Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Butler of Brockwell Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, the name of the noble Lord, Lord Rosser, appears next on the list by mistake—he has already spoken—so I call the noble Lord, Lord Butler of Brockwell.

[Lord Butler of Brockwell (CB) [V]]

My Lords, in supporting the new clause in Amendment 33 and its consequentials, I am riding pillion to my noble friend Lord Anderson of Ipswich. When I heard his speech at Second Reading, I immediately felt that his approach struck the most practical balance in controlling the activities of intelligence agencies embedded in groups carrying out criminal activities. Following the noble Baroness, Lady Wheatcroft, I rather suspect that the scale of this is both at a lower level and in a larger quantity than previous speeches have suggested. One has to see the practicality of that in those terms.

My experience, both when I was in government and when I was on the Intelligence and Security Committee of Parliament, leads me to believe that control of these operations requires three things. First, it requires better precision than there has been so far in the definition of how far agents can be authorised to go in participation in criminal activities. That is fair to them, and it is fair to the authorities. Ever since the case of Brian Nelson, the Northern Irish loyalist informer, to which I referred in Committee, I have felt that it is unsatisfactory that judgments on these matters should be left open and to the discretion of prosecuting authorities after the event, although I have no doubt that the decision to prosecute Nelson—indeed, he confessed—was correct.

Secondly, there is a need for close contact and immediacy in the control exercised. These situations in which covert intelligence agents are involved are often fast-moving. Communication between agent and controller may need to be rapid, and control needs to be agile. I do not believe that that can practicably be provided by a judge or a Secretary of State.

Thirdly, independent oversight is needed in as close to real time as possible. Controllers cannot be the judge and jury in these matters—certainly not the sole judge and jury—since there is an obvious temptation to cross lines in the interests of achieving what are often laudable objectives. I am persuaded that oversight is likely to be best achieved by giving the independent Investigatory Powers Commissioner a more active and immediate role. It seems to me that the provision proposed by my noble friend in the proposed new clause achieves these objectives in a practical way, and I am glad to hear that the Minister is inclined to agree that this is a fair and effective way forward.

The Liberal Democrats’ Amendment 17 takes a similar approach and, to that extent, I am sympathetic to it, but I am sceptical about whether the requirement for “prior approval” by the Investigatory Powers Commissioner, even with a get-out clause in circumstances of urgency, would meet the requirement for operational agility—so I will stick with my support for my noble friend’s amendment.

Investigatory Powers Bill

Lord Butler of Brockwell Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Lester of Herne Hill. It brings back the arguments we used to have about the powers of the intelligence agencies on dog walks around Brockwell Park—which, incidentally, is not my personal estate. He was then counsel in the Spycatcher case; I was about to be Cabinet Secretary. He did not trust me then and since he says now that David Anderson is the only person he does trust, that situation clearly has not changed.

When I last spoke in the House, on the Motion of the Leader of the Opposition about the powers of Parliament and of this House, I was critical of much of the legislation introduced into Parliament. I do not withdraw that but I do not make those criticisms of this Bill. On the contrary, like others who have spoken, I commend the way in which the Government have brought forward the Bill and the way in which it was debated and scrutinised in the other place.

The Government published a draft of this Bill in the autumn. Despite the fact that preparation of it had been informed by authoritative reports from the Independent Reviewer of Terrorism Legislation, the Intelligence and Security Committee of Parliament and RUSI, the Government produced it when it was, frankly, still in the course of preparation. It was just being baked. But that was a thoroughly good thing to do because it could then be considered by a joint pre-legislative committee—on which I had the privilege of serving, under the noble Lord, Lord Murphy—by the Intelligence and Security Committee and by the House of Commons Science and Technology Committee. That enabled a large number of changes to be made and improvements to be introduced before the Bill was brought before Parliament. At the same time, the Government undertook widespread consultation with interested parties outside Parliament, including the communications service providers, which were able to give evidence to the parliamentary committees. So there was a very transparent method of preparing this Bill, which was necessary in view of its complexity.

I have read in full the debates in Committee, on Report and at Third Reading in another place. Without being patronising, I think that they show the House of Commons at its best. There were no less than 16 Committee hearings. The Government responded constructively to the Opposition and, as has been said, introduced many amendments to respond to their points. As a result, it is remarkable that the Official Opposition did not vote against the Government in a single Division.

Of course, many matters were left over for this House, and I will come on to those, but I would also like to say—seeing as I am to be followed by the noble Marquess, Lord Lothian, who is a member of the Intelligence and Security Committee—that the scrutiny has shown the strength of the mechanisms that Parliament has for considering issues of this sort. In addition to the specialist committees that I have referred to, the Intelligence and Security Committee is able to operate within the ring of secrecy around these highly classified issues, and has shown itself capable of reassuring Parliament in some areas but also of proposing additional safeguards in other areas where oversight of the intelligence agencies needs reinforcement. That has been a very valuable contribution.

