Counter-Terrorism and Security Bill

Debate between Lord Harris of Haringey and Baroness Ludford

Monday 2nd February 2015 Lords Chamber

[Lord Harris of Haringey]

My Lords, I have enormous respect for the noble and learned Lord, Lord Hope of Craighead, who has identified and talked about an issue that potentially has problems for humanitarian organisations under certain circumstances. However, the amendment remains irrelevant to that. While it may be quite attractive to use a code of practice as a means to identify this issue and make sure that officials are more aware of the potential complications, this code of practice relates to circumstances in which there are reasonable grounds for suspecting that person of the intention of leaving Great Britain for the purpose of,

“involvement in terrorism-related activity”.

It would be to stretch that definition to suggest that there is a suspicion that you are personally involved in terrorism-related activity because your organisation may have paid a sum of money to a gate-keeper in one of these circumstances, because this is about involvement in terrorism-related activity. I am therefore not sure that this is the right mechanism for addressing what I suspect is a real and valid problem that we need to find some way to address. Perhaps we can do that next time we revisit terrorism legislation, which will probably be in about four months’ time.

[Baroness Ludford]

My Lords, I urge the merit of these amendments very briefly. First, there has been a slight tendency in our discussions in the first part of this afternoon to assume that the actions by the officer at port would almost invariably be on the basis of intelligence that had been supplied before the person reached the port. However, the code stressed that there are two possible scenarios, which appear to be put on an equal footing. One is that information is provided to the police before or when a person arrives at port; or it can take place at port, on the basis of observation of behaviour,

“information obtained from any other source; or a combination of these”.

Therefore, there is fully in the code the scenario where observation of behaviour leads to the reasonable suspicion. That is the context in which these amendments play a part.

The draft code also stresses, in paragraph 24, the obligations under the Equality Act 2010 which police officers must bear in mind when exercising these powers. However, there is not really any reference to specific training on the use of these powers in this context as opposed to rather broad Equality Act obligations.

Finally, can the Minister consider strongly the need for the monitoring of the individual exercise of the powers—not just to monitor them broadly but to record? There is a difference between monitoring in a broad sense and recording when and in what circumstances these powers are exercised.

--- Later in debate ---

[Lord Harris of Haringey]

My Lords, this is something of a mess. I was certainly alerted—and I know that other noble Lords will have been alerted at the same sort of time—to the developing problem of a gap in terms of communications data eight or nine years ago. It was so long ago that I can no longer remember exactly when it was. The gap is occurring because of the nature of the way in which communications take place using the internet, and it is a gap which is worsening and getting bigger.

Communications data, as opposed to intercept, are used in virtually all major crime and terrorist cases. They are an essential component, concerning who was there, who was where and who was communicating with whom. That is nothing new; what has changed is the way in which those messages are transferred from one place to another. It is a fact that it is no longer easy, using conventional means and conventional mechanisms, to keep track of that information, and that is causing the problem. It is a problem and a gap which has been getting worse over the last few years.

Something urgently needs to be done to remedy that gap, but it has not happened. The previous Government and this Government have failed to do something about it. We are now moving inexorably towards a general election, which is a few weeks away, and it will be down to whichever Government are in place after that to deal with this. I share the concern of the noble Lord, Lord King, that, following the election, that may not be a rapid, simple or straightforward process.

What do we do now? The first thing is not to oversell the importance of either these amendments or the mythical Blencathra’d amendments that may or may not exist somewhere else. The amendments will not be a magic bullet. The mere passage of these proposed new clauses, or a version of them, does not mean that terrorism will be prevented or that serious crime will stop, but they would be an essential and necessary tool in trying to minimise the risk. Let us not pretend that the failure to include them will automatically mean that there will be a terrorist atrocity. However, it will mean that such an atrocity will be that bit more likely and that it will be that much more difficult to deal with it and stop it.

This is not just a question of the legislative provisions and the fact that we are being dilatory in getting round to dealing with this issue. I understand and have all sorts of sympathy for Ministers in the context of a coalition where one side of the coalition is less keen on such a provision than the other and starts to position itself in advance of a general election. I have lots of sympathy for all that, but the fact is that collectively Governments over the past eight to 10 years have failed to address and deal with this issue.

There is a second vital element, which is that there is a degree of public support for and public buy-in to the changes that have been made. That is why not pretending that this is a magic bullet is so important. In the past, security measures have been oversold as the one necessary thing that will stop all these atrocities, and every time that excuse is used it has bred public cynicism about these measures.

Part of what has to happen is a proper public debate about why these powers are needed, why they matter and why they do not constitute the infringement of civil liberties and personal liberty that some people assume. Failing to have that debate has been a wasted opportunity over the last few years. When the Joint Committee produced its report, the Government should have used that as the opportunity to say, “Let’s have that public debate”. Had they done so, we might now be in a position where there was a public understanding of these issues and a readiness to go forward.

The reality is that if the noble Lord, Lord King, presses his amendments, people will say that the parliamentary process has been abused, and we have no doubt already had dozens and dozens of emails and letters saying precisely that. It is an abuse of the process because it does not allow the normal times for debate, but we have failed to give ourselves the time for that, and that is why we are in such a mess.

Should we agree to these amendments? No, because they do not incorporate the views of the Joint Committee; no, because we have not had an opportunity for the public debate; and no, because we have not had the report of the Independent Reviewer of Terrorism Legislation. I do not want to get into why we have not had all those things but the fact is that we have not. It would therefore be wrong to press ahead with these amendments at this stage, much as I personally believe that something along these lines is necessary and much as I personally believe that we should have taken action much sooner. However, the reality is that those other things are not in place. I blame the Government—of course I would because I am on this side of the House—for failing to have those other elements in place and for failing to ensure that there has been the necessary public debate. However, to press today without public support and public debate, and in the absence of having the views of the independent reviewer, clearly would be a mistake, particularly in the context in which people would see that the legislation had been rushed through by some sort of legislative sleight of hand.

