Elections Bill

Debate between Lord Carlile of Berriew and Lord Rooker

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, in relation to my noble and learned friend’s amendment, I have a short but I believe very important question to ask of your Lordships. What is your Lordships’ House here for if it is not this? My noble and learned friend has demonstrated beyond doubt that there is a risk—a measurable risk, not a fanciful risk—that the Electoral Commission might have its independence damaged and impugned if these amendments are not introduced into the Bill. What would the Government lose by accepting these amendments?

I therefore suggest to your Lordships that we have not yet heard any good reason why these amendments should not be sent back. I am unpersuaded by the argument that because some robes are hanging on hangers somewhere in the building, no doubt losing their creases—which is as good an argument as anything I have heard against my noble and learned friend’s amendments—we should not delay matters for another day, which is available. There is an option: the Minister can go and consult his ministerial colleagues and come back to the House in a matter of minutes and say, “I have listened to the noble and learned Lord, Lord Judge; he has argued a brilliant case and it may well be that he is right”. And if there is a risk that he is right—which is what I believe—we should not let this pass just because it is inconvenient to delay the end of the parliamentary Session.

[Lord Rooker (Lab)]

My Lords, I had not intended to speak, but the fact is that, following what we have just heard, the Order Paper for Tuesday and Wednesday next week has Questions down from noble Lords. It is not as though we are slicing off tomorrow: the Order Paper is there, and it is there for a reason. Somebody worked out, in terms of the management of this place, that the House would sit. People put bids in for Questions, and they are sitting there on the Order Paper. The Minister —to whom I pay tribute for the way in which he has dealt with this Bill—did leave a gap open, which is not completely closed.

On what the noble and learned Lord, Lord Judge, said, we are certainly going to find out what the mettle of the electoral commissioners is made of, as a result of this kind of legislation. This is going to test those individuals—both the officers and the commissioners—in a way that they never contemplated when they applied for or were appointed to their posts.

I do not want to delay the House, but the other day I was reading—and I have not finished it—David Runciman’s How Democracy Ends. I came across this page where he quoted an American political scientist Nancy Bermeo, who had identified six different varieties—David Runciman called them “coups”—of ways in which things get manipulated. These are two of them. I would just like the Minister to explain how this Bill differs from these two examples:

“‘Executive aggrandisement’, when those already in power chip away at democratic institutions without ever overturning them. ‘Strategic election manipulation’, when elections fall short of being free and fair but also fall short of being stolen outright.”


Now where does this Bill differ from those two definitions?

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Rooker

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[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.

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Rooker

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I wonder whether we might first get what might be called “private grief” out of the way—that is, the difference between my view on this matter and that of my party’s Front Bench. If I run the risk of being accused of consistency on this, I am proud of it.

Let us start with the point that my noble friend made about the United States of America. Yes, the United States of America has the body he has described, but how effective is it? I wonder whether my noble friend has examined the Patriot Act and its consequences. It is a set of provisions that allows the American authorities to do what is unimaginable here; for example, at their own whim, to look up the credit card transactions of any citizen throughout the United States for any given period. I do not want to replicate that.

I want also to pick up on a point made very briefly but eloquently by the noble Baroness, Lady Manningham-Buller. This amendment, in my judgment, betrays a lack of confidence in the security services that is completely unjustified. Anyone who has ever looked properly at the way in which the security services have been managed, at least in recent times, or anyone who, like myself, has examined the behaviour of the security services in very difficult circumstances in Northern Ireland in recent times, will know that the management is extremely rigorous and does not need the help of an expensive and ill-conceived quango to ensure that its staff behave properly.

The risks to national security from the sloppy drafting of subsection (5) of the amendment are manifest. There is no provision here for the members of the board to be directly vetted. That means that whoever the members of the board were, they would be entitled under subsection (5)(a) of the amendment to have access to,

“all relevant material (including classified information) held by any government department or agency”.

