Migrant Crossings: Role of the Military
Lord Paddick Excerpts(2 years, 11 months ago)
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Baroness Goldie (Con)
What is important is that we have in place a plan to try to mitigate and prevent the misery that has been enduring, which I think has been upsetting to everyone. That is what this initiative is about.
Lord Paddick (LD)
My Lords, I can understand the impact on Daily Mail readers of the news that the Navy has taken charge, but I am not sure how many refugees seeking asylum in the UK read the Daily Mail. So what practical difference will we see—or, more importantly, will they see—in deterring refugees from crossing the channel in small boats?
Baroness Goldie (Con)
The involvement of the Navy is primarily to ensure that the dangers that have confronted migrants setting out on this hazardous course can be assuaged or even prevented from arising altogether. That is why the modus operandi will be one of interception and escort; the Navy will be responsible for bringing migrants to UK shores in a safe and controlled manner. That will prevent uncontrolled or undocumented arrivals.
Offensive Weapons Bill
Lord Paddick ExcerptsWednesday 6th February 2019
(5 years, 10 months ago)
Grand CommitteeRead Full debate Offensive Weapons Act 2019 View all Offensive Weapons Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 149-III Third marshalled list for Grand Committee (PDF) - (4 Feb 2019)
Lord Paddick (LD)
My Lords, I have given notice of our intention to oppose the question that this clause should stand part of the Bill. I will also speak to Amendments 71 and 72. Clause 28 would change current legislation in terms of the risk that must be present for an offence of threatening someone with an offensive weapon to be proved. Currently, the person threatening must do so in such a way that there is an immediate threat of serious physical harm. The Bill changes this level of risk to what a reasonable person would think was an immediate threat of physical harm, not serious physical harm—it is only a perceived threat and not an actual threat.
In their joint briefing, the Standing Committee for Youth Justice and the Prison Reform Trust point out that the new definition is a much lower threshold for conviction. The person being threatened does not have to be present or at actual risk of harm. Previously, there had to be an immediate threat of occasioning grievous bodily harm; now, it is an undefined level of physical harm, and the “reasonable person” test is vague.
Clause 28 relates to offences in public places and Clause 29 to offences on further education premises. I question why these offences are needed at all. Section 3 of the Public Order Act 1986 states that a person is guilty of an offence,
“if he uses or threatens … violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety”.
An affray may be committed in private as well as in public, and a person guilty of affray is liable to a maximum sentence of three years in prison or a fine, or both. Can the Minister explain which parts of these new offences are not covered by the offence under Section 3 of the 1986 Act?
Baroness Barran (Con)
I am grateful to the noble Lord, Lord Paddick, for affording the Committee the opportunity to debate the provisions in the Bill updating the offences of threatening with an offensive weapon. It may assist the Committee if I briefly explain the provisions in Section 1A of the Protection of Crime Act 1953 and Section 139AA of the Criminal Justice Act 1988, and then explain why we have brought forward changes to these provisions. I will also cover Section 3.
Section 1A of the 1953 Act provides for an aggravated possession offence where the person in possession of the weapon threatens another person with the weapon in a public place. Section 139AA of the 1988 Act similarly provides for an aggravated possession offence where the person in possession of an article with a blade or point threatens another person with the article in a public place or on school premises.
Unlike the offences in Section 1 of the 1953 Act and Section 139 of the 1988 Act, which are simple possession offences, where a person is convicted of an offence under Section 1A of the 1953 Act or Section 139AA of the 1988 Act, the court must, in the case of an adult, impose a custodial sentence of at least six months’ imprisonment, unless it would be unjust to do so. The power to make a community order is not available in circumstances where the mandatory minimum sentence condition is met.
It is an essential element of these aggravated offences that the defendant threatened the victim with the weapon,
“in such a way that there is an immediate risk of serious physical harm to the victim”,
as the noble Lord, Lord Paddick, explained. However, the view of the Crown Prosecution Service is that the requirement that the defendant threatens with the weapon or article,
“in such a way that there is an immediate risk of serious physical harm to that other person”,
sets too high a bar to prosecution and does not take proper account of the effect of the threat on the victim.
The noble Lord will be aware that in the 12 months to September 2018 there were just under 13,500 offences resulting in a caution or conviction for possession of an article with a blade or point and just under 7,000 for possession of an offensive weapon, but only 958 for threatening with a knife or offensive weapon. I hope the noble Lord will agree that fewer than 1,000 offences of threatening compared with more than 20,000 possession offences does not appear to be an accurate reflection of what is happening on our streets, where we are seeing one homicide a week in London as a result of knife crime. The noble Lord will be aware that this point was made by the Chief Crown Prosecutor for the north-east, Andrew Penhale, when giving evidence in another place.
The penalty for the offence of affray, which the noble Lord referred to, is three years’ imprisonment or a fine, or both. The penalty for threatening with an offensive weapon is four years. The Government consider that that reflects the seriousness of using an offensive weapon to threaten an individual. Importantly, the Government also believe that it is fairer to the victim that the test be based on how a reasonable person in the victim’s place would respond to such a threat, not on whether the victim was objectively at risk of immediate harm. The reference in Clause 28 to the effect on a reasonable person removes the element of subjectivity on the part of the person threatened. We believe that the replacement objective test is more appropriate in the context of these aggravated offences.
