Investigatory Powers

Lord King of Bridgwater Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord King of Bridgwater (Con)]

My Lords, I am delighted to follow the right reverend Prelate. The word that he emphasised in his closing remarks was “proportionate”, and the question of trust goes to the heart of the debate today, which we will continue to have on these issues as we move forward, as the Minister said.

Before I welcome anything else, I welcome, I hope on behalf of the whole House, the Minister to his position on this. The great thing is that we have some continuity on this issue. The Minister dealt with these issues before. I am thankful we do not have a different Minister coming in and starting all over again. He is very familiar with the background to some of these problems, and I wish him the best possible prospects in dealing with the very important issues that occupy him now and for a considerable amount of time.

I also join in the welcome of the Anderson report and shall say a few words about it. I shall briefly recap where we started this because the Minister knows better than anybody else that we tried to do this once before. We did it against a background of the very clear warnings we had had. The noble Lord, Lord Evans, the successor to the noble Baroness, Lady Manningham-Buller, in the leadership of the Security Service, said that the threat is increasing and our ability to meet it is decreasing. We were very conscious of that at the time, and the then Home Secretary, who is still the Home Secretary, said that there is a serious gap in our capability that continues to grow. At that time, we had an opportunity with the then Counter-Terrorism and Security Bill, on which a number of noble Lords now in their places joined me in tabling amendments which could have filled some of the gaps dealing only with issues of national security and serious crime, because we thought they were dangerous.

We did that against an emotional background about the Charlie Hebdo assassinations in Paris and the terrorist attack in Brussels. We meet again now, having let various months pass, and we have Tunisia and Kuwait and the decapitation in Toulouse or Marseille. It is against that background that we realise just how serious and dangerous the situation is. The report from the Intelligence and Security Committee said that,

“the Islamic State of Iraq and the Levant (ISIL) is exploiting the power of the internet”—

it quotes the new director of GCHQ—

“to ‘create a jihadi threat with near-global reach … There is no doubt that young foreign fighters have learnt and benefited from the leaks of the past two years’”.

That is the balance of the argument about Mr Snowden. The director of GCHQ continues:

“However much [technology companies] may dislike it, they have become the command-and-control networks of choice for terrorists and criminals”.

The Financial Times said:

“‘The combination of ubiquitous social media and these nonstop conflicts is stoking a very different environment for extremism in Europe and the west … all the conditions are right for this big change in what lone wolf attacks are and mean.’

Isis’s skill in information warfare and its use of social media have made a huge difference to the pull of its message. Its physical caliphate itself is, of course, one of the group’s most emotionally resonant concepts. Unlike al-Qaeda, whose leaders led a covert and small network from shadows and caves, Isis has proclaimed its enduring presence as a physical state. Even the most wilful potential recruits for al-Qaeda struggled to find the network. In the case of Isis it is impossible to miss it. As such, for radical young Muslims drawn to extremes, it is much easier to take up the cause”.

It is against that background that I compare this with my experience in dealing with terrorism in Northern Ireland. I have consulted my noble friend Lady Neville-Jones, who is another great authority on this, and it is fair to say that we had a technology advantage—superior technology—at that time. We had some problems for a while in dealing with IEDs and detonation using remote devices; various developments happened that we had to match and counter, but we still had that advantage. However, I am not sure that in the current situation we have the technological advantage we need. Whatever we did, we tried to prevent access to weaponry. No one has asked any question such as, “Isn’t it odd that the chap in Sousse was able to get hold of a gun?”. We know that certain parts of the world are awash with weapons at present. Although I underline the seriousness of the threat that we faced at that time, I and other colleagues who shared that responsibility for countering terrorism and major threats in Northern Ireland never had to deal with suicide bombers. Those changes make for an exceptionally dangerous and difficult situation.

I turn to new technology, which is quite difficult enough for many of us to keep in touch with and comprehend. I found reading the Anderson report a pretty mind-blowing experience. I will not claim that I have read every page of it, either. Still, it is interesting. I do not know how many noble Lords have had the chance to see the Hansard report of the debate in the Commons. One of the interesting contributions was made by a Member of Parliament, James Morris, who said that before he came to the House he had worked in the IT and technology industry for 20 years, and he had seen changes taking place. He warned about the threat:

“It provides opportunities for our enemies—for countries operating and wanting to develop cyber-attacks against our infrastructure; it enables terror groups to communicate below the radar in encrypted chatrooms on the dark web; and it allows networks to develop which are difficult to detect and to analyse”.—[Official Report, Commons, 25/7/15; col. 1116.]

That is the challenge that the comprehensive and impressive Anderson report brings out very clearly. One particular paragraph caught my eye, and I commend it to the House: paragraph 4.13 talks about the capacity of cables for the carrying of data. It is an illustration of the explosion in the amount of data that exist in the world at present, and I thought that he brought that point out very well.

Where I really started to lose it was where we got into the “internet of things”. The fastest-growing category is wearable technology. One aspect of it that I think some of us can comprehend is body cameras, which are being trialled by the police. I was interested to see that not only are we moving on to the development of wearable technology but the next move will be either implantable, embeddable or even ingestible. That is part of the Anderson report. At that stage, I thought that it really is getting to a stage of development where, as Mr Anderson rightly described it, we are in “a technology arms race”.

There is a real danger with the problems of encryption, particularly the problems of other countries being involved, and the problems of the localisation of data. I think that both Russia and China are now seeking to introduce legislation to prevent access to their data. Much of those data pass through those countries—data that we ought to have access to, and maybe British data, which raises very serious problems.

We will move forward through the stages that the Minister has set out—I will not begin to go into any more details on the Anderson report. Obviously, however, one of the key issues, which the right reverend Prelate also dealt with, is the question of who will sign the warrants. The Anderson report obviously strongly recommends a judicial approach, while the ISC has come out in favour of maintaining the present situation, as the Minister said. There is a distinction; the noble Lord, Lord Reid, intervened on this with the Minister when this matter was raised in the House earlier. Terrorism, security and certain other issues are best covered by the Secretary of State, answerable to Parliament—whichever Secretary of State it is—and much of the crime area could well be covered by the judges.

However, one of the figures that hit me between the eyes was the statement in the Anderson report that the Home Secretary in 2014 signed 2,345 warrants. One wonders how she manages to do her day job as well as that. I do not know what number of warrants the noble Lord, Lord Reid, used to pass over his desk, but that certainly seemed a terrific challenge. Of course, security, terrorism and crime issues, as well as crime, drugs, child sexual exploitation and fraud—the sort of issues for which warrants may be needed or access to data may be required—might be dealt with under an alternative arrangement.

On the basic issue of Mr Anderson’s report, he talks about the balance of liberty and security, which we have all talked about as well. Obviously, I have emphasised the challenges we face, such as the importance of ensuring that our agencies and security forces have the resources and capabilities to protect the public, but we must still respect the right of the individual to privacy as far as we can, making sure that this is proportionate, as the right reverend Prelate said.

Mr Anderson refers to affirming the primacy of communications and says that the law should be in “non-technical language”, and that he wants to,

“take a system characterised by confusion, suspicion and incessant legal challenge, and transform it into a world-class framework for the regulation of strong and vital powers”.

I add the point that the importance of having world-class legislation is that in many areas we depend on international co-operation, and if we have world-class legislation that will be acceptable in other countries as well.. We then have to sustain this into the future. Mr Anderson, having described all the technology, makes a cheering remark in his report, pointing out that it is almost immediately out of date. We therefore have to see how we can have legislation that will meet what will be the galloping pace of change. Some of the most interesting information in the Anderson report shows how far we have come in about 10 or 15 years from a situation in which a number of social media platforms did not exist—they were of no significance at all. When I was in Northern Ireland there were no emails, and no internet. As we know, the internet is only 25 years old. Having had that speed of development, I feel that it is likely only to increase.

My only criticism of the Government’s position is this. We all know that there is a serious gap in our defences. We also know that there is a very serious threat of a scale and type that we have not faced for a very long time. Our duty in this House of Parliament is to protect our people, and we tried to take an emergency step in the previous Parliament to meet that situation. The position taken by the Government and the Opposition at that time was to say, “We mustn’t do that because, although we’ve had the ISC report, we must wait for the Anderson report”. Having seen the size of the Anderson report, I can well understand why the Minister did not like to say to Mr Anderson, “Don’t bother to finish it because we’ve already settled the matter”.