None the less, as others have said, there is much work for your Lordships’ House to do. There are important issues in the Bill that still need to be determined. Part of the Government’s response to criticisms raised in the other place was to promise further consideration in your Lordships’ House. That covered such important issues as protection of legal privilege, on which the noble Lord, Lord Lester of Herne Hill, and other noble Lords spoke; further protection of journalistic freedom; the definition of crimes for which access to communications data is justified; and the whole issue of the operational case for bulk powers. On top of that, although clearly the Home Office has made much progress in discussions with communications providers about the definition of internet connection records, questions remain about both the effectiveness of those and the cost of collecting them. We must remember that hanging over the whole issue is the case brought in the European court by David Davis MP and Tom Watson MP about the retention of communications data, in which there may well be further developments during the passage of the Bill.

The intention is that this House should start Committee before the Summer Recess but not complete it. That makes sense because by the end of the Recess we can expect to have David Anderson’s report on the operational case for bulk powers, which will be central to considering Parts 6 and 7 of the Bill. This is a very difficult but very important Bill. I hope that this House can maintain the very thorough but also very co-operative and constructive tone of the scrutiny that has taken place on it so far.

[Lord Lester of Herne Hill]

I apologise to the noble Lord and the whole House for the hurt I have caused him by suggesting that I trust David Anderson more than anybody else. I trust the noble Lord, Lord Butler of Brockwell, almost as much.

Walking and Cycling

Lord Butler of Brockwell Excerpts

Tuesday 9th February 2016 Lords Chamber

[Lord Ahmad of Wimbledon]

I cannot give a specific commitment on how that £300 million will be allocated; that has yet to be decided. If, however, the Forestry Commission would like to make to make a representation I would be delighted to meet with it to discuss its plans further.

[Lord Butler of Brockwell (CB)]

My Lords, now that a good deal of Victoria Embankment has been given up for a cycling track, can anything be done to oblige cyclists to use that rather than take up the diminished space on the roads?

[Lord Ahmad of Wimbledon]

Most cyclists also recognise the importance of safety, and the purpose of cycle lanes is exactly that: to provide a safe and secure cycling environment. I am sure that any cyclist will take up the new facilities with great enthusiasm.

Investigatory Powers

Lord Butler of Brockwell Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, much of the attention in this afternoon’s debate has rightly focused on the Anderson report, but I shall start by paying tribute to the other members of the Intelligence and Security Committee, on which I had the privilege of serving as one of the two representatives of your Lordships’ House. That committee was excellently chaired by Sir Malcolm Rifkind. It was not only a very harmonious and stimulating committee but Sir Malcolm devoted himself to it with great application and energy and did a huge amount to promote better understanding of the issues we are discussing today, not least by holding public hearings of evidence for the first time.

The Anderson report and the ISC report, together with the RUSI report, which we expect in the next week or two, and the report of the commissioners and the Joint Committee chaired by the noble Lord, Lord Blencathra, provide a valuable basis, which should be sufficient, for the very important decisions the Government will have to make about intelligence legislation, which will be a major feature of Parliament’s work in this Session. If I may reciprocate the very kind compliment from the noble Lord, Lord Bates, we are very fortunate to have him as the Minister who will guide the House through this legislation.

We have to recognise that the intelligence agencies and the Government face a difficult dilemma in preparing this legislation. On the one hand, modern technology gives extraordinary opportunities for intrusion on citizens’ lives. Those who challenge the users of that technology to justify their use of it for intrusion are, in my view, right to do so. The essence of freedom is the right to challenge authority, all the more so when the instruments of oppression in George Orwell’s Nineteen Eighty-Four are now with us today. On the other hand, the effectiveness of the intelligence agencies depends to a large extent on the enemies of the state not knowing what the agencies can do and, equally importantly, what they cannot do. Herein lies the dilemma. If the intelligence agencies demonstrate how they have used intelligence to protect us from attacks, they risk alerting attackers to how to reduce the risk of detection.

That is why we need intermediaries within the ring of secrecy, such as the ISC, David Anderson and the former judges who are the intelligence commissioners, to scrutinise the agencies. Even so, those outside the ring of secrecy constantly demand to be persuaded. I have no complaint with that; they perform a valuable service in insisting that the agencies make their case. I am very conscious of the risk of those who have been inside the ring of secrecy, as I have been, becoming beguiled by the agencies. The case has to be made, scepticism is right and trust has to be earned.

However, those who are sceptical do not assist the conversation when they overstate their case. I thought there was one respect in which the noble Lord, Lord Strasburger, overstated his case today: he was surely not right in saying, in his defence of Edward Snowden, that if it had not been for him we would not have had this national conversation. I remind him that the communications data Bill—indeed, the noble Lord served on the Joint Committee—preceded the revelations of Edward Snowden, and that discussion was, rightly, already happening.

One of Ed Snowden’s revelations that garnered considerable concern and attention was the capability of the agencies regarding the bulk collection of communications, and that discussion has indeed been valuable. The authorities made a mistake, if I may say so, in not being candid earlier about the fact that that capability existed. However, the discussion also led to a great deal of misunderstanding. What the ISC found, and David Anderson confirmed, was that the bulk collection or bulk interception of intelligence does not amount to mass surveillance. This led people into the sort of mistake that the noble Lord, Lord Blair, quoted. On the contrary, a capability that in any case has to be highly selective, because the interception agencies have access to only a limited number of message carriers, is subject to filters that minimise the risk of innocent communications being picked up. Nevertheless, I acknowledge that the case for using that capability has to be made. The ISC saw examples of where the search had given leads that led to the prevention of terrorist acts. We were less successful than Mr Anderson in persuading the agencies to allow us to quote those examples, which he did in his report. He was satisfied, which reassured me that the ISC was probably right to be satisfied as well.