Striking out Clause 28 and amending Clause 29, as the noble Lord seeks to do, would maintain the current test of what constitutes risk of physical harm for these aggravated possession offences. However, I put it to the noble Lord that these offences were introduced to protect victims threatened with offensive weapons and ensure that offenders are appropriately punished. Clauses 28 and 29 will ensure that the victim’s point of view is put at the heart of these offences. I hope that I have been able to persuade the noble Lord of the case for the new test and that he will support Clause 28 standing part of the Bill.
Baroness Barran
I thank my noble and learned friend for helpfully pointing out that detail.
Lord Paddick
My Lords, I am grateful to the Minister for her explanation, most of which does not seem to hold water. She said that under the existing offence, someone can only get six months in prison, so they are unable to get a community sentence. However, an offence of affray carries a three-year sentence; therefore, you can give a community sentence to somebody convicted of affray.
The Minister also said that existing offences under the Prevention of Crime Act and the Criminal Justice Act set the bar too high, evidenced by only 958 offences of threatening and almost one homicide per week. If a knife makes contact with somebody, that is a substantive offence, probably of grievous bodily harm or wounding, possibly with intent. Inflicting grievous bodily harm with intent carries a maximum life sentence, so the number of instances where somebody threatens but does not make contact is likely to be small, but the number of offences where somebody is found in possession of a weapon—perhaps in their pocket—and is not threatening another person is likely to be high. The number of offences of GBH or, regrettably, homicide is likely to be high. That is the plausible explanation for why the number of offences of threatening is low, rather than the evidential bar being set too high for the existing offences.
However, the only reason why the offence of affray does not provide a legitimate and reasonable alternative to the Government’s proposals here is that one carries a sentence of three years and the other a sentence of four years. Of course, that could easily be amended by increasing the maximum sentence for the offence of affray. An objective test is included in the offence of affray under the Public Order Act. I am afraid that apart from the difference in the length of sentences, all the reasoning seems to fall away, bearing in mind that an offence of affray can be committed in private as well as in public so the offence would apply in FE colleges, schools and public places. However, I will not pursue the matter any further at this stage.
Lord Garnier
My Lords, I fully appreciate the intention behind the noble Lord’s proposed new clause. Personally, I have a concern about filling up our statute book with more and more criminal offences, particularly when they replicate existing crimes. It is already an offence to threaten violence. I take the point he makes about replica, fake or toy guns, but might not his better route be to invite the Government to amend the law to increase the penalties for this sort of behaviour or to allow this sort of offence to be dealt with—if it is not already—in the Crown Court, where the sentencing powers are greater, rather than as a summary offence? To fill up—for no doubt worthy purposes—the criminal law with more and more offences that just replicate existing offences strikes me as unfortunate. There may be a better route than the one the noble Lord is advocating.
Lord Paddick
My Lords, I am grateful to the noble and learned Lord, Lord Garnier, for supporting what I said in the last group of amendments—albeit he has saved his comments for this group. My argument is that perfectly good legislation is on the statute book, and the additional offence concerning further education premises that the Government are creating in this Bill is unnecessary. To coin a phrase, what is sauce for the goose is sauce for the gander. Would the noble Lord, Lord Kennedy of Southwark, not agree that Section 3 of the Public Order Act, which states that a person is guilty of an offence,
“if he uses or threatens … violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety”,
completely encapsulates the circumstances he is talking about in his proposed new offence? That offence, as I have said before, carries a maximum sentence of three years in prison, a fine, or both.
Baroness Williams of Trafford
My Lords, the new clauses to be inserted into the Bill by Amendments 73A to 73U introduce knife crime prevention orders. These new civil preventative orders will provide the police with the powers they need to more effectively manage people engaged, or at risk of engaging, in knife crime and help steer them away from crime.
As noble Lords in the Committee will agree, knife crime is devastating for victims, their families and for our communities. We must do all that we can to combat this epidemic. The latest police recorded crime figures, published by the Office for National Statistics in January for the year ending September 2018, show that there were 39,818 knife-related offences—an 8% increase compared with the previous year. Noble Lords will not have failed to notice the headlines in the Evening Standard on Monday.
The number of homicides where a knife or sharp instrument was used has increased by 10% in the last year to 276 offences. Of all recorded homicides in the latest data, over four in 10 involved a knife or sharp instrument. That proportion is higher than the previous year when the figure was 37%. Police-recorded offences involving the,
“possession of an article with a blade or point” ,
rose by 18% to 19,644 in the year ending September 2018. That rise is consistent with increases seen over the last five years and is the highest figure since the series began in the year ending March 2009.
The total number of homicides in London in 2018 was 134. The Metropolitan Police had the largest volume increase, accounting for 35% of the total increase. In 2017, there were a total of 116 homicides.
It is vital that the police have the powers they need to prevent knife crime and protect the public from the devastating effects of violent crime on our streets. It is already too late when we prosecute young people for knife crime. The police have asked for a new order which will help them to manage those at risk of knife crime in their communities.
