LGBT Community: Domestic Abuse

Lord Carlile of Berriew Excerpts

Tuesday 24th November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I wish I had spotted my noble friend when I answered the previous question. He will know that, during the Covid period, the issue of homelessness was paramount, in terms of protecting people. Of course, that will not stop after we have got through the pandemic. I am very aware of the various factors that might lead LGBT people to become homeless and subsequently be unable to get back on their feet, so I totally take his points on board.

[Lord Carlile of Berriew (CB) [V]]

Can the Minister assure the House that not only the rights, but also the interests of trans victims of domestic abuse will now be recognised, as they are potentially the most vulnerable, and worthy of a speedy and strong response from the police, including the 999 service, which is sometimes less than helpful to them?

[Baroness Williams of Trafford (Con)]

I am glad that the noble Lord has brought this up. I recognise the particular problems that trans victims face in terms of credibility, for want of a better word, from our services. The fact that we now train front-line police officers to be not only sensitive but cognisant of the different types of domestic set-ups and to respond appropriately and sensitively is incredibly important. The noble Lord talked about trans victims. I am also minded of some lesbian victims of domestic abuse whom I have met who feel that, perhaps because some of them look more masculine, they will not be treated as victims and are more likely to be assumed to be perpetrators.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Carlile of Berriew Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Lord Carlile of Berriew (CB) [V]]

My Lords, I thank the noble Lord, Lord Paddick, for his thought-provoking speech. I welcome the noble and learned Lord, Lord Stewart of Dirleton, and look forward to many contributions from him in the future. I particularly welcome a fellow criminal lawyer to a senior role here. His maiden speech was both elegant and bucolic.

The proportionate use of CHIS is a necessary component of the fight against terrorism and other serious crimes, including people trafficking and modern slavery. A group of operational case studies has been tabled by the Home Office to accompany this Bill. I thank the noble Baroness, Lady Williams, for the part that she has played in ensuring that those case studies appeared and for providing as much openness as possible for our debates on the Bill, consistent with legitimate national security considerations.

As we heard, a major inquiry is currently investigating undercover policing. It enjoys the wise leadership of Sir John Mitting. Under examination of the activities of individual police officers and professional managers, this Bill provides a framework—a rulebook—that makes it clear that participating informants of and in crime, including those committing some crime, must be subject to full and rigorous control in the future, and that the use of CHIS is controlled in all circumstances.

No more can there be room for sometimes extraordinarily casual and inexcusably pragmatic decisions which allow vulnerable people to continue to be involved in, and at the same time be victims of, serious crime. The CHIS draft revised code of practice, published in September, is a model of its kind, and I hope your Lordships have read it. It is essential reading for this debate.

Subject to two reservations, the Bill, the code and the Investigatory Powers Commissioner’s Office should provide a clear foundation for the proper use of CHIS in the future. I urge your Lordships not to be confused about IPCO’s role. It should be a prompt and rigorous regulator. It should not be transposed to a real-time, operational approval agency. That is not its intended role and, frankly, not its expertise. The Bar Council says that, in respect of criminal contact with the security and intelligence services,

“this Bill is a welcome regularisation of activity which was previously lawful but for which the power and mode of authorisation was opaque and outside the system of quasi-judicial scrutiny which otherwise oversees all intelligence and surveillance activities of agents of the state. It serves to reinforce the rule of law.”

I agree.

I have two reservations, which Her Majesty’s Government must address. First, amendments to the Bill can ensure that IPCO’s scrutiny role will be accelerated, so that any breaches of the Act and code are negated within the minimum practical full-time period, and it certainly does not have to wait for an annual report. Secondly, in relation to CHIS aged under 18, of which there have been very few, the youngest being 15 years old, I agree with the organisation Justice that authority to commit criminal conduct should be limited to truly exceptional and necessary circumstances, with clear and proactive measures to protect the child’s welfare. All that must be achieved within the provisions and correct interpretation of the European Convention on Human Rights.

I look forward to Committee, which promises improvement of an already very welcome Bill.

Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, first, I thank the Minister for the clarity of his opening to this debate. I too pay tribute to the two memorable and entertaining maiden speeches which we heard. I look forward to hearing from both noble Lords frequently in future.

