Ukraine
Lord Carlile of Berriew Excerpts(1 month ago)
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The Minister of State, Ministry of Defence (Lord Coaker) (Lab)
My Lords, I start by paying tribute to Corporal Christopher Gill, who lost his life in a training exercise a few days ago. He made an enormous contribution to defence, including to Operation Interflex. Our thoughts are with his family.
We are fast approaching the third winter of Russia’s illegal invasion of Ukraine. There is no weaking of the resolve of everyone in this Parliament, across all parties, and of the British people to see this through with our allies. It will be the third winter in which the extraordinary Ukrainian people are fighting to defend their homes and families and fighting for the right to exist as a free and sovereign nation. It will be the third winter of war that Putin did not plan for when he attacked Kyiv two and a half years ago. His blitzkrieg offence, which quickly turned into a retreat, has evolved into a deadly and dystopian meat-grinder tactic, where 20th century trenches meet 21st century drones and a medieval mentality.
On average, more than 1,100 Russians have been killed or wounded each day since May, many from poor, provincial backgrounds. In total, there are likely to have been around 675,000 Russian casualties, either killed or injured. Confidential payment records obtained by the BBC show that 17,000 Russian prisoners died in the assaults on Bakhmut over a 12-month period. Putin’s tactics demonstrate his complete disregard for human life, whether Ukrainian or Russian. His war of imperial aggression was launched on the back of decades of internal repression that failed to stem a Russian brain drain, with hundreds of thousands of educated Russians heading into exile since the full-scale invasion.
In the other direction, it is now highly likely that the transfer and deployment of hundreds of combat troops from North Korea to Russia has begun. This return of big-state warfare in Europe has been a twin attack on the Ukrainian people and on the global, rules-based international system. Ukrainians have endured rape and pillage, bombardment and occupation, death and destruction, as Russian forces have abducted thousands of Ukrainian children and cynically targeted civilian infrastructure to use the winter as a weapon of war.
Putin’s war is also a sustained attack on the UN charter and the rules and norms that underpin our security and prosperity. That is why Russia must lose and be seen to lose, because global security is indivisible. What happens in Ukraine has an impact around the world, in the same way as what happens in the Indo-Pacific has an impact on global security. It is in no one’s interests to let a violation of territorial integrity stand, and that is why the front line in Ukraine is also the front line of UK and European security.
That is also why we—all of us—will continue to do everything we can to help Ukraine prevail. Ukraine has repeatedly demonstrated great ingenuity to stay in this long war: the miliary ingenuity to hit supply lines deep in Russia, with its next-generation drone capabilities; the ingenuity to stake out a buffer zone in Kursk, which might yet prove to be an act of great diplomatic ingenuity; the ingenuity to force the Russian fleet out of the western Black Sea, although, regretfully, as noble Lords will have seen, Russian missiles have struck several commercial vessels this month; and the miliary ingenuity not only to push the much larger Russian force out of more than half the land it originally seized but largely to hold that line ever since. While Russia’s advances are generally measured in metres rather than miles, I do not seek to downplay the strain on Ukraine’s front-line forces or the military challenges it faces, particularly as Russia’s recruitment gets more desperate and its forces now openly admit to using riot control agents, a chemical weapon, on the battlefield.
Alongside Ukraine’s military ingenuity, President Zelensky has also shown great diplomatic skill and statecraft, repeatedly rallying western allies into giving the support that his country and forces need to stay in the fight. Most recently, he toured US and European capitals to outline his victory plan. He has had no greater ally than this Government, both now and in the past. Earlier this month, the Prime Minister welcomed President Zelensky back to No. 10 to discuss the vital support that his nation needs to make his victory plan a reality. The Prime Minister discussed that with President Biden, President Macron and Chancellor Scholz in Germany last week.
That was but the latest conversation in a summer of diplomacy, stretching from the Washington NATO summit and the meeting of the European Political Community in Blenheim Palace in July to countless visits to European capitals. That culminated last week in the meetings of NATO and G7 Defence Ministers and the EU Foreign Affairs Council in Luxembourg, which was the first time in more than two years that the UK has had a presence in that conversation. These are the latest steps of a crucial diplomatic marathon to give Ukraine the support and military assets that it needs, with the provision of multiple weapons and weapon systems provided as quickly as we can. We are learning lessons about the need for stockpiles and the future of miliary tactics, to strengthen us against the various diplomatic, military, intelligence and industrial threats that make up this tapestry of European security.
That is important, because regardless of who wins the US election, it is pretty clear that a new US President will be looking towards European NATO allies to step up and to take greater responsibility for European security, and for giving Ukraine more of the military capabilities it needs to defeat Russia.
We all know how grave the costs can be when aggression is met by hesitation. Only this year, we were reminded of that when we marked 80 years since Europeans faced down Hitler’s imperial tyranny. It was Clement Attlee who forged NATO from the shrapnel of that attack on European values to deliver ironclad deterrence for generations to come. Today, that defensive alliance, through all Governments since that time, remains the cornerstone of European and global security. It has been bolstered by the accession of Sweden and Finland, which represents a huge strategic own goal by Putin. The Prime Minister recently met with the new NATO Secretary-General to reaffirm the Government’s NATO-first approach and outline how we are stepping up military aid to Ukraine.
On Tuesday, the Chancellor announced an innovative and significant new funding stream. We are committing more than £2.25 billion under the extraordinary revenue acceleration loans for Ukraine scheme, which is money generated from the interest on seized Russian assets and part of a larger £50 billion loan package from G7 countries for Ukraine’s war effort, economy and reconstruction.
On top of this, the Prime Minister has committed to President Zelensky that the UK will provide £3 billion of military support every year for as long as it is necessary. On day two in office, the Defence Secretary travelled to Ukraine to speed up the delivery of that support. Since the election, we have gifted a range of equipment to strengthen Ukraine’s air defences and boost its fighting power, from tens of millions of rounds of ammunition, anti-armour Brimstone missiles and lightweight multi-role air defence missiles, to demining vehicles and AS90 artillery guns.
At the ministerial meeting of the Ukraine defence contact group in Ramstein in September, the Defence Secretary announced that the UK would extend Operation Interflex until at least the end of 2025, the UK-based multinational training programme that has already trained more than 48,000 members of the Ukrainian armed forces.
Over the course of its full-scale invasion, Russia has launched over 1,000 attacks on Ukraine’s energy infrastructure. In response, we have provided over £370 million to bolster Ukraine’s energy security and resilience through grant-in-kind support and loan guarantees, which includes £40 million for essential repairs and equipment this year alone, which will help the Ukrainians through the winter and beyond. We should pay tribute at this point to the steadfastness of the Ukrainian population in the face of what they have suffered.
In the spring, we saw the impacts of US military support getting bogged down on Capitol Hill. Stagnation in supplies and delivery serves only Russian interests. So, as Ukraine works to ramp up its indigenous production capacity, we are doing all we can to ensure that the UK defence industrial sector plays a prominent role, with the Defence Secretary hosting a meeting between President Zelensky and UK industry leaders in July and signing a defence industrial support treaty with the Ukrainian Defence Minister worth £3.5 billion, and with the Minister for Armed Forces speaking at the International Defence Industries Forum in Ukraine earlier this month.