We now have the Anderson report, which is excellent. It has been very well received but the Government have said that we are now going to have more pre-legislative scrutiny. My noble friend Lord Blencathra did an excellent job of pre-legislative scrutiny in the Joint Committee. As the Minister said, a number of the points raised by my noble friend and his committee at that time will be met in the proposals that will be put forward and they have been covered by Mr Anderson. I think that there is a need for a very full debate and discussion and then a need to bring forward the Bill. Let us have a very full Committee stage with ample time for consideration and then let us get on with it; otherwise, as I understand it, the necessary powers will not be in place until some time in 2016, if not towards the end of 2016. All that time will be spent while there is a gap in our defences and the threat that we know exists gets greater all the time. Can we not get on with it?

--- Later in debate ---

[Lord Bates]

Let me begin by echoing the words of the noble Lord, Lord Rosser, in his closing tribute to the men and women of our security services and the work they do day in, day out, often at significant risk to themselves, to prevent the types of atrocity that we have seen all too often around the world and on our streets here in the United Kingdom.

This debate was styled as a take-note debate, in the terms that we use in this House. I do not propose to respond to each of the points made, because that was not the purpose of the debate. The purpose was simply for noble Lords to bring their incredible experience, knowledge and insight to this forum, so that we could draw upon their comments, observations and questions as we begin the process of preparing a draft Bill for consideration here. Effectively, as I saw it, the debate moved between three stages. The first stage was to recognise the nature of the threat. That was brought into very sharp focus by frequent references to David Anderson’s report. I do not think I have ever previously responded to a debate in which the report that formed the subject of it has so frequently been the basis of the contributions to it. The noble Lord, Lord Butler of Brockwell, will be impressed from an academic standpoint by the number of citations of the report, which shows that it is an incredibly thorough piece of work. I pay tribute to Her Majesty’s Opposition for encouraging us to undertake it. It was absolutely right that we did.

The report outlined the threat before us and identified a determined and ruthless new emerging threat. We found that in the evidence and report by the Intelligence and Security Committee into the death of Fusilier Lee Rigby. The noble Baroness, Lady Manningham-Buller, gave us some insights into the sophistication of the technology and urged us to be agile in our responses to it. The noble Lord, Lord Blair, gave his reflections, in particular on those horrific attacks and planned attacks. The chilling thought of the Loch Lomond effect struck us significantly.

If the threat is there, the second question is: what are we to do about it? That was a very interesting debate. The contributions on law enforcement from the noble Lord, Lord Paddick, and others were very important—that we talk about how we track this. I was conscious of the reference in the report by the former director of GCHQ, Sir Iain Lobban, who said in his valedictory speech that we must “enter the labyrinth”. As my noble friend Lord Blencathra reminded us, that labyrinth is getting more and more impenetrable. We were distinctly helped by my noble friend Lady Neville-Jones, who comes to this from a security perspective and is doing valuable work in informing our response to the cyberthreat facing not only commerce, but society. That complexity is a very important issue.

Let me respond to the contributors who asked whether we are having conversations with internet service providers and communications service providers. That is crucial—if noble Lords go to the appendix of the Anderson report, they will see the list of communications service providers that he interviewed. This is an ongoing process: at the Home Office we regularly meet with communications service providers, both domestically and internationally. Indeed, a senior Home Office official is in the US today holding meetings with companies. We also have my noble friend Lady Shields, who is from the world of social media. She is now Minister with responsibility for internet security.

We also had the very helpful work in 2014 of Sir Nigel Sheinwald, the Prime Minister’s special envoy on intelligence and law enforcement data sharing. His role was created to work with foreign Governments—precisely the point that was asked—and with communications service providers to provide access to data across different jurisdictions for intelligence and law enforcement purposes. Since Sir Nigel’s appointment the Government have expanded their dialogue with the companies but, despite some progress and co-operation, that remains incomplete. We all agree that we need to work on longer-term solutions. The noble Lord, Lord Butler, asked whether I had an update on Sir Nigel’s report, which was presented to the Prime Minister. As we set out in July 2014 when the position was announced, the role of the special envoy has been to conduct discussions and negotiations on data sharing. Any detailed advice relating to his work as a government special envoy remains internal civil service policy advice, helping Ministers to consider a full range of options. However, the Cabinet Office published a summary of his work on its website on 25 June.

The third question is: if the threat is real and serious as virtually all noble Lords have acknowledged it is, and if our police and security services need more powers, how do we ensure that we carry public trust with us? These points were focused on by the noble Lords, Lord Strasburger, Lord Scriven, Lord Blencathra and Lord Paddick. It must be stressed that there are two elements to this answer. First, there is a plethora of people—in fact, some may say too many—overseeing the work of our security services, including the Interception of Communications Commissioner, the Intelligence Services Commissioner and Surveillance Commissioners. All their reports are available in the Printed Paper Office. There is also the Intelligence and Security Committee of Parliament, the Independent Reviewer of Terrorism Legislation, the Investigatory Powers Tribunal, to which I will come back in just a second, and the courts more generally. The noble and learned Lord, Lord Brown, with his significant experience, clearly outlined the way they would approach these issues and the principles they would apply in so doing. The Information Commissioner also oversees this process.

A number of noble Lords referred to, and asked for comment on, the recent Amnesty International case that came before the Investigatory Powers Tribunal, to which I wish to put a response on the record. The tribunal made it clear in its judgment of 22 June that any interception that occurred was lawful, “necessary and proportionate”. We would caution against drawing conclusions from the tribunal ruling about the target of any such interception. A finding in favour of an individual or organisation does not necessarily mean that they themselves were the target. It could equally mean that they were simply in communication with the target. However, we can neither confirm nor deny specifics relating to this or any other case. I am sure that will not fully satisfy noble Lords, and perhaps plays into the caricature developed by the noble Lord, Lord Strasburger, of what he anticipated we might say. However, the serious point is this: we should be proud of not only our security services but the vast swathe of individuals and organisations who diligently oversee the work carried out by our security services to ensure that it is done correctly.

I was asked by the noble Lord, Lord Rosser, whether I could provide some detail on the actual number of warrants that have been signed. I did have that figure to hand, but perhaps I will write to him setting out how this year’s figure compares with that of previous years.

In conclusion, I again thank all those who have contributed—

[Lord King of Bridgwater]

My noble friend did not answer the point that I raised. I think it is generally widely accepted that we are at risk in this country of terrorist attacks, and that at the moment our defences are not as strong as they could be. We believe that measures in legislation which could come forward would protect the nation from the sort of outrages that we have suffered in the past and would provide a better chance of protecting the country. The course on which the Government are now embarked is to go away and prepare legislation and then submit it for pre-legislative scrutiny by a Joint Committee of both Houses, which will take some time. It seems to me that because of the initiative of the Opposition in initiating the Anderson report, on which I congratulate them, we have the most extensive preparation for this legislation: a report that has been very widely respected on all sides of the House.

The noble Lord, Lord Blencathra, who chaired the previous pre-legislative scrutiny Joint Committee, said that the Anderson report meets all the points that his committee wished to raise. Of course, I understand that there are points that still need discussion. One of them, as we know very well, is whether there should be judicial or ministerial approval. But if we have another Joint Committee, it will rehearse the arguments, which are already very well rehearsed, and it will come back to a decision of Parliament. Parliament will have to decide some of the issues that are outstanding.

The advantage of the course that I am advocating is that unless we really want to go down this very extended route, we could actually have better protection in place for all the citizens of our country sooner if we now go ahead, prepare the Bill—drawing on all the advantages of having the Anderson report available—and then put it to both Houses to decide those issues that, I absolutely accept, remain outstanding; they are a matter of debate, and can be decided by votes of both Houses. I say to my noble friend, who has given an admirable response to the debate so far, that I hope the Government will consider whether we really need to have a further, second pre-legislative scrutiny committee, which will take time and leave the country at risk for longer than I believe is necessary.

[Lord Bates]

My noble friend speaks with great authority and experience. He is right to urge us to move as quickly as we can, given the statements that he quoted from the Home Secretary, which were made before the last election under the previous Government, about every day that goes by without these powers. A process has been set out here and the Prime Minister and the Home Secretary have been very clear that because of the importance of taking people with us and, as far as possible, being able to bring this forward in a cross-party way—not just cross-party, but of course including the Cross-Benchers in this House—we ought to be seen to be going through a very thorough process. That involves basing it on the Intelligence and Security Committee, the Anderson report, the RUSI report which is to come and the debates that have been scheduled ahead of time in both Houses before the Recess. There will then be a period to reflect on that over the Recess and the Government can then come forward with a draft Bill that I hope, because it has been deliberated over, will not be subject to the type of criticism that the noble Lord, Lord Blencathra, levelled at the previous Bill. On the basis of that, one might therefore hope or think that the period of time for pre-legislative scrutiny might be shortened, and that the period of time for scrutiny through the House might be quicker than it otherwise would have been had it not been for all the evidence, reports and consideration that have gone before.

