Psychoactive Substances Bill [HL]
Lord Paddick Excerpts(9 years, 5 months ago)
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Baroness Meacher (CB)
My Lords, I support the noble Lord, Lord Howarth, on both those amendments. We talked a lot about legislation earlier on today, but we know, both internationally and from the Home Affairs Select Committee and others, that legislation does not make very much difference at all to the key issues relating to drugs, whether traditional drugs or new psychoactive substances. The important job the Government have concerns information. I have said it before and will say it again: young people do not want to kill themselves, believe it or not, and they do not even want to harm themselves and finish up in hospital. Why do they kill themselves and finish up in hospital? Because they do not have the information they need to keep themselves safe. Why do they not have the information? Because far too many substances are banned in a rather simplistic way. Countries such as the Netherlands, which have coffee shops where people can get cannabis, have very little problem with heroin, for example. There are other ways of keeping people safe. But the most important way, as the noble Lord, Lord Howarth, says, is information. I agree with his ideas about how this should be done—it cannot be typical government information. It really is important. If we stopped focusing on legislation quite so much and focused on some of these other issues, we might actually make some progress.
I want also to support the noble Lord, Lord Howarth, in relation to the testing centres. Testing centres would be a very important adjunct if we were to have a more proportionate system where low-harm substances would be regulated, labelled and so on, as recommended by the European Commission and approved by the European Parliament. If we had a proportionate system like that, and had testing centres, a young person could go into a testing centre and ask whether a substance was low harm and okay to take. With a combination of a proportionate legal system, testing centres and really good information, we would begin to have a really good drugs policy. Would that not be wonderful? We could lead the world with such a policy.
Many Latin American countries talk about these things. They know just how bad the war on drugs can be. They know just how important it is for the demand end of the drugs market to be managed effectively in order to save them from tens of thousands of deaths a year, corruption, government failure and all the rest of it. It is absolutely disastrous across the Atlantic. In my view, we have a responsibility to ourselves and our young people but also to Latin America and central American countries.
I very strongly support what the noble Lord, Lord Howarth, said. I really hope that Ministers will take it very seriously and somehow link it with a proportionate, rational system of drug control.
Lord Paddick (LD)
My Lords, I support these amendments. However, I have some concerns. The first is, as has been previously mentioned, the limited forensic capacity that the Government and police have. Already the police service has to make rationing decisions as to which cases it refers to forensic laboratories. This Bill could create a massive increase in the amount of work that forensic laboratories would have to do.
Before we had new psychoactive substances and this Bill, the idea of websites that advised what was a safe dose of an illegal drug seemed somewhat contradictory, and there would have been some fairly stiff arguments against providing testing stations for drugs that are illegal to possess. However, as noble Lords will know, this Bill does not criminalise possession, and therefore does not make it illegal to take these substances. Therefore, the case for public information about safe dosage and having testing centres appears absolutely necessary if the Government are to continue to pursue this idea that simple possession for personal consumption of new psychoactive substances should remain legal.
Drugs: Cannabis
Lord Paddick Excerpts(9 years, 6 months ago)
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Lord Bates
Part of the argument here is that one of the reasons why Sativex is not widely prescribed, although it has been licensed for marketing, is that general practitioners believe that there are other drugs which are more effective in tackling the issues it is meant to deal with. That is a point for debate, but we are acting on the advice of the Advisory Council on the Misuse of Drugs and abiding by the decisions of the Medicines and Healthcare Products Regulatory Agency. It would be a derogation of duty for the Government to do anything other than that.
Lord Paddick (LD)
My Lords, will the Minister please confirm that the drug he mentioned in answer to a previous Question is no longer approved by NICE? Does he agree that it is slightly disingenuous of him to suggest that a cannabis-based product is widely available in this country?
Lord Bates
It is not that the drug is no longer approved; it was never approved by NICE. It has been licensed for marketing and is available on private prescription in England. In Wales, it is available on prescription. People are still evaluating its performance. NICE’s view was that alternatives are available which are more cost effective and more effective in their treatment outcomes. That is a decision for it.
Anderson Report
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Lord Rosser (Lab)
I thank the Minister for repeating the Statement made earlier in the other place. I certainly endorse the comments that he made at the end about the work of those in the intelligence and law enforcement community, who are there to protect us and whose successes, as he said, often go unrecognised.
We welcome the report by David Anderson QC, the Independent Reviewer of Terrorism Legislation, into the operation and regulation of law enforcement and agency investigatory powers. It is a report which the shadow Home Secretary called for when emergency legislation was being debated last summer, since we believe that the current legislative framework is no longer fit for purpose. While technology has moved on, the same cannot be said for either the law or the oversight arrangements. Reforms are needed, and we need to get them right in order to protect both our liberty and our security when addressing the threats we face.
In media broadcasts the independent reviewer has given today, he said that there are two problems with the law in this area as it stands. The first is that no one can understand it since it is spread over 64 Acts of Parliament, which have also proved variable in their application. The second is that there is a need for stronger safeguards and protections. For example, instead of it being the Home Secretary who decides whether you can tap the telephone of a suspected drug dealer or terrorist, it should be for a judge to do so, in order that it can be seen to be done in a proper and independent fashion. It seems that last year the Home Secretary authorised some 2,345 warrants. According to the report of one interview David Anderson has given, the Home Secretary has, in his view, effectively been doing this in her spare time when not running the department. Whether the Home Secretary shares the concerns of the independent reviewer about the workload imposed on her by having to decide whether to authorise all these warrants is no doubt something on which the Minister will be able to enlighten us, but I have a feeling that Mr Anderson thinks that warrants should be authorised by a judge—full stop—rather than having concerns over the workload it involves for either this Home Secretary or indeed any other Home Secretary.
Proportionate surveillance and interception saves lives and averts and disrupts terror attacks and other major crimes. There is no doubt that these powers are needed and we cannot allow the sunset clause on the existing powers to lapse at the end of next year without having new legislation in place. However, strong powers need strong checks and balances, including effective oversight of the way the system works. Public acceptance of the need for such powers will be diminished if there is a belief that they are being abused for purposes that impinge on our privacy, and for which they were neither intended, nor for which authorisation for their use has been given.