I think people have been trying to tempt me into saying something about Prevent. I will not, save this: I hope my successor as independent reviewer of Prevent will be given access to the very large body of evidence which I was able to collect, and will make his or her mind up quite independently, without any attempt at influence from me.

This Bill’s focus is the protection of the public, and we should not for one moment lose sight of that primacy. I support aspects of the Bill strongly, but at the outset I will refer to one briefly which I do not support: the relegation of the Parole Board. I agree completely with my noble friend Lord Anderson, the noble and learned Lords, Lord Garnier and Lord Falconer, the noble Baroness, Lady Prashar, and others who have spoken about that.

However, I agree with the strengthening of sentences for terrorism-related offences, which are a very specific and unusual group of crimes. What is more important than the protection of the public from those who are released from prison at the end of terrorism offences, or from those who are radicalised in prison and released? In considering that, we should reflect on this: surely, if the release of a terrorist puts the public at risk, the crucial balance between rights and duties must justify properly regulated and proportionately extended detention.

I support the strengthening of TPIMs covered in Part 3. As a former independent reviewer, I had the scrutiny of the full period of control orders. They worked well; they were supported by the courts; the standard of proof was adequate; they were justiciable. For all the years since control orders were replaced with TPIMs by the coalition Government, I have called for their return. In effect, that has now been done, and I think it is correct. As I said, I believe the standard of proof is fair, tested and justiciable.

It is right that the evidential basis for release of terrorist prisoners should be as complete as possible, including psychiatric and neurological assessment. Polygraphs are not magic; they determine little on their own, but in various other areas they have been demonstrably useful as part of the toolkit used in the determination of truth. I see no strong argument against their use in that way in this context.

In the time left to me—in this speech—I want to be clear about the nature of the challenge we are dealing with, by reference to the Fishmongers’ Hall incident, which is very instructive. The perpetrator terrorist, Usman Khan, had been assessed as reformed and deradicalised by external experts, some of whom were present at Fishmongers’ Hall. However, evidence from the prison from which he was released—in my possession and provided to the Home Office some months ago—shows the following. First, almost none of the day-to-day custodial staff who knew him and dealt with him on a daily basis believed he was anything other than extremely dangerous at the time of his release—they were proved right. Also, unknown to the outside experts, in that prison radicalisation was not just in existence but rampant. For example, it included Friday prayers where there was a division into two groups, radical and non-radical, which a perfectly decent imam could not control; and within the prison, sharia courts meted out punishments that included floggings—inside the prison and known to the prison staff. Those are facts.

Before we can be comfortable with advice about release and release decisions, there must be far better management and verification of desistance and disengagement programmes, and of the prisoners who are part of those programmes. This is too important an issue for anything less.

Port Examination Codes of Practice and National Security Determinations Guidance Regulations 2020

Lord Carlile of Berriew Excerpts

Friday 10th July 2020 Lords Chamber

[Lord Carlile of Berriew (CB) [V]]

My Lords, I am grateful to the Minister for her openly consultative approach to these provisions and for the changes that have been made. I think that we have something that should unite most of the House.

These are important new codes of practice, and they are an improvement on their drafts. Codes of practice were almost unheard of when I was on the Police and Criminal Evidence Bill Committee in 1984. They have become a very important part of policing and of the scrutiny of policing, and rightly so. They have given much more confidence as to how significant powers are exercised. Schedule 7, which I have often seen exercised in practice in ports, is a very effective tool as part of the weaponry against terrorism. It produces significant intelligence that can be used across the board in this area.

It is also very helpful that these codes are not only comprehensive but comprehensible to the police officers and others who are trained to use them. I have sampled the training in the past and have found it to be very good.

I support the noble Lord, Lord Harris, on a point that he raised about the definition of a journalist. It is all too easy for people to self-define as journalists, and that is something that we would like to avoid.

It is very important that disclosure of confidential information is being protected so carefully in these provisions, although of course we need to be confident that it is not overprotected. I ask the Minister to confirm that the crime exception remains in force and that information that national security requires should be revealed will be revealed and used in the future.