Presumably it would be their opinion as to what was relevant. Indeed, they would be able to call as witnesses or take statements from,

“personnel of any department and agency”.

That is a provision completely unparalleled in our history.

Furthermore, this proposal usurps the powers of the Intelligence and Security Committee. There is nothing provided by the amendment that the Intelligence and Security Committee cannot at least reasonably do. The amendment clearly envisages that this will be a political board, but outside the control of Parliament, because it says that no more than three members should come from any single political party. It is a sort of freeloading, undisciplined version of the Intelligence and Security Committee, without the control of either the Executive or Parliament.

Also, it looks like a very expensive board, compared, at least, with the Independent Reviewer of Terrorism Legislation. Neither David Anderson, nor I as his predecessor, ever complained about our remuneration as independent reviewer, but it pales into insignificance by at least two noughts on the end compared with this unnecessary board.

Furthermore, such a board would duplicate not just the Intelligence and Security Committee, but all the additional provisions, some contained in welcome government amendments, that have been added to the Bill. I have been watching every detail of the Bill over its very long period of gestation. More information was given when the Bill was first tabled than on any other Bill I have ever known, including more information about the security services than we have ever seen in parliamentary papers. We will now have an independent reviewer, commissioners, judges—a whole panoply of people applying sound management and good judicial principles to the considerations that the board would vaguely look at. It is not even a civil liberties board: it is not what it says on the tin, because civil liberties are not merely connected with investigatory powers.

This proposal is a fudge and it is misleading. I apologise to my noble friends for saying so, but as I have said, I have been completely consistent about this. It is one of the worst proposals I have seen on national security that has ever been proposed to your Lordships’ House. I shall not support it, I hope that others among my noble friends will not support it, and I urge the House to reject it.

[Lord Rooker (Lab)]

My Lords, all I can say in response so far is thank heavens we do not have the coalition Government in power. I support entirely what we have just heard from the noble Lord, the former Independent Reviewer of Terrorism Legislation.

I will choose my words carefully. One of the things that is worth thinking about with legislation like this is that we have the Government today, but we are legislating; we are Parliament. How would the Opposition use this? When I look at my friends in opposition, frankly, I will support the Government to vote this down. I am not prepared to abstain on such a barmy and dangerous amendment, as the noble Lord just said.

I will not go through the amendment. In fact, the noble Lord who moved it did not go through it. He did not explain what it meant by “professional qualifications, achievements” and “public stature” for the appointments. It is preposterous and a nosy parker’s charter into investigatory powers because it does not talk about looking at things; it demands access to all material from an agency and requests information from any agency or government department. There is nothing about the staff of the body. Forget the fact it is envisaged that three out of five members of the board will be of the same political party—it is envisaged to be party political—there is nothing about the security aspects of the staff, let alone the vetting of the people.

It is not, as the amendment says, just about civil liberties. It is in many ways trying to second-guess the powers of the commissioners. It is trying to second-guess the Joint Committee on Human Rights and the parliamentary security committee. We should have nothing to do with it. I hope the noble Lord will think twice if he is thinking about calling a Division on this. They will be laughed out of court.

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Rooker

Monday 11th July 2016 Lords Chamber

[Lord Rooker (Lab)]

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

[Lord Carlile of Berriew (LD)]

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

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

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Rooker

Monday 11th July 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I am not going to enter into an argument with my noble friend about the activities of GCHQ, particularly when they have been misdescribed so fully, but I will say one or two things about the merits of the amendments before us, particularly Amendment 6.

I agree with what my noble friend Lord Lester of Herne Hill said about this group of amendments, including Amendment 6, for the reasons he gave. It would be helpful if the noble and learned Lord, Lord Keen, could explain to the Committee the difference between Amendment 6 and the intention of the Government as set out in Clause 2(2)(a). If the intention of the Government is to do what my noble friend Lord Lester described, I respectfully suggest that the adoption of the wording in Amendment 6 would be more useful and more certain and, above all, as my noble friend said, would avoid unnecessary disputes about the meaning of and compliance with Article 8 in the courts.