We have to ensure that we put arrangements in place to address the concerns that personal privacy can be invaded without justification and proper prior authorisation. We welcome the proposals in the independent reviewer’s report to strengthen oversight that involve a new and stronger independent surveillance and intelligence commission, merging the existing system of commissioner, and of course introducing judicial authorisation of warrants. Do the Government also welcome these proposals?
The independent reviewer has also concluded that there should be no question of progressing proposals for the compulsory retention of third-party data before a compelling operational case for it has been made out, which he says it has not been to date. Is that recommendation in line with the thinking of the Home Secretary? We welcome the Government’s decision that a draft investigatory powers Bill—presumably based on David Anderson’s report, although perhaps the Minister can confirm that that will be the case—will be subject to pre-legislative scrutiny by a Joint Committee of both Houses. I hope that the Government will also provide time for a full debate on the Anderson report in this House so that all Members have the opportunity to contribute. I hope also that the Government will seek to promote this among the public at large as well, to help ensure that there is the widest possible consent and thus legitimacy for the new framework. Will the Government provide for such a debate?
The digital age is a source of freedom and opportunity but, as we have seen, it brings new challenges from new crimes and new threats to our security that are extensive and go well beyond the horrors of terrorism. We have to ensure that those whose responsibility it is to protect us and keep us safe have the necessary powers to do the job in the changing technological environment in which we live today, while ensuring that those powers are used only for the purposes authorised and intended, and not at the expense of the liberty and privacy of the public at large. We welcome the report by David Anderson, which will help us to do this and ensure that in the key areas of security, privacy and countering the many different threats we face, our very different digital age from that we have known in the past actually serves the interests of the public and our democracy rather than proves to be our master.
Lord Paddick (LD)
My Lords, I thank the Minister for repeating the Statement. As he just said, this is one of a suite of reports commissioned by the previous coalition Government into investigatory powers; it is a very important one by the Independent Reviewer of Terrorism Legislation.
On first reading, it appears to be a fair and balanced report. While some may have preferred there to be no state intrusion into people’s privacy, we on these Benches understand that there needs to be a balance between the powers given to the police and to the security services, and the right to privacy and the upholding of individuals’ civil liberties. It is for the police and the security services to argue for more powers, for civil libertarians to argue for fewer, and for us as politicians objectively to decide where the balance properly lies.
The Home Secretary, in her Statement, lists a whole range of potential threats, concluding that,
“we have a duty to ensure that the agencies whose job it is to keep us safe have the powers they need to do the job”.
As a consequence of what the right honourable Member said in the other place, I am concerned that the Government are already biased in favour of the state and against the individual. Thankfully, David Anderson is having none of it and neither should we. Along with consideration of the threats that we face as a country, will the Government consider a digital Bill of Rights to give citizens a clear and unambiguous understanding of where their rights lie and what protections they have against state intrusion? Will the Minister also agree with David Anderson that,
“there should be no question of progressing proposals for the compulsory retention of third party data before a compelling operational case … has been made”,
for it, and agree with him that this case has not been made to date?
The fact is, the draft communications data Bill, to give it its correct title, is hopelessly out of date and can no longer deliver what the police and the security services need while massively intruding into people’s privacy—all pain and no gain. The right honourable member for Sheffield Hallam when he was Deputy Prime Minister took a lot of flak for blocking legislation that required the retention of third-party data. Would the Minister not agree that David Anderson, in his report, agrees with Nick Clegg and the Liberal Democrat position on what some have called the “snoopers’ charter”, even if he cannot bring himself to say that he agrees with Nick?
David Anderson recognises that the Regulation of Investigatory Powers Act is no longer fit for purpose, and we welcome the Government’s approach that there should be a pre-legislative committee of both Houses to look at its successor. Will the Minister confirm that such a committee will be given access to all relevant information to enable it to make a proper judgment on the Government’s proposals?
Finally, we strongly support David Anderson’s recommendation that intercept warrants should be judicially authorised by specialist judicial commissioners, rather than by government Ministers. Surely it is for the police and the security services to decide whether applying for such a warrant is necessary in the interest of national security and it should be for judges to decide whether such action is lawful. Will the Minister give an undertaking that, pending a change in the legislation, the Government will operate within the spirit of the independent reviewer’s recommendations by ensuring that the Secretary of State consults the existing surveillance commissioners prior to authorising such warrants?
Lord Bates
My Lords, I thank both noble Lords for their welcome of the report and of the Statement. When we deal with matters of this importance it is vital that we work, as far as possible, in a cross-party way. That was certainly reflected in the commissioning of this review and the Government will seek to continue that as we consider its implications.
The noble Lord, Lord Rosser, rightly asked whether the Regulation of Investigatory Powers Act 2000 is still fit for purpose. That is a key element. Fifteen years ago, we could not have envisaged the plethora of social media that have exploded upon us. Some 204 million emails can now be flying around every minute, placing challenges on those who have the duty of keeping us safe. Therefore, we accept the noble Lord’s important point.
The noble Lord also sought a commitment with regard to clarity on this issue. When we are dealing with matters of great sensitivity that concern people’s individual security and rights, it is vital that the language used is clear and understood, as is the relevant legislation. That is one of the key elements that the pre-legislative scrutiny will bring to the Bill. I am happy to confirm to the noble Lord that the Bill needs to be drawn up before a committee is established. However, when the Bill is presented in the autumn, a Joint Committee will be established which will have a wide remit. It will be for the House to determine the committee’s composition and remit but it should certainly have the very wide remit necessary to carry out its important job of scrutiny.
The noble Lord, Lord Paddick, asked about rights and a Bill of Rights. The Government have now secured a mandate from the electorate to look at ways of modernising our human rights laws and are reflecting on that. We recognise the arguments about privacy but argue that, for people to enjoy that privacy, they first need security. That is where the balance needs to be struck.