In addition to our military, political and industrial support, the Government are determined to use sanctions to impose a heavy price on Putin and his enablers for his war, and we are determined to give existing sanctions greater bite. At the Blenheim Palace meeting in the summer, over 40 European leaders signed our call to action, agreeing—importantly—to crack down on Russia’s shadow fleet of oil tankers that transport Russian oil to third countries in order to undermine sanctions. The UK has since sanctioned 43 oil tankers, disrupting their freedom to operate, barring them from UK ports and leaving them unable to access British maritime services. Earlier this month, the Foreign Secretary also sanctioned Russian soldiers and officials behind the use of chemical weapons.
Cross-party parliamentary support, the work of previous Ministers and the previous Government, as well as ourselves, which continues, has led to the UK imposing some of the toughest sanctions ever seen on Russia—
Lord Carlile of Berriew (CB)
Before the Minister finishes his excellent speech, will he tell us the Government’s policy on allowing long-range missiles for strikes further inside Russia?
Lord Coaker (Lab)
The policy with respect to Storm Shadow remains the same. Russia knows that Ukraine has a right to self-defence, and that is within that principle and conforms to international humanitarian law. That is the policy as it stands, and there has been no change to that policy as we speak in this debate.
As I was saying, cross-party parliamentary support has been important and has led to the UK imposing some of the toughest sanctions ever seen on Russia. With more than 1,800 individuals and entities sanctioned since the full-scale invasion, locking over $400 billion away from the Russian state, the equivalent of four years more funding for their illegal invasion. To give those sanctions sharper teeth, the Government recently launched a new unit to enhance compliance and punish companies and individuals that fail to comply.
Noble Lords will know that Putin is responsible for the deaths of hundreds of thousands of people. He is facing charges from the International Criminal Court for war crimes, and his forces have committed many atrocities that shake the soul of our shared humanity. Putin’s willingness to lower the bar, from hitting hospitals and homes and targeting energy infrastructure, to the mass deportation of Ukrainian children and the use of chemical weapons, makes Ukraine’s resolve all the more remarkable. The UK will do everything we can to ensure that Ukraine’s allies mirror that resolve. There will be discussions, as the noble Lord, Lord Carlile, says, but let us remember that we remain united in our resolve to tackle the illegal invasion of Ukraine.
As economists warn that Putin’s prolonged campaign and increasingly hungry wartime economy are unsustainable and will increasingly hurt Russia’s poorest people, democracies must recommit to thwarting Putin’s plans in order to outline our collective interest and resolve. If Putin prevails in Ukraine, he will not stop there. If autocratic states are allowed to redraw international boundaries by force, the sovereignty and security of all nations is undermined.
That is why we are maintaining the constant drum beat of international diplomacy and military aid in support of Ukraine. It is why any just and sustainable peace for Ukraine needs to reflect the principles of the UN charter—principles to which the international community has signed up and which even the BRICS Kazan Summit declaration called to be upheld. It is why we are getting behind Ukraine’s victory plan, and working with our European, NATO and other democratic allies to ensure that they get behind it too. This winter, the values and freedoms that the Ukrainians are fighting for are the ones that underpin every democracy. The security that Ukraine is fighting for underpins the security of our entire continent and that of the rules-based order across the world.
Freedom, democracy, human rights and the rule of law are at stake. They are worth standing up for, as they always have been, and as this country has always done. This country, with our allies across Europe and beyond, will be at the forefront of that struggle for as long as it takes. I beg to move.
Lord Carlile of Berriew (CB)
My Lords, I echo the many congratulations to the noble Lord, Lord Spellar. He has always been wise and brave. That will be much appreciated in your Lordships’ House.
I will refer in particular to the speech of the noble Lord, Lord Banner, earlier in the debate. His insights were very valuable to this debate. I raised the Storm Shadow issue with the noble Lord, Lord Coaker, earlier and I hope we will hear from the noble Baroness the Minister that the years of simply slipstreaming United States decision-making are over. We may within days have to face a very different United States and we cannot rely on the past for a good future.
My noble friend Lord Alton raised the way in which sanctioned moneys are used. In the criminal jurisdiction of this country, within which I have operated for decades, when we confiscate money from a criminal, we do not simply use the interest: we use the capital. We should do exactly the same with the money confiscated from Russians who are, in reality, international criminals. We may well be told that that involves examining some treaties, but, if we examine treaties which affect Putin and his cronies, it will not worry him because he ignores every relevant treaty that affects what he has been doing. It is time we changed our attitude and used that money to revive the fortunes, literally, of Ukraine.
As the noble Baroness, Lady Neville-Jones, did, I will talk about the city of Lviv. It has been subjected to serious bombing, damage and death. I went there first in 1991 in the company of a brave woman called Frederika Katzner. She was my mother. She was brought up in Lvov, as it was then. It was part of Poland. She married a husband there who was murdered, like so many of my ancestors, by the Nazis. She was an extraordinary Holocaust survivor. She did not return to Lvov—as she always called it—for 50 years, because my father would not let her go back. I took her there in 1991. It was a most remarkable experience because, throughout my childhood and earlier adult life, I had heard so much about Lvov and the way she described it. She always spoke of a Polish and also Habsburgian city where she had an advantaged childhood and a wonderful education, and was steeped in western and central European culture.
Putin has an obsession with not the Soviet but the White Russian past; he claims that Ukraine is part of Russia and always has been. That is what drives him to a great extent—helped in many ways, I regret, by the Russian Orthodox Church. Those are completely irrational views. My visit to Lviv in 1991 and my few visits since have confirmed to me that there is no rational basis for saying that Lviv or Ukraine are Russian. I have visited other parts of the country too, including staying in Kyiv. I hope we will not resist reminding Putin at every possible turn that this is an independent central European country which shares far more with us than it does with “Mother Russia”.
Indeed Ukraine, as a result of its post-Soviet adoption of rule of law standards and its new political system, largely thanks to the election of Zelensky after some difficult political changes, has established itself as part of our European family. In my view, this debate is ample demonstration that, as we have heard from many noble Lords, we must stand by Ukraine. But I agree to a great extent with the noble Lord, Lord Hamilton, that we do not stand by Ukraine if we simply say so. It is in that context that we live. To me, it all feels a little bit like 1938, and I do not think there should be another 1938.
Ukraine
Lord Carlile of Berriew Excerpts(12 months ago)
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The Earl of Minto (Con)
My Lords, this is not within my brief; this is for those at the Home Office. I will certainly contact them and find out exactly where they are in their thinking. My understanding is that there is no intention to do anything other than continue the current situation.
Lord Carlile of Berriew (CB)
My Lords, in 2008 it was declared by NATO that Ukraine should become a member. Yesterday Jens Stoltenberg, the Secretary-General of NATO, declared that it was the intention now that Ukraine should become a member. Will the Government tell us the timetable for Ukraine to become a member of NATO and, thereby, to have the full protection of that organisation?
The Earl of Minto (Con)
My Lords, I am not aware of any timetable, and I am not certain there is one. For Ukraine to become a member of NATO, the prerequisite is that there are no foreign troops on its soil. There certainly are foreign troops on its soil in vast quantities. Until that is resolved, I cannot believe that the NATO alliance can do anything other than continue in its resilient resistance.
