychoactive substances would still be needed, which could lead to confusing messages about new psychoactive substances overall.
How does one decide whether a drug is safe? There are immediate risks that occur and also long-term risks that occur, including long-term psychological issues and dependency, so what does low harm mean in that context? The amendment refers to everything being set out in regulations, but I am not sure whether, under the terms of the amendment, a drug would be presumed safe until evidence came to the contrary or whether the producers of a drug would be expected to prove that the drug was safe. If so, how would you do that, how would you determine all the possible different types of harm, and would it have to involve human trials—because, without trials, how do you determine harm or otherwise?
The amendment refers in a sense to Clause 3, which provides that the,
“Secretary of State may by regulations amend Schedule 1 in order to … add or vary any description of substance”.
We had a discussion earlier today about the significance of the word “vary” but, in the light of the Minister’s response at Second Reading, I am still not clear why that provision in subsection (2)(a) is there, and why the Secretary of State may add a substance to the list. Listening to the Minister’s response at Second Reading, I got the impression that he was making it very clear on behalf of the Government that the Secretary of State would not be adding substances under the terms of Clause 3. Bearing in mind that the Government have put it here in the Bill, I would simply ask: in what circumstances do they envisage the Secretary of State adding to items in Schedule 1?
Psychoactive Substances Bill [HL]
Lord Blencathra Excerpts(10 years, 9 months ago)
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Lord Patel of Bradford (Lab)
My Lords, I have listened to arguments on both sides and I am struck by the point that we somehow think that the introduction of legal highs is a phenomenon we have never come across. We had cheap, smokeable heroin in the early 1980s. There were outbreaks in various cities across England where people were smoking heroin. There was anxiety. We had a knee-jerk reaction and we set up services for heroin users. Then we had amphetamines in the nightclub scene, and in the mid-1980s kids were sniffing solvents and glue. There was huge panic and uproar and we banned children from buying solvents in supermarkets. We thought that thousands of kids were going to die because they were sniffing solvents. Things moved on.
Then we had MDMA, GBH and crack cocaine, and then heroin came back again. These things keep coming. We do not want to have a knee-jerk reaction to yet another drug that young people will take. The evidence, from watching last night’s “Newsnight” report from Ireland, is the opposite of what the noble Lord said his police officers wanted here. Officers there were saying that they could not enforce this law. This is simply imposing a blanket ban on new drugs as they keep coming out—and they will keep coming out. We can ban one thing and I guarantee that in the next five years, there will be another substance that young people are using and we will be panicking again. We cannot continue to do this.
There is a desperate need to review the Misuse of Drugs Act 1971. We have had all these policies and other Acts dealing with prescription drugs, and we have never looked at the evidence—not just this Government but the Labour Government as well. We have never looked at the evidence because, as my noble friend Lord Howarth said, Ministers look at what the public want and they want hard, strong enforcement tactics on tackling the use of drugs. The evidence is fairly clear and we have a lot of it in this country, so we desperately need a review. Whether we need to tag that on to this Bill I do not know, but my anxiety is that we will be passing a Bill because of a knee-jerk response.
We have not looked at the connections with existing legislation. We are creating legislation that is not looking at harms but simply banning everything in sight under this umbrella body, and it seems to everyone to be unenforceable. We need to take a step back. There has to be an opportunity somewhere along the way to have a review and to look at drugs policy effectively.
Lord Blencathra (Con)
My Lords, I had not intended to speak on this amendment until I heard the speech of the noble Lord, Lord Howarth. With all due respect, I must say that he is profoundly wrong and also out of date. I say to the Minister that there is no need to do another independent review. A couple of years ago, EU Sub-Committee F, chaired by the noble Lord, Lord Hannay, conducted a thorough review of drugs legislation. We discovered in that committee that enforcement has worked exceptionally well for all the main hard drugs we have had in this country. Drug use of heroin, crack cocaine and other such drugs has dropped dramatically. Where we are in the lead, unfortunately, is with the use of the new psychoactive substances.
It would seem from the evidence that we took in committee that children today do not want to smoke the same old stuff their hippie fathers did. If it was good enough for dad, the kids today want something different. We see that in a whole range of things, such as children who go off Facebook because their parents have joined. The fads on drugs seem to have the same trends.