The noble Lord also referred to the importance of people having trust in the system, and it is no accident that David Anderson’s report is entitled A Question of Trust. Indeed, he says on page 245 that,
“the road to a better system must be paved with trust”.
That is a central principle, along with the other principles he outlined. In the report he drew on some public opinion data and pointed out that, far from being sceptical about the security services’ use of data, there was wide support for it among the British public, and that:
“66% think that British security and intelligence agencies should be allowed to access and store the internet communications of criminals or terrorists; 64% back them in carrying out this activity by monitoring the communications of the public at large”.
That is not to say that this is the line we are going down. The Government are still considering all the options but the important thing is to work thoroughly, carefully and methodically. This report, along with that of the Intelligence and Security Committee and the RUSI report which is still to come, commissioned by the former Deputy Prime Minister Nick Clegg, will all provide the firm evidence base that we need to progress in this very sensitive area.
Psychoactive Substances Bill [HL]
Lord Paddick Excerpts(9 years, 6 months ago)
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Lord Paddick (LD)
My Lords, I will start by explaining briefly my background. I was a police officer for more than 30 years. I served at every rank up to and including Deputy Assistant Commissioner. On a more personal level, two years ago a former partner of mine, who subsequently became my best friend, died from an accidental overdose of a controlled drug. This is not just a professional interest of mine; it is a very personal one.
I do not want to break up the happy consensus portrayed by the Minister about what the position of the three political parties was. As he quite rightly said, the Liberal Democrat manifesto talked about clamping down on those who produce and sell psychoactive substances—not necessarily, as we will see, banning them.
We on these Benches are as concerned about the harm caused by people misusing drugs as the Government and the Labour Party are. We believe that there should be a health-based approach, aimed at reducing harm caused by drug misuse, rather than a legalistic approach that is likely to further criminalise drug users. Successive Governments have gradually eroded the link between criminal penalties and the harm caused by drugs by ignoring the scientific evidence and the advice that they have been given, to the extent that the drug laws in the UK are no longer considered by many people to have any credibility. The Bill, by failing to differentiate between dangerous psychoactive substances and those that are harmless, and by criminalising the production and supply of these substances but allowing simple possession, adds to that confusion and further undermines the credibility of UK drug laws.
As drafted, the Bill is far too broad and indiscriminate, further undermining credibility and efficacy in reducing harm. Legal minds far greater than mine have speculated on whether producing and supplying scented roses, or perfumes that evoke a sense of well-being or romance, could be illegal under the Bill. Those who claim that simply sniffing such substances falls outside the scope of the Bill clearly need to go back to school to learn some simple biology and chemistry. If you sniff something, you are inhaling it; you are taking molecules into your system, exactly as described in the Bill.
As drafted, the Bill would not outlaw simple possession of new psychoactive substances that come on to the market, which could potentially be far more toxic than drugs currently listed as class A under the Misuse of Drugs Act. The Government may well reply—I think that the Minister alluded to this in his opening remarks—that if that is the case, they could be temporarily banned and then designated as controlled drugs under the Misuse of Drugs Act. That course is available to the Government now, without the need for the Bill. My understanding was that the whole purpose of the Bill was to get away from manufacturers constantly changing the formula of psychoactive substances to avoid a drug being banned, yet it does not criminalise possession of what are potentially very dangerous drugs, which could quite easily change in formula in the way that the Bill is designed to eradicate. Either the Government want to send a very strong message that these substances are dangerous, which they may or may not be—in which case, why is possession not a criminal offence?—or they want to say, “Well, actually, these drugs are not as dangerous as controlled drugs”, when in fact they may well be.
As the Bill allows possession of new psychoactive substances while possession of drugs controlled under the Misuse of Drugs Act is a criminal offence, the police will be faced with situations that make enforcement very difficult, if not impossible. If the police suspect that I have EX-1, a synthetic imitator of real ecstasy—I hasten to add that an internet search taught me that—in my possession for my own use, the Bill does not give the power for the police to stop, search or arrest me because to possess the substance will not be a criminal offence. However, if the police suspect that I have a real ecstasy tablet in my possession, they can stop, search and arrest me because it is a controlled drug. How are the police going to know? Some will say, “They will assume that it is a controlled drug, and search and arrest you anyway”. So what if I tell the officer that I have nothing illegal on me, that the tablet is indeed a legal EX-1, that they have no grounds to search and arrest me and that if they do, I will sue them? What if the tablet turns out to be legal to possess? Where does that leave the police? What if the police officer backs off because of my assurances, but the ecstasy tablet that I have is in fact a real one? The Bill, quite clearly, has not been thought through in terms of its practical application.
At the moment, I can buy legal highs from a head shop on the high street. It is acknowledged in the briefing given by the Government on the Bill that, contrary to what the Minister said in his introduction, many of these head shops are well run, with those that manage them being very keen to comply with the law. At the very least, I can be pretty sure that what I am buying is not a dangerously addictive class A drug. If things go badly wrong once I have taken a legal high purchased from one of these head shops, someone can go back to the head shop where I bought it and at least have some idea of what I have taken, and action could be taken to ensure that others are not similarly affected.
Many people buy legal highs now. They like what they do to them, and their use is increasing. If the Bill passes, the only way they can get psychoactive substances and be sure that they are not breaking the law is to go to a local drug dealer. Many of these street dealers have no incentive to ensure the quality of the drugs that they sell, because they could just disappear overnight if things go wrong. The chances of tracing and establishing what drug I had actually been given, were things to go badly wrong, would be much lower.
These drug dealers could just as easily sell me highly addictive class A drugs, and indeed they may have a vested interest in misleading me by giving me a highly addictive class A drug instead of the legal high that I asked for; the high is likely to be greater, and if I get addicted, I could become a regular client. It would make no difference to the dealer, if he were to be caught, whether he was supplying controlled drugs or other psychoactive substances—a long term in prison would await.