One aspect of the revelations of Ed Snowden, from which we should take some reassurance, is the following. He removed from his employers 1 million NSA reports and 60,000 reports that GCHQ had shared with the NSA. People may have been surprised by the extent of the agencies’ capabilities revealed by the reports, but it is striking that out of 1 million NSA reports and 60,000 GCHQ reports, none revealed any significant examples of abuse of power against citizens. It would be right to take reassurance from that. The annual reports of the Intelligence Services and Surveillance Commissioners state that the UK agencies are meticulous in their observance of the law. That has always been my experience, and other people who have had sight of the work of the intelligence agencies and who have spoken tonight have also confirmed that that is their experience.

Although some of the details of the agencies’ capabilities have to remain obscure, I think it is common ground among us all that there is no need for the legislation that governs these activities also to be obscure. Both the ISC and David Anderson—and, indeed, the Government—agree that entirely new legislation is needed to replace the present ramshackle and almost impenetrable structure of laws. That the law is so ramshackle and opaque is not, as some have suggested, the result of some sort of establishment conspiracy. What has happened—I have seen it passing before my eyes—is that over the last 30 years successive laws have piled up to deal with new situations; that is, to cope with developing technology and changing threats.

It is worth just reminding ourselves of this succession of new laws, which will be very familiar to other noble Lords in this Chamber: the Telecommunications Act 1984, which was one of the first; the Interception of Communications Act 1985; the Security Service Act 1989, with another in 1996; the Intelligence Services Act 1994; the Human Rights Act 1998; the now notorious Regulation of Investigatory Powers Act 2000; and, in the last few years, the Justice and Security Act 2013, the Data Retention and Investigatory Powers Act 2014, and the Counter-Terrorism and Security Act 2015. This has been legislative Pelion piled on Ossa, and it needs to be dismantled and rebuilt in a transparent fashion. That is the task in front of us—a big task but a necessary one.

Having said that, the basic elements of the legislation are sound. They are built on the principles that intrusions on privacy have to be restricted to the purposes of preventing or detecting serious crime and protecting national security, and that they must be both proportionate and necessary for those purposes. It is worth reminding ourselves that any intrusion on privacy beyond those purposes is a criminal act, and should be. There also has to be effective authorisation and scrutiny within the ring of secrecy to ensure that the agencies are not both judge and jury over their own actions.

At the same time, new issues arise as technologies change and threats develop, so there are always new questions to answer. To what extent should communications providers be compelled to retain data for inspection—the issue that arose in the communications data Bill? In what circumstances should the data be inspected and who should authorise that? Should our own nationals be given greater protection than others? That has always been the case and it was the basis on which the legislation was built, but in an international world is that still right? And what rules should govern our sharing of intelligence with other nations?

On one matter, like other speakers, I cannot go all the way with David Anderson. I do not believe that ultimate responsibility for authorising intrusion should be transferred from Minsters to judges. Others have pointed out that decisions on intrusion require political judgment, not just the application of law, and should be made by people who are politically accountable. The noble Lord, Lord Blencathra, said that people supposed that there was a risk that if a judge took a decision and something went wrong, the Secretary of State would be blamed for it. He dismissed that risk and I think he was right to do so. My concern is exactly the reverse of that. It is that the judge will be blamed for what ought to be an executive act. I have an illustration of that: the case of the murder of Fusilier Lee Rigby, which the ISC examined. Let us suppose that a judge had declined to authorise a warrant for the surveillance of the killers, Adebolajo and Adebolawe, and that this refusal had proved critical in failing to prevent the attack. That could have happened. A judge should not be held accountable for such a decision; it is an executive act and the decision should be taken by the Executive.

Having said that, there is some scope for compromise with David Anderson’s recommendations. It seems to me that the role of the commissioners can be expanded and perhaps rationalised, and that the judicial commission should be given a more active and immediate role in scrutinising Ministers’ authorisation of warrants. I was particularly struck by the suggestion from the noble Lord, Lord Blencathra, that we are more likely to get international co-operation when there is judicial authorisation. In cases where we go to another country to seek access to data that are in its possession or in the possession of institutions based in that country, we may carry much more plausibility if there has been such authorisation. That suggestion, if I may say so, is well worth considering.

One other aspect needs to be mentioned. An effective structure to protect us against terrorism will not depend on our legislation alone. Again, this was illustrated by the murder of Fusilier Rigby. The vital clue which could have prevented the killing was in an internet message discovered only after the event. As others have said, communications providers say that they will comply with legislation in co-operating with authorities to prevent serious crimes but they cannot do so because they are subject to conflicting legislation in the different countries in which they operate. In particular, as has been said, legislation in the United States, where many of the principal providers are domiciled, inhibits such co-operation.

There, I agree with the noble Lords, Lord Scriven and Lord Blencathra, that this problem can be solved only by international diplomacy, not by our legislation alone. One report that we do not have in front of us tonight is that of Sir Nigel Sheinwald, the Prime Minister’s envoy on this subject. There have been rumours of what that report says: that he urges—I think rightly—a new international agreement, particularly with the United States, which will assist in this area. The suggestion from the noble Lord, Lord Blencathra, about judicial authority may well help in that. There is one thing that I hope the Minister might be able to tell us in responding to this debate. Can he tell us any more about the work of Sir Nigel Sheinwald in developing diplomatic relations with other countries on this vital issue?

Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015

Lord Butler of Brockwell Excerpts

Monday 23rd March 2015 Lords Chamber

[Lord Judd (Lab)]

My Lords, I hope that the Minister will take seriously the points which have just been made by the noble Lord, Lord Hannay, and, in particular, the contribution of my noble friend Lady Lister. Universities are crucial—this is not to overstate the case—to the future of the species. They must be centres of excellence, of course, but they must also be centres of scholarly excellence, free exchange and originality on an international basis—because any relevant university in our age must be an international community. We have to be careful surely in all that we do that we do not unintentionally inhibit the quality and freedom of discourse, discussion and analysis that are central to humanity’s future.

It cannot be overstated just how huge the challenges to the security services are. They are tremendous, and the work that they do on behalf of us all cannot be commended often enough. However, I have a conviction, which I am sure is shared by many noble Lords, that the ultimate battle against this evil which confronts us is in the minds of men and women across the world. We build the ultimate safeguards and the ultimate strength in what people think, feel and have as their values. In that context, the contribution by universities is very special. We must be careful therefore that we do not do things which are counterproductive. Of course, it is a very difficult balance, and I sympathise across the Floor with Ministers and others, and certainly with officials, who grapple with this issue—but we must be careful all the time that we are not eroding what makes universities so important and attracts so many people from across the world to our own universities.

One other thing that I feel strongly about on this matter—again, I am certain that I am not alone—is that we must beware of giving the extremists victories. They are dedicated to destroying our society. If we ourselves get the balance wrong and begin inadvertently to undermine those things which are precious and special to life today and to our future, we give the extremists a victory. From that standpoint, the points that have been made about the care that needs to be taken with the role of education are very important.

Having said all that, I want to put to put on record how much I admire the Minister’s response to discussion on the Bill throughout its passage through Parliament. He sets particularly high standards in listening and trying to respond. I do not want to embarrass him or put him in a difficult position, but I am always reassured because I think that, instinctively and intellectually, he is on the side of the arguments that I have just put forward.

[Lord Butler of Brockwell (CB)]

My Lords, perhaps I may pursue briefly a point raised by the noble Baroness, Lady Lister, on who is to monitor compliance with the Prevent duty. The draft guidance referred to HEFCE undertaking the duty, but, as the noble Baroness pointed out, there is a difficulty about that, because the duty covers institutions with which HEFCE has no funding relationship. I see that in the revised guidance the reference to HEFCE has been removed and there is now reference to “an appropriate body”. Can the Minister tell us a little more about the Government’s thinking on that? I express the hope on my own account that it does not imply that a new quango—a new regulatory body—is to be set up for this purpose.

[Baroness Smith of Newnham (LD)]

My Lords, the noble Lord, Lord Butler, has partly stolen my thunder: I, too, was going to raise the issue of the monitoring body. Like all the speakers so far, I would like to thank the Minister for the care and attention with which he listened at Committee and Report stages to the issues raised. Many of the changes to the guidance are greatly to be welcomed, particularly the addition of a glossary. Although, as the noble Lord, Lord Hannay, said, we still do not have a definition of non-violent extremism, an attempt at that is made in the glossary. Obviously, I think that we would all like to go further and know what the Government’s intention really is in understanding non-violent extremism—because, as the noble Lord, Lord Judd, said, there is clearly an issue about ensuring that we still have free expression and that universities are able to deal with that. A lot of the changes have toned down the language from previous versions, so we are talking about “relevant” and “appropriate” bodies and people, not simply all academics and everybody associated with higher education institutions.

That is very much to be welcomed, but, like many colleagues, I think that there is still an issue of when we are likely to see guidance on counterextremism. As the noble Lord, Lord Hannay, rightly says, it needs to be dealt with carefully and should not be rushed by the next Government and the next Parliament. Can the Minister reassure us that what he said at the outset will indeed be in place and that government proposals will come back to Parliament to be debated on the Floor of both Houses, as this guidance has done? That is hugely important. We welcome this opportunity today, but it would be extremely detrimental if further counterextremism proposals came forward in the next Parliament on which we did not have a say.

Counter-Terrorism and Security Bill

Lord Butler of Brockwell Excerpts

Wednesday 4th February 2015 Lords Chamber

[Lord Butler of Brockwell (CB)]

I am very grateful to the noble Baroness for giving way. Will she accept that this Bill does make a difference, even with these provisions in it? Universities will now be under a legal obligation to follow directions imposed by the Government, which goes beyond the legislation to which she has already referred.

[Baroness Deech]

It is the amendments which I do not think will make any difference. Whether the noble Lord’s dire predictions will be the case remains to be seen but I am very worried about the situation that already exists with interference. I have a list—again I will not trouble your Lordships with it. There are lists of convicted terrorists who sadly went through our universities—the underpants bomber on the plane, the man who drove his car into Glasgow airport, and so on. I only wish it were as some noble Lords remember in their youth, but it is not. Because of the umpteen laws that we already have about circumscribing freedom of speech, whether or not we pass these amendments will not, in my view, make any difference, sadly.