Unfortunately, I disagree again with my noble friends about Amendment 14. I am not against a Privacy and Civil Liberties Board if the Government wish to create one. Indeed, I would rather support the creation of a board which had an overarching view of privacy and civil liberties. The board that was created in the 2015 Act is most certainly not a Privacy and Civil Liberties Board. It is a board that was intended to have some kind of oversight of interception, surveillance and other matters, and was a construct agreed as a compromise because of the nature of government at that time. I am afraid it is a glass half-full. Therefore, I urge the Government not to adopt that Privacy and Civil Liberties Board.

It is also worth saying that we have come an awfully long way in the protection of the public against unlawful intrusion by the state into their private affairs since the enactment of the Privacy and Civil Liberties Board provision, which has not been brought into force. The safeguards included in this Bill as a result of the work of my successor as independent reviewer, David Anderson, and of the Intelligence and Security Committee and the RUSI panel mean that we have a much fuller raft of protections in the Bill. In my view, they are far more beneficial and provide a great deal more than was ever going to be provided by this form of the Privacy and Civil Liberties Board. I respectfully suggest to Ministers that this amendment is entirely unnecessary.

However, I emphasise that there are genuine concerns about potential breaches of privacy and civil liberties. They are concerns about what the public sector can do and they should also be concerns about what the private sector already does. Any of us who subscribe to online groceries, books, music or other similar consumer opportunities on the internet, as I confess I do—I frequently stream music in my car from my mobile phone—probably do not realise how much we have allowed our privacy to be trespassed upon by the so-called privacy policies of large internet service providers. If we are to have a Privacy and Civil Liberties Board, let us do the whole job, not just a bit of it.

[Lord Rooker (Lab)]

My Lords, I will follow up the noble Lord’s point about what the public sign up to in the private sector—of course, the private sector has lobbied against part of the Bill because it has a vested commercial interest. If you sign up to PayPal, you have signed up to 36,275 words of terms and conditions. Who reads them? “Hamlet” is 30,066 words. If you sign up to Apple iTunes, you are signing up to 19,972 words of conditions; longer than “Macbeth” at 18,110 words. It goes on: Facebook’s has 11,195 words. You tick the box—that is all you do—and give these companies access to your information. These companies would never have been able to start in other societies without the rule of law—we all know that. They can only operate in open, democratic societies. You sign away all kinds of things. We know there was a test at one time when someone changed the terms and conditions to an agreement to give away their firstborn and people ticked the boxes, because they did not read them.

Criminal Justice and Courts Bill

Debate between Lord Carlile of Berriew and Lord Rooker

Tuesday 9th December 2014 Lords Chamber

[Lord Rooker (Lab)]

I am a complete outsider on this, but I am now confused. The examples that the noble Lord has given I can recall from my own experience, not of judicial review but of group activities—the community. The noble Lord, Lord Marks, however, said that he would buy 15% to 20%. Now, 15% is six or seven people. That is not a group or a community. Twenty per cent would be five people funding. I am now at a loss. I realise that the Government should put something forward about the level, but I am confused by the idea of lots of people contributing for the community. The noble Lord, Lord Marks, said, “I could buy 15% or 20%”. That is not a group and it is not a community. That is a small tightly knit group of motivated people. So I am confused about which way we are going on this debate.

[Lord Carlile of Berriew]

The noble Lord, Lord Rooker, has, extremely uncharacteristically, if I may say so, missed the point. I am sure that it is my fault. We are talking about group actions that may involve a significant number of people—hundreds or thousands, maybe—to which a few individuals make a large contribution. They are making that contribution, often anonymously, to ensure that the matter is capable of going to judicial review for the reasons I gave earlier. We are not talking about 20% meaning that there are only five people involved in the action. We are talking about 20% of the funding that is collected, although there may be hundreds of people involved in the action.