We are likely to criminalise many more people as a consequence. If you order psychoactive substances online—we have heard evidence this afternoon about how Irish online sites closed down with the introduction of their legislation—the chances are that the website you are ordering from will be based abroad. Even if you are buying psychoactive substances only for your own personal use, you will be guilty of the criminal offence of importing drugs. If you buy a few tablets to share with your mates on a night out, again you will be guilty of a criminal offence. A lot more people are going to end up with a criminal record as a result of the Bill, even if their primary intention is just to consume the drugs themselves.
The genie is out of the bottle. Many people take legal highs, and they will continue to get hold of them one way or another—whether head shops disappear from the high street or not—or they will simply switch to far more dangerous controlled drugs. The reason that millions of people break the law by taking controlled drugs is that, quite rightly, they see that our drug laws lack credibility. I have never heard a discussion among young people about to go on a night out as to which class a particular drug belongs to, and therefore which drug they are going to take on that basis. The Bill, as currently drafted, as I have said, further undermines the credibility of the drug laws in this country.
We need a new approach: a health-based approach that will genuinely reduce the harm caused by drug misuse and that has credibility among those who misuse drugs, not just an approach that appears to have credibility among politicians who do not really know what they are talking about. We need a system that differentiates between the psychoactive substances that cause most harm and those that are relatively safe—at least as safe as smoking tobacco or drinking alcohol—and we should control and regulate the supply of those relatively safe substances as we do with tobacco and alcohol. To do anything else would lack credibility, particularly in the eyes of young people.
If someone is caught in possession of harmful psychoactive drugs for their own use, controlled or otherwise, and they are a social user, they should have their drugs seized and be placed on an education programme. If someone is caught in possession of harmful psychoactive drugs, controlled or otherwise, and that person is addicted, they should be placed on a rehabilitation programme. If they refuse to co-operate, they should be given a civil fine. Such an approach would be much simpler and far more effective in dealing with this problem than giving thousands of young people a criminal record that could ruin their life chances because they made stupid mistake.
It is time that we started treating those who misuse drugs as victims of drug dealers rather than as criminals. It is time that we confronted the fact that criminalising young people for possessing substances only as harmful—or less harmful—than alcohol or tobacco lacks credibility.
Lord Tunnicliffe (Lab)
For the avoidance of doubt, is the noble Lord saying that the Liberal Democrats so oppose the essence of the Bill that they will either vote against it or propose wrecking amendments?
Lord Paddick
My Lords, we do not propose to wreck the Bill. Clearly, we cannot allow head shops to continue operating as they do now—purporting to sell substances that are harmless when they are far from harmless, or trying to get around the law by saying in very small print on the back of the substances that they are not fit for human consumption. However, the dangers in the Bill as drafted are to make the drug laws even more of a laughing stock than they are currently.
Clandestine Migrants
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Lord Paddick (LD)
I thank the Minister for repeating the Statement. Does he agree that proper management of the EU’s external border is the key to solving these issues, and that the UK is in a far better position within the EU to influence member states than it would be if it were outside the European Union? The Minister also mentioned the Dublin regulation and the fact that more than 12,000 illegal immigrants who claimed asylum initially in other EU states had been deported from the UK as a result of that regulation. Will he tell the House whether that regulation would still apply if the UK were no longer a member of the European Union?
Lord Bates
The noble Lord is absolutely right that the work of FRONTEX in securing the borders of Europe is vital. We believe that it could be doing a better job, but we are co-operating with the agency at the present time—I believe that members of the police, the National Crime Agency and Border Force are working very closely with FRONTEX. One of the areas in which we would like to see it perform better is in taking fingerprint data as soon as people come into the European Union area. That would help in tracking them down.
The noble Lord is correct to say that this is a growing European problem. We are seeing a significant increase in the numbers of migrants coming into the EU—around 600,000. It is a European problem, but it goes beyond Europe’s borders. We are sure that our partnership in working together with other European countries—as we have done in this case with the Dutch, and as we are doing with the juxtaposed controls with the French—is an integral element of being able to tackle this going forward.
Police and Crime Commissioners
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Lord Bates
The noble Lord is absolutely right. Of course, he tempts me with one of those wonderful spinning balls to the off stump, and I wonder whether I ought to play it. The Government have made their position absolutely clear on voting rights for people who have fallen foul of the laws of this country and have been imprisoned for that purpose. We believe that there should be no change in that purpose.
Lord Paddick (LD)
My Lords, according to Police Professional magazine, the Home Secretary is so fed up with police and crime commissioners setting performance targets that she has asked the head of the Police Superintendents’ Association to conduct a review. Can the Minister please tell the House if police and crime commissioners cannot be trusted with performance-managing the police, what is the point of having them at all?
Queen’s Speech
Lord Paddick Excerpts(9 years, 6 months ago)
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Lord Paddick (LD)
My Lords, before I start my speech today, I want to say a few words about Charles Kennedy. Many on these Benches knew Charles very well and his loss is being felt acutely by Liberal Democrats across the country. Our thoughts are with his family at this time. As many others have said, Charles was an extraordinary communicator. His passion for social justice and Liberal Democrat values inspired not only those on these Benches but people of all parties and of none, not least because of his principled stand against the Iraq war.
For him to die so young is a loss not just to the Liberal Democrats but to political life across the board. He will be sadly missed. I am told by colleagues who were here at the time that during the late night ping-pong on control orders during the passage of the then Prevention of Terrorism Bill, Charles appeared at 5 am to tell weary Lib Dem Peers to keep up the good fight on what was one of the biggest battles on the protection of civil liberties of the new Labour years. Remembering his commitment to protecting rights and civil liberties is perhaps the most fitting tribute as we discuss these issues today.
I intend to concentrate on some of the home affairs issues outlined in the Queen’s Speech. My colleagues will cover other aspects. One of the first Bills that this House will be asked to consider is the Psychoactive Substances Bill, which will outlaw not just specific so-called legal highs but anything and everything that has a mind-altering effect unless it is specifically listed as being exempt or is covered by other legislation such as the Misuse of Drugs Act.
I believe that an authoritarian approach, where blanket laws prohibit everything unless the Government allow it, sets a potentially dangerous precedent. The Bill is well meaning, with the current practice of selling so-called legal highs on the high street, one molecule different from a banned substance, in packets marked “not fit for human consumption”, is a nonsense. But we must ask ourselves, what is the purpose of this Bill? If the purpose, as it surely should be, is to prevent harm, the misuse of drugs should be treated as a health issue and not a criminal one.