Independent Review: Armed Forces Homosexuality Ban
Lord Carlile of Berriew Excerpts(1 year, 4 months ago)
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Baroness Goldie (Con)
I can say to the noble Baroness that already we have taken proactive measures such as implementing various inclusive policies—that was important —including the provision of pre-exposure HIV prophylaxis. We have introduced a guide for parents of LGBT children and LGBT+ allies training. We have several thriving LGBT+ staff networks and a LGBT+ community which regularly parades in Fighting with Pride marches and does so with pride. I had the privilege of meeting them at a reception last year and my right honourable friend the Minister for Defence, People, Veterans and Service Families was with them this year. In addition, we have today launched an “LGBT veterans: support and next steps” GOV.UK page, which is now live and available for anyone who was impacted by the policy to explore the support, services and restorative measures available to veterans. The recommendations also specifically provided for apologies, which we acknowledge as being absolutely necessary. In relation to the successors and relatives of those who have died, I think the apologies of the Prime Minister and the Secretary of State for Defence were all-encompassing. The Prime Minister’s was on behalf of the British state to all affected.
Lord Carlile of Berriew (CB)
Does the Minister agree that my noble and learned friend’s report should be seen as a paradigm across other sectors in both the public sector and the private sector; for example, in banking, where there is still discrimination on the grounds of sexual orientation, often fairly covert?
Baroness Goldie (Con)
I agree with the noble Lord. I think “paradigm” is a very appropriate noun to attribute to the noble and learned Lord’s report. I am disturbed to hear that there are other areas and sectors where such behaviour is lurking. My advice to anybody in those sectors is to call it out, expose it, shine a light on it and make sure that the miscreants, transgressors and culprits are all put into public view and dealt with appropriately.
Nuclear Submarines: AUKUS
Lord Carlile of Berriew Excerpts(1 year, 4 months ago)
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Baroness Goldie (Con)
On the first point, it has always been acknowledged that, although AUKUS is intended to do two things—to augment our Indo-Pacific tilt and to provide us with our new class of AUKUS submarines and succession to Astute—it will also enable the UK and its partners to develop capabilities that will, for example, not only reinforce NATO but help the states in the Indo-Pacific bolster their own security. On the noble Baroness’s latter point, we already have a huge base of skills in the UK, as I indicated to the noble Lord, Lord Walney. That, quite simply, is why AUKUS is a trilateral agreement with the United States, the UK and Australia. We are building on that; we are not complacent. We need to expand that skills base. I agree with the noble Baroness that, once we do that, we will see a fanning out of other benefits to the broader defence enterprise.
Lord Carlile of Berriew (CB)
My Lords, for the aspirations set out in my noble friend Lord Walney’s Question to be achieved, we need to ensure that the United Kingdom provides the capital impetus for us to participate fully in the construction and development of the submarines. Will the Minister tell us what steps are being taken by His Majesty’s Government to ensure that the United Kingdom is a full participant in the construction programme?
Baroness Goldie (Con)
I respond to the noble Lord by reminding the Chamber that, in March this year, the Prime Minister announced that we are investing an extra £3 billion over the next two years in our defence nuclear enterprise to support AUKUS and other areas. Other financial contributions will be coming from Australia; for example, at the Rolls-Royce base in Derby plans are under way for a significant expansion of its Raynesway nuclear reactor manufacturing site. That will create 1,170 skilled jobs. We expect this tandem of co-operation to produce not only a contribution to the project itself but a financial contribution to the endeavour.
Ukraine
Lord Carlile of Berriew Excerpts(2 years, 9 months ago)
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Lord Carlile of Berriew (CB)
My Lords, it is a great privilege to have been present for the brilliant maiden speech by my noble friend Lord Sedwill. His presence in this House promises much for future debates. Of course, our debates are often characterised by both who is present and who is not. It is a matter of regret to me that my noble friend Lord Lebedev—of Hampton and Siberia—is not in his place today. It would have been of interest to your Lordships, I think, to hear his insights into the dystopic situation that has developed in Ukraine.
In 1940, just after the end of the Molotov-Ribbentrop pact, a woman called Frederika Katzner left the city in which she spent the first 26 years of her life. It was then called Lwów and was in Poland. Following the Yalta conference it became Lviv, and has been in Ukraine for a very long time. Until the outbreak of the Second World War, Lwów—or Lviv—was a sophisticated, attractive, Habsburgian city, with a large, diverse population, including a very large number of Jews, of whom Frederika Katzner was one. It was cosmopolitan and sophisticated. In 1990, 50 years later, she returned for the first time with me, her son. In 1990, Lviv was just emerging from the post-Yalta Soviet subjugation. It was still beautiful but down at heel. The currency comprised one-sided coupons, the best value for which was obtained from student entrepreneurs in the black market. We bought tickets for the ballet, which cost us $2.
My most recent visit to Lviv was in 2019. By then, it was a thriving, lively city, full of young people from Germany, Austria, Russia and other countries, there to enjoy themselves. It was indubitably a city in a single nation. There were democratic campaigning posters, typical of what we see around London—many written by students who were very active. It was very much part of an expectant and ambitious democracy, which it became. The last thing that the citizens I witnessed in Lviv appeared to want was to be dominated by a new Russian hegemony. Yet the city of my mother and her family—our family—has now been usurped again by a deluded, demonic, dystopian despot.
I support all the actions that have been taken by the Government so far to try to bring down this outrage by the use of every economic sanction we can find. I hope that what appears to be the Prime Minister’s wish, that SWIFT should be removed from the Russians, should come about within hours or days, not weeks or months.
We have heard some submissions in this debate about money laundering in London. I should say to those who have rightly criticised that—including in the very good speech by the noble Viscount, Lord Stansgate, who spoke just before me—and the actions of some law firms, that it is probably fair to say that there is a host of law firms that have been involved in these activities. I suggest to the Minister that we should now create a register of lawyers’ activities for Russian citizens and their strong connections as an adjunct to the new National Security and Investment Act system, which was introduced in recent weeks. I and others would be happy to discuss with the Government how that might take place.
I am involved, as the register tells us, in a strategy consultancy which does work for clients from all over the world. I had the privilege of turning down a proposed contract from a Russian not so long ago on ethical grounds—it certainly reminded me how much Russian money there is in London sloshing around in accounts, some of dubious propriety.
I also ask the Minister to look at the international situation. Reuters has reported today that India is exploring setting up rupee trade accounts with Russia to soften the effect of sanctions and enable it to trade with Russia. Reuters is usually right on these economic issues. I urge the Government to ensure that, when we deal with the Russians over this terrible tragedy, we ensure that friendly countries go with us.
Overseas Operations (Service Personnel and Veterans) Bill
Lord Carlile of Berriew ExcerptsWednesday 20th January 2021
(3 years, 10 months ago)
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Lord Carlile of Berriew (CB) [V]
My Lords, it is a great pleasure to follow the noble Baroness, Lady Buscombe. She made a clear and compelling case for the Bill. One thing on which I agree with her is that we need clarity, so that troops and former troops who have served our country well have clarity.