Knife crime prevention orders will provide the police with the powers they need to steer people away from knife crime, where there is evidence that they carry a knife. The orders are aimed at those young people most at risk of engaging in knife crime, people the police call “habitual knife carriers” of any age, and those who have been convicted of a violent offence involving knives. Their simple purpose is to help protect the public, and to help respondents leave a dangerous lifestyle involving knife-related crime. In the case of young people, the police may have intelligence that a young person routinely carries a knife but, for a variety of reasons, they have been unable to charge them with a possession offence. Before risky behaviour escalates, a KCPO could be in place to divert a person away from a life of prolific offending.
People whom the police deem to be habitual knife carriers could also benefit from KCPOs. These are people who may have previous convictions for knife crime, or on whom the police have intelligence that they regularly carry knives. The KCPO would enable the police to manage the risk of future offending. This is the cohort that the police see as their main target for these orders. It is estimated that there are some 3,000 habitual knife carriers across England and Wales. The orders will enable the courts to place restrictions on individuals such as curfews and geographical restrictions, but also requirements such as engaging in positive interventions. KCPOs are not a punishment, but a means to support the individual who is subject to an order to stay away from crime.
It may be helpful if I explain how the order will work. KCPOs are available on application and on conviction. An application for a KCPO can be made by a relevant chief police officer to a magistrates’ court or, in the case of young people, the youth court. A court dealing with an application may make a KCPO only if two conditions are met. The first is that the court is satisfied to the civil standard—on the balance of probabilities—that the defendant had a bladed article, without good reason, in a public place or education premises, on at least two occasions in the preceding two years. The second condition is that the court considers the order necessary to protect the public or prevent the defendant committing an offence. An application can be made with or without notice, but it will be made without notice only on an exceptional basis. If an application is made without notice to the defendant, the court may only make an interim order, which will take effect on service and will last until a full hearing takes place.
A KCPO is also available on conviction following an application from the prosecution, and where two conditions are met. The first condition is that the defendant is convicted of a relevant offence. This means a violent offence, or an offence where a bladed article was used by the defendant or another in the commission of the offence, or the defendant or another had a bladed article with them when the offence was committed. The second condition is, again, that the court considers the order necessary to protect the public or prevent the defendant committing an offence.
A KCPO may require a defendant to do anything described in the order, and/or prohibit the defendant from doing anything described in the order. The KCPO can include any reasonable prohibition or requirement which the court is satisfied is necessary, proportionate and enforceable. A KCPO which imposes a requirement must specify a person who is responsible for supervising compliance with the requirement. For instance, if the requirement is attendance of a knife awareness intervention, the person designated to supervise compliance may be the youth worker providing the intervention.
KCPOs will have a maximum duration of two years and must be reviewed by the courts after 12 months. KCPOs issued to under-18s are expected to be subject to more regular reviews. There are provisions for variation, renewal or discharge of KCPOs on application by the defendant or the police. There are also provisions for appeal against the making of the order. A breach of the order without reasonable excuse is a criminal offence subject to a maximum penalty of two years’ imprisonment.
KCPOs are closing a gap in the law that has hindered the police in taking an active rather than a reactive approach to diverting people away from knife crime and managing the risk of knife crime offending. They provide an opportunity to take a proactive and preventive approach, re-engaging with them at an early stage and helping to protect those most at risk of using knives and, of course, of falling victim to them.
There are other civil orders available, such as gang injunctions and criminal behaviour orders, but not all individuals in the targeted cohort are gang members. Criminal behaviour orders could be used in some cases, but such orders are available only when a court is sentencing a person for an offence. It is important that the police have the right tools for the right situations and can make use of them.
Of course, the police have a range of powers to deal with knife crime, including the existing offence of possessing a bladed article in public without good reason, and stop and search powers under the Police and Criminal Evidence Act 1984. However, given the unacceptable scale of knife crime, it is important that the police have a broad sweep of possible powers to use as circumstances dictate. KCPOs will be a valuable addition to the tools available to the police to disrupt harmful behaviours, while avoiding the premature criminalisation of individuals. We expect them to be targeted at a relatively small but high-risk cohort.
This Government are determined to do all that we can to protect the public and keep people safe. This is why we are redoubling our efforts to end this senseless crime. The introduction of KCPOs has been welcomed by the National Police Chiefs Council and the Association of Police and Crime Commissioners. On behalf of the NPCC, Deputy Assistant Commissioner Duncan Bell said:
“The introduction of knife crime prevention orders will provide us with further means to help deter young people from becoming involved in knife possession and knife crime”,
while West Yorkshire’s Labour PCC has said that he fully supports the new knife crime prevention orders.
I commend the noble Lord, Lord Tunnicliffe, who is not in his place, for his prescience in tabling Amendment 77, which also calls for the introduction of KCPOs. I hope one of the noble Lords on the Labour Front Bench will agree that we should grasp the opportunity provided by the Bill to legislate now for KCPOs, so that we can do everything in our power to stop the tragic loss of life and serious injury caused by knife crime that is all too evident on our streets. I beg to move.