We have seen from our experience with those drugs already classified as illegal that making dealing in those substances a criminal offence simply pushes the trade underground into the hands of criminals where there is even less control over quality, active ingredients and who can purchase them, all of which significantly increases the potential for harm. There should at least be consistency and some basis in science. If the Government are to exempt mind-altering substances on the basis of relative harm, as they intend to do with alcohol and tobacco, should they not also look at exempting substances currently covered by the Misuse of Drugs Act, and at synthetic mind-altering substances that are clinically proven to be less harmful than alcohol and tobacco? Surely licensing, regulation, education and treatment are the positive ways forward, rather than criminalising even more of our young people. This Bill would simply add to the confusion surrounding the attempts to protect people from the harm caused by misusing drugs and push pleasure-seekers into the hands of criminals.
We will also be presented with a new investigatory powers Bill. We only recently reconsidered the draft communications data Bill when another attempt was made to introduce it as an amendment to a counterterrorism Bill before this House. We had a long and informed debate on the issues and we decided that we were content with the reviews that are currently under way by the Independent Reviewer of Terrorism Legislation and others. I argued then, and I will continue to argue, that the powers the Government seek to convey on the police and the security services would seriously impinge on individual rights to privacy while failing to deliver what the police and the security services actually need.
In short, terrorists are using internet-based encrypted methods of communication that cannot be deciphered without the support and co-operation of those providing the services, most of whom are based beyond British jurisdiction. Currently, international co-operation and agreement enable the police and the security services to present their evidence to overseas service providers, who, if convinced by that evidence, voluntarily give up the information. International co-operation and agreement are the way forward, not giving the police and security services blanket access to our private data. At the same time as the Government seek to erode personal privacy with their new investigatory powers Bill, they could also diminish citizens’ ability to take action against the agencies of the state for infringing such rights were the Human Rights Act to be repealed.
There has been much discussion and coverage of the European Union Referendum Bill. To date, the focus has almost exclusively been on the negative impact on the economy, not only of leaving the EU but of the damage caused by the uncertainty over a referendum that could result in the UK’s exit. What need to be brought to the fore—as the right honourable Kenneth Clarke MP did at the weekend in an interview on the BBC’s “Sunday Politics”—are the significant European-wide crime-fighting initiatives that are currently in place, ranging from serious and organised cybercrime to the abuse of children and human trafficking, all of which could also be placed in jeopardy by our leaving the European Union.
We then have the extremism Bill, the need for which was trailed by the Prime Minster during the election campaign, when he said:
“For too long, we have been a passively tolerant society, saying to our citizens: as long as you obey the law, we will leave you alone”.
As far as policing is concerned, if the Government intend to inflict further cuts on the police service, we will have seriously to reconsider the whole basis on which British policing is based: policing by consent. I hope that the Government do not sleepwalk into undermining that principle.
Overall, the Government have all the hallmarks of an authoritarian, anti-libertarian, inward-looking Administration who would rather peddle crowd-pleasing, superficial, nationalistic policies than seek genuine solutions to the real problems facing this country and its people. I hope to be proved wrong. I am justifiably proud of what the Liberal Democrats achieved in the last coalition Government and I intend to be equally proud of what the Liberal Democrats will do now that we are freed from the shackles of coalition. In an election poster, the Liberal Democrats were portrayed as an iron fist in a velvet glove. My Lords, the gloves are off.
Counter-Terrorism and Security Bill
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Lord Howard of Lympne
My Lords, it is always a pleasure to follow my noble friend Lord Blencathra, with whom I worked so closely and for so long in government. I am afraid that on this occasion I have to disagree with the contents of his speech. It seems to me that the answer to the points that he made was given by the noble Lord, Lord West, during his intervention. These amendments are not meant to be the last word on the provisions that the final Bill should contain; they are meant to give the other place an opportunity to reconsider these matters.
I am afraid that I was unable to be present at the debate in Committee, but I was able to listen to an exchange on the radio a few mornings ago between the noble Lord, Lord West, and the noble Lord, Lord Paddick. I found the arguments put forward during that exchange by the noble Lord, Lord West, wholly persuasive. That is why I came along this afternoon ready to support the amendment in his name and in the names of his co-sponsors. I have to confess to your Lordships that my determination to do so was reinforced in some measure by the belief—it is still not clear to me to what extent it was well founded—that the Conservative limb of the coalition was anxious to proceed with these proposals but were being prevented from doing so only by the pesky Lib Dems—I am so sorry, by my noble friends who sit on the Liberal Democrat Benches. That remains not entirely clear.
It seems to me that the case made by the four noble Lords who have sponsored this amendment is very compelling. It is clear from what my noble friend Lord King has said that we cannot take the matter further today and that, sadly, this legislation will not be put on the statute book before the general election. However, I join with those who have urged the Government and both of the major parties that might form the Government after that election to proceed with these measures with all possible haste.
Lord Paddick (LD)
My Lords, to address the comments made by my noble friend Lord King of Bridgwater and other noble Lords, in my opinion there is no doubt that we all face a very serious threat of terrorism. There is also no doubt at all that, because of the way that technology has moved on, there is a gap that means that the police and the security services cannot now get the information on mobile phone communication that they used to, due to changes in the way that people communicate via the internet. The first issue is: where does the balance lie between measures that would close that gap and the freedoms and civil liberties that we all enjoy? The second is: how do we fill that gap technologically?
Noble Lords will be pleased to hear that I have done some homework over the weekend. Obviously, I am not a technology expert, but this is what I have been told by technology experts. I am very grateful to the noble Lord, Lord Blair, for saying that he has no issue with people who argue on the basis of principle. One of the effects of these amendments, as my noble friend Lord Blencathra alluded to, would be to require communications service providers to store 12 months of web logs—the history of every website visited by everyone who uses the internet in the UK. The Joint Committee that my noble friend Lord Blencathra chaired said that this has considerable implications for the privacy of everybody who lives in this country and who uses the internet. I am sure that that is immediately obvious to noble Lords across the House.