Policing: Covid-19 Guidance and Legislation

Lord Carlile of Berriew Excerpts

Tuesday 5th May 2020 Lords Chamber

[Baroness Williams of Trafford]

The reason for that protection was the shortage of bats in Europe. We have been working closely with the Bat Conservation Trust, Defra and Natural England’s wildlife teams and international partners on this subject. The BCT has provided advice for bat carers, which we helped to write and which takes a precautionary approach.

[Lord Carlile of Berriew (CB)]

Does the Minister agree that the Director of Public Prosecutions’ very unusual decision to review every single Covid-related prosecution initiated by the police indicates clear overuse of the powers and that new National Police Chiefs’ Council guidance is needed to replace the overcomplex guidance issued by the College of Policing, which many police officers do not even have time to read?

[Baroness Williams of Trafford]

The College of Policing guidance is there not to replace the government guidance but to assist the police as they go about their daily work. As I said to the noble Baroness, Lady Jones, these are new powers and the CPS is therefore reviewing cases charged under both the Coronavirus Act and the public health regulations to make sure that the powers are being applied correctly. Unlawful charges are being withdrawn by prosecutors in court and the CPS is asking for any wrongful convictions to be overturned—but we are in a new world and are having to learn.

Policing and Crime Bill

Lord Carlile of Berriew Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Campbell-Savours]

Oh, she is here. What my noble friend said is very interesting, because she is one of the great lawyers on our side specialising in human rights. Perhaps I may draw attention to her view at the time on anonymity right through to conviction. She said:

“I strongly urge that this House does not consider allowing anonymity for anyone who is charged with rape. But the Government might look sensitively at the issue of whether someone should be covered with anonymity until the point of being charged … The reason that women will come forward when they see that a man has been charged with rape is because they are confident that they will not be so readily disbelieved if he is clearly doing it to other women”.—[Official Report, 2/6/03; col. 1085-6.]

It is quite clear that, at that time, my noble friend at least had some sympathy for the principle behind today’s amendment.

The former Prime Minister, David Cameron, told Parliament that he believed that,

“there was a case for saying that between arrest and charge there was a case for anonymity”.

“I think”, he went on to say,

“this does represent a good way forward”.—[Official Report, Commons, 2/6/10; col. 428.]

My right honourable friend Caroline Flint, speaking on behalf of the Labour Party in the House of Commons, said,

“the serial nature of the crime that we are talking about is important, because when a crime is reported and people hear the name of the person who has been charged, they feel confident to come forward and stand by the victims”.—[Official Report, Commons, 7/6/10; col. 150.]

Even there, from a spokesman from the Labour Front Bench in the Commons, is an admission that, post-charge, people do come forward. I am not claiming that she would support me on this amendment, but I ask the House to judge her view on the basis of the record to which I just referred.

The Home Affairs Select Committee report in 2014 stated:

“We recommend that the … right to anonymity should also apply to the person accused of the crime, unless and until they are charged with an offence”.

In other words, for the second time the Home Affairs Select Committee of the House of Commons, only two years ago, made the same recommendation—again unanimous.

We then have Sir Bernard Hogan-Howe, a practitioner in the field dealing with these matters. He too says he supports pre-charge anonymity.

Finally, there is the letter of 24 March last year from Theresa May, who is now the Prime Minister, to Keith Vaz, which says:

“The Government accepts the committee’s conclusion”—

that is, the report I just referred to, supporting pre-charge anonymity—

“that there should, in general, be a right to anonymity before the point of charge, but there will be circumstances in which the public interest means that an arrested suspect should be named”.

All these assurances are diluted by the guidance being given to police officers, because that guidance does not work. It is about time that we stood up in Parliament, recognised the deficiency in the way the law is operating and put on the statute book something that requires police officers to operate in a particular way. In this case, as the noble Lord, Lord Paddick, suggests in his amendment, they should at least be required to apply to a judge for permission to release a name.

The product of all this law as it currently exists, and the present arrangements, is that reputations are undermined, families are discredited—as I said in my contribution in Committee—there are suicides, public lives and reputations are destroyed, and individuals are sacked from their employment. I have a desk full of letters written over the last 15 years by men all over the country—many of them in prisons; we do not know what happened in those particular cases—objecting to the way the law works.

I implore the House: please give the House of Commons the opportunity to reconsider this matter. If I lose in the Commons, fair enough—but at least give the Commons the opportunity. It is in our hands. If we vote for the amendment tonight, the Commons will reconsider the matter.