Lord Paddick
My Lords, I am grateful to the Minister for meeting me to discuss these amendments before today’s debate. It will come as no surprise to her that we vehemently oppose them and will object, should she insist on them at this stage.
Noble Lords will recall ASBOs, anti-social behaviour orders, introduced by the then Labour Government in the face of an epidemic of anti-social behaviour. They were opposed for many reasons. They were an order that could be made on the basis of the balance of probabilities against very young children with no previous convictions, yet the breach of one of those orders was a criminal offence with a custodial sentence attached. In effect, the criminal burden of proof—beyond reasonable doubt—was circumvented by making the order subject only to the civil burden of proof, while a breach of the order resulted in a criminal conviction. As a result, hundreds of young people acquired a criminal record through that unfair and unreasonable route. This was rightly seen as disproportionate, and the subsequent coalition Government—in a move championed by the then Home Secretary, Theresa May—removed ASBOs from the statute book.
Other reasons for scrapping ASBOs included their ineffectiveness in curbing anti-social behaviour, the high rate of breach of the conditions of the orders, the difficulty in monitoring compliance and the resources required to ensure their enforcement. In some communities, having an ASBO was seen as a badge of honour, and peers looked up to someone if he had acquired one.
Lord Kennedy of Southwark
My Lords, this has been an excellent debate. As I was sitting here listening to so many excellent and knowledgeable speakers, I thought that this debate should have been in the Chamber, but that is for another day. I fully accept that knife crime prevention orders put forward by the Government today are, as the noble Baroness says, to deal with habitual carriers of knives. In that sense, we can support them in principle but there need to be some changes.
I am also clear that the present Commissioner of the Metropolitan Police, as well as the previous commissioner and the Mayor of London, support the idea of a prevention order as it could be a valuable tool in dealing with the epidemic of knife crime. It is always heart-breaking to see families destroyed when they have lost a loved one, but of course the perpetrator’s life is destroyed as well. There is a huge issue with young people carrying knives and so on. I have met one or two gang members; they can be very challenging individuals to meet. Some of the younger ones are certainly very frightened.
I was on the Wyndham estate some time ago, near where I went to school, to meet some of these young people and they offered me an escort off the estate. I said, “It’s all right, I don’t need an escort—I’ve lived round here”. I was fine. I walked off with no problem at all because I am a fairly big 56 year-old bloke; I am not a 15 or 16 year-old, and I am not black. If I had walked out of there in other circumstances, I would have had a problem getting to the bus stop but, in my situation, there was no problem at all. The young people thought that I would not be safe walking on the estate, which was not the case.
The noble Lords, Lord Paddick and Lord Ramsbotham, made the point, as I think other noble Lords did, that it is a shame the way these amendments have arrived in this House. They have been tabled in Grand Committee and, as has been said, have not gone through the procedures in the House of Commons. My understanding of that House is that if these provisions had been in the Bill from the start there would have been an evidence session in the Commons with experts coming in to look at them. That has been lost and cannot happen now, which is a shame. I support the idea that they have come into the Bill very late. They were announced to the media, and here we are in Grand Committee, not the main Chamber. We will come back to them, or something like them, on Report. Having that at the end of the passage of the Bill is regrettable.
That is why we have tabled Amendment 77 in this group, which was put forward by my noble friend Lord Tunnicliffe. It attempts to insert a new clause which would require the Government within three months of the Bill becoming an Act to publish a draft Bill to bring in knife crime prevention orders. It would mean there would have to be a Bill, which I hope would start in the Commons so that it could have evidence sessions. As it would be a draft Bill, even before that there would be a Joint Committee of both Houses to look at the stuff in detail. We want to get this right. On each side of the House, we can give examples of where we have passed measures and have got them right or wrong, but most of the things that were done wrong were done in haste. If we want to sort out an issue, we all charge off and do something, and months or years later, we find that we did not quite get it right. Amendment 77 in my noble friend’s name would ensure that we could do that and look at it in detail.
I am a big fan of draft Bills. When my noble kinsman Lady Kennedy of Cradley—I suppose I should refer to her as that—was on the Committee on the draft Modern Slavery Bill, I saw the work that she and other Members did. I remember the phone calls from the Home Office when the Minister talked to her—it was Karen Bradley—and a lot of detailed work went on to get that Bill right. I think we all accept that it is very good legislation. There were one or two issues—the noble Lord, Lord McColl, made efforts to improve some of the aftercare—but generally it is very good legislation. I would contrast that, as I often do, with the Housing and Planning Act, which is terrible legislation done on the back of a fag packet. It is absolute rubbish and most of the Government have quietly forgotten about it. It has been pushed to one side, so that no one ever mentions it again. I am a big fan of draft legislation, especially when it concerns sorting big issues out. The intention behind the amendment from my noble friend Lord Tunnicliffe is to do that.
This might seem a bit over the top, but we have had reports of these poor people being killed and their families destroyed. Why is COBRA not meeting to discuss this? We have COBRA meetings when we have a flood or a problem with the trains. This is about young people dying, so why is the Prime Minister or the Home Secretary not convening COBRA and getting the right people in the room to ask them, “What’s going on here?”
