Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Earl Howe

Report: 1st sitting: House of Lords
Monday 3rd December 2018 Lords Chamber

[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

Debate between Lord Carlile of Berriew and Earl Howe

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[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.

Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Earl Howe

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I understand that this clause is one of several in the Bill intended to deal with the speedy march of technology. The previous legislation particularly had in mind the downloading of material. There is now no need to download material at all. This is intended to deal with the practice of streaming, which not only has become ubiquitous but can now be done at lightning speed. My own internet system was uprated a couple of days ago and I am almost blinded by the speed at which, in the morning, I can get on my telephone whatever I wish to view on my exercise bike. That gives more detail than is probably welcome in this House, but it happens in moments. It is important to tackle the issue of streaming by updating the legislation.

With deference to the Opposition Front Bench, the phrase “pattern of behaviour” is breathtakingly vague and would never pass muster in any court of law as something which could be judged with any certainty. I urge the Minister to reject that phrase. I cite an example which I have seen of legitimate use being made of the kind of material the Committee is looking at. I do not want to embarrass the university concerned by naming it, but I took part in a seminar in the very good law faculty of a very good university in which second-year undergraduates had been asked to look at material online in order to assess the effect that they thought it would have on people who were looking at it out of curiosity, rather than as part of their study. The professor who was supervising this had, of course, informed the local counterterrorism unit that it was going to be done, because he wished to avoid difficulty. That unit welcomed what he was doing, because it was interested in the reaction of 18, 19 and 20 year-olds to material that is usually judged by people with PhDs, police officers or the security service. It gave a new viewpoint on this material and I was privileged to take part. However, it is an absurd notion that something like that would be prosecuted.

This clause extends the existing reasonable excuse defence under Section 58(3) to the new type of material which is available and which the Committee is considering now. As a result of the decision of your Lordships’ House in R v J and R v G in 2009, it has been made absolutely clear that,

“the defence of reasonable excuse must be an objectively verifiable reasonable excuse to be determined by the jury in the light of the particular facts and circumstances”,

of the case. Also, where the evidential burden is raised by the defence—in other words, the defendant says, “I have a reasonable excuse”—the defendant does not have to prove it. The prosecution then has to make the jury sure that the excuse that the defendant has offered is not reasonable. That in itself is a sufficient existing protection, without these amendments.

Further, and with great respect to as experienced a police officer as the noble Lord, Lord Paddick, I appeal to noble Lords who are looking for theoretical cases in which an arrest or prosecution may take place. The police do occasionally exercise their common sense and not arrest someone where it would be patently absurd to do so. Most of the time they do just that. A two-code test has just been reaffirmed in the publication—by the outgoing DPP on the last day of her period of service—of a new Code for Crown Prosecutors. It emphasises the dual-code test which requires not only that there should be evidence that a jury might accept but also that it is in the public interest to prosecute. The discretion of prosecutors is an important part of our unwritten constitution that is often overlooked but should not be, as is the protection offered by juries, which are plainly not going to convict someone like my friend the university professor who engaged his students in the very valuable exercise that I described. This provision is entirely proportionate and simply updates a piece of law that sometimes causes difficulties because we do not always keep it up to date.

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

My Lords, these amendments seek, in various ways, to raise the threshold for the offence of viewing material over the internet provided for in new Section 58(1)(c) of the Terrorism Act 2000. Amendment 11, in the name of the noble Lord, Lord Rosser, seeks to restore the concept of a pattern of behaviour which was, as he pointed out, inherent in the so-called three clicks version of the offence as originally introduced in the House of Commons. Amendments 12 and 13, in the name of the noble Baroness, Lady Hamwee, would introduce a requirement to prove not just that the material being accessed is likely to be useful to a terrorist but that it was accessed by the individual with the intention of using it for terrorist purposes.

In responding to Amendment 11, it may assist the Committee if I explain that the intention behind the original three clicks provision was to ensure proportionality, and to provide a safeguard for those who might inadvertently access terrorist material by ensuring that there was a pattern of behaviour in accessing such material. However, we recognised the difficulties underlying that approach, and the uncertainty around how it would be implemented. Having reflected on the concerns that were raised about the three clicks provision, we believe that the reasonable excuse defence is the better way of proceeding. Introducing a pattern of behaviour test would recreate many of the same issues we faced with the three clicks provision. I agree with what the noble Lord, Lord Carlile, has just said on that issue. For example, it would beg questions such as how many viewings were required to constitute a pattern of behaviour and over what period such viewings would need to take place. Indeed, a pattern of behaviour test arguably introduces a greater degree of legal uncertainty than the three clicks test and, for that reason, I respectfully suggest that it is best avoided.