[Lord Carlile of Berriew (LD)]

My Lords, I support what has just been said by the noble Lord, Lord Campbell-Savours, and the amendment tabled by my noble friend Lord Paddick. I apologise for not having been here right at the beginning of the debate. Reflecting something said by the noble Lord, Lord Campbell-Savours, I should state that although this issue affects a number of Members of your Lordships’ House, it affects multiples of ordinary people who are not Members of your Lordships’ House, who have been affected by regional publicity in such cases.

I am almost as dyed in the wool—indeed, dyed in the Welsh wool—a criminal lawyer as the noble and learned Lord, Lord Morris of Aberavon, and I recall two criminal trials in which I appeared that particularly disturb me. In one, which I prosecuted, the defendant was, to my enormous surprise, convicted and sentenced to 12 years’ imprisonment, and had to wait a number of months before the Court of Appeal overturned the conviction on very good grounds. In the second, a case in which I defended, my client was convicted of a number of offences and subsequently, after I had been sacked as his counsel, deservedly won his appeal. Those are just examples of the many cases up and down the country in which local and regional publicity has been a powerful driver.

I want to make two points—they are of quality—which were not covered by the noble Lord, Lord Pannick, either in his speech this afternoon or in the article he wrote on this subject, which I read a little time ago. The first relates to the quality of non-recent sexual offences. In relation to most offences on the criminal calendar, there is no doubt that a crime has been committed and the investigation is as to who committed that crime and whether that person interviewed was involved in that crime. In the case of non-recent sexual offences, it does not need me to persuade your Lordships’ House that there have been numerous allegations of offences which never occurred. The damage that can be done—wherein I move to my second point—when the police work on the assumption that the complainant, often called the victim, is telling the truth means that those cases are quite different. I am not making this up.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I am not a lawyer. When the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, say this is a very difficult issue, I know that this is a very difficult issue. I am grateful to the noble Lord, Lord Paddick, for retabling the amendment on pre-charge anonymity for those accused of sexual offences and to my noble friend Lord Marlesford for his amendment, which proposes pre-charge anonymity for a person accused of any crime. I know this is a subject which we have debated frequently and in which noble Lords have a great deal of interest, and we have the legal experts of the land here to assist us.

Like other noble Lords have said, I will not repeat all the points I gave in my responses to the amendment in Committee, save to say that the Government fully understand the anguish felt by those who have had their reputation questioned and tarnished following unfounded allegations made against them. My noble friend Lord Lamont very articulately outlined the names of some of them, although I will not go into individual cases. As the noble and learned Lord, Lord Judge, indicated in our earlier debate, such anguish will arise whether the unfounded allegation was in relation to allegations of sexual offences, which is the premise of the amendment in the name of the noble Lord, Lord Paddick, or with regard to other offences, which is the reasoning behind my noble friend’s amendment.

However, I reiterate that the notion that someone is innocent until proven guilty, as the noble Lord, Lord Pannick, says, is absolutely central to our justice system and the rule of law. There must never be an assumption that being charged or arrested for any offence indicates that a person is guilty of a crime, so the Government have every sympathy for the underlying aims behind both of these amendments. As noble Lords will know, the Government also start from the position that there should, in general, be a presumption of anonymity before the point of charge and believe that there is also a general acceptance that there will none the less be exceptional circumstances in which the public interest means a suspect should be named. The noble Lord, Lord Campbell-Savours, articulated that. The Government’s position remains that we are not persuaded that legislation is the right way forward at this time.

As with any offence, it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect, and the Government firmly believe that non-statutory guidance, rather than primary legislation, is the appropriate vehicle for guiding the police in these operational decisions. It is absolutely vital that the police are able to exercise their own judgment and act swiftly in circumstances where releasing the name of a suspect may, for example, prevent further harm. The introduction of a statutory scheme would hamper the police’s ability to act in this way. We know that such identification can help other victims to recognise that they are not the only ones who have suffered, as the noble Lord, Lord Rosser, said. This is particularly the case with regard to sexual abuse allegations, where the ability of the police to name an individual accused of such an offence might give encouragement to other victims to overcome their reluctance to come forward—and many of them are very reluctant. Victims must feel that they can report the abuse to the police as well as get the support they need.