There is an issue about youth workers, social workers and cuts to services because if we are going to have penalties to deal with the issue we need to deal with the causes as well. Why is COBRA not meeting? People are losing their lives, so I want a response on that. As I said, these are very important issues.
The noble Lord, Lord Hogan-Howe, made some excellent points as did my noble friend Lord Ponsonby with his experience as a magistrate in youth courts. He has experience of dealing with these people when they get to court. A lot of them have form. That is an important point. The right reverend Prelate also made some good points about the work that she has done in Newcastle and in south-east London. I used to go to a youth club—the Crossed Swords youth club—which was run by St Paul’s, a Church of England church. Reverend Shaw used to run it. I am a Catholic, but I used to go there because it was a very good club. All the kids from the estate went there. It is important that we have those things. In many parts the country they have disappeared. Whether voluntary or local authority, they have all been lost, and the people are lost there. We need to get those things right.
The shame with this Bill is that it seeks to deal with the punishment of offenders but does not address any of the causes, which is one of the losses in this Bill. Generally speaking, I am not against the orders. They need to be looked at, refined and changed but in principle I am not against them. Noble Lords made valuable points and I hope that the Minister will take them on board.
Lord Paddick
My Lords, before the Minister responds, I did not address Amendment 77 in the name of the noble Lord, Lord Tunnicliffe, which we totally support. I did not want to stifle the debate, but it might be helpful for the Committee to be aware of the advice that I have been given, which is that if the Government insist on moving these amendments in Grand Committee and there is an objection to that taking place, the amendments will be lost and cannot be brought back on Report. I am sure that the Minister will bear that in mind in her response.
The Earl of Caithness (Con)
My Lords, following what the noble Lord just said, I wonder whether my noble friend would consider this. If the amendment is likely to be defeated, she could withdraw it and return to Committee as the first part of Report—I remember doing that with a Home Office Bill—so that given the concerns around the Committee, we could have a proper Committee stage and then very soon after that, come back on Report. In Committee, we can talk twice, and that should give the noble Lord, Lord Paddick, a chance to put down something constructive rather than the constant destructive arguments.
Baroness Williams of Trafford
My Lords, I have not found the comments destructive, although I thank my noble friend for the points that he made. I will not press the government amendments today. I take on board completely the point made by the noble Lord, Lord Kennedy, about the timing of the amendments. We will bring the amendments back on Report when again we will have a full chance to discuss them. The practice of noble Lords speaking only once on Report has fallen slightly by the wayside because noble Lords seem to speak several times in Committee and on Report.
To sum up today’s debate, we all seek the same end, but the means by which we would get there differ. I thank the noble Lord, Lord Hogan-Howe, at the outset for clarifying a number of points that I did not know the answer to. He has saved me having to write to the Committee. I also thank my noble friend Lady Newlove for the very real-life experience with which she speaks and which we never fail to be moved by.
It is clear from the debate that some of the support for KCPOs is qualified. The noble Lord, Lord Paddick—and the theme was carried on by other noble Lords—said that KCPOs seek to criminalise children. As the noble Lord, Lord Hogan-Howe, said, their aim is quite the reverse. They are to prevent young people getting into criminality.
Lord Paddick
I never suggested that the aim of the orders is to criminalise young people. I said that young people being criminalised is the inevitable outcome of the orders.
The Earl of Cork and Orrery
My Lords, I will add a couple of points. It is very instructive to look up “sniper rifles” on Google because you get a huge list of them, the vast majority at 7.62 calibre not .50 calibre. It is also interesting to see that three of the most popular .50 calibre rifles are made in this country and well known globally as some of the most popular sniper rifles. There are currently believed to be 200 large- calibre rifles in the UK, which is not a very substantial number. The cost of acquiring one of these .50 calibre target rifles is also not cheap—about £20,000 for the whole package, so there are never going to be very many of them.
Another point, which has already been made, is that only one of these rifles has ever been stolen in this country and it was found shortly afterwards, dumped by the opportunist thief, who realised that there was absolutely nothing he could do with it. They weigh about 36 pounds, which means they are not exactly the easiest things to carry around, and are very substantial in length—a length from here to the end of the desk. So we are talking about a rare beast indeed.
Lord Paddick
My Lords, I hate guns, so I have no interest in promoting any cause. I do not want to trivialise firearms offences because they can be very serious, but they are relatively small in number compared with the number of knife crime offences, for example. Only 1% of non-air weapon firearms offences involve rifles. Bearing in mind the very low number of offences committed using rifles, can the Minister tell the Committee why the Government have set these hares running?
Lord Kennedy of Southwark
My Lords, Amendment 83 would insert a new clause into the Bill to make the owner of a website, be that an individual or a company, responsible for ensuring that weapons listed in Schedule 1 to the Criminal Justice Act are not advertised on their site. The Bill places responsibilities on shop workers, delivery people and others; making website owners responsible for their content should be welcomed by the Government. I asked a similar Question today about anonymous accounts and the noble Lord, Lord Forsyth, made the point that when people are made responsible, things happen. If they are not responsible, they will do nothing. There should be consequences. In some ways, this is in a similar area.