Counter-Terrorism and Security Bill

Lord Butler of Brockwell Excerpts

Wednesday 4th February 2015 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I will not follow my noble friend Lady Hamwee and the noble Baroness, Lady O’Loan, on Amendment 16A but will turn to Amendments 18 and 19 in this group.

The Minister may recall that in Committee I asked what the Privacy and Civil Liberties Oversight Board was for and I think that Amendment 19, particularly in paragraph (b), is a rather elegant solution to the question I posed in that, obviously, the board will be chaired by the independent reviewer and he can decide in which direction he wishes to take the board and to what degree it should cover the ground that he feels to be necessary. I welcome Amendments 18 and 19 and thank the Government for thinking again on these issues.

There is only one outstanding issue—the degree to which the board would have access to sensitive material. That will have to await another day when, no doubt, the independent reviewer will be able to transfer to the Minister concerned at the appropriate time the degree to which he feels the board requires access and is inhibited by the fact that it does not see the same papers as he will see. The board would clearly be much more efficient if it was cleared for security purposes to the same degree as the independent reviewer.

The issue in Committee was whether the board was for oversight or support. That question has been soundly answered. Clearly the board is there to support the independent reviewer and I am grateful to the Minister for making that clear.

[Lord Butler of Brockwell (CB)]

My Lords, I too am grateful for the consideration that the Government have given to this matter and, in particular, to the powers of the independent reviewer. I am also grateful to the Minister for the frankness of his speech and for the way he has reported the reactions of the independent reviewer, which are obviously not an absolutely wholehearted welcome. I think it is excellent that the powers have been extended in the way that they have been.

I have an open mind on the amendment of the noble Baronesses, Lady Hamwee, Lady O’Loan and Lady Ludford. I think that it would be good if the independent reviewer had the power—not the sole responsibility—to look at any provision of immigration and nationality law to the extent that it is used for counterterrorism purposes. That is clearly within his remit. The Minister himself said that it might very well be that Mr Anderson will be asked to be the person to report on the operation of the closed procedures in Part 2 of the Justice and Security Act. Therefore, I am rather sympathetic to those amendments and I do not think it would be very difficult for the Government to accept them.

However, I am sympathetic to the Government’s wish not to have too much duplication in this area. As a member of the Intelligence and Security Committee, which also roams over this area, I would like to say that we, too, have no problem with Mr Anderson. His co-operation with us is very good. We have no difficulty with the fact that we are looking at things which he is also looking at.

On his reservation about access to secret material, I am afraid that this intensifies my concerns about the very existence of the Privacy and Civil Liberties Board. I think it is an improvement that Mr Anderson is to be consulted on and will have influence over the appointment of the members of the board and that it is there to support him. He has asked that he should have a written assurance that he should have access to all the secret material that he wants. I am sure that the Government would not have the slightest difficulty in giving Mr Anderson that assurance. But it complicates his relationship with the board, because, as the noble Lord has just said, the Government might well have reservations about that very secret material—the freedom to have the most secret material there is extended to the members of the board. I think that may be unnecessary. Clearly it would be difficult for Mr Anderson if he has access to material and the board has not.

All this leaves me with doubts about the utility of the board. I am glad that it is there to support Mr Anderson. I know that he needs more support. In responding to this, can the Minister say whether it is intended that the secretariat of the board should be the extra support that Mr Anderson needs? I do think that he needs extra support, but I would like to see the support there without the existence of the board, the utility of which I greatly doubt.

[Baroness Ludford (LD)]

My Lords, very briefly, given the hour, I think we can all agree that the independent reviewer is not only a formidable lawyer but a master of modern communication with his blogs and tweets.

I welcome the broad support for Amendment 16A given by the noble Lord, Lord Butler. I want to press the Minister a little on some of his replies: first, on the potential clash with the Independent Chief Inspector of Borders and Immigration. I have just tried to flick through his last annual report but I do not think that he touches on anything to do with national security or powers linked to counterterrorism. As the noble Lord, Lord Butler, has just said, there is a way of dovetailing to make sure that there is no clash. What Amendment 16A proposes is very much to the extent that immigration and nationality law is used for counterterrorism purposes, which is not broadly the focus of the borders and immigration inspector.

Then there was a reference to a one-off review of Section 66, on deprivation of citizenship. However, a one-off review is not the same thing as continuous review and monitoring, so that is really apples and pears.

I join the noble Lord, Lord Butler, in wondering about the Secretary of State at some point, possibly several years hence, appointing an overseer of Part 2 of the Justice and Security Act. The Minister said that that person could be the independent reviewer. Why wait? Why risk setting up two separate posts, which would be inefficient and potentially add some costs? Why not short-circuit the exercise by deciding now to give that function to the independent reviewer? As my noble friend Lady Hamwee said, the case-by-case judicial oversight of the court is not what is meant here by the independent reviewer’s role in having that overview of the way that Part 2 of the Justice and Security Act, on closed material proceedings, has been employed in a whole string of cases. It is rather different. I would press the Minister to give a little more justification as to why Amendment 16A is not feasible.

Lastly, I may not have heard the Minister correctly—it may, again, be the lateness of the hour—but I am not sure that he gave an in-principle explanation of why it is not possible to have a statutory basis for the access to secret material. Of course, I accept what he and the independent reviewer have said—that in practice there has not been a problem and that if the Government tried to be obstructive, we would all know about it pretty soon. However, I do not think that he explained what the policy, or legal or other difficulty, is.