We have seen recently the significant effect of increased willingness by victims to report what happened to them in the shocking scale and nature of allegations of non-recent child sexual abuse in football. I am sure the whole House will want to join me in paying tribute to the bravery that some ex-footballers have shown in coming forward publicly after so much time in what must have been terribly difficult personal circumstances. Their courage has clearly given confidence to many others to come forward. But had the legislation put forward by these amendments been in place today, the media in this country could have been prevented from reporting the claims of some of these alleged victims. Of course, as with any allegation, it is now for the police to take forward and investigate in order to establish the facts and, where appropriate, to bring prosecutions.

A question was asked—I cannot remember by which noble Lord—about whether the police should believe all victims. The police should always focus on the credibility of the allegation rather than on the credibility of the witness. As I have just outlined in the case of allegations in football, I cannot emphasise strongly enough that we must not undermine victims’—

[Lord Carlile of Berriew]

I do not quite understand how the shocking cohort of football cases relates to the issue in these amendments. These football cases have not followed a specific arrest or arrests. Indeed, the three convictions of Barry Bennell in 1994, 1998 and, I think, 2002, did not produce a cohort of reporting; media publicity of the issue, not of an arrest, produced it. So what does it have to do with this issue?

[Baroness Williams of Trafford]

I am trying to illustrate that alleged victims’ willingness to come forward is now more common because they feel that they can come forward and they are more likely to be believed. There are not huge numbers of convictions in sexual abuse trials, and to go back to the position where anonymity was granted would be a retrograde step.

--- Later in debate ---

[Viscount Hailsham]

My Lords, I am conscious that your Lordships want to vote on Amendment 187, so I shall be brief, but I have to say that this proposal is, to my way of thinking, one of the most unjust that I have heard in your Lordships’ House for some time. It is worth identifying what it says. I shall come to the proviso in a moment, but what it says that somebody who is accused of rape is not to know the name of the accuser—the complainant. For that matter, somebody who is accused of actual bodily harm or grievous bodily harm is not to know the name of the accuser or of the witnesses. I ask rhetorically: how on earth can a defendant or his representatives prepare his case for trial without knowing the name of the accuser or the witnesses? After all, they may not have been there. They may be notorious liars. There may be lots of other reasons to distrust their integrity.

The substantive clause here precludes the police from giving the name of the victim or the witnesses to the accused person. That is curiously reminiscent of the procedure underlying lettres de cachet in pre-revolutionary France, as described in A Tale of Two Cities. Let us look at the proviso, because it needs a bit of probing. The proviso in subsection 1(b) of the proposed new clause is so far as,

“non-disclosure would not impact on … a new trial”.

Who is to judge whether it impacts on a fair trial? I can tell noble Lords from the language of the proposed new clause that it is to be the police or the Crown Prosecution Service. So the police or the Crown Prosecution Service, who are party to the procedure, who are making the allegations, will judge whether it is fair to disclose the identity of the victim or the witness. How can that possibly be fair? What procedure is there in the proposed new clause for the accused person to challenge that determination? There is none at all.

We are told, “Ah, the judge will let it in”, but the judge cannot when there is an absolute prohibition. There is no procedure here whereby the decision of the police officer or the Crown Prosecution Service can be challenged. Probing a little further, what about police statements? I am sure my noble friend knows full well that police statements have to be served on the defendant prior to trial so that they can prepare and understand their case. If the identity of the witness or the victim has to be redacted out of the statements, what possible purpose is there in serving the statements at all? One merely has to identify these things to see that this would be struck down, certainly by the courts. It is a clear contravention of the provisions in the convention now in domestic law in favour of a fair trial.

Incidentally, on proposed new subsection 1(c), regarding the protection of people, bail conditions can do that. There may be a case for strengthening bail conditions but there is absolutely no case for introducing a measure that will do a profound injustice in our courts. I hope my noble friend the Minister will give a robust response to this.

[Lord Carlile of Berriew]

Before the noble Viscount sits down, is the point not that the complainant may say that the person who allegedly assaulted him or her is a stranger but may have an oblique motive for so saying? How is the defendant therefore able to defend himself or herself without being able to know who the accuser is? It is a palpable injustice which was not covered, I regret, by the passionate speech by the noble Lord, Lord Wigley, which omitted that crucial point.