Subsection (2) of the proposed new clause would provide for the owner to have committed no offence if, within 24 hours of being notified of the advertisement, they arrange for it to be removed. Then there would be no problems whatever. In some cases, there is a defence under Section 19 of the Electronic Commerce (EC Directive) Regulations 2002, but that depends on the facts of the case. I accept entirely that there can be jurisdictional issues if the provider is based overseas.
This is only a probing amendment to highlight an issue that is part of a much wider problem, which I asked a Question about today: how we control what is on the internet and how we deal with such issues. These are serious matters. I hope that the government White Paper will deal with some of them, but I seek to include a clause in the Bill to make owners responsible for the content on their site and the adverts they place. I beg to move.
Lord Paddick
My Lords, I understand what the noble Lord, Lord Kennedy of Southwark, is trying to do with the amendment. It raises again the issue of websites that are hosted overseas and the lack of territorial reach to apply the suggested offence to overseas website owners. That creates an imbalance, as we discussed on previous elements of the Bill, between UK and overseas sellers of knives and corrosive substances, for example. I see some practical difficulties with this but I understand what the noble Lord is trying to achieve.
Baroness Barran
I am grateful for the amendment moved by the noble Lord, Lord Kennedy, which seeks to make it a criminal offence when,
“a website … is used to advertise, list or otherwise facilitate the sale of any weapon listed in Schedule 1 to the Criminal Justice Act 1988 … or any offensive weapon capable of being disguised as something else”.
We can all agree on the spirit of the amendment. Indeed, in preparing my remarks, I spent five minutes googling what I could buy online. The noble Lord makes a good point: some very shocking weapons are easily accessible online. However, I hope to persuade him that his amendment is not needed.
We are satisfied that there is no gap in the law and that legislation addressing the criminal behaviour outlined in the amendment already exists. Indeed, the noble Lord alluded to that in his remarks. The Minister for Crime, Safeguarding and Vulnerability wrote to the Public Bill Committee in the other place to set out the legal position on online platforms that advertise or sell offensive weapons in contravention of Section 141 or Section 141A of the Criminal Justice Act 1988. It may assist your Lordships if I set out the position.
Section 141 of the Act states that,
“any person who manufactures, sells or hires or offers for sale or hire, exposes or has in his possession for the purpose of sale or hire, or lends or gives to any other person, a weapon to which this section applies shall be guilty of an offence”.
A list of such weapons is set out in Schedule 1 to the Criminal Justice Act 1988 (Offensive Weapons) Order 1988. Section 141A of the 1988 Act makes it an offence to sell certain articles with a blade or point to anyone aged under 18. Clause 1 of the Bill will make it an offence also to sell corrosive products to a person aged under 18. As is clear from these provisions, anyone who sells, hires, offers for sale or hire, exposes or has in their possession for the purpose of sale or hire any of the weapons to which the 1988 order applies—whether online or otherwise—is guilty of an offence. This would apply to individuals, but “a person” can include a body corporate or unincorporated, such as a company.
Where the user of a website places advertisements or listings for anything contained in the 1988 order on that website, the service provider may rely on the defence in relation to hosting under Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, as mentioned by the noble Lord, Lord Kennedy. Whether Regulation 19 applies will depend on the facts of the case. As the noble Lord mentioned, there may also be jurisdictional issues if the service provider is based overseas. I assure noble Lords that the sites I found were all based overseas. Regulation 19 will not apply where the provider of the website is offering the items for sale directly and where the provider had actual knowledge of the unlawful activity and upon obtaining that knowledge did not act expeditiously to remove or disable access to the information.
We therefore consider that the provider of a website who sells items on it directly would likely be caught under the wording of the legislation. Where the provider of the website is enabling advertisements to be placed by others, the defence under Regulation 19 may be available. We have discussed the matter with the Crown Prosecution Service, which is of the view that these provisions can be used to prosecute where appropriate. In the light of this explanation of the existing law, I hope that the noble Lord will be content to withdraw his amendment.
Counter-Terrorism and Border Security Bill
Lord Paddick ExcerptsTuesday 15th January 2019
(5 years, 11 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 View all Counter-Terrorism and Border Security Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 153-I Marshalled list for Third Reading (PDF) - (14 Jan 2019)
Lord Paddick (LD)
My Lords, we thank the noble Baroness, the noble Earl, and their Whips and officials for the way in which they have, at least to some extent, listened and responded to the concerns that we have raised. It was interesting, having been completely opposed at one stage, to find a government amendment in accordance with the arguments we had made coming in at the next stage of the Bill, but surprises are sometimes good ones.
However, we are still concerned that a dangerous precedent is being perpetuated by this Bill adding to the list of criminal offences where those acting completely innocently commit an offence for which they can be arrested and charged, and only have a defence once they have been charged. We note that the Government, in accepting the Labour amendment excluding people with legitimate reasons from the scope of the designated area offence, recognise those concerns to some extent. Perhaps I should say to the noble Lord, Lord Carlile of Berriew, with whom I jousted on this issue, that this is a matter to which we will return when we debate the Offensive Weapons Bill in the coming weeks.