What has not been mentioned is what I have learnt since we were in Committee. When people use web-based means of communication such as WhatsApp—according to my noble friend Lord King of Bridgwater, ISIL is one of the groups that uses this means of communicating —Facebook Messenger or any others, all these communications are encrypted. The vital data that the police and the security services need are held on servers that are mainly in the United States of America. Even if these amendments were agreed to, and even if these web logs were kept, there are serious doubts as to whether the American companies would comply with the UK legislation.
Another aspect of these amendments, and of the draft data communications Bill, would require United Kingdom communications service providers to skim off the encrypted data transmitted to and from the secure servers in the United States, in case the Americans decided that they were not going to play ball. This would cost in excess of £1 billion, and it is unlikely that the UK-based communications service providers would do so. Because of the levels of encryption, and because companies such as Facebook are constantly reviewing their encryption and making it more and more difficult to decipher, even if that data were captured there is serious doubt that the UK communications service providers would be able to make head or tail of it. Plus, they would not be able to decide what part of that encrypted data was the content of messages or Facebook pages and how much was simply who sent the message to whom, from where and at what time—that is what these amendments and what the draft data communications Bill was about. The noble Lord, Lord West of Spithead, talked at length about intercept evidence. These amendments and the draft data communications Bill have nothing to do with interception. They are about only what is on the envelope of the message, if you like, not its contents.
So what do we do? Obviously, something has to be done to try to get that data. That is why the coalition Government have appointed Sir Nigel Sheinwald as special envoy on international data sharing to sit down with the US Government and US companies to identify ways to overcome legal jurisdictions so that we can tackle crime and terrorism without compromising the privacy of the law-abiding majority. This is not a situation where these servers in the United States are beyond our reach. In 2013, US companies processed around 30,000 requests for “envelope” data from UK authorities. There is already consultation and collaboration and it is producing results.
These amendments are disproportionate, are likely to cost billions of pounds and certainly cannot be implemented immediately. Almost all communications service providers in the UK do not currently keep this data and have no storage capacity and capability to store it. That would be a long-term project; nothing of use would come out of it in the six months that my noble friend Lord King of Bridgwater talked about as a stop-gap measure. These amendments are likely to jeopardise the collaboration that we already have with the Americans, which is serving the police and the security services reasonably well.
Mention has been made of a debate that the noble Lord, Lord West of Spithead, and I had on BBC Radio 4 at the weekend on “Week in Westminster”. During that programme, the noble Lord said that the amendments tabled last week were too broad and that, if it had come to a vote last week, he certainly would not have voted for them. As these amendments have been changed hardly at all since last week, I assume that the noble Lord, Lord West, will not vote for his own amendments.
Lord West of Spithead
Having shared that with only 11 million people, I am shocked that the noble Lord should do so in here.
Counter-Terrorism and Security Bill
Lord Paddick Excerpts(9 years, 10 months ago)
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Lord Evans of Weardale
I accept that this is a very important element, but it is not the answer to everything.
My second note of caution is that we need to maintain public confidence as we go down this route. That is as important for law enforcement as it is for counterterrorism. The noble Lord, Lord Blencathra, referred to the masses who are concerned about the snoopers’ charter. I have to say that the polling evidence I have seen does not necessarily demonstrate that the masses are enormously concerned about this issue. On the whole, the masses seem to be more concerned about their security than about the human rights issues that some people focus on. Nevertheless, there is an issue of public confidence and I do not wish to diminish that.
Despite those notes of caution, I support the amendment. I support it because it is, as the noble Lord, Lord Carlile, said, a restricted measure, not a blanket measure. I support it because it is drafted with a sunset clause, so that we are filling, as it were, a legislative gap until the totality of the issues can be properly considered in the light of the subsequent publication of various reviews that are under way. I think that it will fill a gap for that period. It seems to me to be a useful, rather than a hugely expansive measure, and one which has appropriate safeguards, so I support it.
Lord Paddick (LD)
My Lords, I am not speaking here on a party-political, but on a personal basis. I want to tell noble Lords, first, about my personal experience of terrorism. It is not first-hand, either in terms of being a member of Special Branch or the security services, or having seen the aftermath of what took place directly. However, part of my role in the Metropolitan Police following the 7 July bombings was to talk to officers who had had to go down on to the tracks where terrorists had exploded these bombs and bring out the victims of those terrible atrocities. I know what we are talking about here in terms of terrorism and I use the Underground system every day.
In our earlier discussion on Amendment 75 and internal exile, as some put it, noble and learned Lords, in particular, as well as other noble Lords, emphasised the need for legitimacy. The noble and learned Lord, Lord Hope of Craighead, talked about the European Convention on Human Rights and the right to a private and family life. My concern is that the introduction of these amendments in this way may not be seen as legitimate by many people outside this place. A process has been set in motion. There is a process for reviewing RIPA, for example, and the whole landscape of the intelligence services. That process is in place.
The other issue that noble Lords—and, indeed, two who tabled this amendment—talked about in relation to internal exile is the danger of alienation and resentment. This follows the comments by my noble friend Lady Warsi in yesterday’s Observer about how engagement is essential. We need to engage with communities, not create alienation and resentment. My fear is that the way in which these amendments are drafted is likely to cause exactly that negative effect. My noble friend Lord King, in his opening remarks, said that we are facing a very serious situation. That is common ground. As I have said, I know from personal experience the sorts of dangers that we are facing. However, there is no common ground, I suggest, about the best way to deal with that serious issue.
There has been a lot of talk this afternoon about events in Paris. My understanding is that the information and intelligence that security services got was through mobile telephone communication between the two groups of terrorists which co-ordinated their attacks by that means. There is nothing in these amendments that would give the security services or the police the powers to identify that sort of communication. It exists already. Every day, not only the police and the security services, but other agencies specified in the amendments also have the power, as we speak, to identify who called who on a mobile phone, where and when. So despite all this talk about Paris and how the attacks could have been prevented, these amendments would not appear, on the facts as I know them, to make any difference to the situation.