[Viscount Hailsham]

I could not agree more with the noble Lord. I agree with him as I agreed with him on the previous debate. We are dealing here with the possibility of profound injustice and we should guard against it.

Terrorist Attack in Nice

Lord Carlile of Berriew Excerpts

Monday 18th July 2016 Lords Chamber

[Baroness Williams of Trafford]

When we look at events around the world, particularly some of the horrors in America over the last few weeks, I personally always feel glad that we are not an armed country. I totally see where the noble Lord is coming from, but—I will disappoint him when I say this—we have some of the best policemen and women in the world. With the national asset barrier, we have ways of containing potential events such as this, but I would not like to see what the noble Lord talks about as widely available.

[Lord Carlile of Berriew (LD)]

Can the Minister confirm that the Joint Terrorism Analysis Centre has as part of its focus the identification and interdiction of the types of semi-lone wolves who were described earlier? Can she also confirm that there are sufficient portable barriers, including where necessary the use of fairly heavy vehicles, to protect from the kind of scenarios in places which might otherwise suffer the same fate as the Promenade des Anglais?

[Baroness Williams of Trafford]

My Lords, I can absolutely confirm that JTAC is constantly monitoring such threats to our people and country. I am sorry, but I cannot remember the second part of the noble Lord’s question.

[Lord Carlile of Berriew]

It was about heavy vehicles and barriers.

[Baroness Williams of Trafford]

I can confirm that we are satisfied that we have the police-led and vehicle-led capability to deal with such large-scale firearm attacks in the UK. The noble Lord will have to forgive me—it is my first hour, never mind my first day.

Investigatory Powers Bill

Lord Carlile of Berriew Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Rooker (Lab)]

My Lords, I thank the Minister for the response to my request at Second Reading for a view about each of the 10 tests. I am quite happy to accept these. What I resent is the fact that someone can stand up in our free Parliament and equate the present status of this country with the Stasi, where there was no rule of law, no independent judges, no independent commissioners and no free parliament. Let us have a reasonably decent debate about this.

[Lord Carlile of Berriew (LD)]

My Lords, if I may just follow on from what the noble Lord, Lord Rooker, has said, my view, having studied these issues for a very large number of years now, is that the Bill as drafted provides ample protections against invasions of privacy. Indeed, they have that kind of specificity that the courts readily understand. I am not opposed to the amendment proposed by the noble Lord, Lord Janvrin, but I respectfully say to my noble friends that the other amendments in this group, Amendments 1 and 2, add absolutely nothing of substance. I join with the noble Lord, Lord Rooker, in saying that I regard it as outrageous to equate our situation today with Nineteen Eighty-Four. The idea that we have a “Room 101” in this country and cameras in every bedroom—which is what it says in Nineteen Eighty-Four—is completely misleading. My charitable view is that it demonstrates that my noble friend has never read Nineteen Eighty-Four.

I say to all Members of this House, including my noble friends—forgive me for taking up time, but maybe the beginning is the time to say it—let us get this Committee stage done as quickly as we possibly can and not spend our time on large numbers of otiose amendments.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, the Committee will recall that privacy protections were quite rightly a significant topic of debate as the Investigatory Powers Bill passed through the other place. To make clear the duties in relation to privacy and the associated protections and safeguards, the Government introduced a new overarching privacy clause, Clause 2, and made amendments to Clause 1. Those clauses impose statutory duties on public authorities in relation to privacy and, as drafted, already clearly underscore the right to privacy and provide the necessary balance between that right and the powers necessary to keep us safe.

Amendment 1, moved by the noble Lord, Lord Paddick, seeks to add a new clause which would list the 10 tests proposed by the Independent Surveillance Review panel, convened by the Royal United Services Institute, or RUSI. At Second Reading in your Lordships’ House, the noble Lord, Lord Rooker, asked whether the Bill complies with those tests. My noble and learned friend Lord Keen confirmed that it does and undertook to set out precisely how it satisfies the RUSI tests. He then duly wrote to the noble Lord and has placed copies of the correspondence in the Library. Accordingly, and in particular in the light of the noble Lord’s helpful comments a minute ago, I hope noble Lords will accept that the Bill does indeed satisfy those tests. I recognise the desire of the noble Lord, Lord Paddick, to set the scene, as it were, for our forthcoming Committee debates, and while I agree with the principle and spirit of the proposed new clause, I do not consider that it adds anything to what the Bill already contains. I am confident that the Bill as it stands meets each test.