--- Later in debate ---

One area that I was considering was the policies and guidance relative to counterterrorism, particularly in relation to intelligence-sharing policy and guidance. That might be an area that he will want to look at in the future, because that indeed directly impacts on counterterrorism. I understand the points being made; it probably gives some flexibility. I also understand the issue about resources, but flexibility is probably going to be essential because laws do not exist in a vacuum. I entirely agree that we do not want to find that we are duplicating roles and overlapping the work and operation of other commissioners or the independent reviewer of borders and immigration legislation. There will be areas where the Government will need to have some flexibility for the independent reviewer to ensure that he effectively reviews counterterrorism legislation without missing some important information that impacts on that. I congratulate the Government; this is a significantly better amendment than what was before us when it was first announced at various stages, and it has our full support.

[Lord Butler of Brockwell]

The way the noble Baroness talked about the relationship between the independent reviewer and the board underlines the importance of the point made by the noble Lord, Lord Thomas, about clarifying whether the board is to be supportive or consultative. She talked as if the board was going to be part of the support staff for the reviewer, which would be excellent—but in that case, it is rather funny to call it a board. Why not just call it his staff?

[Baroness Smith of Basildon]

I think that there is probably an element of face-saving in calling it a board. The amendment makes clear that it would act under the,

“direction and control of the Independent Reviewer”.

So he can make of the board—or whatever you want to call it—what he will. That is an opportunity for him, and I am sure that he will not be slow to take it.

Counter-Terrorism and Security Bill

Lord Butler of Brockwell Excerpts

Wednesday 28th January 2015 Lords Chamber

[Baroness Manningham-Buller]

My Lords, it is late, we all want to go home, and the end is in sight. This grandly titled panel is a tail stuck clumsily on a donkey. Someone has grabbed an American idea and stuck it into the Bill. What is it for? Others who have spoken have asked exactly the same question, and I think that we would all be concerned if the role of the Independent Reviewer of Terrorism Legislation was damaged or corroded in any way.

I congratulate the Opposition on nobly suggesting some flesh to put on this bony tail of the donkey with a number of things that they think might be worth discussing, if the board ever was to convene under a different title. It is all pretty vague stuff. What do the Government think the board will do? They have had some suggestions from the Opposition. How will the members be chosen, what will be their powers, and—a point raised by the noble Lord, Lord Pannick—what access to classified information will they have? No doubt all that is clear to the Government, but it is certainly not clear to me.

[Lord Butler of Brockwell (CB)]

My Lords, I have sat through the Committee debates without opening my mouth until this late stage, but if even now I can help to save the Government from expenditure on some quite unnecessary bureaucracy, it will have been worth while.

I am actually astonished that this Government, who have been so draconian in their cull of quangos and unnecessary bodies, should come forward at this late stage of the Parliament with a proposal of this sort. However, it is not just that I think that it is unnecessary. I agree with the noble Baroness and the noble Lord, Lord Carlile, that it is damaging. At Second Reading I said that I feared that this was the fifth wheel on a coach which at present operates very satisfactorily. Even if that were not so and it could be shown that the body has some utility, I must point out to noble Lords how unsatisfactory it is to include this clause in the Bill in its present state. It is an empty shell. It empowers the Secretary of State to do anything she likes by way of functions, appointments and procedure, including amending any primary legislation—a Henry VIII clause par excellence.

The contents of the statutory instrument, now non-existent, are to be determined as a result of consultation. It has been pointed out that that consultation is not due to end until 30 January. There is no prospect that we will have the Government’s conclusions on these important matters about the board before the Bill passes into law. The only firm provision in the Bill is that the independent reviewer should chair the board. The noble Baroness, Lady Hamwee, moved an amendment even to modify that and make it flexible. Moreover, I understand that the Government may have already changed their mind about it. That only serves to illustrate how completely undecided the Government are about this body.

I would submit to noble Lords and to the Government that it would be much better to remove the clause from the Bill at this stage and to do the further work which the noble Lord, Lord Carlile, has described, and which is extensive. If, after the election, the next Government wish to come forward with a board with its functions and its contribution very much better defined, and after consultation with the independent reviewer, that would be the time to make provision for a board of this sort.

[Lord Bates]

My Lords, this has been a good debate and I am grateful to noble Lords for their amendments. I, too, must not be tempted at this late hour to drift off the core message before me. I was tempted, when the noble Baroness, Lady Manningham-Buller, talked about camels and donkeys—

--- Later in debate ---

[Lord Bates]

Indeed, not a donkey, nor a camel, though he certainly does more than the work of both, which I guess is the point which is being made to all of us here—that is a serious point about how we support a highly effective individual in a highly effective office to do his duties more effectively. I will seek to address some of the specific points on my way through, but I give notice that part of my instructions, should I race past it on page 11 of my speaking notes, is that we will be returning to this on Report. I hope that that will provide some comfort to noble Lords as they consider what to do with their amendments at this stage.

Clause 36 is a very important clause, as it should be. It is right that as the legislative landscape changes, we pause to consider the safeguards and oversight arrangements we have in place for counterterrorism laws, to ensure that we are getting the balance right between responding to these threats and the protection of civil liberties.

