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

Debate between Lord King of Bridgwater and Lord Bates

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

Debate between Lord King of Bridgwater and Lord Bates

Monday 2nd February 2015 Lords Chamber

[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.

Counter-Terrorism and Security Bill

Debate between Lord King of Bridgwater and Lord Bates

Monday 26th January 2015 Lords Chamber

[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—

Terrorist Attack in Paris

Debate between Lord King of Bridgwater and Lord Bates

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.