Enforcement has worked exceptionally well in driving down the use of heroin, crack cocaine and other serious drugs. Enforcement can work equally well on psychoactive substances, provided that we can get the legislation watertight. The Government have tried enforcement with psychoactive substances by naming certain drugs, and within hours the chemical composition is tweaked slightly and the law is no longer effective.
Enforcement works, provided we have effectively drafted legislation. I entirely support the views of the noble Lord, Lord Condon. We have an urgent problem at the moment with psychoactive drugs. We do not need to review the whole of the drugs Act in this Bill. Maybe a review in a couple of years might be sensible, after we have seen how the legislation proposed in this Bill works. Finally, it is not a matter of enforcement or harm reduction, which are not mutually exclusive. We have been doing both in this country. It is right to have criminalisation and tough enforcement action against drugs and, at the same time, a harm-reduction policy that tackles drug use among first-time users and young kids, who probably do not know any better. Yes, we need education. Yes, we need harm reduction. But for goodness sake, keep the criminal law, which works.
Lord Patel of Bradford
My Lords, before the noble Lord sits down, yes, there may have been a reduction in the use of illegal drugs over the last five years. I know that Ministers have responded by saying, “We do not need to look at this any more, because drug use has plateaued and acquisitive crime has decreased, although drug-related deaths have increased”. Why has that happened? Not because of better enforcement but because, for the last 10 years, the Labour Government piled £800 million per year into drug treatment—and drug treatment that worked. That was a pooled, ring-fenced pot of money. We quadrupled the number of people treated, and it worked. For every £1 invested, within a year you had a £2 return and on a longer-term basis you had an £8 return. Drug treatment works. We do not have the same evidence for education prevention and we do not have the evidence for enforcement, but we do have the evidence that treatment works.
The problem is now that the £800 million a year has gone into Public Health England’s £2.6 billion budget, which goes to the 152 local authorities around the country to spend as they wish. That money is not ring fenced. There is no local authority in the country that has the expertise or the inclination to spend hundreds of thousands of pounds on drug treatment. Instead, funds are rapidly being withdrawn and we see the outcome: we see drug services shutting down and we see drug-related deaths going up. I guarantee that within five years we will see acquisitive crime going up and drug use increasing again. This is not to do with enforcement policies; it is clearly to do with how we invested that money properly last time.
Lord Blencathra
Again, I must disagree with the noble Lord, Lord Patel. Of course, harm reduction is good and of course treatment is essential, but unless we have Customs and Excise and the National Crime Agency and all the others interdicting tonnes and tonnes of drugs, we would need a lot more treatment because we would have a lot more drug addicts in this country. Enforcement has worked. Enforcement is driving down the use of those drugs which were rapidly increasing in the 1980s and the 1990s. There is no suggestion that that trend is wearing off, and there is no suggestion that enforcement is now failing with those drugs. Enforcement is failing in the new psychoactive substances for two reasons. First, the kids find it trendy and sexy to use them because they are not using the same old drugs that dad smoked. Secondly, we do not have legislation tight enough to enable the police and the enforcement authorities to use enforcement properly against those psychoactive substances.
Baroness Meacher (CB)
My Lords, I support this amendment and the comments of the noble Lords, Lord Paddick, Lord Howarth and Lord Patel, but I have to say that I cannot support the noble Lord who has just spoken. This country has some of the strongest and toughest rules and legislation relating to drugs, yet we have one of the highest levels of use of the dangerous drugs that we try to ban. The reality is that we are not succeeding. Countries with relatively liberal, harm-reduction, health-focused policies do a great deal better than we do.
I want to use this opportunity to try to get across to the Minister and to your Lordships why I feel so strongly that we need a review of the Misuse of Drugs Act. I worked in secondary mental health for about a quarter of a century on and off, working with severely psychotic patients. I would say that the majority of those patients take cannabis. Why do they take it? They have told me many times, “Because it makes me feel human”. Thankfully, I have never had a psychotic illness, but if you do and you are given antipsychotic medication, the mix of the illness itself and the medication leaves you feeling, if I may put it this way, subhuman. You do not feel that you have any feelings; you feel dead. If you take cannabis, it makes you feel human. That is the word these patients use—“human”. In my view, that is not unreasonable.
If herbal cannabis is illegal, which it is, these patients along with all sorts of young people all over the country—I am slightly less sympathetic about them, but I am very sympathetic about patients—are driven to take skunk, very high THC cannabis, which is bad for their hallucinations and voices and makes them worse. But they still take the cannabis because it is so important to them to feel human. As I say, that is not unreasonable.