Amendments 12 and 13 would very significantly raise the threshold for the offence, and would alter its fundamental purpose. Section 58 of the Terrorism Act 2000, which Clause 3 amends, is a preparatory offence, rather than one aimed at the actual planning or commission of terrorist acts. It has a lower maximum sentence than other offences covering more developed terrorist activity, which can attract up to life imprisonment. I suggest to the noble Baroness that, in that sense, it is not comparable to the offence in Clause 2. The Section 58 offence, as amended by the Bill, is formulated so as to catch people who make a record of, or who view online, information likely to be useful to a terrorist, without requiring them to have actually used that information for a terrorist purpose or to intend to do so. This is in itself harmful behaviour, and such people can pose a very real threat to public safety. I do not agree with the example given by the noble Lord, Lord Paddick, of the changing of the guard. The noble Lord, Lord Carlile, hit the nail on the head again when he spoke about what is reasonable for the authorities to suppose in all the circumstances.

If there is evidence that the individual is preparing or committing an act of terrorism, or is assisting another person to do so, then they would be likely to meet the threshold for a more serious offence, such as Section 5 of the Terrorism Act 2006, which covers the preparation of terrorist acts, and for which the maximum sentence is life imprisonment. As such, a requirement to prove terrorist intent would effectively render unusable the new limb of the Section 58 offence that Clause 3 will insert. This is because the offence would be moved into territory that is already well covered by existing offences and could not be used for its intended purpose so that the police and courts would remain powerless to act against individuals accessing very serious terrorist material online.

The noble Baroness, Lady Hamwee, has suggested that her amendments are intended in part to address her concern that the offence will inappropriately criminalise those who seek out terrorist information through foolishness, inquisitiveness or curiosity, without intending to do harm. I have sympathy for that concern. The Government have been clear that this offence is aimed at those of a terrorist mindset and we do not wish to cast its net unnecessarily widely. However, I cannot agree with the noble Baroness’s suggestion that this is the best way to address the concern.

For the reasons that I have set out, these amendments would fundamentally undermine the purpose of the offence, and would go much further than I believe is intended in narrowing its application. We consider that the existing “reasonable excuse” approach is a better and more appropriate means of doing so, together with the normal CPS tests of whether there is evidence that would provide a reasonable prospect of conviction, and whether prosecution would be in the public interest, as the noble Lord, Lord Carlile, said. This is particularly so, because the question of whether it is legitimate for someone to intentionally seek out serious and potentially very harmful terrorist material, through foolishness or inquisitiveness, will be very fact-specific and particularly prone to grey areas. It needs to be considered on the basis of all the circumstances and all the evidence in any particular case.

While clearly there will be cases of this type, where prosecution will not be appropriate, it will certainly not be responsible to provide a blanket exemption for any person to access any quantity of terrorist information and be able to rely on such an exemption, whatever the potential harm associated with their activities. I hope, having heard my explanation, the noble Lord, Lord Rosser, will be content to withdraw his amendment, and that the noble Baroness, when it comes to her turn, will be content not to press hers.

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Earl Howe

Monday 5th September 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, with great respect to my noble friends Lord Paddick and Lord Beith, I am with the Minister and the noble and learned Lord, Lord Hope, on this one. What my noble friends may have overlooked is the strength, distinction and effectiveness of the Investigatory Powers Commissioner. If there was any evidence to indicate that the commissioner, whether the present one or a future one, was likely to behave in a malign way and not reveal where improper action had taken place, then my noble friends’ concerns might have some validity. As has been said, though, the Bill is a world leader, not least in the protections that it contains. I commend to the House the provisions that have been placed in the Bill without these unnecessary amendments.

[Earl Howe]

My Lords, I shall briefly respond to the points that have been made. I am grateful to the noble Lord, Lord Beith, for amplifying the case that his noble friend made in introducing the amendment. In the end, we come back to the point that the noble Lord, Lord Carlile, has just articulated. We are talking here about the proper, legitimate use of the powers that the Bill contains, with robust oversight and mechanisms for redress built in, and the Investigatory Powers Commissioner is indeed an important safeguard in that context.

We are absolutely on board with the proposition that where an innocent person has been completely wrongly subject to the use of the investigatory powers—that is, where a serious error has occurred—there is no argument that that person should be informed. However, I submit that one cannot talk in the abstract about someone who has been “wrongly investigated”, which I think was the phrase used by the noble Lord, Lord Beith. You can be wrongly investigated if you are completely innocent, but you can also be wrongly investigated if there is perhaps not enough to pin on you as the culprit in a particular case but you might nevertheless, subject to further evidence, be implicated in a serious crime or a threat to national security. So we have to be clear about our terms in this context.