On the amendments proposed to Clause 1, it is worth re-emphasising that Clause 1 provides an overview of the Bill and sets out the duties relating to privacy and the robust protections applied to the use of investigatory powers. This provides the context for the revised Bill and the accompanying codes of practice, which make clear the strong privacy safeguards that apply to the use of the powers contained in the Bill. The Bill ensures that the security and intelligence agencies and law enforcement continue to have the powers they need to keep us safe—and no more. Amendment 2 is therefore not required; Clause 1 provides a suitable and sufficient overview of the Bill and the privacy protections, so the proposed new text is not merited.

I listened with care to the noble Lord, Lord Strasburger. The Government and law enforcement are clear about the value and importance of accessing internet connection records, in particular, to prevent and detect crime and keep the public safe. I did not hear the noble Lord refer to that imperative, although it has been recognised during the passage of the Bill, including by noble Lords at Second Reading. The Joint Committee that scrutinised the Bill considered this issue in detail and concluded that,

“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.

On Amendment 3, I begin by thanking again the Intelligence and Security Committee for its diligent and valuable contributions to the Bill. We very much welcome its ongoing input to this debate. As I am sure the Committee will be aware, in its report on the draft Bill published last year, the Intelligence and Security Committee of Parliament called for the inclusion in the Bill of an overarching clause dealing with privacy protections. That call was echoed by the Opposition and the Scottish National Party in Public Bill Committee. Following those discussions, the Government introduced the new comprehensive overarching privacy clause in the Bill, which was widely welcomed on Report in the other place.

I agree fully with the spirit of the ISC’s amendment but do not consider that it is needed. The new overarching privacy clause and amendments made to Clause 1 not only achieve what the ISC’s amendment seeks to achieve but go much further; rather than signalling the importance of privacy, the amended Part 1 now creates a statutory obligation to have regard to the public interest in privacy. The privacy clause serves to make clear what was always the case: privacy is at the heart of this vital piece of legislation. Therefore, with great respect to the noble Lord, Lord Janvrin, I cannot see that his amendment, well-intentioned as it is, adds value to what is already in the text.

I hope these remarks are helpful and that, while doubtless the noble Lord, Lord Paddick, will reserve the right to return to individual issues, he will nevertheless be content to withdraw his amendments at this stage.

Investigatory Powers Bill

Lord Carlile of Berriew Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Ramsay, but it is a privilege to follow her on a subject of which she has the theoretical knowledge, and probably more practical knowledge than almost any other Member of this House—certainly more than most who are prepared to admit it. I know that repetition rarely involves improvement to the decent argument so I propose to make a few points of emphasis rather than repeat what has been said. I can say at the outset that I support the Bill, for the reasons just given by the noble Baroness and by noble Lords including the noble Lords, Lord Murphy and Lord Butler of Brockwell, my noble friends Lord Campbell of Pittenweem and Lord Macdonald, the noble Lord, Lord Rooker, and the noble Marquess, Lord Lothian.

I have some misgivings about the Bill. They are three in number and I can state them briefly. The first is the issue of legal professional privilege. I am not going to repeat a word of what was said so eloquently by the noble Lord, Lord Pannick, and my noble friend Lord Lester. I simply invite the Government to continue to consider that issue and to respond consistent with the advice that has been given in the debate.

My second misgiving relates to the use made of certain types of records. We have to be careful to ensure that, for example, medical records are used only for a legitimate purpose. I can see extreme circumstances in which medical records might be relevant to a terrorism event but the use of such records would have to be extremely carefully controlled, so what I would describe as the principle of legitimacy of use is essential to the Bill.