While they were within our services, these people were treated as patients because they had severe health problems. However, it always struck me as peculiar that when they left our hospital, day centre or whatever it was, these very sick people could be picked up by the police and charged with a criminal offence. Why? Because of their health problem. When our Convenor, as she was then, said when I came to this House, “Molly, you must put your name down on the ballot for a debate”, I said, “Oh no”, but I did and I won the ballot. I was told to produce a subject within the hour, and it came to my head that it would have to be about drugs. I feel strongly that our laws are illogical, unjust and cruel, and they are doing an enormous amount of damage to very large numbers of children and young people. That is why I cannot say that I am against the amendment tabled by the noble Lord, Lord Paddick.
Of course I understand that this Bill is about psychoactive substances, and we will come to discuss them, but the fact is that we have only one market, and it is the market for illegal drugs. It is not a market for psychoactive substances over here and a market for controlled substances under the Misuse of Drugs Act over there. They are one market, and therefore it makes no sense to look at this market without looking at that market. That is why I believe firmly that the Government would find it very helpful to look seriously at how the market is working and to draw conclusions from other countries.
We will come to the experience of Ireland and psychoactive substances, where a ban has been in place for four years. What does the deputy chief of the drugs and organised crime branch say about the ban? It has not worked. Therefore, Ireland is thinking of going back to its misuse of drugs Acts. I think that we will be in the same position, so it is really important that we get the Misuse of Drugs Act right as well as the Psychoactive Substances Bill. If we do not, we will just go round and round in very unfortunate circles from one bad policy to another.
I have something else that I want to say. The Labour Party is worried about a delay in this Bill. It does not need to worry, because bans do not work. They have not worked in Ireland. A little bit of delay will not make any difference. We now know from scientists that, of the deaths which have been caused by psychoactive substances, maybe every single one of them—certainly 90% of them—has been as the result of young people taking banned substances, not legal highs. I want to make that point very strongly. A ban does not stop people taking a substance, and some of them will die from doing so. If low-level psychoactive substances were regulated and labelled, with the consequences of taking them clearly specified, the risks and side-effects explained and the maximum dose made clear—in the case of ecstasy, you must take water, but you must not take more than 1 litre, or whatever it is—they would be much safer. My only concern is the safety and well-being of our young people.
Lord Rea (Lab)
My Lords, like the noble Lord, Lord Walton, who spoke last week during the supplementaries on the Question for Oral Answer tabled by the noble Baroness, Lady Meacher, on this topic, I served on the Select Committee which looked into the medicinal use of cannabis. One of the central recommendations was exactly what the noble Lord, Lord Ribeiro, has suggested. We need controlled trials. The noble Baroness has just backed up that suggestion as well. But it is very difficult to get these trials going. As she has said, because cannabis is an illegal substance, it is difficult to get people to agree to do the work. One or two trials have been carried out which resulted in the production of Sativex, but only one firm is producing it. As the noble Baroness said, it is terribly expensive and can be prescribed only on a named basis; it is very difficult for doctors to prescribe it to patients who have been shown to benefit from cannabis by getting it illegally.
One of the problems with getting cannabis illegally is that you do not know the ratio of the different cannabinoids in the illegal drug. It has been shown—this was told to us in our committee—that there is a huge range of effects from different cannabinoids. The one that gives the psychoactive effect, tetrahydrocannabinol— THC—is something that people who take cannabis for medicinal purposes do not like. But it is very difficult to find an illegal version of cannabis that contains a good ratio with more cannabidiol—CBD—which is the calming one that reduces spasms. Sometimes people have thought that it does not stimulate psychotic results but prevents them; it is an antipsychotic drug.
So there are real reasons why it should be made legal for researchers to concentrate on doing proper, controlled clinical trials to work out what cannabis can do, and what components or mixtures of cannabis components are most effective. This is crying out to be done, but as things are, it is very difficult to get scientists to agree to do it because of the illegality of the substance.
Lord Blencathra
My Lords, I have no idea whether cannabis is relevant and effective in dealing with nausea or spasms caused by motor neurone disease or other diseases, but I have a wee bit of experience of multiple sclerosis, and I say to the House that I do not want to be used as an excuse to legalise cannabis, because it is not necessary for treating the spasms that come from multiple sclerosis; there is already a fairly large range of drugs on the market that deal with that.