I thank the Minister, the noble Baroness, Lady Goldie, for engaging with Members of the House who wish to engage with her on the Bill. It has been helpful and, if I may say so, she is a remarkably good listener. I want to add to her tribute to Her Majesty’s forces. As is clear from my entry on the Register of Members’ Interests, I have a connection with the Royal Navy for a charity that I chair and I very much wish to ensure that we do the best that we can for all those who so courageously serve their country. We need to take all reasonable and proportionate steps to protect them against injustice. I fear, however, that the Bill, in its present form at least, fails to do just that.
The Bill has its origins in a 2013 report by the respected think tank, Policy Exchange. I look forward to its director, my great friend Dr Dean Godson’s arrival in this House, I believe in early February. His interventions in future stages of the Bill could well be instructive. Yesterday, Policy Exchange issued a document entitled, Ten Ways to Improve the Overseas Operations Bill. I take that as recognition by Policy Exchange, seven years after its report, The Fog of Law, of 10 material deficiencies in the Bill. It is a little shocking that after a gestation of seven years, with all the scans, scrutiny and consideration that it will have had, the Bill comes to this House having left the Commons with so many deficiencies.
What Policy Exchange highlights fairly is that, for all the cases envisaged to be dealt with, there must be efficiency, expedition and fairness. Unfortunately, I cannot accept at least five of its 10 suggested improvements to the Bill. For example, Policy Exchange has suggested changes in the approach to the public interest test for prosecution but appears to have done so without even having taken the elementary step of carefully reading paragraphs 4.9 to 4.13 of the Crown Prosecution Service code dealing with the public interest test. Clear care is already taken with such decisions and it is possible in exceptional circumstances for a public interest decision to be taken before examination of the evidence. Policy Exchange has suggested the Attorney-General’s consent to prosecutions. I listened with enormous respect to the noble and learned Lord, Lord Garnier, who is a former law officer, and an excellent one. I admire him enormously. However, I wonder why the independent Director of Public Prosecutions, who is appropriately accountable to the law officers, is not sufficiently independent to make the requisite decisions.
I suggest to your Lordships that, despite a seven-year gestation period, this Bill is far from being oven-ready, to coin a phrase. It still has many deficiencies, as Policy Exchange has recognised, and will need concentrated work in Committee if it is to be given a Third Reading. I am grateful to the highly respected Bingham Centre, which has made thoughtful and well- argued criticisms, with which I agree—one of which is that the Bill undermines our obligations under the Geneva conventions and the UN Convention Against Torture, and this would take us outside international law. I commend to your Lordships the Bingham Centre’s rule of law concerns about the Bill.
In truth, the Bill as it stands would diminish the United Kingdom’s enviable reputation for adherence to the rule of law. We cannot accept that in your Lordships’ House. Major amendment is required.
Counter-Terrorism and Border Security Bill
Lord Carlile of Berriew ExcerptsMonday 3rd December 2018
(5 years, 11 months ago)
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Lord Blair of Boughton (CB)
My Lords, I rise very briefly to say that it is a pleasure to follow the noble Lord, Lord Harris of Haringey, and that I completely agree with him.
Lord Carlile of Berriew (CB)
My Lords, I too agree with the noble Lord, Lord Harris. It seems to me that this clear provision provides four steps which have to be proved before somebody can be convicted of the crime set out in Clause 1. The first step is that they must say something deliberately, whether orally or in writing in some form, including on the internet. That requires them to act purposefully—it is a deliberate expression. Secondly, it must be supportive of something. Thirdly, it must be supportive not of anything at all but of a proscribed organisation—one that is forbidden by law to join in any event. Fourthly, they must consciously disregard the risks flowing from their action. That is the component of recklessness. So, with great respect to the noble Baroness who moved the amendment, I fear that she may have misunderstood what is provided by assuming that some vague general expression might be taken as committing the offence.
Lord Paddick (LD)
My Lords, I will not go over the arguments again. The noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lady Hamwee made clear the points that the Supreme Court had concerns about in the case of Choudhary and that the Joint Committee on Human Rights expressed regarding the provisions in the Bill.
Of course, these are two separate amendments. They propose either something more definitive than “is supportive of”, or, if you keep “is supportive of”, that there should be a degree of intention. I saw the Minister nodding vigorously when the noble Baroness, Lady Jones, suggested that Amendment 2 would actually be no change from the status quo and therefore would in effect nullify the provision, and I have some sympathy with that, but these are two separate amendments and therefore can be taken separately.
In response to the noble Lord, Lord Harris of Haringey, yes, one can see how this is constructed so that an ingenious speaker might wheedle their way through and evade justice, but the problem that my noble friend has identified is that a naive 13 year-old who innocently makes a remark would be caught by this. I accept what the noble Lord, Lord Carlile of Berriew, says about the CPS code of charging but that would not stop that 13 year-old being arrested and detained by the police. I will come back to this theme when we debate the next group of amendments. I do not want to develop that argument now.
Lord Carlile of Berriew
I say this with great deference to a former senior police officer, but surely the arrest conditions would not apply to that 13 year-old and the arrest would therefore be unlawful. The police cannot arrest unless the arrest conditions apply, and one is necessity.
Lord Paddick
I am grateful for the noble Lord’s intervention but, as I say, I am not going to address that point now but in the next group. However, we feel that it is necessary for one or other of these amendments to be adopted. Therefore, if the noble Baroness, Lady Jones, decides to divide the House, we will support her.
Lord Carlile of Berriew
The noble Lord has read out only part of the grounds for arrest. There has to be a necessity for arrest. If he is going to read out the arrest conditions to your Lordships’ House, he should read them all, because necessity is essential.
Lord Paddick
I know that I am taking my life in my hands by arguing with a lawyer, but I believe that the noble Lord is referring to the Human Rights Act, which requires necessity and proportionality before the officer exercises the power of arrest. However, under the Police and Criminal Evidence Act, the constable can arrest somebody if they have reasonable cause to suspect that they may be about to commit an offence—which is what I have just said.
The advantage of legislating this way round, as proposed in the amendments, is that, if people are visiting sick or dying relatives, or are aid workers or journalists and have a genuine reason for travelling, they will not be committing an offence and will not be unreasonably deterred by the fear that they may be arrested, either on their way to or their return from a designated area.
Lord Carlile of Berriew
I am sorry; I cannot let this pass. If the noble Lord were to look at Section 110 of the Serious Organised Crime and Police Act 2005, he would find that one of the arrest conditions is that there has to be a necessity. Section 110(4) includes the words,
“exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question”.
That is why reasonable suspicion is not a sufficient ground for arrest—and we need to be clear about that.
Lord Paddick
Sadly, I do not have the legislation in front of me, so I cannot comment. No, I will not accept the noble Lord’s offer of taking his iPad to look at the legislation. I do not think that that is reasonable in all the circumstances.
If we accept that this is a reasonable way to approach the issue—that someone does not commit an offence if they have a reasonable excuse—what, then, is the difference between that and a journalist or academic being able to access material on the internet? They would be safe in the knowledge that, provided the purpose for visiting a website containing information that might be of use to a terrorist was reasonable and legitimate, they would not commit an offence.