Terrorists may be adept at using technology, as my noble friend Lord King said, but my understanding is that a lot of terrorists, particular the sort responsible for recent attacks—whether we are talking about the tragic death of Lee Rigby or about Paris—are using very old technology. The problem, as my noble friend Lord King rightly said, is getting good intelligence. That is about developing links with the Muslim community and with communities where the extreme right wing operates, and gaining their trust and confidence in order to get that intelligence.
Lord West of Spithead
Does the noble Lord not agree that in, I think I am right in saying, 100% of all the cases where we have stopped a terrorist plot in this country, it has been intelligence via the web or by some SIGINT means that has enabled us to identify the group in order to then carry out action?
Lord Paddick
My understanding is that that is absolutely not the case. There were numerous cases—though it may be going back some years to Irish republican terrorism—where most of the plots were foiled because of intelligence from communities, not because of anything that was intercepted. I understand that the situation is changing, but the noble Lord was not correct when he said that in 100% of cases of terrorism that were thwarted in this country it was as a result of intelligence interception of that kind.
Lord West of Spithead
If I may say so, it was the case during my three years as a Minister. It was very different, of course, from the time of the IRA, which we had completely and thoroughly penetrated.
Lord Paddick
I am sorry, but I have not yet finished, noble Lords will be alarmed to hear.
Noble Lords have said that there is a gap in the capability of the security services and the police in terms of getting similar intelligence that they get from cell site analysis at the moment using mobile phones. My understanding is that the emergency legislation that this House passed towards the end of last year and the measures contained in this Bill, unamended, help to bridge that gap. Intelligence on who is communicating with whom at what time and where can be secured using the IP address provisions contained in the Bill, without the proposed amendments. I am not technically advanced enough to say whether that is the case; perhaps the Minister will be able to tell us whether, or to what extent, the gap that has been identified by other noble Lords will be filled by the Bill as it stands.
The noble Lord, Lord Blair of Boughton, talked about the significance of communications data. Again, my understanding is that the legislation, as put forward by the Government, is designed to fill that gap.
The noble Lord, Lord West of Spithead, then spoke about how the draft Communications Data Bill was kicked into touch for political reasons. If the noble Lord means a balance being achieved between human rights—the right to privacy and a private life—and the powers being given to the security services and the police, I would say that that is an absolutely legitimate political reason.
On mass surveillance, if we are talking about internet service providers retaining web logs and information about every website visited by every individual based in the UK, so that the information can subsequently be accessed in a targeted way by the police and the security services, are we saying, if we accept these amendments, that that can be done simply by the security services or the police providing some legitimate reason why they want to access that information—without any judicial intervention or a judge deciding that there is a legitimate reason to access that data? Are we saying that that is what we want and accept?
People have made fun of the fact that the security services are not going to access where people have done their online shopping. But who in this House believed, when they passed the Regulation of Investigatory Powers Act, that the police would use that power to establish the identity of confidential press sources? If we pass this very broad legislation, how can we say that there will not be some reason found in the future for the police or the security services to use the legislation in a way we never intended for it to be used?
If noble Lords think that I am being party political, that is a matter for them. I was a police officer for 30 years. I encountered terrorism on a second-hand, rather than first-hand, basis. Unless we have the right balance between rights to privacy and powers for the police and security services, large swathes of communities in this country will no longer co-operate with the police and the security services. That will be an even greater loss of intelligence than any gap that currently exists in the powers of the police and the security services.
Baroness Neville-Jones
My Lords, the House faces three choices. The first would be not to accept these amendments and not replace them with anything else—in other words, do nothing. I think that the “do nothing” option is the worst that we could possibly follow. In the current situation it is not possible to argue that we do not face growing danger as a result of declining capability against the background of a growing threat. It seems to me that we have a duty to respond to that. I think it a pity that the Government have not brought forward their own amendments on this, but they have not done so yet. I believe that doing something is what this House ought to do. I commend those who have brought forward these amendments.
The other two options are: follow these amendments and vote them into law—it would then be important to accompany them with a sunset clause—or wait for the Government to bring forward something else. That choice depends on the Government’s intentions. It would be preferable for us to be able to vote on something more refined and which incorporated more of the work done by the Joint Committee. I have not been privy to any of the legislation as redrafted. The draft data communications legislation has remained with its poor reputation as a result of the Government not having indicated what they might do to refine the powers therein.
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Lord Paddick (LD)
My Lords, I am very pleased to follow the noble and learned Lord, Lord Goldsmith, and I broadly agree with what he said. I was a police officer for more than 30 years, but I was not directly involved in counterterrorist operations so I have no specialist knowledge of the subject. However, I was the police spokesman following the 7 July 2005 bombings in London and I was responsible for community issues for the police in the immediate aftermath of the shooting of Jean Charles de Menezes on 22 July 2005.
I was a police officer during most of the IRA bombing campaign on the UK mainland and regularly attended briefings by the Anti-Terrorist Branch, as it was then. The IRA threat was very different in nature from that presented by Islamist extremists. The IRA was conventionally organised through an established hierarchical structure and, as such, it was capable of being infiltrated. Even so, the then head of the Anti-Terrorist Branch, John Grieve, said that the police and security services alone could not defeat terrorism; it was communities that would do this. I spoke to John Grieve this morning and he reiterated what he said in the 1990s: the role of communities is even more important in combating the sort of tragic and totally unjustifiable outrages that we saw in Paris last week.
Lone individuals or groups that come together to carry out acts of terrorism are very difficult to identify, intercept and thwart without intelligence from the communities they live among. What we understand from the Paris shootings is that, although the two brothers involved were known to the security services, they were among hundreds who had the potential to be a threat. It is those closest to those individuals who will notice changes in their behaviour that might highlight to the security services that these are the few from the many who may act on their perverted beliefs.