I come back to the fact that there are issues of principle and practice here that make this particular amendment unworkable. I also take on board the very good point made by the noble and learned Lord, Lord Hope, that it is not just an individual who could react to the news that they had been investigated in a way that would frustrate law enforcement agencies or intelligence services but a whole group of people. That in turn could affect national security, or indeed the conduct of criminals, much more widely.

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Earl Howe

Monday 11th July 2016 Lords Chamber

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

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining the purpose of this group of amendments. I am particularly glad that Amendment 5 gives us the opportunity to look carefully at the intention of subsection (1) in the privacy clause. Perhaps I could just clarify.

Clause 2(1) lists in some detail the functions that a public authority may discharge under the Bill that may result in an interference with an individual’s privacy or impose an obligation on a telecommunications operator. The clause as drafted makes clear that, when taking such a decision, a public authority—including the Secretary of State and the judicial commissioner—must have regard to the principles set out at Clause 2(2).

The effect of the clause is perhaps not far removed from the intention of the amendment, but I would argue that the current drafting has the benefit of providing clarity. I was grateful for the complimentary remarks about the clarity of the drafting of the Bill overall that the noble Baroness was kind enough to make. The drafting of this part of the clause makes clear that the privacy clause bites in every situation in which a public authority takes a decision or action to which privacy considerations are relevant. I hope that those comments will encourage the noble Baroness to withdraw the amendment.

I am sympathetic to the spirit behind Amendments 6 and 8, which seek to prohibit the authorisation of powers in the Bill if less intrusive means are available. I hope I can provide some comfort to the noble Baroness and the noble Lord, Lord Carlile, by directing them towards the statutory codes of practice which we have published in draft alongside the Bill for the Committee to consider. For example, paragraph 4.7 of the draft interception code of practice states:

“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.

The codes will be submitted to Parliament for approval, and a failure to abide by them will be considered a breach by the Investigatory Powers Commissioner. I hope that that reassurance provides enough ammunition for the noble Baroness to withdraw her amendment.

[Lord Carlile of Berriew]

I do not want to prolong the debate, but does the Minister not think that it might be preferable to put these words in the Bill rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty.

[Earl Howe]

I am grateful to the noble Lord for seeding that thought in my mind and I am glad to take it away and consider it between now and Report.

Amendment 7 also relates to Clause 2, which provides a statutory requirement that public authorities must consider all three of the privacy duties listed in subsection (2). It is not an exclusive list—there are other important principles that public authorities will have regard to—but it does make clear the principles that sit at the heart of this Bill and that underpin the exercise of functions under the Bill. And it is of course the case that the judicial commissioner will look to see whether these principles have been satisfied—when, for example, he or she reviews a Secretary of State’s decision to issue a warrant.

The noble Baroness expressed some concern about the phrase “have regard to”. In bringing forward the privacy clause, the Government responded to concerns raised by the Intelligence and Security Committee of Parliament as well as by the Opposition and the Scottish National Party in the other place. The language of “have regard to” is drawn from amendments tabled by the Opposition and the SNP in Committee. It reflects the language of Clause 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which was held up by those parties in Committee as an exemplar of how such a clause might operate. That is the basis on which we have included that particular form of words. In short, while I am sympathetic to the concern raised in this area—

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Earl Howe

Monday 11th July 2016 Lords Chamber

[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.

Counter-Daesh: Quarterly Update

Debate between Lord Carlile of Berriew and Earl Howe

Tuesday 24th May 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, would the noble Earl add to his plaudits those non-military government officials who have been working in parallel with the military? In particular, in relation to Prevent, which he has just mentioned, would he confirm for example that RICU, the Research Information and Communications Unit of the Home Office, has taken down many thousands of violent Islamist and other extremist sites? Would he also confirm that the balance of the propaganda battle is now against Daesh and in favour of our authorities?

[Earl Howe]

I agree completely with the noble Lord, Lord Carlile. Since December 2013, 101,000 pieces of unlawful terrorist material have been taken down from the internet. That brings the overall total to 120,000 since February 2010, when the police Counter Terrorism Internet Referral Unit was set up. The unit makes 100 referrals a day related to Syria.

National Security Strategy and Strategic Defence and Security Review 2015

Debate between Lord Carlile of Berriew and Earl Howe

Monday 23rd November 2015 Lords Chamber

[Earl Howe]

The implication behind my noble friend’s question is that it is the actions of the West that have caused the migration crisis and the suffering in Syria. I respectfully disagree with him on that. It is Mr Assad himself who is the prime cause of the suffering in his country and the migration crisis. It is Mr Assad who has created the vacuum that ISIL has, unfortunately, filled very capably.