I argue that the only difference is that here someone is entering into or remaining on a designated website rather than a designated area. Websites that contain information that might be of use to a terrorist are, if you will, designated areas of the internet, so entering or remaining on that website is an offence. Our Amendment 4 would ensure that it would be an offence only if a person collected, made a record of, possessed a document relating to, viewed or otherwise accessed by means of the internet information of use to a terrorist and they did not have a reasonable excuse for having or accessing that information.
Amendment 5 is consequential in that it would remove the “defence if charged” provision, which would be redundant were Amendment 4 accepted.
Turning to Amendment 3, similar arguments apply to the innocent or inadvertent publication of an image of a uniform or a flag. The ISIS flag on a friend’s bedroom wall that goes unnoticed when a selfie is posted on Facebook, which may well arouse reasonable suspicion that those in the picture support a proscribed organisation, could very well be an innocent or stupid mistake. Should the young person responsible be able to provide a simple and compelling excuse for his actions to the police officer on the doorstep rather than in an interview under caution, would that not be a better outcome?
There is nothing to be lost in having offences that are offences only if there is no reasonable excuse for the suspect’s actions. Police officers who fail to be convinced that the excuse is reasonable at the time they decide to make the arrest or who feel that the excuse might sound reasonable but needs to be verified would still have reasonable cause to suspect that the person might have committed an offence and arrest the person if it is necessary and proportionate to do so. However, it also provides the person accused of committing the offence with a legal remedy, and the police with a good reason to act reasonably, if there is clearly a reasonable excuse that is blatantly obvious and easily verifiable at the time of the arrest, yet the person is still deprived of their liberty.
I admit that the designated area offence and the obtaining or viewing of material offences have a more compelling claim for a “reasonable excuse means no offence” modification but there are circumstances where there might be a reasonable excuse for publishing an image in such a way or in such circumstances as to arouse suspicion that the person is a member or supporter of a proscribed organisation when they are neither of those things, and this will be immediately apparent to the officer sent to investigate. In my view, it is too late in the chain of events that could ensue for the reasonable excuse to be available only as a defence once charged.
No doubt the Government will say that the police can be trusted not to arrest in circumstances where a reasonable excuse is immediately apparent. With over 30 years of police experience and having witnessed at first hand the devastating consequences of innocent people being arrested and detained on the flimsiest of evidence, I am very concerned about the potential for abuse that this legislation as currently drafted provides.
Unless the Government can provide compelling reasons as to why the “reasonable excuse” defence should not engage at the beginning of the investigative process rather than at the end, I suggest that they might want to consider these arguments and undertake to discuss them further with interested Peers before Third Reading. If, however, when we come to debate his amendment in the fifth group, the noble Lord, Lord Rosser, decides that in the case of designated areas the arguments are compelling and the Minister’s response is inadequate, we will support him if he decides to divide the House on that issue. I beg to move.
Lord Judge
My Lords, Section 118 got somewhat lost in the discussions earlier. I support this amendment but I wonder whether, when the Minister comes to reflect on it, we would need the words,
“the court or jury shall assume that”.
It is a straightforward point of drafting but, with respect to the matter, “the defence is satisfied unless” would seem adequately to cover the amendment.
Lord Carlile of Berriew
My Lords, with great respect to my noble friend, and indeed to my noble and learned friend on my right, I wonder why one needs to say something twice in the same statute.
Earl Howe
My Lords, Amendment 10 returns us to an area on which we have previously had helpful and extensive debates: namely, the question of how much evidence is required to establish a reasonable excuse defence under Clause 4, on whom the burden of proof falls and how this is set out in the legislation. As the noble Lord, Lord Rosser, rightly said, these issues have previously caused some uncertainty as they require Clause 4 to be read in conjunction with Section 118 of the Terrorism Act 2000, which sets out how the burden of proof applies to a number of defences to criminal offences within the 2000 Act including, but not limited to, the new designated area offence. It may therefore be helpful if I remind your Lordships of how these provisions operate.
The approach taken in relation to proving a reasonable excuse defence under Clause 4, which inserts the designated area offence into the Terrorism Act 2000, is the exact same formulation that is used elsewhere in various defences to offences contained in the 2000 Act, including the defence to the Section 58 offence which is amended by Clause 3. Clause 4 refers to a defendant proving that they have “a reasonable excuse”. We must then turn to Section 118, which makes further provision on what is required to “prove” a defence in this context. The noble Lord, Lord Rosser, has previously raised a concern that the wording of the two provisions might be out of step, and that Clause 4 might place a greater burden on defendants to make out a reasonable excuse than is envisaged by Section 118. I have addressed this in previous debates and have written to him following our most recent debate in Committee. I hope that I have been able to reassure him that this is definitely not the case.
Section 118 provides that if a defendant,
“adduces evidence which is sufficient to raise an issue with respect to the matter”—
that is to say, the matter has to be proved under the wording of the defence—
“the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
This, together with relevant case law, has the effect that if a defendant puts forward sufficient evidence to reasonably support a suggestion that he or she has a reasonable excuse, the burden of proof shifts to the prosecution to disprove that defence, which it must do to the normal criminal standard of “beyond reasonable doubt”. If the prosecution fails to do so, the jury must assume that the defence is made out.
Amendment 10 would insert this wording from Section 118 into Clause 4. The noble Lord has suggested that this would make the operation of Clause 4 clearer and would put beyond doubt what is required of a defendant to establish a reasonable excuse defence. I have every sympathy with the noble Lord’s desire for clarity. This is not the most straightforward of the Bill’s provisions, requiring as it does two different provisions in the 2000 Act to be read in conjunction, but I can assure him that there was a good reason for drafting it in this way. It is very simply that, as the noble Lord, Lord Anderson, said, Section 118 makes the same provision in relation to eight other provisions in the 2000 Act which include similar defences. Each of those defences points back to the same single place—Section 118—rather than including eight repetitions of the same wording in eight different places. This is a standard drafting practice where a common principle governs the operation of multiple provisions. It is considered to be the best way of providing clarity and consistency, and of not unnecessarily adding to the length and complexity of legislation.
In practice, the noble Lord’s amendment would have little or no impact on the operation of the reasonable excuse defence as it would simply duplicate the wording of Section 118, which already has effect. However, I must respectfully say that I am unable to support the amendment. As I have set out, the formulation used in the Bill as drafted, and in the 2000 Act, reflects normal drafting practice, and I do not see that there is sufficient reason to depart from this in relation to Clause 4. The courts have successfully operated Section 118 for 18 years in respect of the eight existing offences in the 2000 Act to which it also applies without anyone complaining that its effect is unclear or uncertain. There is clear case law and a settled and well-understood position.
Counter-Terrorism and Border Security Bill
Lord Carlile of Berriew ExcerptsWednesday 31st October 2018
(6 years ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 View all Counter-Terrorism and Border Security Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 131-II Second marshalled list for Committee (PDF) - (29 Oct 2018)
Lord Carlile of Berriew (CB)
My Lords, I am somewhat shocked by the implication that there is anything illiberal about the proposed extension of the law in this clause. In November 2017, the Secretary-General of the United Nations, speaking in London at the School of Oriental and African Studies, included in his speech the following sentence:
“While terrorism often starts in conflict zones, it reaches far beyond them, organizing and inspiring attacks and radicalizing people across borders and continents”.