The spasms are difficult to describe and usually happen at night. The main muscles of the body—the torso, the legs and the chest—just spasm, and it is difficult to get a bit of sleep when that happens. In my case, when it started getting bad, my consultant said, “In that case, we must give you a drug that will deal with the spasms”. At the top of the list is baclofen, which is dirt cheap and highly effective. The maximum prescribed dose is 50 milligrams. I take 10 milligrams in the morning and 20 milligrams at night and have had no more body spasms because of it.
Okay, I cannot speak for all multiple sclerosis sufferers. When I was a constituency Member of Parliament, I had constituents come to me who said that they wanted cannabis legalised so that they could deal with their MS. I said that there were clinical trials under way that resulted in the drug Sativex, but they were not so keen to take a pill; they wanted to smoke a joint because it made them feel better in many other ways. Well, it could, but I do not want people who wish to smoke cannabis to get high to use the excuse that it is essential for multiple sclerosis sufferers in order to remove their pain and spasms.
If baclofen does not work—it seems to work for about 95% of people—doctors usually try tizanidine: I will give the Minister the spellings later. Following that, going down the list, is gabapentin. It is not usually prescribed because the other two drugs are usually much more effective. At the bottom of the list is Sativex, which is the cannabis derivative. The problem here, as has been stated already, is that NICE reviewed it and concluded that it was not cost effective. Unfortunately, that is absolutely right, because it costs 10 times as much as baclofen, which I have in my pocket at this precise moment.
I therefore think that the solution is: patients should be prescribed baclofen. If that does not work, they can go on to tizanidine, and if that does not work they can try the next legal drug, gabapentin. If those three do not work, then people can be prescribed Sativex. I suggest that my noble friend the Minister should say to the Department of Health and NICE that in those priority corridors it should be permissible to use it throughout the whole of the United Kingdom. Wales overruled NICE and has allowed Sativex to be prescribed. It is not prescribed, except by private prescription, in England, Scotland and Northern Ireland. I think that that is wrong. It should be allowed to be used by doctors but not as the first port of call.
There is merit in rejecting the amendment as far as multiple sclerosis is concerned. It may be beneficial for other illnesses when people suffer spasms but it is not necessary to deal with the problems that occur with multiple sclerosis. I wish to put my liberal credentials—or near liberal credentials—on the table. A part of me takes the view that if people want to smoke a cannabis joint and get high, okay, let them but do not expect the taxpayer to pick up the bill for the cancers and other illnesses they may get later. Similarly, a part of me thinks that if people want to eat themselves through gluttony into obesity and sit on their backsides, taking no exercise, let them, provided the NHS does not have to pay for that.
As the taxpayer has to pay for these things and for the dangers which smoking cannabis can cause, the taxpayer and the Government must be in a position to say, “No, I’m sorry. You’re not allowed to smoke that because there are alternatives that can deal with the alleged problem”.
Lord Howarth of Newport
May I say how welcome it is to see the noble Baroness, Lady Chisholm of Owlpen, on the Front Bench alongside her colleague from the Home Office? I hope that she will report this debate to her colleagues in the Department of Health. It is excellent that the two departments are represented on the Front Bench for this important debate.
The noble Lords, Lord Rea and Lord Ribeiro, spoke with all the authority of their medical expertise, and the noble Lord, Lord Blencathra, spoke with the authority that comes from his own unfortunate experience. I follow the noble Baronesses, Lady Hamwee and Lady Meacher, in commending to the Committee, and very much to the two departments represented on the Front Bench, the report just recently published under the auspices of the All Party Parliamentary Group for Drug Policy Reform by Professor Val Curran and Mr Frank Warburton, entitled Regulating Cannabis for Medical Use in the UK. Had they heard the presentation of this report by Professor Curran from University College London, they would have been persuaded that the arguments put forward are eminently reasonable.
She talked about the severe constraints applied to the progress of medical research by the Government of the United Kingdom’s persistence in listing cannabis in Schedule 1. She told us that it costs a minimum of some £5,000 to achieve the licence and to pay for the secure conditions to enable the pursuit of research into the medical properties and potential benefits of cannabis. That is a severe discouragement, particularly in the stringent climate of funding for academic research. She estimated that research on cannabis costs some 10 times as much as research on other drugs. It is a serious constraint, yet a significant body of evidence strongly suggests that cannabis-based medications can be beneficial for a whole series of conditions, many of which have been itemised by previous speakers.