I know my noble friend will not accept that answer fully but I hope he will accept that it is an answer and a position which we have taken with great care and consideration to ensure that, as we progress down this path towards reform and to new legislation, which will go much beyond RIPA’s sunset at the end of 2016, we will carry people with us, that it will be better legislation as a result, and that we will progress down that road in a position of trust between those who carry out those duties and the citizens of this country—

Communications Data

Lord King of Bridgwater Excerpts

Wednesday 17th June 2015 Lords Chamber

[Lord Bates]

If that were the case, it certainly would be; but my day-to-day experience in the House of Lords is that that could not be further from what is actually happening. We are not steamrollering any legislation through; in fact, we are going through an exhaustive process. David Anderson has taken a year to produce his report. In the mean time, we have had the Intelligence and Security Committee’s detailed report, and we are awaiting a RUSI report. We have had Sir Nigel Sheinwald’s report to the Prime Minister, and we have pledged that there will be pre-legislative scrutiny. If that is a steamroller, I am not quite sure what some of the other legislative processes are.

[Lord King of Bridgwater (Con)]

We discussed these matters in the previous Parliament at some length in connection with the counterterrorism Bill, and the urgency and importance of the issue—that our defences are seriously at risk—was recognised by the Home Secretary and the shadow Home Secretary. New means of communication—the internet, telephony and others—that are outside our present reach can be used by terrorists in particular. These are matters of some urgency. While I certainly do not think that the Government can be remotely accused of steamrollering, the Bill in question has already been produced in draft and been subject to pre-legislative scrutiny. My concern is: how long are we going to take before we take the steps, agreed on both sides of the House in previous debates, which are very necessary for the defence of our country?

Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015

Lord King of Bridgwater Excerpts

Monday 23rd March 2015 Lords Chamber

[Lord King of Bridgwater (Con)]

The noble Baroness knows perfectly well that the Home Secretary has always made it clear that she attaches great importance to this issue; unfortunately, however, it was not possible to get the measure through this House, so it will have to come back, whichever party comes to power.

[Baroness Smith of Basildon]

The noble Lord refers to one issue, but the Home Secretary raised several today, and I assume that this guidance forms part of it. I hope that it is not a delaying tactic for the order before us today. On a rare occasion, I disagree with my noble friend Lady Lister, who said that it was “regrettable” that it was not with us. Although it is in some ways, it is also an opportunity. The noble Lord was very helpful, and when we had our discussions previously he said that he would engage—or that there would be engagement, if not with him personally—with those who would be responsible for implementing such guidance. I always think that guidance and legislation are effective only if they can be implemented in practice—the workability test that was spoken about so often with regard to other legislation. It cannot just be a theory; it has to be something that works. I hope that this will be an opportunity for the Government to engage with the universities and those who will have responsibility for implementing the guidance on who has responsibility for the duty so that they can discuss with the Government—I hope that those discussions are taking place now—how to make this sensible, practical and effective.

One final point, which has been raised by other noble Lords, is the relationship between HEFCE, as a monitoring body, with other bodies. It is not a funding body; I share the concerns of the noble Lord, Lord Butler, that it is to be hoped that the Government are not planning to set up a completely new quango to monitor that. However, I understand that meetings were due to take place last week, on 20 March, with HEFCE and other bodies to discuss how that could work. It would be helpful if the Minister could enlighten us on any progress that was made at those meetings.

A number of questions have come out of this debate, but I hope that the noble Lord will take away with him our gratitude for having seen significant changes; we are grateful to him for listening, because that is not always the case. I hope that we have not wrecked his career by thanking him too much. The guidance we have now is certainly better than what was presented to your Lordships’ House and discussed in Committee.

Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015

Lord King of Bridgwater Excerpts

Monday 23rd March 2015 Lords Chamber

[Lord Bates]

I do not want to be drawn too much, at this stage, into the content of it. I have said that I will write to the noble Lord, Lord Rosser, and clarify that point. The noble Lord, Lord West, is absolutely right. Here, I tread very carefully, with my noble friend Lord King of Bridgwater waiting in the wings, but the communications data Bill, which David Anderson is undertaking a review on—he will report on 1 May—will need to be considered urgently. The types of deep web communications within the communications data Bill were felt to be an important part of providing our security services with the ability that they need to tackle the growing terrorist threat against us. That will be returned to as a matter of urgency in the new Parliament.

[Lord King of Bridgwater (Con)]

I am grateful for what my noble friend the Minister said. I think that he covered it in his opening remarks. I understood him to say that, as we go forward, both sides of the House now recognise the need for urgent legislation. I think that Mr Alan Johnson has just joined the club of people saying how impermanent this is. In that case, we have to make clear that there will probably need to be some form of revision of the code of practice to take account of what new forms might come forward. There is not much doubt about the speed with which they are coming forward through social media, WhatsApp and the other things that are happening. Probably a few more that we have never heard of will be in operation by the time that we tackle this legislation.

[Lord Bates]

My noble friend is absolutely right. If there is new primary legislation, it is likely that what will follow is new secondary legislation. If there is new secondary legislation, it is almost certain that the codes that we are talking about today will need to be updated to reflect that. However, I have given undertakings that I will write to noble Lords and I give my appreciation to them for their comments.

Counter-Terrorism and Security Bill

Lord King of Bridgwater Excerpts

Monday 2nd February 2015 Lords Chamber

Moved by

[Lord King of Bridgwater]

11A: After Clause 21, insert the following new Clause—
“Part 3AEnsuring or facilitating availability of dataEnsuring or facilitating availabilityPower to ensure or facilitate availability of data
(1) The Secretary of State may by order—
(a) ensure that communications data is available to be obtained from telecommunications operators by relevant public authorities in accordance with Part 3B, or(b) otherwise facilitate the availability of communications data to be so obtained from telecommunications operators.(2) An order under this section may, in particular—
(a) provide for—(i) the obtaining (whether by collection, generation or otherwise) by telecommunications operators of communications data,(ii) the processing, retention or destruction by such operators of data so obtained or other data held by such operators,(iii) the entering into by such operators of arrangements with the Secretary of State or other persons under or by virtue of which the Secretary of State or other persons engage in activities on behalf of the operators on a commercial or other basis for the purpose of enabling the operators to comply with requirements imposed by virtue of this section,(b) impose requirements or restrictions on telecommunications operators or other persons or provide for the imposition of such requirements or restrictions by notice of the Secretary of State.(3) Requirements imposed by virtue of subsection (2) may, in particular, include—
(a) requirements (whether as to the form or manner in which the data is held or otherwise) which ensure that communications data can be disclosed without undue delay to relevant public authorities in accordance with Part 3B,(b) requirements for telecommunications operators—(i) to comply with specified standards,(ii) to acquire, use or maintain specified equipment or systems, or(iii) to use specified techniques,(c) requirements which—(i) are imposed on a telecommunications operator who controls or provides a telecommunication system, and(ii) are in respect of communications data relating to the use of telecommunications services provided by another telecommunications operator in relation to the telecommunication system concerned.(4) Nothing in this Part authorises any conduct consisting in the interception of communications in the course of their transmission by means of a telecommunication system.
(5) In this section—
“processing”, in relation to communications data, includes its reading, organisation, analysis, copying, correction, adaptation or retrieval and its integration with other data,
“relevant public authority” has the same meaning as in Part 3B.
(6) See—
(a) section (Application of Parts 3A and 3B to postal operators and postal services) for the way in which this Part applies to public postal operators and public postal services, and(b) section (Interpretation of Parts 3A, 3B and 3C) for the definitions of “communications data” and “telecommunications operator” and for other definitions relevant to this Part.”

[Lord King of Bridgwater (Con)]

My Lords, I will speak also to the other amendments in the group, Amendments 11B to 11T, in my name and those of the noble Lords, Lord West, Lord Carlile and Lord Blair.

In Committee, we had a full debate on the subject of these amendments. It was then generally established that there was pretty widespread agreement among the majority in this House, with some caution and reservations from the Benches behind me about adequate safeguards, that there was an urgent need for proper access and improvements that have been loosely and generally described in the draft communications data Bill.