The clause recognises exactly what the Secretary-General described. Those who have been interested in terrorism law for as long as the period since 9/11 will recall that the then Secretary-General of the United Nations, in a speech in Barcelona shortly after 9/11, made the point that the United Nations agrees in principle that terrorism should be prosecuted wherever the defendant is irrespective of where the terrorist act was committed.
If this Bill, as we are told by the Government, is intended at least in major part to modernise the law so that it faces up to the changes that have occurred at an exponential rate in electronic communications since 2001, this is exactly one of those measures that achieves just that. Let us imagine that somebody was in this country with impunity having committed an act somewhere else that is a terrorism offence in this country. We prosecute those who committed the act in this country, but not those who committed exactly the same act, which appeared on exactly the same postings on the internet and in exactly the same YouTube videos, in another country. That makes absolutely no sense.
I say to the noble Baroness—whom I much admire—who proposed the amendments that there is a danger of us losing touch also with the public view on these matters. A set of opinion polls appeared two days ago in which it was revealed that changes in the law of this kind are broadly supported by more than 80% the public. While I do not believe in legislating on the grounds of public opinion, in this instance I regard the public as being right and I urge your Lordships to reject the amendments and not to reject the principle in the clause.
Lord Paddick (LD)
My Lords, I support Amendments 31 and 33, which are in the name of my noble friend Lady Hamwee and to which I have added my name. I remind the Committee that my noble friend raises the amendments as a representative of the Joint Committee on Human Rights. I am putting forward the view of the Liberal Democrat Benches on these issues.
On Amendment 31, concerning extension of extraterritoriality to wearing a uniform and displaying an article in a country other than the UK, while I accept what the noble Lord, Lord Carlile of Berriew, said about an act of terrorism, such as blowing somebody up or that sort of serious offence, to expect somebody who lives in another country—let us say in Syria—to know that it is offence to carry an ISIS flag, and therefore that they would be prosecuted if they came to the UK for doing that in Syria, without having any connection with the UK prior to that occasion, makes, to use the noble Lord’s expression, absolutely no sense. There will be some things that are so clearly a terrorist offence that people should know that they are not acceptable.
Lord Carlile of Berriew
Can the noble Lord identify any individual in Syria who is not aware that supporting ISIS is regarded as a serious offence in most countries, including Syria?
Lord Paddick
I do not think that I can answer that question, and I do not think that the noble Lord can answer it either. This is about offences which if they were committed in the UK could lead to people being radicalised or encouraged to join a particular terrorism organisation. That cannot be said about an offence committed in another country. As for Amendment 33, surely it is only common sense that a person commits an offence overseas only if their actions are an offence in that country, or they have sufficient ties to the UK that they should know that their actions would amount to an offence if committed in the UK. I therefore support these amendments.
Lord Carlile of Berriew
My Lords, although I remain largely agnostic on the increase of maximum sentences which was discussed just now, in my view there is a much stronger and clearer argument for applying extended sentences to the offences to which we are referring. The noble Lord, Lord Marks, has just suggested that there should be more evidence from the judges. In my experience, and it includes some experience of sitting as a judge, judges are not in the habit of saying, “I would have passed a much heavier sentence if I had had the opportunity to do so”. Occasionally they do, but most judges feel a great sense of self-restraint from saying that, and I know of no methodological research that has ever existed that seeks to tease out of judges whether in certain specific cases they would have wished to pass longer sentences.
Lord Marks of Henley-on-Thames
I was not suggesting that we were looking for a public statement by judges that in particular cases they would have imposed longer sentences—although one has heard of that. However, surely the Government, in proposing this legislative change, should have sought out the views of the senior judiciary about the changes and whether their powers are sufficient or restricted. That sort of research is frequently done by government when considering changes that affect judicial powers.
Lord Carlile of Berriew
In fact, the Government have a working relationship with the senior judiciary, which is often conducted at a fairly subtle level. The Attorney-General, it is to be hoped, has reasonably frequent conversations with the senior judiciary, but one would not expect the content of those conversations to be published. I apprehend that this matter has been considered fairly carefully in the usual way, and I am sure that we can trust Ministers when they say that there is evidence in their view for extended sentences of this kind.
I was going to add that there seems quite a clear analogy between sexual offences and terrorist offences, save that the evidence for extended sentences in terrorism offences may be much clearer than in sexual offences. When a judge is sentencing someone for a sexual offence, he will often have a clear apprehension drawn, for example, from the probation officer’s pre-sentence report and from the evidence in the case that the person concerned, usually male, represents a serious risk to children for an unknown period. The person is then sent to prison and courses are offered which they may or may not follow. The judge will often have an indication at the time of sentence as to the likely willingness of the individual to follow such a course, and that may influence the judge’s decision on whether to impose an extended sentence, usually for the protection of children.
A terrorism case may come before a court to defend someone like—he is not unique—Anjem Choudary. He has a clear intention, depicted on numerous occasions, to ignore those who criticise what he has been doing and to continue to attempt, in the subtle way that he follows, to radicalise others. There are other cases of a similar kind, but it is not very difficult for the judge to form the conclusion that the person is someone from whom the public needs to be protected by the special measure of an extended sentence. That is not only empirically defensible but meets public concern, which is reflected in the attempt to modernise these provisions in these clauses.
I urge noble Lords to support the spirit behind these clauses and to support the clauses in the knowledge that judges have never been lavish in their passing of extended sentences. In my experience and observation, when it happens it is usually done with great care and much concern by the judges, who start from an impartial standpoint before passing sentence.
Earl Howe
My Lords, Clause 9 amends provisions in the Criminal Justice Act 2003, which, among other things, enables a criminal court in England and Wales to impose extended sentences of imprisonment and sentences for offenders of particular concern. Clause 9 adds further terrorism offences to the list of offences for which the court can impose these sentences. Similarly, Clauses 10 and 11 make analogous changes to the equivalent extended sentences provided for in Scotland and Northern Ireland. I should point out, however, that neither jurisdiction has the equivalent of sentences for offenders of particular concern.
To put the provisions of these clauses in context, it may assist the Committee if I first explain, as briefly and clearly as I can, the nature of these extended sentences as they operate in England and Wales. There are two types of sentence relevant here. The first is the extended sentence of imprisonment, usually known as an extended determinate sentence. The second is a special custodial sentence for certain offenders of particular concern. Taking the extended determinate sentence first, these sentences are available in respect of the sexual and violent offences listed in Schedule 15 to the 2003 Act. The sentence can however be imposed only if certain statutory conditions are met. The court must consider the offender “dangerous”, under a test set out in the 2003 Act. That test requires the court to find that the offender presents a significant risk of causing serious harm to the public through committing further specified offences.
If the offender commits one of the specific offences and is considered dangerous, the court may impose an extended determinate sentence. An extended determinate sentence is a custodial term which has two parts. The first is the appropriate custodial term commensurate with the seriousness of the offence, and the second is an extended licence period on supervision in the community. Under current provisions of the 2003 Act, the court may impose this extended licence for up to five years for a violent offence and up to eight years for a sexual offence.