As regards the Motion that may come to the House of Commons on Syria, I have not seen a draft of it, but the discussions in government involve a Motion which would focus on ISIL. It is very clear that the House of Commons two years ago rejected the proposal that we should be involved in a war against Mr Assad. I think the UN Security Council resolution also points us towards a very clear and focused campaign to eradicate ISIL, which is a clear and present danger not just to us but to many countries around the world.

[Lord Carlile of Berriew (LD)]

My Lords—

--- Later in debate ---

[Earl Howe]

I think we must all be mindful of that precept. I hope we have been mindful of it in this document. It sets out what we see as the tier-one risks over the next five years. Clearly, were there to be such a major change in this country’s place in Europe or, indeed, such a major change in what this country consists of, there would be an obvious need to look again at some of the planning encapsulated here. However, I put it to the noble Lord that neither of the events that he has postulated invalidates the key strands of thinking in the SDSR set out here.

Terrorism is going to remain the most direct and immediate threat to our domestic security and overseas interests. Cyber threats to the UK are significant whether we are in or out of the EU. The risk of international military conflict is growing. Although it is unlikely there will be a direct military threat to the UK itself, there is a greater possibility, I put it to him, of international military crises that may draw us in. There is instability overseas. Since 2010, that has spread significantly to the south and the Middle East and northern Africa, as the noble Lord knows. The public health threats and the major natural hazards that the report identifies will still be there regardless. Therefore, I hope that the House will agree that we have looked in the round here not at a crystal ball but at an analysis of the threats that face us, analysing in turn what resources we need to address those threats.

[Lord Carlile of Berriew]

My Lords, I support the counterterrorism strategy contained in the document but can the Minister confirm that the document takes into account the events of Friday 13 November? Can the Minister also confirm that the strategy will include extensive sharing of intelligence techniques and information, subject, of course, to national security considerations so that, when attacks are threatened from abroad, there is the greatest possible chance of their being detected before they occur?

[Earl Howe]

I can give the noble Lord that assurance. We wish to see maximum collaboration with our friends and allies on the intelligence front. In the wake of the Paris attack, the question that we have asked ourselves is obvious: what are the capabilities that we need to counter such an event? We need the means to protect our transport systems, borders, critical national infrastructure and crowded places. We need systems that give us data in advance about people intending to come to this country so that they can be checked against our records. We need emergency services to respond to such incidents were they, God forbid, to occur. We need Armed Forces who are ready to provide support at very short notice in the event of a terrorist attack. Those are the questions we have asked ourselves over the past few months. The answers are contained in the report and I hope they will be reassuring to the House.

Health: End-of-life Care

Debate between Lord Carlile of Berriew and Earl Howe

Monday 16th January 2012 Lords Chamber

[Earl Howe]

My Lords, the end-of-life care strategy that we are pursuing, published by the previous Government, highlighted the need for a cultural shift in attitude and behaviour related to end-of-life care within the health and social care workforce. The noble Baroness is quite right that this is an issue. In partnership with the national end-of-life care programme, we have taken forward a number of initiatives to develop the workforce’s understanding. We have commissioned the development of an e-learning package, which is turning out to be popular, that includes advance care planning and communication skills. Core competences and principles for end-of-life care have been developed, and a number of pilots have been taken forward in that area. A document called Talking About End of Life Care: Right Conversations, Right People, Right Time has been published and was completed early last year. There are a number of initiatives in this area.

[Lord Carlile of Berriew]

Does my noble friend agree that the new NHS commissioning arrangements are such that they give an opportunity for advance directives to be collected and collated in a coherent way by general practitioners? Will he also confirm that, whatever advance directives are given, the need to provide comfort to patients remains a duty on clinicians?

[Earl Howe]

I agree with my noble friend on both counts.

Health: Pathfinders

Debate between Lord Carlile of Berriew and Earl Howe

Thursday 12th January 2012 Lords Chamber

[Lord Carlile of Berriew]

Can my noble friend confirm that the NHS will take fully into account the success of pilot pathfinder projects in places as diverse as Newcastle, Swindon and Bedfordshire so that the NHS itself encourages the development of pathfinder projects? Will he also take into account the fact that GP co-operatives were very successful as long as they lasted, but the discouragement they were given by the previous Government brought a disastrous end to some very good schemes?

[Earl Howe]

I am grateful to my noble friend. I think everybody agrees that integrating services, however one defines that—although the common denominator is surely from the point of view of the patient—is a good thing. We do not wish to lose sight of the lessons that have been learnt so effectively in the places mentioned by my noble friend. It is true that other areas have yet to catch up. We recognise that, and the focus over the next 12 months will be very much on sharing the lessons that have been learnt by the pathfinders that we know are working well.