Few would question the exemplary job David Anderson QC is currently doing as the Independent Reviewer of Terrorism Legislation, or the contribution of his predecessor. I totally take on board my noble friend’s injunction to make haste slowly and the fact that we should ensure that there is a robust independent scrutiny of some of our most far-reaching counterterrorism powers. We should be proud of the long-standing, very effective and transparent system of independent oversight that we have in the UK, but we should not rest on our laurels.

Clause 36 provides for the creation of a board which will support the independent reviewer of terrorism legislation. As our legislative armoury necessarily increases, there is also an increasing demand for the review of particular aspects of counterterrorism legislation, and that this is a substantial task for one individual to undertake. David Anderson has himself made clear that he is operating at the very limit of his capacity and that there is a need to reform the independent reviewer’s role. It is intended that the board will provide support in the discharge of the independent reviewer’s statutory responsibilities, but also that the board will produce reports and advice to the independent reviewer, expanding the capacity and breadth of experience available to our oversight arrangements, and enabling a greater range of matters to be subject to review.

It may be helpful at this point to deal with Amendments 118F to 118J which go to the heart of a very important issue, in the same way as other amendments, in seeking to set out particular matters on which the board will report.

Clause 36 provides for regulations to be made which will be subject to the affirmative procedure and which would set out the precise detail of the board. Among other matters, these regulations will make provision about the appointment, membership and particular functions of the board. I fully expect that a number of the issues covered within these amendments may be appropriately dealt with in those regulations.

We are approaching the end of the public consultation period on 30 January, as the noble Lord, Lord Butler, pointed out. The Government will consider carefully the outcome of that consultation prior to bringing forward the regulations setting out the details on how the board will operate. Of course, it is important that the comments of your Lordships in this debate and at other stages of consideration are also considered as part of that consultation.

However, I am mindful that a number of views which have been expressed in this House—

[Lord Butler of Brockwell]

My Lords, the Minister said that we would return to this on Report. He will presumably acknowledge that it is completely impracticable that a Report stage starting on Monday should be able to take into account the results of the consultation.

[Lord Bates]

That may be two different elements. It is certainly our intention to return to this issue, perhaps with a little bit more detail at that stage on how this is going to operate, whereas the full responses of the consultation will, of course, take a little longer to put in place and therefore the regulations that accompany them will also necessarily be a little bit later. It is right that in setting the board up we make clear how it will operate alongside the independent reviewer. The Government are giving careful consideration to this important point, and I hope we can return to this matter on Report, in order to deal with the substance of the concerns previously expressed by David Anderson and your Lordships on this specific issue.

David Anderson has been kept informed of the development of these proposals, and we take seriously his views on these matters. He will have a key role in determining what work the board will undertake and precisely how it will support his role. It is right that the board’s statutory remit be drawn in line with that of the role it is designed to support. Indeed, I want to assure your Lordships that, in making changes to this important area, the Government will not do anything to diminish the existing arrangements. We will, of course, continue to work closely with David Anderson in refining the details of how the board will operate. However, in my view, we should not unduly prescribe in this Bill the tasks that the board will carry out, so as to ensure that it is flexible and that it will be helpful to and genuinely enhance the capacity of the independent reviewer’s role.

I hope also that I can reassure my noble friend that Amendment 118K is not necessary. An important feature of Clause 36 is that it provides that the board will be chaired by the independent reviewer, ensuring that the reviewer role will continue to provide the vital scrutiny that it has done over the past 35 years. This will also ensure that the work of the board complements rather than duplicates—much less rivals—the very important work of the independent reviewer. I understand that David Anderson has welcomed this aspect of the clause.

I hope that I can deal swiftly with Amendment 118H, which proposes to change the board’s name. The name of the body must reflect its purpose—I appreciate the suggestion of a Ronseal test, if you like, so that it does what it says on the tin—and the Government would assert that this is very much the case here. We have been clear that the consideration of privacy and civil liberties interests in our counterterrorism legislation and policies will be a key object of the board. The board will seek to offer further assurance to the public that careful, independent scrutiny is being given to the UK’s counterterrorism powers to ensure that we are getting the balance right and that our legislation and policies have due regard for civil liberty and privacy concerns in the face of the threat to the UK. It is right therefore that the name of the board reflects this.

Finally, I turn to Amendments 118L and 118M, which stand in the name of my noble friend Lord Thomas of Gresford. The Bill very properly provides that the regulations to establish the Privacy and Civil Liberties Board should be subject to the affirmative resolution procedure. That is right and proper given the significance of the issues. However, if minor changes to those regulations were to be required in future—perhaps in the light of experience based on the initial operation of the board—it would seem unnecessary, and not a good use of Parliament’s time, for all such revisions to be subject to the full affirmative resolution procedure.

As your Lordships will be aware, the Delegated Powers and Regulatory Reform Committee considered this Bill, and published a report on 15 January. The committee, having considered all the issues carefully, did not make any recommendation for change in respect of Clause 36, and I suggest that this Committee should accept that position. In the light of that explanation, and with the assurances that we will return to this on Report, I invite the noble Baroness to consider withdrawing her amendment at this stage.