There has been adequate and clear evidence, and statements by the Prime Minister, the Home Secretary, the shadow Home Secretary and the former director-general of MI5, the noble Lord, Lord Evans, in a maiden speech in this House. Other previous directors-general of MI5, including the noble Baroness, Lady Manningham-Buller, agreed on this, as did the noble Lords, Lord Butler and Lord Armstrong, who also spoke in the debate. They all recognised the problem we face, which is that our legislation has failed to keep pace with the rapid growth of the new technologies around the internet and the complications in the whole field of social media communication. One should recognise—it is common ground—that the extraordinary speed of ISIL’s southwards advance across Syria and into Iraq was achieved on WhatsApp, which is able to communicate with thousands of people at the same time and get messages across much more efficiently than was possible with some of the old military communications systems, as anyone who has been a soldier will recognise.

It is against that background that we have heard the clearest warnings. The noble Lord, Lord Evans, in an impressive maiden speech said that in 2013, when he was director-general, he thought that the worst was over. He now admits that he was wrong, and anyone who looks at the current situation and the threat that we face in this country and more generally in the world from terrorism will realise what he meant. Chillingly, he also said that the threat was increasing but our capacity to meet it was diminishing. That gets to the whole purpose of what I and noble Lords who join me in this enterprise have sought to bring before this House. This Bill, by chance, deals with an aspect of data collection; and the opportunity therefore arose to take the steps that the previous Government sought to recognise. The noble Lord, Lord West, referred to his experience in that Government and recognised the need for this perhaps six years ago; it was certainly needed three, four or five years ago. This Government recognised it and published a draft Bill two and a half years ago that sought to address the issue, which was then the subject of examination by the Joint Committee of both Houses, under the chairmanship of the noble Lord, Lord Blencathra, who is in his place today.

By the end of the Committee debate on this issue, we had provided an opportunity for this House to take a decision that would then give the other place the chance, if it wished, democratically to incorporate the essential provisions of the draft communications data Bill into this counterterrorism legislation in the recognition that they were an important part of the counterterrorism needs of this country at this time. The point was made absolutely fairly by the noble Lord, Lord Blencathra, that his Joint Committee criticised a number of aspects of the draft Bill. We sought in our amendments to deal with a couple of the more specific and difficult aspects that had attracted particular criticism.

The first of those was that the draft Bill set out a whole range of purposes for which data could be collected. Given the urgency of the situation, we decided to delete all those that involved local authorities, the health service, the Inland Revenue and a number of very worthy bodies that might otherwise have been included and might have a case for collecting data. But in the short-term, stop-gap measure needed in the immediate months ahead, we limited our proposal simply to national security and serious crime. Moreover, we recognised that this was not perfect legislation and that it needed improvement—as the noble Lord, Lord Blencathra, said in a number of criticisms—so we put a sunset clause on it. In the mean time, to make sure that we deal with another concern, we have also asserted that it would be subject to affirmative-procedure orders of both Houses of Parliament, whenever the Secretary of State wished to make such an order under this legislation.

Against that background, we then learnt during the course of debate that the Government did a significant amount of work on the previous draft communications data Bill and the noble Lords, Lord Blencathra and Lord Armstrong, had the opportunity to see some of that. The noble Lord, Lord Blencathra—I do not think I am misquoting him—said that he was satisfied that 95% of the Joint Committee’s criticisms had been met. So we entered the Committee stage with the challenge to the Government to pick up our original, older amendments to the draft communications data Bill and either replace them with the present improved versions that are apparently sitting in the Home Office, or make them available to noble Lords for us to table to meet the criticisms that these amendments are not as good as they should be.

I think it is now common knowledge that the Government have not felt able to offer these improved versions—and I understand that there is a problem, because they feel that further work needs to be done—because it was decided not to proceed with the draft communications data Bill, so it has not been given the priority that others might have hoped it would be given in having further work done on it.

The position is further complicated because, I understand, both the Government and the Opposition reached an agreement through the usual channels that the Bill that we have before us would be fast-tracked, but the condition of agreeing to the fast-track arrangement was that no substantial additions would be made to the Bill. One understands why that was put in, against the background to agreeing the fast-tracking of legislation of this kind, but my point is simply that that was decided before Paris and before the events in Belgium, and before the almost certain knowledge that access to social media, which the French security authorities have but which we do not, was crucial in so quickly tracking down the people responsible for that outrage in Paris. The Home Secretary and the Minister were put on record as believing that that was almost certainly the case.

I understand that both the Government and the Opposition will oppose my amendments today, so I will just say this to the House. I start with quotations from the Home Secretary herself in a Statement that she made to the House three weeks ago:

“Let me be absolutely clear: every day that passes without the proposals in the draft Communications Data Bill, the capabilities of the people who keep us safe diminish; and as those capabilities diminish, more people find themselves in danger and—yes—crimes will go unpunished and innocent lives will be put at risk … Quite simply, if we want the police and the security services to protect the public and save lives, they need this capability”.—[Official Report, Commons, 14/1/15; col. 871.]

Noble Lords can find that Statement by the Home Secretary in Hansard and check it right through. It was echoed by two people on the Back Benches who know much about the subject, in the shape of Mr Jack Straw and Sir Malcolm Rifkind, who both emphasised the importance of getting access to those communications data to handle the challenge of the new technologies, which at the moment is not adequately available to us.

We are now faced with a significant gap. A lot of days are going to pass. I understand that the Prime Minister and the Home Secretary have made it clear—I think that the noble Baroness leading for the Opposition and the shadow Home Secretary also made it clear on behalf of the Opposition—that this legislation would have a high priority in the next Government, whomever they may be. But look at the situation. We in this House have no idea who the next Government will be. We do not have much idea how long it may take to form that Government. I recall the days spent trying to form coalition agreements when this Government came to office.

I also remember that, many years ago, when I was more closely involved, we won an election. We had something called L Committee, which was the legislation committee. The Government arrived full of enthusiasm, full of manifesto pledges and guarantees that had been given at one stage or another from one department or another. Enthusiastic Secretaries of State went into their new department to be embraced by officials saying, “We are delighted that you have given the top priority to our legislation. L Committee will meet next Tuesday and you must ensure that you come out top of the list”. So those pledges made here that this or that will be the first priority, when we do not know which Government there will be, are obviously the most uncertain that we could face at this time.

We shall fail to take what I see as this exceptional opportunity presented to us, which could have gone to another place for its consideration, and the risk will continue for longer than it need to have done. Noble Lords who have been present in the past few minutes in this House will have heard the contribution from the noble Lord, Lord Tebbit, and the concerns that many have. As a fellow occupant of the Grand Hotel in Brighton on that night, I know exactly what he meant. We face a very serious threat from terrorism.

I understand that the Government and the Opposition feel honour-bound to hold to their position, but we will lose an opportunity to put in place a temporary, stop-gap measure which could have reduced the threat to our nation from terrorism at present. We just have to pray that we do not pay too high a price for that. I beg to move.

[Lord Lloyd of Berwick (CB)]

My Lords, I support the amendment. Like others, I have been involved with national security for many years—longer, I suspect, than anyone else in this Chamber, except my noble friend Lord Armstrong. I worked with the Security Service when it did not even exist, so in my first report, I had to refer to the Security Service, SIS and GCHQ en bloc as “the agencies”. I continued to work closely with the Security Service until I gave up being chairman of the Security Commission in 1999. Others referred in Committee to their first contact with the Security Service. I remember an occasion long ago when I visited its premises in Gower Street. The door was opened by a young lady I knew and we said simultaneously, “Fancy seeing you here”. Her name was Elizabeth Manningham-Buller, and I think we all agree that she has done very well. I would very much like the noble Baroness, Lady Manningham-Buller, to be aware of that but she is not in her place, and I am sorry that she is not here to hear me say it.

--- Later in debate ---

[Lord Bates]

The noble Lord will recognise that I am a little too junior to actually write the manifesto. What I can say for absolute certain is that the Prime Minister and the Home Secretary have made clear, in the most forthright terms, their personal belief that this legislation is needed and that it must be introduced as a matter of urgency in the new Parliament. I hope that that will deal with some of the scepticism which there might be about the power.

I was trying to set out that there is a particular legislative need. Whatever Government are there after the general election, they will have to start to do something very early on, simply because it will take seven to nine months to actually get it in place. However, when it does start, it will start with due consideration of the Joint Committee’s work and the excellent work of the noble Lord, Lord Blencathra. It will start with the excellent debates and consideration that we have had, thanks to my noble friend’s putting forward these amendments in Committee and now again on Report. It will have the benefit of the input of the Independent Reviewer of Terrorism Legislation, of the Intelligence and Security Committee and of other individuals who work in this area. It will be a better piece of legislation for that, providing that it is enacted.