We are still concerned about people being criminalised by this Bill for what they think rather than what they do, or for being foolish or unwitting; that people can be detained at our borders without any reasonable grounds for suspicion; and that, in the exercise of these powers and the operation of Prevent, black and minority ethnic people and Muslims may be unfairly targeted. We believe the Bill amounts to a further erosion of civil liberties, and that is something the Liberal Democrats will continue to fight to prevent.
Lord Foulkes of Cumnock
Before the noble Lord sits down, I would like to ask him whether he would have been able to give that speech in exactly the same way when the Liberal Democrats were part of the coalition.
Lord Paddick
My Lords, I am grateful for the question. All I can say is that it is a hypothetical question and I did not hold a Front-Bench position during the coalition.
Lord Marlesford (Con)
My Lords, this Bill was intended to do everything necessary at present to counter terrorism and protect our borders. It does not. I have made repeated attempts to persuade the Government to evaluate—just evaluate—the need for a secure personal identity number system, with biometrics held on a secure central database with which the biometrics of any UK citizen could be compared online by those authorised to do so. The Home Office has refused point blank to even consider this suggestion. This is inexcusable. I recognise that the default position of the Home Office has long been to ignore, reject or oppose external suggestions for changing its procedures, practices or policies, but that is not a satisfactory situation. That it may get away with such behaviour can of course be a reflection on the effectiveness of Ministers, some of whom are coaxed into being mere parrots of Home Office views. I suspect that a rule of the department is, whenever necessary, to remind Ministers “Theirs not to reason why”.
On border control, I will make three points. First, the list published in Hansard, in response to Written Questions I have put down periodically since 2012, of Home Office immigration officials who have been sentenced to often long periods of imprisonment, up to eight or nine years, for misconduct in public office—that is what Hansard describes their offence as being, in most cases—now includes over 50 such cases. This is a disgrace which should have been tackled long ago. All that has happened is that the Home Office has now decided to withhold the names of those who, in open court, have been so convicted, apparently on the grounds that it infringes their privacy or human rights. Secondly, there is still no record, for online access at entry and departure points, of other passports held by UK passport holders. Thirdly, the Home Office seems to have been caught by surprise, with the Home Secretary having had to hurry back from holiday, by the sudden increase in the number of illegal immigrants who have sought to travel to the UK across the Channel in small boats. This was both predictable and predicted, and it can be expected to increase greatly next summer unless effective action is taken to halt it.
Perhaps I could end by quoting Sherlock Holmes:
“From a drop of water a logician could infer the possibility of … a Niagara”.
I am afraid there is a shortage of logicians in the Home Office.
Counter-Terrorism and Border Security Bill
Lord Paddick ExcerptsMonday 3rd December 2018
(6 years ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 View all Counter-Terrorism and Border Security Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 142-I Marshalled list for Report (PDF) - (29 Nov 2018)
Lord Paddick (LD)
My Lords, I will not go over the arguments again. The noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lady Hamwee made clear the points that the Supreme Court had concerns about in the case of Choudhary and that the Joint Committee on Human Rights expressed regarding the provisions in the Bill.
Of course, these are two separate amendments. They propose either something more definitive than “is supportive of”, or, if you keep “is supportive of”, that there should be a degree of intention. I saw the Minister nodding vigorously when the noble Baroness, Lady Jones, suggested that Amendment 2 would actually be no change from the status quo and therefore would in effect nullify the provision, and I have some sympathy with that, but these are two separate amendments and therefore can be taken separately.
In response to the noble Lord, Lord Harris of Haringey, yes, one can see how this is constructed so that an ingenious speaker might wheedle their way through and evade justice, but the problem that my noble friend has identified is that a naive 13 year-old who innocently makes a remark would be caught by this. I accept what the noble Lord, Lord Carlile of Berriew, says about the CPS code of charging but that would not stop that 13 year-old being arrested and detained by the police. I will come back to this theme when we debate the next group of amendments. I do not want to develop that argument now.
Lord Carlile of Berriew
I say this with great deference to a former senior police officer, but surely the arrest conditions would not apply to that 13 year-old and the arrest would therefore be unlawful. The police cannot arrest unless the arrest conditions apply, and one is necessity.
Lord Paddick
I am grateful for the noble Lord’s intervention but, as I say, I am not going to address that point now but in the next group. However, we feel that it is necessary for one or other of these amendments to be adopted. Therefore, if the noble Baroness, Lady Jones, decides to divide the House, we will support her.
Lord Judge (CB)
My Lords, I cannot agree with everybody. The noble Lord, Lord Harris, made the crucial point that both these provisions have to be read together. This is a single policy decision. We have talked about 13 year-old boys but let us try a different example: the ANC when Mr Nelson Mandela, one of the heroic figures of the last century, was a member of that organisation. Undoubtedly it did, and was minded to, use what we would all call terrorism in the cause of defeating apartheid. There is no problem about arresting him. I consider it perfectly possible for an individual to say, “I entirely agree with the aims of the ANC—the idea that a man or woman should be distinguished against because of the colour of his or her skin is simply unacceptable. But I disagree with using bombs to achieve that objective”. They would therefore, using perfectly ordinary English language, not be supporting the ANC. But in saying, “I find that its objectives are entirely admirable and I agree with them”, they would be supportive of it. The distinction between these two words is rather significant and merits consideration. I respectfully suggest that we should go to either “supports” and “reckless”, or “supportive of” and “intent”. Either way, those alternatives would have identified a significant piece of conduct which ought to be criminalised.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
I thank noble Lords who have spoken in this debate and particularly the noble Baroness, Lady Jones, for moving her amendment. She has set out her position on this clearly and consistently, but I hope that your Lordships will indulge me if I rehearse the reasons why the Government cannot support the amendments.