The noble Lord, Lord Ribeiro, drew attention to the tentative evidence that may be emerging of benefits in relation to post-traumatic stress disorder. That is certainly a pressing and important issue for us in this country, as well as in America. Professor Curran also told us that there are suggestions that cannabis could be beneficial in the treatment of schizophrenia. It would seem perverse in the extreme to continue to deny ourselves the opportunity effectively to pursue research on the medical benefits of cannabis when patients suffering from such a range of diseases could be assisted.
Lord Blencathra
My Lords, I am sympathetic to the noble Baroness’s amendment. Of course, we need some monitoring information and we need information around effectiveness, but I am just not sure that the Home Office or a government department is the right body to produce such independent information. It may be, but I have my doubts.
My main concern about the noble Baroness’s amendment is the timescale. Having listened to the noble Lord, Lord Howarth, I am now very concerned about the timescale if the Government, or anyone else, attempted to report on the wide range of things he has suggested. I am not being facetious, but it struck me that compiling a report of the length that the noble Lord wants would probably end up taking longer than the new sexual abuse review by the distinguished New Zealand judge. I do not mean that as a facetious comment or to diminish the work she is doing.
The noble Lord, Lord Howarth, and many others in this Chamber have some experience in government. I think we know that if a government department were to produce a report within 12 months, it would have to be approved by the Cabinet at month 11. This is a territorial Bill and would need to go round all the territorial Governments in months 9 to 11 to be checked by them. It would need to go round the UK government departments in Whitehall, probably in month 8 or 9, to be amended by them, which means that the Minister in the Home Office, or wherever, would need the first draft in about month 6, which would mean that civil servants would start writing it in month 3.
I say to the Minister: if the Government have to produce a report, preparing one within 12 months of the Act would not be sensible. It would be impossible—no, it would not be impossible, but it would include only a fraction of the information that one would want. There may be merit in the Government producing a report, but not of the length that the noble Lord, Lord Howarth, has suggested and certainly not within the 12-month timescale.
Lord Rosser
We have an amendment in this group and it is not about post-legislative scrutiny. It calls for the Secretary of State to publish an annual report on new psychoactive substances and sets out some of the information that must be included in the report.
There is currently a real lack of data collected and published on new psychoactive substances and their impact. For example, the first indication of a new drug tends to come from a hospital admission. If this happens in the United Kingdom, the National Poisons Information Service is informed and it then advises the European Monitoring Centre for Drugs and Drugs Addiction. The EMCDDA tells the National Poisons Information Service of drugs detected elsewhere in Europe. However, the Home Office keeps its own lists, the main one being the forensic early warning system, and, to date, successive Ministers have been unable to explain the relationship between the EMCDDA list and the Home Office list, which suggests that data are not being collected and published in a consistent or helpful way. Similar problems arise with monitoring drug-related deaths and overdoses. No proper data are collected on drug deaths as the data we have rely on examining countless records, which is why they are often incomplete and take years to publish.
There is a significant problem, too, with hospital admissions. The National Poisons Information Service collects new drugs but does not collect data on all drug- related overdoes. We do not know how many hospital admissions result from taking these new substances. Nor do we know in how many cases new psychoactive substances were a factor for those needing to access mental health services. Anecdotal evidence suggests that legal highs are a major factor, especially for adolescent mental health services.
In their response to the expert panel, the Government accepted the importance of information on new psychoactive substances and that it should be shared systematically at both a local and national level in a timely manner. However, the Government did not appear to accept the current inadequacies in the information, including those to which I have referred.
The expert panel said that, with the rise in the availability of NPSs, coupled with possibilities for NPS market development via the internet, the UK drug scene had become increasingly complex and fractured, and that a number of information issues arose from this. These included,
“the difficulty for any one agency to keep to keep abreast of all the new developments … the acknowledgement that the Misuse of Drugs Act 1971 needs to be supplemented by other legislation has meant that more professional networks require information including trading standards … the current time lags involved between data collection and publication of data obtained by current networks mean these systems cannot be employed in the service of providing more timely early-warning-type information; and … the need to collect, analyse and distribute information in a more systematic and timely fashion to help inform policy and practice at both a national and local level”.
Frankly, the Government’s response did not address all these issues since there seems to be a view that the forensic early warning system’s annual report can fit the bill. In its recommendations, the expert panel says:
“There is a need to establish prevalence, evidence and harms associated with NPS”.
It suggests that we should:
“Develop detection and data collection tools across criminal justice and health services, and other relevant settings, for example, schools and universities”.