With these comments, I am trying to be as frank as I can in explaining, in a transparent way, where we have got to—where we are—and where we need to be as a matter of urgency in the next Parliament. I hope that my noble friend will see that the Government are grateful for his urging and that we have responded by being more forthright than perhaps we have been before about our intentions. In that spirit, I hope that he will feel reassured enough to be able to withdraw the amendment at this stage.

[Lord King of Bridgwater]

My Lords, we have had another most excellent debate in what the whole House, I believe, recognises is an extremely serious and dangerous time. It is right that the House should be addressing this issue. I start by thanking the Minister for the way he has responded successively to two very important debates, first in Committee and now on Report. I thank him also for the extremely courteous and constructive way in which he has responded to the representations that I and other noble Lords have made. I thought that we were going to fall out for a moment, because I thought he said I had been tendentious—but I was corrected very quickly by my noble friend beside me, who told me that the word he had used was “tenacious”, which is certainly much more acceptable.

I will just address some of the comments that have been made. I do not mean to be unkind to the noble Lord, Lord Blencathra, but he rather repeated the speech that he made in Committee. He spent some time criticising the amendments we have put down, but these are not the amendments that we wanted to move. As he knows, we tried to change them but the Government did not feel able to co-operate in that respect, so we had to make do with what we had. I also draw some comfort from this quote from his own Joint Committee’s report:

“Our overall conclusion is that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data”.

I will be the first to say that that sentence then has various other qualifications about the need for improvement—the committee had lots of worries and concerns about it—but that is the basis on which we went forward.

My noble friend Lady Neville-Jones answered the noble Lord, Lord Paddick, very well. The noble Lord’s weekend of research brought out very clearly how difficult this issue is, how complicated it is and how much will have to be done before this can actually be brought in. Some might argue that if you have all those complications before this gap—which has been generally recognised to exist—can be closed, leaving open the inability of our country and our security agencies to necessarily meet the threats that they may face, then we had better get cracking on that now. Dealing with the international complications and the issues around encryption are very important points which need to be dealt with.

The noble Baroness, Lady Ludford, who I get the impression is against the idea of having any Bill at all—although I may be misrepresenting her—slightly misrepresented the position taken by the noble Lord, Lord Blair. He did not say that the terrorist attack in Spain caused the change of government. He made a very interesting point that I had not quite focused on. In the context of the time in which we live, as we move towards an election, I understood him to be referring on the Spanish connection to the way in which terrorists have often used election time, a time of political uncertainty, to cause an outrage. That would appear to have been the case in Madrid.

Our debate has brought out some general concerns. I do not think that there was any argument whatever about the threat. The noble Lord, Lord Harris, made a most interesting and constructive speech on the challenges that have to be faced, including the challenge of looking at both sides of the problem. Of course, we are aware at all times of the risks of overstepping the mark and of alienation. I lived through a time in Northern Ireland when the measure of internment without trial—a necessary measure at one time—had undoubtedly significantly increased the problems of terrorism that we then had to face. We in this House and others have a responsibility as legislators to get that balance right.

I am impressed by the statements of the Prime Minister, the leader of the Opposition, the shadow Home Secretary, the Home Secretary and both Front Benches, who make no apology for saying that the threat is severe. That is its standing at the moment. For anybody who did not understand what “severe” meant, those statements were made before events in Paris and Belgium. We are undoubtedly in a time when we need to be able to ensure that our defences are as strong as we can make them.

I understand that it is unusual for such a substantial amendment to be put down at the Committee stage of a Bill in this House. I was not sure whether the noble Baroness, Lady Smith, was suggesting that it is for this House only to do modest revisions to what comes from the Commons and not for it to be on occasions an initiator, inviting the Commons to give their views on what we are putting forward. I certainly do not sit in this House on the implication that I am not allowed to initiate good ideas if I think them necessary, particularly if I think that they will support the security of our nation—but I may have read too much into that.

What we have got out of this debate is not, unfortunately, co-operation on the tabling of more up-to-date amendments which might have given the House of Commons a chance to consider whether they could be incorporated in the Bill. We now move forward to an uncertain time: an election time with no certainty as to who the Government may be or how long it will take to undertake any of the new legislation which I think everybody—certainly, all those in positions of responsibility in the major parties—believes is essential. At such a time, we have to ensure that in every way we can we give support to our security and intelligence agencies in their work. My noble friend Lord Howard said in debate on an earlier amendment that the security of the nation is the first responsibility of the Home Secretary. She has made it absolutely clear that she wishes to see this legislation in place as soon as possible but has set out her own timetable for it. I am quite clear what the positions of the Government and the Opposition are in not supporting these amendments, but at least we have given the opportunity for these matters to be thoroughly examined.

I do not think that when this Parliament resumes, in whatever guise it is, people will have any excuse for not knowing what the strength of feeling is on this issue. I think that a number of us, who fortunately do not have to stand for election, will be on their tails in this matter. We will be able to resume the charge and try to ensure that, at the earliest possible opportunity, the security of our nation is supported in the best way we can. Against that background, I beg leave to withdraw the amendment.

Amendment 11A withdrawn.

Counter-Terrorism and Security Bill

Lord King of Bridgwater Excerpts

Monday 26th January 2015 Lords Chamber

Moved by

[Lord King of Bridgwater]

79: After Clause 17, insert the following new Clause—
“Part 3AEnsuring or facilitating availability of dataEnsuring or facilitating availabilityPower to ensure or facilitate availability of data
(1) The Secretary of State may by order—
(a) ensure that communications data is available to be obtained from telecommunications operators by relevant public authorities in accordance with Part 3B, or (b) otherwise facilitate the availability of communications data to be so obtained from telecommunications operators.(2) An order under this section may, in particular—
(a) provide for—(i) the obtaining (whether by collection, generation or otherwise) by telecommunications operators of communications data,(ii) the processing, retention or destruction by such operators of data so obtained or other data held by such operators,(iii) the entering into by such operators of arrangements with the Secretary of State or other persons under or by virtue of which the Secretary of State or other persons engage in activities on behalf of the operators on a commercial or other basis for the purpose of enabling the operators to comply with requirements imposed by virtue of this section,(b) impose requirements or restrictions on telecommunications operators or other persons or provide for the imposition of such requirements or restrictions by notice of the Secretary of State.(3) Requirements imposed by virtue of subsection (2) may, in particular, include—
(a) requirements (whether as to the form or manner in which the data is held or otherwise) which ensure that communications data can be disclosed without undue delay to relevant public authorities in accordance with Part 3B,(b) requirements for telecommunications operators—(i) to comply with specified standards,(ii) to acquire, use or maintain specified equipment or systems, or(iii) to use specified techniques,(c) requirements which—(i) are imposed on a telecommunications operator who controls or provides a telecommunication system, and(ii) are in respect of communications data relating to the use of telecommunications services provided by another telecommunications operator in relation to the telecommunication system concerned.(4) Nothing in this Part authorises any conduct consisting in the interception of communications in the course of their transmission by means of a telecommunication system.
(5) In this section—
“processing”, in relation to communications data, includes its reading, organisation, analysis, copying, correction, adaptation or retrieval and its integration with other data,
“relevant public authority” has the same meaning as in Part 3B.
(6) See—
(a) section (Application of Parts 3A and 3B to postal operators and postal services) for the way in which this Part applies to public postal operators and public postal services, and(b) section (Interpretation of Parts 3A, 3B and 3C) for the definitions of “communications data” and “telecommunications operator” and for other definitions relevant to this Part.”

[Lord King of Bridgwater (Con)]

My Lords, in moving Amendment 79 standing in my name and that of the noble Lords, Lord Blair, Lord West, and Lord Carlile, I shall speak to all the amendments in the group through to Amendment 99.

This is an exceptional series of amendments that has been tabled in your Lordships’ House today, and I recognise that for some it seems an unacceptable use of parliamentary time. I make no apologies at all for doing this, as we face a very serious situation indeed in our country at present. Our legislation is not up to date to meet it, and it is the duty of Parliament to ensure that it is at this critical time. It is common ground across the House that the threat is now very significant. We are in the front line and we need to address that.

I start with a bit of history. Noble Lords who have taken an interest in this subject will be familiar with my amendments because they have been lying around for the past two and a half years. They are part of the Communications Data Bill that the Government published in draft two and a half years ago. In keeping with best parliamentary procedure, they invited the Joint Committee of both Houses to examine and report on the Bill, under the distinguished leadership of my noble friend Lord Blencathra, who I am delighted to see in his place today. If I say that that Joint Committee reported two years ago, and in terms of dealings in Parliament, nothing has happened since, it might be thought that the problem has gone away but, of course, the opposite is the case.