The 2003 Act also makes particular provision about the release on licence of offenders serving an extended determinate sentence. Offenders will be considered for release on licence by the Parole Board once the offender has served two-thirds of the appropriate custodial term. This should be compared with the automatic release at the halfway point in sentence for standard determinate sentences. The offender will be released automatically at the end of the appropriate custodial term if the Parole Board has not already directed release. On release, the offender will be subject to an extended period of supervision on licence.
If a court does not find that an offender is dangerous to the point where it imposes a life sentence or an extended determinate sentence, it must impose a sentence for offenders of particular concern. This sentence must be imposed if the offender is convicted of an offence listed in Schedule 18A to the 2003 Act. The list of offences in Schedule 18A reflects why sentences for offenders of particular concern were created: to remove automatic release for terrorism and child sex offences, which would have applied to a standard determinate sentence.
A sentence for an offender of particular concern, similar to an extended determinate sentence, has two parts: first, the appropriate custodial term, and secondly, the licence period. The effect of a sentence for an offender of particular concern is that the release point set at half way through the sentence is not automatic, but is at the discretion of the Parole Board. If not released at the halfway point, the offender may serve all of their sentence in custody, and on release must serve a minimum of 12 months on licence. That is a brief but—I hope noble Lords will agree—necessary summary of the current sentences.
I turn now to how Clause 9 amends those sentences. Currently, the list of relevant violent offences for which an extended determinate sentence can be imposed—set out in Part 1 of Schedule 15 to the 2003 Act—includes a number of terrorism offences. Clause 9(5) takes those offences from Part 1 of Schedule 15 to the 2003 Act and places them in a new Part 3, created to deal specifically with terrorism offences.
As well as shifting the existing terrorism offences into a new terrorism category, Clause 9 adds additional terrorism offences to the list. These are:
“membership of a proscribed organisation”,
covered by Section 11 of the 2000 Act;
“inviting support for a proscribed organisation”,
under Section 12 of the 2000 Act; wearing the uniform of or displaying an article associated with a proscribed organisation, under Section 13 of the 2000 Act; collection of information useful to a terrorist, under Section 58 of the 2000 Act;
“publishing information about members of the armed forces etc”,
under Section 58A of the 2000 Act; encouragement of terrorism, under Section 1 of the 2006 Act; dissemination of terrorist publications, under Section 2 of the 2006 Act; and,
“attendance at a place used for terrorist training”,
under Section 8 of the 2006 Act. Clause 9 also applies an eight-year maximum extended licence period for terrorism offences. This is an increase from the five-year maximum available for violent offences but is now in line with the eight-year maximum period for sexual offences.
In summary, for extended determinate sentences, Clause 9 creates a new specific list of applicable terrorism offences, adds new terrorism offences to that list, and increases the maximum extended licence period from five to eight years.
For the sentences of particular concern, Clause 9 adds the same eight additional terrorism offences to the list in Schedule 18A to the 2003 Act, meaning that the court, if it does not impose an extended determinate sentence, must impose a sentence for an offender of particular concern.
Lord Carlile of Berriew
My Lords, I will say just a few words on this. I agree with what my noble friend Lord Anderson said to this extent: I am not convinced that the Government have got the proportionality of this right. I invite Ministers to reflect on what has been said—not so much on the words of the draft amendments but to try to achieve something that is more acceptably proportionate to those of us who have a reasonable amount of knowledge of these issues and are concerned that the law should not go too far.
Baroness Kennedy of The Shaws (Lab)
My Lords, I too support the noble Lord, Lord Anderson, in what he said about the wide nature of what is suggested in the clause. Unlike the two previous speakers, my experience in this field is by acting in cases. I have acted for family members such as wives on a number of different occasions, and it is important that we maintain the trust of families and communities. Drawing legislation too widely will in many ways reduce the effectiveness of the state in seeking to deal with terrorism.
The noble Lord, Lord Anderson, was absolutely right to say that we have to be mindful of the parameters of this. Academics who have analysed what has taken place in the past and what is and is not effective have been our advisers on what is likely to work. So I hope that the Government will listen, look again and agree that Amendment 39 might be an appropriate way of restricting these powers.
Investigatory Powers Bill
Lord Carlile of Berriew ExcerptsWednesday 19th October 2016
(8 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
Lord Carlile of Berriew (LD)
My Lords, it will not surprise my noble friend to learn that I oppose the amendment that he has just moved. We made reference during our previous day on Report to papers that were presented by the Government at the time of First Reading. Those papers included, as was mentioned on Monday of this week, a paper in which GCHQ explained why the bulk acquisition of communications data material might be crucial to interdicting a major terrorism event which it thought was likely to occur, or might possibly occur, in the near future.
The issue was then referred to David Anderson—and I am surprised that my noble friend does not accept what Mr Anderson, the independent reviewer, said on the matter. He reminded us that three of the powers under review—bulk interception, bulk acquisition of communications data and bulk personal datasets—were already in use across the range of MI5, MI6 and GCHQ activity, from cyberdefence, counterterrorism and counterespionage to combating child sexual abuse and organised crime. He said:
“They play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”.
The GCHQ paper to which I referred dealt with “further afield”.
Mr Anderson continued:
“After close examination of numerous case studies, the review concluded that other techniques could sometimes, though not always, be used to achieve these objectives: but that they would often be less effective, more dangerous, more resource-intensive, more intrusive or slower”.
Mr Anderson concluded that there was a proven operational case for three of the powers already in use, and he agreed that there was a distinct though as yet unproven operational case for the fourth power: bulk equipment interference. He also recognised the “breath-taking”—that was his word—pace of change in this area, and that we needed to make sure that the authorities had the proportionate powers that were required to protect this country, and other countries, from terrorism.
Therefore, the Bill provides the powers with a very elaborate set of protections. We also have—it is available in the Public Bill Office—the Bulk Acquisition DRAFT Code of Practice, dated autumn 2016: it is very recent. In paragraphs 3.10 and 3.11 of the code—and, indeed, elsewhere in the code—the most elaborate protections are described. For example, paragraph 3.10 contains operational guidance and advice for those who are dealing with these matters and states in terms:
“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.
Paragraph 3.11 of the code sets out in four very carefully drafted bullet points the elements of proportionality that should be considered before the powers are used. It includes assessing whether other methods have been considered and whether those other methods could have provided a reasonable outcome without the necessity of the invasion of privacy which undoubtedly the provisions describe.
I therefore ask my noble friend to state, when he comes to reply to this short debate, what his view is of the code of practice—and, in particular, of the part to which I referred.
Lord Paddick
The amendment relates specifically to internet connection records being acquired, and I have yet to hear my noble friend address any of his remarks to the issue of those records.
Lord Carlile of Berriew
If my noble friend wants me to be specific, I will, but I was trying not to take up too much time. Let us take the example of a piece of information, given to a security service, that people in possession of a bulk delivery of a certain type of telecommunications equipment, say a phone brand, are involved in the planning of a terrorist event. In order to find out quickly who these people are, the authorities would need to attack the bulk, so as to exclude all people who are not involved in the planned event. This is an absolutely routine technique that is used. I see one or two of my noble friends turning round in surprise. If they are surprised, they have not even read modern spy novels, let alone about the reality of what is being done by intelligence agencies all around the world.