Counter-Terrorism and Security Bill

Lord Butler of Brockwell Excerpts

Monday 26th January 2015 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I sense that the House probably wants to come to a conclusion, so I will not delay noble Lords long. Very powerful speeches have been made both in favour of the powers in these amendments and against them. But I note that the speeches that have been made against have been made against these particular amendments—the ones that were taken out of the draft communications data Bill. Something else has happened in the mean time. An admirable process was followed on this Bill. It was submitted to a Joint Committee and that committee reported on it and its defects. The Intelligence and Security Committee also considered the Bill with classified evidence and we similarly identified some defects. Since then, a revised Bill has been prepared. The noble Lords, Lord Blencathra and Lord Armstrong, have seen that Bill and they consider that it meets 95% of the criticisms that were in the original Bill. I think that the noble Lord, Lord Blencathra, went so far as to say that if those clauses had been presented he would not have objected to them.

There is therefore a Bill waiting. The urgency has increased. The threat is now much higher. If the Government consider that this is a serious threat—they say that they do—it is their duty to produce that Bill and take action on it quickly if that can be done before the election. The arguments that have gone against these amendments do not go against taking that course.

The noble Baroness, Lady Lane-Fox, made another powerful argument, which was that if legislation were hastened it would create resentment and possibly opposition among the people whom we need to carry with us. But I disagree with her in this respect. She said that that may accelerate the bad people going to the dark web, but I think they will go there anyway. We are dealing with very sophisticated people. The argument that she makes simply underlines the fact that we are running behind the development of technology. The fact that we cannot go all the way to dealing with it should not prevent us doing what we can. That is an urgent matter.

The House will not be surprised to hear that I could not find myself in agreement with a lot of the things said by the noble Baroness, Lady Jones, but in one respect I do agree with her. What worries me most is the cost of this legislation, which, if I recall rightly, is put at £1.6 billion. That is money that could be well used on other aspects of the Prevent process. I am torn about whether this is the best use of the money. But I take the view—the noble Lord, Lord West, argued about being hard-nosed with the providers—that it ought to be a duty of the providers to retain these records. It is not something that the taxpayer ought to pay for. The providers make a great deal of money out of these services. If they are required to keep these records at a cost, they may bid a little less for the licences, but I am prepared to take that risk. It should be a condition of the licences that records of this sort should be retained which can be consulted.

My final point underlines something said by the noble Lord, Lord Armstrong. We are not talking about the Government or the authorities holding these records. If people are writing to Alcoholics Anonymous, the Government will not have access to that information. They will access these records only when they are looking for people they have reason to believe are preparing terrorist acts or serious crimes. People who are going to Alcoholics Anonymous have no serious cause to be concerned.

[Lord Marlesford (Con)]

My Lords, I am curious about two of the sources of opposition to what my noble friend Lord King and others have proposed. One is that we somehow have plenty of time and that we do not need to rush. Terrorism is time-related, but it is not time-limited. The terrorist threat was there yesterday and the day before. It is certainly there today and it will be there tomorrow, I am afraid, and I fear the day after tomorrow as well. We do not have the luxury of time that many have suggested.

The other point that surprised me so much is the one about public concern. Of course, it is very easy to say to the public that there is a danger of a snoopers’ charter, which will interfere with everything that you are communicating and is very much against your interests. We know that technically that is simply not true. It is a fear and concern that has been fanned by politicians, quite often for their own purposes.

The noble Lord, Lord Butler, was so right to draw attention to the fact that a draft Bill has been prepared. As far as I can make out, that has been deliberately suppressed by one party for presumably some sort of political reason. It has not been brought forward for discussion. If you ask the public to choose between reducing the risk of death from terrorism to themselves or others whom they do not know, or a possible invasion of their privacy or the privacy of others whom they know or do not know, I have little doubt as to what they would choose.

There are ways in which the security of this country is not being maintained when the Government would like to maintain it. I take one example. It is clearly in our interests in the world of terrorism that we should know who crosses our borders—out as well as in. We have been given an example of the people who go to do jihad and all the rest of it. The fact is that a big attempt was made with the e-Borders programme. A contract worth £750 million was given to Raytheon in 2007. It ran into tremendous difficulties and in 2010 the contract was cancelled. Since then there has been a great deal of judicial toing and froing and arbitration. The net result appears to be a debt to the taxpayer to be paid by the Home Office to Raytheon of £200 million. Something like that failed when it was tried. Let us at least do things that we think can be done. Do not let us say that we have until the day after tomorrow as things may happen tomorrow.

Counter-Terrorism and Security Bill

Lord Butler of Brockwell Excerpts

Tuesday 20th January 2015 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, I strongly support the inclusion of a sunset clause, for the very good reasons that have been given. The only debate is, really, how long. Two years is possibly too short. We need to think about how quickly we will be able to gain information about how it is working, what the full implications are and so on. Equally, however, we do not want it to be too long. So how long is a piece of string? I would think perhaps three or four years. However, I believe absolutely that we should have a sunset clause.

[Lord Butler of Brockwell (CB)]

My Lords, while I agree with noble Lords who have argued that two years would otherwise be too long, one merit of the proposal is that the Data Retention and Investigatory Powers Act 2014 has to be renewed, and there might be something to be said for considering these powers in the context of that, so that we get a comprehensive anti-terrorism Act at the same time. That might argue for a shorter sunset period.

[Lord West of Spithead]

I think that has to be done by the end of this year—which I believe is too short.