My third misgiving echoes something that was just said by the noble Baroness, Lady Ramsay, alluded to earlier by my noble friend Lord Campbell and stated pithily by my noble friend Lord Macdonald. It is about judges. I have general reservations, as she does, about the role of judges in what is essentially a ministerial act. It is Ministers who are briefed every day on national security issues and who have been issuing warrants though history. It is senior civil servants, such as some of the retired civil servants who have spoken so well in this House—there may be one or two more to come—who have consistently given advice to Ministers. I do not object to judges being involved in some way, but it must be a legitimate way. If judges are to be involved, it is to be for the verification of what has been done and of whether it has been done in accordance with legal principle. That means by the use of the rules of judicial review. Judges are not trained to authorise warrants. Most judges do not want to be trained to authorise warrants, and they should not be thrust into that role. I agree emphatically with my noble friend Lord Macdonald of River Glaven that it is desirable that serving judges should be included as judicial commissioners. It is not that retired judges do not do the job well—they do their work brilliantly in most cases—but the political optics of this issue are very important. The cohort of judges who act as judicial commissioners should include serving judges who go back from their commissioner role to the courtroom in which they give judgments on issues of fact and law so that they are seen to be not in any way the beneficiaries of political largesse.

Earlier, the noble Lord, Lord Blunkett, referred to a telephone call he made to me on 11 September 2001. It was probably a call I should not have returned because it resulted in my becoming Independent Reviewer of Terrorism Legislation. I did the job from 2001 to 2011. Even in 2011, it was nothing like as complex as it is today, and I pay tribute to my successor David Anderson QC for the brilliant work he has done, the outstanding legal analysis he has brought to his role and his sensitivity to the most difficult political setting in which he has had to carry out his role. It was much easier in the period when there was a Labour Government. Not all the Home Secretaries were entirely consistent in their views, but broadly they were, considering how many there were over those years, including one who is in his place on the privy counsellors’ Bench. David Anderson has had a much more difficult task. The House should be extremely grateful to him for what he has done.

I am frankly outraged, and I suspect David Anderson is, too, by the criticism of civil servants in the Home Office by one speaker in this debate. I observed civil servants in the Home Office over nine and a half years carrying out their role without bias, fear or favour, just doing their sometimes very difficult duty. The suggestion that civil servants in the Home Office, or anywhere else in the public service who I have observed at close quarters, have dealt with terrorism issues in a way that is dishonest in any way whatever just fills me with horror, and I hope that Lordships generally will reject that slur on our civil servants. It should not have been made.

Taking a much more constructive point now, I hope, what we have is a changing situation. As I discovered in my nine and a half years as Independent Reviewer of Terrorism Legislation, dealing with terrorism is not science or even art; it is just something that changes day by day. It does not evolve; it simply changes, sometimes suddenly, by mood and disruption in the political and democratic metabolism of the world. Sometimes the changes are unpredicted, and often they are completely unexpected. We should bear that in mind as we look at the detail of the Bill in the weeks to come, and I look forward to playing my part.

Brussels Terrorist Attacks

Lord Carlile of Berriew Excerpts

Wednesday 23rd March 2016 Lords Chamber

[Lord Bates]

We have the Prevent and the Channel programmes, but we also have them in the very helpful context of the counterextremism strategy, which was published at the end of last year. That will probably lead fairly shortly to some legislation coming through this House, which will flesh out some of the points that the noble Baroness raised. But I return to the point that some of the most effective means of combating this distortion and perversion of a great faith in this country come from within the communities themselves.

[Lord Carlile of Berriew (LD)]

Does the Minister agree that it is a disappointment that the same group which killed over 100 people in Paris on 13 November was able to kill more than 30 people in Brussels yesterday? If that is right, does he agree that the welcome co-operation that has taken place between the intelligence agencies of the Five Eyes and the European countries other than the United Kingdom should be re-examined so that we have the technical abilities, including surveillance capacity, required to ensure that this is not repeated in yet another European capital, which might be our own?

[Lord Bates]

That is absolutely correct. Of course, that is one of the prime drivers behind the investigatory powers legislation—but the noble Lord will notice that, when we talk about the global fight against terror, the sophistication of the Daesh communications, with the use of social media as a way of communicating, is a completely new challenge for the security services. That is why we are putting the resources into GCHQ. Because Daesh is based in Syria, we need to make sure that we take the fight to it and destroy its capabilities there before it has the opportunity to destroy our way of life here.