I am delighted that the noble Lord, Lord Evans of Weardale, is in his place. In his maiden speech, the noble Lord, a distinguished former director-general of MI5, said that after an extremely difficult period, by 2013 he thought the worst was over. He now admits that he was wrong. The threat in many ways is obvious. Before Paris and Belgium, the Government raised the threat level to severe. Intelligence showed what might be coming. We could easily have been Paris or Belgium. Thankfully, so far we have not been exposed in the same way, except for the tragedy of Fusilier Rigby, but it is a very brave man indeed who says that at the present time we would not be.

I believe that it was Andrew Parker, current director-general of MI5, who said that there are probably about 2,000 people in this country who are either supportive of or actively involved in promoting terrorist activities. I have lived a little bit of my life in the field where terrorism was a major challenge to this country but I never had to deal with suicide bombers. Some of the developments that now exist are of a scale and a difficulty—and a fanaticism, in the jihadist threat—that is of a different dimension to that which we previously faced.

It is easy to think that perhaps we are going through a rather bad phase, but I do not think anybody would seriously believe that about the current problems, particularly in the Middle East. The events just this last weekend in Yemen show yet another country that seems to be in chaos and confusion. I saw with interest—I had forgotten—that we are now in our fifth year with Syria in a state of chaos. If anybody in your Lordships’ House is brave enough to say when any of those countries presently in chaos will return to some measure of normality and peace and calm, I simply do not believe them. The evidence is that, with all the current distress and difficulties, it is going to get worse.

How do we face this challenge? How do we face the explosion of new technology that means we are up against terrorists who are extremely adept at using any new means of communication that is, perhaps, beyond our reach or, certainly at the present time, beyond our legislation? It is interesting that, at the moment, we are facing this challenge on the basis of legislation that is 15 years old. It is worth remembering that this is the 25th anniversary of the internet. We have to take on board the explosion in new developments since then and the possibilities for communication under new technologies.

I want to deal with one point straightaway. As soon as we start talking about access to communications data, people think—I am certain some very distinguished noble Lords think—somebody is going to listen to telephone calls. However, it is nothing to do with the content. It is to do with who, where and when certain contacts and certain patterns of contact are established. It is on that basis that the intelligence plays such a vital role. It includes the use of things that not all your Lordships—that certainly includes me—are masters of. I am not a tweeter. We have Facebook and Twitter. Somebody tried to explain WhatsApp to me; somebody else tried to explain Snapchat. I do not know about them, but it is absolutely clear that the terrorists and jihadists do. The understanding is that part of the reason for ISIL’s amazing advance across Syria and into Iraq was that their communications were so good and the way they kept together was entirely due to one or other of the last two systems that I mentioned, which they handled with great intelligence.

The problem that we now face is not boots on the ground. That never was the answer to this sort of situation. It is the problem of getting good intelligence. I have tabled what was available to me and my noble friends who have joined me in this enterprise. It is the original draft Bill that was carefully examined by my noble friend Lord Blencathra, and the noble Lord, Lord Armstrong, who I am delighted to see in his place. He was another distinguished member of the Joint Committee that examined that Bill, as was the noble Lord, Lord Jones. They proposed a number of important amendments. The Joint Committee submitted its report to Parliament two years ago. I understand that those criticisms were then considered carefully by the Home Office and were largely, if not totally, accepted. I also understand that amendments have now been suggested that go a very long way to meeting the important observations of that Select Committee. But they have not been available.

We face a crisis in security. There is a major threat and at the same time we have antiquated legislation that badly needs updating. We have done our best by drawing the attention of the House to this issue and by tabling amendments to include complete clauses of the previous Bill that were available to us. I hope that before Report the Government will either table amendments themselves or otherwise make the revised Bill available to Back-Benchers in this House to examine. Amendments could then be tabled so that this House has the opportunity to debate the matter. It will be the only opportunity that we will have in this Parliament and for this year, while the nation is at risk and the threat to our citizens is real. This is the only time in which we can tackle that.

I have carefully read the excellent report of my noble friend Lord Blencathra. It carries a number of criticisms which are covered in our amendments, some of which are quite significant. The most significant is what was called the snoopers’ charter. It covered far too wide a range of purposes. It not only covered national security and crime but made data available to local authorities to pursue things such as abuse of fly tipping, housing benefit and a whole range of other matters. It was also made available to the Inland Revenue to pursue tax offenders of one sort or another. Against this crisis and because of the quite exceptional nature of what we are proposing, my colleagues and I who tabled these amendments propose deleting all of those additional purposes in the Bill. We have included only national security and serious crime. I hope that everyone in your Lordships' House will agree that those are the critically important issues. Let us remember that what we are doing is not completely new and unprecedented. The principle has been established of data collection. We are bringing it up to date with the new challenges that the new technologies have brought.

I am not alone in having serious concerns. In another place, when the Home Secretary made her Statement two weeks ago following the events in Paris, Sir Malcolm Rifkind, former Foreign Secretary and current chair of the Intelligence and Security Committee said that new technologies were preventing the agencies from exercising the capability they used to have. Jack Straw, who was, unusually, responsible in his time for all the agencies because he was both Home Secretary and then Foreign Secretary said that it was,

“beyond argument that the legislation … has to be revised … so that we can resolve this issue as soon as possible”.

In his further remarks he asked for close co-operation to resolve this communications data issue,

“as soon as possible, and ensure that the intelligence and security agencies and the police have the capabilities today and tomorrow that they had in the past under legislation freely agreed by this House?”.—[Official Report, Commons, 14/1/15; col. 875.]

I say “Hear, hear” to that.

I quote—also from this report—a very good response by the shadow Home Secretary, Yvette Cooper, to the statement made by the Home Secretary two weeks ago. She said:

“Governments need to keep our people safe so that we can enjoy the very freedoms that our democracy depends on”.—[Official Report, Commons, 14/1/15; col. 871.]

She went on to say:

“We agree that the police and the agencies need to get the intelligence to keep us safe and that they need updated legislation”.—[Official Report, Commons, 14/1/15; col. 873.]

--- Later in debate ---

In that respect, I pay tribute to my noble friend Lord King for the opportunity that his amendments have afforded the House to reflect again at some length on these very important measures. He does so, having been five years as Secretary of State for Northern Ireland or Secretary of Defence—

[Lord King of Bridgwater]

Seven—

[Lord Bates]

His seven years’ experience there, as the noble Lord tells me, and seven years as chairman of the Intelligence and Security Committee add additional weight to what the noble Lord says. We will listen very carefully to what has been said.

There does not seem to be much doubt about the threat that is faced. The threat that we face was very eloquently put in a number of contributions: the noble Lord, Lord Macdonald, talked about the evidence used in real convictions; cases of communications data were given by the noble Lord, Lord Evans; and some practical, real-life examples were given by the noble Lord, Lord Blair. There are some very strong arguments that show that there is a need for us to look again at communications data.

Then of course we heard from my noble friend Lord Blencathra and we heard from the committee which reviewed the original legislation. It is important to get on record that elements of the original draft Bill considered by the Joint Committee are contained in this Bill. The IP resolution element was something that was in the draft Bill. It is not something that has been shelved; we felt that we could bring it forward with the necessary safeguards and it was brought forward. The noble Lord’s hesitations and questions very much remain, and we are very much committed to working with him and will seek to address his particular concerns.

I want to come back to the point that the noble Baroness, Lady Smith, mentioned. I preface these remarks—context is all with this—by saying that, first, we have to get a message out to people that we are talking about, in all of these things, the actual communications data and not the content. The content of the data will rightly require, whether it is an e-mail or a telephone call or an envelope, a warrant in order to be looked into. What we are talking about is tracking the communications data.

In the Data Retention and Investigatory Powers Act, which went through last year on a fast-tracked basis, Section 7 of that relatively short Act provides that:

“The Secretary of State must appoint the independent reviewer of terrorism legislation to review the operation and regulation of investigatory powers. … The independent reviewer must, in particular, consider … (a) current and future threats to the United Kingdom … (b) the capabilities needed to combat those threats … (c) safeguards to protect privacy … (d) the challenges of changing technologies … (e) issues relating to transparency and oversight … (f) the effectiveness of existing legislation (including its proportionality) and the case for new or amending legislation. … The independent reviewer must, so far as reasonably practicable, complete the review before 1 May 2015”.

