Counter-Terrorism and Security Bill

Lord Lloyd of Berwick Excerpts

Monday 2nd February 2015 Lords Chamber

[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 Phillips of Sudbury (LD)]

Before the noble and learned Lord, Lord Lloyd of Berwick, sits down, perhaps I may say that I always listen immensely carefully to what he says, by dint of his experience, but I am not fully clear why he is adamantly against the Bill as a whole. I understand that it is largely due to its potential counterproductivity, as he sees it. However, I am not clear why he is in favour of this set of amendments.

[Lord Lloyd of Berwick]

For the very reason that, as I have tried to explain, I can see no reason for the Bill to be brought forward now. I hope the noble Lord will understand that. Therefore we have, in any event, a gap. Much more important than that, however, is that the other Bill will save lives; this Bill will not.

[Lord Carlile of Berriew (LD)]

My Lords, I shall make a few very brief comments in supporting my noble friend Lord King. It is not right that we should replay the whole of the debate in Committee.

The first is that, as I understand it, the Government acknowledge—and by that I mean the whole of the Government—that there is a gap in the facilities which are necessary for the proper prevention and detection of terrorism. I understand it to be acknowledged by the whole Government that that gap is recognised as being in the field of communications data. The issue is what should be used to fill that gap. I am very disappointed, if I may say so with great respect to my noble friend the Minister, in the response—or rather, the lack of response—that has been given to last week’s debate in Committee. I say that for this reason.

My understanding—following the committee so ably chaired by my noble friend Lord Blencathra—is that, following severe criticism by his committee of the communications data Bill, from which these amendments are derived, though not copied exactly, a further draft Bill was prepared. We were told last week that that further draft Bill was shown to my noble friend Lord Blencathra, and to another member of his committee, the noble Lord, Lord Armstrong, whom I am delighted to see in his place. The judgment made by my noble friend and the noble Lord was that nobody could decently describe the draft amended Bill as a snoopers’ charter at all, and that it went 95% of the way towards meeting the need. One derives from that that it was recognised as a good Bill which met almost all the requirements set out in its criticism by my noble friend’s committee.