The answer to my noble friend is as simple as that. I will just repeat my question, because I would like him to reply to it in due course. I take it that he has read the code of practice. What is missing from the code of practice that is required in order to provide the protection he wishes for? It is all in the code of practice; it is all in the statute. I apologise for repeating something I said on Monday, but these provisions, as drafted, are a careful and responsible response by a Government who wish to do no more than the state absolutely has to, safely, to protect their citizens.
Lord Rooker (Lab)
I will answer that point. The Bill of course is not draconian in any way whatever. It is a modest response to the technology that exists today, and an attempt to look at the technology of tomorrow that we do not know about. That is part of the problem. I regret that I was a bit late and missed the first 20 seconds of the noble Lord’s introduction, so I may have this wrong, but he gave the impression that David Anderson supported his amendment. One only has to go to the report published in August, from which I want to put two sentences on the record. Paragraph 6.16 says:
“There is a clear value in the use of bulk powers to eliminate lines of enquiry, so that resources can be concentrated elsewhere and disruption to the public minimised”.
I do not think we should fetter the security services by this amendment. The other sentence from the report that I want to put on the record is in paragraph 6.47, at point (d):
“Even where alternatives might be available, they are frequently more intrusive than the use of bulk acquisition”.
Most of the bulk acquisition will never, ever be read. The vast majority—99.999%—will never be read or studied by anybody, and it gives a false impression when the noble Lord says that all our telephone calls, internet searches, and web browsing will be read by someone. That is simply not true. What is more, he has been briefed and knows that that is the case. I do not see why the opponents of the Bill, in this House or the other House, should try to give a false impression of what it is trying to do. I hope the noble Lord tests the opinion of the House, because I would like it clearly on the record that he probably has little or no support for his amendment.
Lord Oates (LD)
My Lords, I support my noble friend Lord Paddick and the amendment that he has moved. I should say at the outset that I do not doubt for one moment the very severe threats that we face, nor the essential and dedicated work done by our security services and the police. In the coalition Government we had to tackle many of these issues, and the then Deputy Prime Minister was always as impatient with those who were careless about our security as he was with those who were careless about our liberty.
So I understand the reality of the threats that we face. However, I am afraid I cannot agree with my two noble friends who have just spoken. We have to be very clear what we are talking about in the amendment, which is specifically about ICRs. I think that in some of this debate we might have missed that point.
My noble friend Lord Carlile referred to the fact that powers were already in use, but the bulk powers in relation to ICRs obviously cannot be in place because the powers of the Bill granting the requirement to collect ICRs have not come into effect, so they are not collected in that way. I am surprised that my noble friend takes the view that he does, because during the whole course of the debate on the Bill he has made much of the point that he has been consistent. I am not clear why his position has changed so significantly on the collection of ICRs. As I have noted in our previous debates on the subject, on 25 May 2013, writing in the Daily Mail, my noble friend wrote the following:
“I, Lord Reid, Lord West and others of like mind have never favoured the recording of every website visited by every … user, though we have been accused of that”.
Lord Carlile of Berriew
My noble friend is playing with language. I have never favoured the recording of every website use we make, and I do not support the recording of them now. It is the availability of the metadata that is important. I ask my noble friend to deal with the example I gave in answer to my noble friend Lord Paddick and tell us whether he thinks it is reasonable.
Investigatory Powers Bill
Lord Carlile of Berriew ExcerptsMonday 17th October 2016
(8 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
Lord Carlile of Berriew (LD)
My Lords, I regret that I cannot support my noble friends’ attempts to remove these clauses from the Bill. I say with great respect to them that it is a misconceived attempt and displays a misunderstanding of what the authorities do, have done and can do. In my judgment, for what it is worth, the removal of these clauses would reduce the capacity of the authorities legitimately to interdict what could be extremely serious crime and catch those guilty of it.
We have heard terms such as “limitless”, “monster” and “unfettered”. At the risk of repeating what has been said earlier on Report, it is grossly exaggerated to suggest that unfettered, monstrous or limitless power is being given to the authorities. There can never have been a Bill on subjects such as these that has had so many fetters on the authorities and that has placed so many limits on what they can do. Indeed, if it has created a monster at all, it is a monster of regulation, not of unregulated activity.
I saw a briefing on these amendments earlier today. They are founded on the proposition that the authorities—the police and the security services—have the time to go on fishing expeditions. If that is what is being said, I can think of at least two kinds of fishing expedition. One is the sort of fishing expedition where you stick a worm on the end of a line and dangle it into water not believing that there is anything in there, and the other involves casting a sprat to catch a mackerel. If there is a fishing expedition here, it is the kind in which the authorities would know that there is very likely to be a mackerel beneath the water into which they cast their well-fattened sprat.
These amendments would inhibit current practice in the courts and in investigations. I can think of two murder cases in which I appeared as leading counsel—one as a prosecutor, the other as a defender—in which a conviction resulted from exactly the kind of activity being permitted in the Bill. In each case, it is certainly possible—I do not want to exaggerate—that there would have been no conviction if not for the availability of this kind of activity. At the time of each of those cases, the activity was nothing like as well-controlled or scrutinised as is proposed in the Bill. The sort of activity that I am describing can and has been used to catch murderers, paedophiles and money launderers as well as terrorists. It is a necessary tool of a responsible state.
The issue is whether the Bill allows this information to be obtained in a responsible way by the state. I believe the Government have gone a very long way to ensure that everybody can be confident that in future such material will be obtained by a responsible state and that these clauses are a necessary part of that activity.
Lord Strasburger (LD)
My Lords, I rise to speak to Amendments 100C, 100D and 100E which have been very ably explained by my noble friend Lord Paddick.
When vague and non-specific legislation comes before us, it is perhaps because its authors are unable to be more precise because they have not thought it through or because they choose to not share the details with us. Whichever reason applies in the case of the request filter, there is no doubt that Clauses 64, 65 and 66 are notable more for what they do not say than for what they do. Despite the best efforts of both the Joint Committees on which I had the privilege of sitting—the one on this Bill and the one that examined the draft Communications Data Bill in 2012, in which the request filter first appeared—we are none the wiser about the request filter architecture, how it will work, who will develop it and who will operate it.
We have only to look at an obscure section in an elderly piece of legislation—the Telecommunications Act 1984—to see how overbroad drafting can lead to unintended consequences. Years ago, Section 94 of that Act was used by the Home Office secretly to create a brand new, highly intrusive power—namely, bulk acquisition of communications data—which the Government, to their credit, are now bringing in from the cold in this Bill. For a long time, however, the existence and use of this power carried on without the approval, or even the knowledge, of Parliament. Quite by chance, just a few hours ago, the Investigatory Powers Tribunal ruled that this very powerful secret power of bulk acquisition of communications data, which was created out of that vague section in the Telecommunications Act 1984, has been used illegally by the intelligence and security services for 10 years. We must guard against carelessly passing clauses so vague as to be open to misuse.