If we had such a review from David Anderson before your Lordships’ House at this point, that would be of immense benefit in reaching these judgments. Your Lordships have touched on all the areas on which the independent reviewer has been asked to undertake a review and report. Those are the pertinent issues which have concerned Members who have spoken in this debate.

In the view of the Home Secretary, in the view of the Prime Minister and certainly in my view, the case is made for a communications data Bill to come forward. The noble Lord, Lord Condon, asked us to set out the clear road map as to how we were actually going to proceed. The road map has already begun. It began with the data retention elements in the Data Retention and Investigatory Powers Act last year and it continues in the counterterrorism Bill which is before your Lordships’ House. As a result of that legislation, it will require action once the report from the Independent Reviewer of Terrorism Legislation is received. In reality, that will probably mean that, very early in the new Session of Parliament, the House will have to turn its mind to this. Certainly, it is the absolute intent of the Prime Minister and the Home Secretary that it should do so as a matter of urgency.

Some people have said that that will necessarily take a year, or a year and a half, to the period of the sunset clause, but we do not anticipate that it will be necessary to take that long at all. In fact, as far as this counterterrorism Bill is concerned, which is perhaps a wider measure as far as others are concerned, we have managed to move this through, albeit at pace, but it will still have gone through scrutiny in a period of, say, three to four months from its introduction in the other place to its receiving Royal Assent, should your Lordships choose to pass the Bill.

So our position would be one of being deeply appreciative to my noble friend for introducing these amendments and of being particularly grateful for the quality of the debate and the contributions—

--- Later in debate ---

[Lord King of Bridgwater]

My Lords, I thank the Minister for the way in which he has responded to the long and very important debate that we have had on these amendments. It was a model ministerial reply, for which I am extremely grateful, particularly at the last minute.

Nobody would accuse the noble Lord, Lord Rooker, of ever beating around the bush, and the directness of his approach to the Minister was extremely helpful in elucidating one point, as to whether this would possibly jeopardise the other Bill. A senior and distinguished former holder of the office that the noble Lord, Lord Evans, held said to me that she thought that this amendment was more important than all the measures in the Counter-Terrorism and Security Bill. The Minister has advanced the alternative view—so obviously views can differ on that—but I do not think that we should underestimate why we are doing this Bill at all on a fast track, which is down to the recognition by the Government of the seriousness of the threat that we face. There is no question but that the situation has changed very significantly indeed and we are suddenly aware, in a way that we were not perhaps even six months ago, of the gravity of the threat. Nobody in this House has any excuse for not knowing what “severe” means in the threat level that was introduced by the Government a little while back: an attack is likely, if not necessarily imminent. That is what we are facing up to today.

I thank all noble Lords who contributed to this very important and very difficult debate. I entirely endorse what the noble Baroness, Lady Hamwee, said. I respect entirely the views of other noble Lords, who are desperate to protect civil liberties, privacy and the ancient traditions of freedom in this country. All that is very important indeed. The Minister referred to my previous experience, and what I do know is that the moment you get a terrorist outrage is when all the wrong things are decided. The pressure comes on that something has to be done, and it is much better to have decided in advance what you are going to do, in a measured way. Otherwise, whatever people say about privacy, the rights of the individual, freedom of speech and all those things, if there is a serious outrage, the criticism then will be: “Where are the security services? Why has Parliament not done its job? Why have they not got what they need to meet the situation?”. It is common ground in the current situation we face, I think, that there is a serious threat, because two things have happened: the threat has increased very significantly and, at the same time, technology has galloped forward. We are very fortunate to have the noble Baroness, Lady Lane-Fox, in the House. She illustrated just how grave that threat is from the new technologies. I do not begin to understand the dark cloud, but those are the threats that we may now be facing.

The intervention by the noble Lord, Lord Butler, was extremely helpful. He said one thing which I would rather like to repeat: I think some people have criticised the criticisms of the amendments that we have tabled. I did that myself; I was the first to say that these are the only ones we could table because they are in the draft Bill, but we know that it is within the Government’s capability to actually insert improved amendments and clauses which would even pass the scrutiny of my noble friend Lord Blencathra and the members of his committee.

The challenge we all face in this very difficult situation, with this awful evil of terrorism that is imposed on us, is to strike a balance between liberty, security and privacy in a civilised, democratic society. It is not just me saying this; I quoted those distinguished Members of another place as well, Sir Malcolm Rifkind and Jack Straw, who have supported the position we are aiming for from the offices that they held. Of course some people say they are just all the securocrats, but what you will find about securocrats is that sometimes we know a little about it. Sometimes we know what some of the problems are when you try and improve security or some of the problems you get when you fail to improve security.

I think the discussion we have had today has been very helpful and worth while. We have Report coming in a week and we must think very carefully about where we go. One thing I say to the noble Baroness, Lady Ludford, who said we could have a report by May, is that of course in May we have the small matter of a general election. This House is rising late in March. I notice the Minister’s optimism that once we come back, depending on who is in government, this could be whistled through. Realistically, if the opportunity that this Bill gives us is missed—and it is completely within the scope of this Bill to make these provisions—we are going to have another year in which we put our nation at risk, when terrorist outrages could be prevented if the security forces and the security agencies had the support they need. There have been a lot of tributes to the security agencies here and in this instance, with the threats that they face, I believe that the balance comes in favour of ensuring these additional abilities to deal with the new technologies which the out-of-date RIPA arrangements do not provide; I believe we need to look at this very seriously. In the mean time I beg leave to withdraw the amendment.

Amendment 79 withdrawn.

Terrorist Attack in Paris

Lord King of Bridgwater Excerpts

Wednesday 14th January 2015 Lords Chamber

[Lord Bates]

This goes to the heart. We need to separate the issues. There can never be any excuse under any terms whatever for people using violence to raise a point. In fact, in many ways the spirit of Paris on that dreadful day was best represented by the Muslim police officer, a personal protection officer, who was murdered defending one of the journalists at Charlie Hebdo who had been under attack. It is that spirit of service that we ought to highlight. We may disagree with people, but we defend absolutely their right to speak. That is the spirit we should carry forward.

[Lord King of Bridgwater (Con)]

Does my noble friend recognise that while there were criticisms of the Government for bringing in the Counter-Terrorism and Security Bill, which they did well before the events in Paris, I do not think there is much criticism now of the need for steps to be taken in recognising the importance of introducing those measures? Those of us who are the survivors of last night’s marathon will recall the words of the impressive maiden speech of the noble Lord, Lord Evans of Weardale, a former director-general of MI5, who said that the threat level now is greater but our capacity to meet it is less. I challenge my noble friend on what he said at the end in reply to the question about the communications data Bill. We still have three months left of this Parliament. This should not be a party-political issue. These issues are our vital to our intelligence services. It does not matter how many boots we have on the ground; intelligence is our safeguard and our defence in those issues. We must ensure that in the present very dangerous situation the intelligence services have the resources they need. In the three months we have left, I hope the Government will consider that we could still do that and make sensible progress in this area.

[Lord Bates]

The noble Lord brings immense experience to this, not least from his chairmanship of the Intelligence and Security Committee, the oversight committee. He makes an interesting point. I repeated the Home Secretary’s Statement in which she that there is no cross-party agreement. Should that cross-party agreement emerge—of course, in your Lordships’ House party affiliation is only part of the picture as there is a distinguished coterie of expertise on the Cross Benches—then all things are possible.

Counter-Terrorism and Security Bill

Lord King of Bridgwater Excerpts

Tuesday 13th January 2015 Lords Chamber

[Lord King of Bridgwater (Con)]

My Lords, may I fill in the gap and follow the magisterial address from the noble Lord, Lord Armstrong, on the considerable number of issues with which he dealt in his previous incarnations for a considerable length of time? In general, I will simply say that I support the Bill but I also welcome the way in which the House has addressed the issues contained within it. I recognise and applaud the way in which the Minister introduced it, and I am sure he will enjoy my applause after his wind-up as well. He has been willing to listen and that is very much appreciated in this House.

On Clause 5, the Minister will have undoubtedly have some interesting discussions on exclusion orders and relocation with many Members in Committee. I pick up the rod of the noble Baroness, Lady Manningham-Buller: there is no civil liberty without security. The noble Lord, Lord Evans, who I am delighted to see here—I have had the pleasure of meeting him on other occasions in different venues—made a chilling remark in an excellent maiden speech. He said that the threat is greater but the capability to meet it is less. You listen to that statement and think, given the troubled nature of this world, about what it means—the threat and the worry that it represents for our country. It is our duty as a House and as a Parliament—the Government have their duty as well—to take every reasonable step that we can to try to ensure that that capability is as little reduced as possible, even after Mr Snowden and other activities which have arisen.