The noble Lord, Lord King, gave the Government a week’s opportunity to move forward. The Government have not taken that opportunity. For the very reasons I have given about not having public support or having built things up, I do not believe that they should have responded to the noble Lord’s amendment last week by bringing forward their own amendments to do all this overnight. But it would have been an enormous step forward, and still would be an enormous step forward, if before Third Reading the Government were to publish the revised versions of the legislation that they have, even if they are not the final product, so that that public debate can start. Some of the myths about communications data and what the Government are trying to do could be dispelled.

We are in a sorry mess. Frankly, I do not think that the amendments in the name of the noble Lord, Lord King, solve the problem. They could conceivably make it worse. But for goodness’ sake, we need to treat people like adults, not pretend that this is a magic bullet, and allow the public debate to take place.

[Baroness Ludford]

My Lords, I cannot resist the opportunity to add my ha’penny-worth, to respond to my noble friend Lord Howard of Lympne, and to acknowledge proudly the label of pesky Liberal Democrat. I also thank the noble Lord, Lord Blair, for saying that he at least does not disagree that the Liberal Democrats have a position of principle here. However, I disagree with him about the 2004 Spanish election. The Partido Popular did not lose the election because of the bombing being by Islamists. It lost because it tried to misrepresent those bombings as being by ETA, which was against the advice of its own intelligence services.

My noble friend Lord Paddick has put extremely well, and much better than I could, all the objections of principle. The storage of everyone’s web browsing for 12 months, even if it is only up to the first forward-slash, would blur the boundary between communications data and content. It could reveal an awful lot about people’s health, sexual characteristics, political views, marital problems and other potentially embarrassing personal information. This is simply too much power to give to the state. Yes, 12 months’ storage of everyone’s web browsing history is an objection of principle.

I also stress the practical difficulties of scooping up third-party data and setting up a transatlantic jurisdiction on a war which we are destined to lose. From my time as a Member of the European Parliament in the last few years, I have some experience of this in the wake of the Snowden revelations and the whole impact that had on the attempt to get data sharing across the Atlantic without the framework of a transatlantic data-protection agreement. The noble Lord, Lord Cashman, who is not in his place, will remember those debates. We need to work co-operatively with US-based companies rather than try to overreach ourselves in terms of jurisdiction. I fear that the reaction to that, which already has happened in the last few years, is that it could lead to fragmentation and balkanisation of the internet. The glory of the internet is that it is global. We in the West look askance at what is happening in China and Russia in trying to cut themselves off from the global internet. I foresee that that could happen transatlantically as well. Companies in the United States are under a great deal of pressure to comply with at least the safeguard provisions of US law, partly as a result of the lively public debate there in the last 18 months, which is unlike in this country where there has not been so intense a public debate. Of course, we know that they are going faster and faster down the route of encryption, with all the problems that my noble friend Lord Paddick mentioned.

Counter-Terrorism and Security Bill

Debate between Lord Harris of Haringey and Baroness Ludford

Tuesday 20th January 2015 Lords Chamber

[Lord Harris of Haringey]

My Lords, I wish to comment on Amendments 42 and 43 in this group. I have to say that the grouping is slightly odd because it relates to a whole range of different issues. I assume that the purpose of the amendments of the noble Baroness, Lady Hamwee, is to ensure, first, that the way in which the action of removing someone’s passport is carried out is mindful of equalities issues and the background of the people concerned; and, secondly, that a proper record is kept of what is done, so that any subsequent look at how the powers had been applied can show that they had been applied proportionately. I have no objection to that; indeed, it goes to the essence of the point about this power and the subsequent powers—the extent to which they will be exercised in such a way as to achieve their purpose but avoid a situation in which they alienate a particular community by reinforcing the narrative that suggests that that community is being oppressed or whatever.

In that context, it would be helpful if the Minister could indicate how frequently it is anticipated that these powers will be used? Are we talking about six, 600, 6,000 or 60,000 times a year? It makes a significant difference because if every time people from a particular community try to leave the country they have to go through these procedures—and these documents are held for a period, whether for six, 12 or even two hours—that will produce resentment. If the powers are to be used in a much smaller number of cases, it may be that the proportionality will seem to be more reasonable. It would be useful if the Government, in asking for these necessary powers, were to confirm how frequently the powers would be used. I am sure they have considered that. Perhaps the Government can say, having thought through the information and intelligence that has been available for, say, the past six months, how many times they think they would have sought to use these powers.

[Baroness Ludford]

My Lords, I, too, will speak to Amendments 42 and 43, which I strongly support and to which my name is also attached. The draft code of practice refers to the need for an objective basis for the constable’s state of mind and how such information must be specific to the personal conduct of the person and not formed on the basis of assumptions about attitudes, beliefs or behaviour of persons belonging to particular groups. Training in equalities would want specifically to address the danger of stereotyping or behavioural assumptions. There has been a great deal of concern in the last decade and a half about what might sometimes be called racial, ethnic or religious profiling. One of the things that distinguishes this country from, for instance, France is that we believe—and this also relates to the need to record statistics on the use of the powers—that it is a useful exercise to record statistics which include, as indeed does our census, a voluntary question on ethnic identity and religious practice because it helps inform social, economic and, in this case, legal lessons to be learnt. It is not helpful, as is sometimes done in other countries, to pretend that we are colour and identity blind, because that actually means that we are blind in terms of the policy conclusions drawn. The need for training to avoid discriminatory behaviour and stereotypical assumptions and to record how the constables and other qualified officers behave and perform their duties is a useful addition to the Bill.