In an interview this weekend, the Commissioner of Police of the Metropolis, Sir Bernard Hogan-Howe, talked about how important it was, for example, for the parents of those preparing to leave to join the conflict in Syria and Iraq to tell the police and other agencies. We should consider how many parents would want the authorities to prevent their children travelling to Syria and Iraq to engage in terrorist activity. He went on to say that he recalled how the 7/7 bombers accidentally bleached their hair and the vegetation outside the flat where they prepared their explosive devices with one of the components from their home-made bombs. Their friends, family and local people would have noticed and could potentially have prevented the atrocity by telling the authorities. They did not, and 52 innocent people died.
That is why increased powers for the security services and the police must be balanced against winning the confidence of communities which fear that powers may be used against their innocent members. We cannot have, do not want and cannot afford to have a police officer on every street corner and an intelligence officer in every community. Whatever surveillance powers we might agree, if we have learnt one thing from the recent tragedies it is that there are too many people who could potentially pose a threat to be able to monitor all of them. Community intelligence is as important as any powers we give to the intelligence agencies.
There is also the wider civil liberties issue. This country has a liberal tradition that citizens should be allowed to do what they will, provided it does not harm others, free from interference from the state. This freedom is anathema to the Islamist extremists who carry out terrorist attacks against the West. They want a society where every aspect of people’s lives is controlled. If we curtail people’s liberties, we are taking society in exactly the direction the terrorists want us to go.
Of course the police and security services will always ask for more draconian powers in order to carry out surveillance of those suspected of criminality. The Liberal Democrats have been criticised for scuppering the Communications Data Bill—the so-called snoopers’ charter—but we must always seek to find the right balance between security and civil liberties.
Lord West of Spithead (Lab)
Does the noble Lord agree that the term “snoopers’ charter” is emotive claptrap? I have worked with GCHQ over a period of 30 years, on and off, and I am not aware of a single case where people working in that agency have “snooped”, which is the word used, on any ordinary member of our society in any way at all. Yes, it has used due and proper process and looked at and found people who wish to damage us. Indeed, in all the plots that we managed to stop during my time as a Minister and since, nearly everyone got their heads-up from that type of intercept information. Using the words “snoopers’ charter” is emotive and gives completely the wrong impression of what it is.
Lord Paddick (LD)
I acknowledge what the noble Lord has said and that there are differences of opinion on both sides of the argument. It is a pejorative, probably unhelpful, term that has come into popular use. I added that description for the benefit of those reading the proceedings of this House who may not be familiar with the Communications Data Bill. I agree with the noble Lord that it is not a particularly helpful term to use.
Noble Lords will understand that my main interests in the Bill concern the new powers it confers on the police and security services and, as far as those aspects are concerned, I substantially welcome its provisions. To that extent, and with some trepidation, I disagree with the noble and learned Lord, Lord Lloyd of Berwick. As my noble friend the Minister said, the nature of the threat has changed. There are many British citizens—mainly young and impressionable—who are being persuaded to travel abroad to participate in terrorist activity. If prevented and provided with the right intervention, they could be diverted from radicalisation. We need to examine in detail the powers given to the police to seize passports and travel documents. Sadly, we have seen well intentioned legislation being misused in practice in the past, and we must do all we can to minimise the potential for misuse of these new powers.
“Temporary exclusion orders” is an unfortunate term for what is intended to be a mechanism to ensure the managed return of those suspected of having been involved in terrorism-related activity and who pose a threat. It is clearly necessary to control the return of those who have either been trained in terrorist training camps or been engaged in acts of terrorism to ensure that they do not pose a threat to the safety not just of members of the public, as the legislation says, but of the police, the Armed Forces and the security services. Again, it is important that these individuals are properly assessed and that appropriate interventions are provided, including prosecution and imprisonment if necessary. As my noble friend Lady Hamwee has said, we must ensure that there is proper scrutiny of such decision-making above and beyond the very limited ability of a young man or woman abroad to challenge the decision of the Secretary of State by means of judicial review. Many of those young people will have been exposed to one of the most brutal regimes that we have seen. It is unlikely that they will not be changed by that experience and potentially pose a more serious threat as a result.
The Bill purports to allow the security services to link a particular IP address with a particular device and therefore to make it easier to identify individuals who are communicating using the internet, in a way similar to what can be done at present with landline and cellular telephone communications. I seek reassurance from the Minister that the data that the Bill requires internet service providers to retain are only those that are necessary to link communications to devices and hence individuals, and that the Bill would not allow the trawling of data in a way that would be a considerable infringement of innocent people’s civil liberties. As for whether this provision needs to be fast-tracked, if it has been identified as a gap in the ability of the police or the security services to prove communication between individuals, surely it is best if that gap is filled as quickly as possible.
The noble and learned Lord, Lord Lloyd of Berwick, is also concerned about TPIMs. However, my understanding is that the changes to TPIMs in this legislation have been recommended by the Independent Reviewer of Terrorism Legislation—someone for whom the noble and learned Lord has the highest regard.
I have other concerns about other parts of the Bill that others will cover in more detail, particularly the banning of radical preachers, which could lead to their perverted messages of hate being preached in secret where they cannot be challenged by those who oppose their views.
We saw unintended consequences of the actions taken following 7/7 under the Prevent strand of the then Government’s counterterrorism plan, with councils forced to spend money where none was needed and some minority ethnic communities feeling that they were being penalised for not harbouring terrorists. Prevent deals with all types of terrorism and I have no issue with a statutory requirement for local authorities to carry out an assessment as to the nature and extent of the danger of local people being drawn into terrorism. I have no issue with a statutory requirement to address the dangers identified, but what action is taken should be a matter for the local authority concerned.
On Saturday, George Churchill-Coleman sadly died. He was head of the Metropolitan Police Anti-Terrorist Branch for seven years, from 1985 to 1992, longer than any other postholder. John Grieve worked closely with Mr Churchill-Coleman and the one message that Churchill-Coleman delivered over and over again during his time at the peak of the IRA bombing campaign was, “Don’t overreact”.
The Bill, properly amended, as I am sure it will be by this House, is a measured and appropriate response to the dangers that we face, and I believe that we should, in principle, support it.