My noble friend Lady Neville-Jones, with her considerable experience in this field, said that this is not a short-term problem. We look at the state of the world, the places from which our problems are coming and the conditions of those places at present, and see the virtual impossibility of envisaging any real significant improvement in those areas. We are moving, I believe, into an extraordinarily difficult and different time. Having had my own experiences in trying to counter terrorism and in other situations, I recognise the exceptionally difficult nature of the problems we now face. We never faced suicide bombs in Northern Ireland; other noble Lords have made that comment. We did not have 10 year-old girls coming as suicide bombers, which has only recently occurred.

I disagree with the noble and learned Lord, Lord Lloyd of Berwick, who referred to a finite number. I think he said there were 250, or maybe 500, who have to be dealt with and accommodated. I do not think that this is a static figure. The risk is that it is a continuing movement. There is the growth of social media; the extraordinary capabilities in organising and mobilising shown by ISIS at present; and the fact that Mademoiselle Boumeddiene could, while French police were still worried about whether they were going to arrest her, go from Paris to Madrid to Istanbul to Syria. The mobility of some of these people, and the fact that others can make the reverse journey, means that the threat to us is very great.

My own knowledge is that in these situations you can have all the boots on the ground that you like, but unless you have good intelligence you do not have a chance of meeting the threats that you face. It is to be hoped that, once the Bill has had its Second Reading, it will get serious and responsible consideration in Committee in the interests of improving the security of all the people in our country, which is our great responsibility at this time.

Data Retention and Investigatory Powers Bill

Lord King of Bridgwater Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord King of Bridgwater (Con)]

My Lords, I join noble Lords who have expressed their regret—the noble Lord, Lord Butler, did so most forcefully—at the speed with which this legislation has come forward, and questioned whether there is a convincing explanation of why the European Court of Justice judgment, made in April, ended up with one day in the House of Commons in late July. I have my own suspicions as to how that happened. We seem to be quoting a lot from the other place, but if anybody reads Mr Jack Straw’s attempt to read the European Court of Justice judgment—which he found pretty incomprehensible and a load of porridge, as I think he described it—they will see that that may have been part of the extension of the problem. When this matter was raised in the debate on the Statement I warned the House that one is right to be deeply suspicious of emergency legislation that appears in this way. I should also say, deeply cynically, that that is even more the case when such legislation comes with all-party agreement. That is a time to fasten your seat belts and wonder what the background to it really is.

After that unhelpful opening comment for my noble friend, I should also say that I would regard it as pretty unacceptable if the Bill involved a major extension of powers. However, if it is true, as the Government maintain—and as is widely accepted, including by the Constitution Committee—that something that was lawful may now cease to be so, then a different situation obviously arises. Having said that, I certainly accept that this legislation is necessary. I absolutely recognise the critical importance of the retention of data and appropriately controlled interception in our fight against the increasing challenge of terrorism, crime, paedophilia, organised crime or whatever it might be.

The redeeming feature of the Government’s legislation is the sunset clause. I see that an amendment was moved in the other place that this should last only until Christmas, but that is quite inadequate. Having put this emergency legislation in place, we now need to have a serious look at the issues which arise out of it. I will quote again from the other place. I was impressed by the speech made by a former colleague, Yvette Cooper, who I was delighted to have serving with me under my chairmanship of the ISC. As a new Member of Parliament, she was immediately put on the ISC and made a very useful contribution to it. She rightly called for this not to be such a short sunset period, but to provide the opportunity for a major review of the issues of liberty and security. I am delighted to see that the ISC is going to conduct such a review. She also, in passing, made a comment about the many private companies that are making far more use of our private data than any police or intelligence agency has ever dreamed of doing. Some of us would be delighted to see this included as part of the consideration in any review that is conducted.

The former Attorney-General, Dominic Grieve, intervened to say that the question of interception is nothing new. This has been taking place since the telephone was invented. Alan Johnson then made an even more interesting observation that when he joined the Post Office there was a whole section in St Martin’s Le Grand post office entirely devoted to the steaming open of envelopes. Professor Christopher Andrew, in his study on this, identified that in 1969 that section opened 221,000 items. This is part of the background to some of these practices but it is not to say that any of this is justifiable unless it is strictly controlled, under proper legal authority and there is some accountability for the actions taken and the challenges that exist.

When I chaired the ISC, which goes back to when it started 20 years ago, it was clear that even then the agencies were struggling to keep up with the development of new technologies, with the amount of different systems and ways in which criminals, terrorists and others could communicate, and with how to keep some sort of effective protection against them. That was pre-Twitter, pre-Facebook and pre all the developments that have taken place.

The challenges now are definitely all the greater. Huge opportunities are offered to terrorists, to those involved in serious organised crime and to criminals who are very sophisticated in some of their methods of communication. It is a temptation for them. It is also a temptation for the agencies—not for any improper purpose but because they are trying to protect us and to keep us safe. They will be continually pushing against the limits of the constraints of legislation in the interests of trying to make sure that this country is as safe as it can possibly be. The challenges of oversight, of proper legislative authority and control, and of public confidence are very important.

Perhaps I may add one little personal note. I was delighted to see that Yvette Cooper said that if there were to be a Labour Government they would insist that the ISC should have a chairman from the Opposition, which is very wise. I have great respect for those who have been chairman of that committee, including Margaret Beckett and the current chairman, Sir Malcolm Rifkind. However, if an issue had come up that the ISC had to look at, and its chairman had been Foreign Secretary and responsible for the SIS, MI6 or GCHQ, maintaining public confidence when it produced a report would have been all the more difficult. I am delighted that that has become Labour Party policy and I encourage my noble friend to ensure that we move in that direction.

I am not sure that we have got the message across to the general public: they think that the retention of data is all about reading or listening to everybody’s messages and communications. I do not think that more than one person in 1,000 in this country knows what metadata means, which is the word that is frequently used. As my noble friend said in relation to data, we are concerned about the who, when, where and how, not about what people are actually saying. That is what we are talking about in relation to these data. I think that it is very important to do it.

I support this emergency legislation. If it goes through, it will protect our defences and ensure that they are in place in the next phase. Then we must look at the relationship between privacy and security. Although I have not heard much about it, I welcome the announcement about the privacy and civil liberties board. I welcome the work that it can do in ensuring that while we maintain our defences in a very dangerous world, the rights of the citizen, his liberty and his privacy are properly protected as well.

Communications Data and Interception

Lord King of Bridgwater Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, I am not in a position to answer that particular question. It may be beyond the gift of anyone to answer it at this stage. The noble and learned Lord makes a very interesting point which I am sure will be considered, but it is not part and parcel of this legislation, which is very narrow in what it is seeking to achieve. We are not looking to extend the powers that we currently have available.

[Lord King of Bridgwater (Con)]

My Lords, to save the Minister embarrassment I do not expect him to reply to this point; I fully agree with the previous comment of the noble Lord, Lord West, about the failure to move forward with the previous Bill. Having said that, my noble friend will be aware that both Houses of Parliament are very leery indeed about emergency legislation, and are rightly suspicious of it. It is not just the cynics who say that they are not totally reassured when all parties are in agreement on emergency legislation, which has not always had a happy history.

Having said that, nobody could underestimate the importance of the matters that the Minister has discussed and of what the data have meant to the defence of this country. If ever there was a time not to reduce our defences, this must be it. Can the Minister confirm again that this represents no change in the present situation—that there is no advance in the intrusions on the citizen; it is a matter of data, not the content of messages? It is the “who, when and where” that are so vital in the pursuit of this.

The most important thing is that the provisions also contain the surprisingly short sunset clause, as I understand it, of May 2015—

[Noble Lords]

2016.

[Lord King of Bridgwater]

That is still, for the matters which must be discussed, a short sunset clause. It is absolutely right that that is there, and I welcome it.

[Lord Taylor of Holbeach]

I am most grateful to my noble friend. As a former chairman of the Intelligence and Security Select Committee, I know that he—like the noble Lord, Lord West, from his ministerial role—can see inside this problem. I expect and want the House to scrutinise this legislation, because it is right and proper that we do so.

My noble friend is right also to point to the fact that the sunset clause allows an incoming Government only 18 months to put a new communications data Bill on the table if they choose to do so. If I were part of any such Government I would be exhorting prompt action in that area. Clearly, without the legislation that we are now hoping to bring forward, we place ourselves in an extraordinarily difficult position.