A recommendation refers to developing,
“internet tools to monitor internet activity around NPS”,
and to the need to:
“Record health and social harms related to NPS by utilising professional networks and other early warning systems … understand local markets, including through headshops, retail outlets, prisons and local police assessment”.
On enhancing the share of information on NPSs, the panel said:
“Sharing information at both local and national levels is essential in helping to achieve a reduction in the demand and supply of drugs and in promoting comprehensive and effective interventions”.
It is fairly clear from the report of the expert panel that it does not think enough is currently being done in the area of the provision of information. The purpose of this amendment, as I said at the beginning, is to provide for the Secretary of State to publish an annual report on new psychoactive substances. The amendment sets out, in not quite so extensive a list as that of my noble friend Lord Howarth of Newport, some of the information that should be included in that report.
I hope the Minister will reflect further on this issue—the importance of information on NPSs—and the adequacy of the current information and the systems and methods by which it is provided. Our amendment gives the Minister the opportunity to do just that and I hope it is an opportunity she will take.
Lord Howarth of Newport
My Lords, the definition of a psychoactive substance in the Bill does indeed seem to me rather vague. We should be grateful to both noble Baronesses who have so far spoken in this debate for pressing the Government to tighten the definition and to give us some clarification. It would be helpful if the Minister would explain to the House the basis upon which he was able to give us an assurance—I thought he gave it rather tentatively and with less than full confidence—at Second Reading, that if he were to send a bouquet of flowers for the gratification of Lady Bates, he would not be in breach of the law. I see that it is suggested that incense might be caught under the law. How can he be sure that all kinds of substances and activities that, on a common-sense view, people would regard as innocent may not in fact be caught?
I would also like clarification—if this is not leaping ahead too far—as to what is, in Schedule 1, a traditional herbal remedy. The term is terribly loose. I fancy that it is going to be quite difficult for police officers or courts to be very clear what the term “traditional” in a legally binding context means. How in practice does he foresee psychoactive substances are going to be identified? Will there have to be tests in court? That would seem to be expensive and disproportionate. Will there have to be a large number of placebo-based comparative scientific trials? Again, that would seem expensive, disproportionate and impractical. I think he owes it to us to clarify a little further than the drafting of the Bill does what he means by psychoactive substance.
Lord Blencathra
My Lords, I would be interested in hearing the Minister’s response to the noble Baroness, Lady Meacher. She seems to have a fairly good point—to me as an amateur anyway.
I wish to make my remarks mainly about Amendment 9. This may be heretical to noble and learned Lords and parliamentary draftsmen, but why can we not have the Government’s definition and the definition in Amendment 9? Definitions are going to be the big problem with this Bill—everybody recognises that—and I see no merit in brevity of definition if it makes for confusion. On the other hand, we do not want it to be tautological and we do not want too big a definition which is contradictory. I am sure that noble and learned Lords and parliamentary draftsmen will ensure that that does not happen. I ask the Minister to keep an open mind on this and be relaxed about extending the definition or picking up bits of Amendment 9 if it helps to bring more clarity, irrespective of the length of the definition.
Lord Tunnicliffe
My Lords, I shall comment briefly on this group. I hear the debate on Amendments 7 and 8 and will be interested in the Minister’s response. On Amendment 10, similarly, we will be interested in the Minister’s response.
On Amendment 9, I see this Bill—and I will be grateful if the Minister can flesh out whether he sees it in the same way—as a very narrow Bill. Broadly speaking, everything is illegal except the things that are defined as legal. Bringing in the word “significant” seems to me to be getting into significant bad and not significant good, and therefore we are into the area of legal challenges et cetera. The idea of the Bill, I think, is to be free from legal challenge and that is why it is formed in that way. The Minister will no doubt enlighten me.
The point of the noble Lord, Lord Howarth, on the process—of how the judgment will be made that a substance is psychoactive—is a good one. I would be grateful if either now, or perhaps in writing, the Minister could spell out how the Government envisage determining whether a substance is indeed a psychoactive substance.
Psychoactive Substances Bill [HL]
Lord Blencathra Excerpts(10 years, 9 months ago)
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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(10 years, 9 months ago)
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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(11 years, 1 month ago)
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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(11 years, 1 month ago)
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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(11 years, 8 months ago)
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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(11 years, 8 months ago)
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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(11 years, 9 months ago)
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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.