As the noble Baroness said, Clause 1 amends Section 12(1)(a) of the Terrorism Act 2000, under which it is currently an offence to invite another person to support a proscribed terrorist organisation. An invitation in this context may be explicit or indirect, and may be implicit or opaque, but for a conviction to be secured the prosecution must be able to prove that the person intended to influence others to support the terrorist organisation. I recognise that, when considered in the abstract, this may appear to be the right threshold for the offence. However, in its operation it has been shown to leave a significant gap in the ability of the police, the CPS and the courts to act against hate preachers and radicalisers, as noble Lords have pointed out. This is because such individuals will often be careful to err on just the right side of the law. They will express opinions and beliefs which, in the judgment of a reasonable person, would be likely to have the effect of encouraging others to support proscribed terrorist groups but will stop short of statements which would go far enough to allow the CPS to prove that they intended such encouragement. This is despite them clearly and unambiguously risking harm to the public by virtue of their expressions.
This gap is illustrated by some of the cases to which I have previously drawn the House’s attention, and which were described by Assistant Commissioner Neil Basu in his evidence to the Public Bill Committee in the House of Commons. I urge noble Lords to examine that evidence carefully. In those cases, it was not possible to prosecute prolific and high-profile preachers of hate who had made highly inflammatory public speeches which were very clear about the speaker’s own support for terrorist organisations and methodology and which were on any reasonable assessment likely to cause their audience to be influenced to support a proscribed organisation. They included open admiration for Daesh and other terrorist groups and praise for their methods, ideology and activities.
However, I hope I will reflect the views of many noble Lords when I say that the current position strikes the wrong balance if it allows such obviously harmful behaviour to go unchallenged. This is behaviour that can have a powerful effect in initiating or moving along the process of radicalisation. There are radicalisers and hate preachers who have, time and again, been shown to have played a prominent and influential role in the backgrounds of those who have been convicted of planning or carrying out terrorist attacks.
Clause 1 is intended to close the gap I have described by bringing within the ambit of the Section 12(1)(a) offence individuals who are reckless as to whether they will cause this harm to arise. We have previously debated what is meant by “reckless”, but I think it is worth briefly setting this out again, before I turn to my concerns with the noble Baroness’s proposed amendments to Clause 1.
To answer the noble Baroness’s question, the term “reckless” is a well-established and well-understood concept in the criminal law, and one with which the courts are familiar, in particular as a result of clear case law established by the then Appellate Committee of this House in 2003 in the case of R v G and another. A person acts recklessly where he or she is aware that in the circumstances there is a risk that their conduct will result in the proscribed outcome, and they none the less engage in that conduct in circumstances where a reasonable person would not.
So, under Clause 1, a person might act recklessly if, in the course of addressing an audience consisting primarily of individuals whom he believes are of an Islamist extremist mindset, he speaks of his own support for Daesh, believing he has a degree of influence over the audience and being aware of the risk that members of the audience will be influenced by him to support Daesh. I hope noble Lords will not disagree when I say that a reasonable person would not, and should not, proceed to make that speech in those circumstances. A person who none the less does so would therefore be doing so recklessly. It may not be possible to prove beyond reasonable doubt an intention to influence their audience to support Daesh, but I consider it appropriate and proportionate that the courts can hold them to account if they are reckless in this way. Clause 1 will ensure that this is the case.
Turning now to Amendment 1, the noble Baroness, Lady Jones, set out a concern that the reference to a statement that is “supportive” of a proscribed organisation might risk a person being found guilty of a terrorism offence having tweeted their support for a legitimate political objective which happens to be shared by a proscribed terrorist organisation. She gave the examples of support for an independent Kurdistan and for the withdrawal of Israeli troops from the Occupied Territories, both of which are entirely legitimate standpoints but which are also objectives of, respectively, the PKK and the military wings of Hamas and Hezbollah. I have previously assured her, and I am happy to repeat those assurances, that this is not the case. In her example, there would be no suggestion that the person supported terrorist methods to achieve the political objectives to which they aspired or that they supported any proscribed terrorist organisation. There would, therefore, be no basis on which a reasonable person might equate such a statement with support for the PKK or for the proscribed wings of Hamas or Hezbollah or might anticipate that a listener would be influenced to support those organisations. As such, the statements would not meet the recklessness test and would clearly not be caught by Clause 1.
The noble Baroness further highlighted in Committee that the existing Section 12(1)(a) offence refers to,
“inviting support for a proscribed organisation”,
whereas Clause 1 refers to,
“opinion or belief that is supportive of a proscribed organisation”.
She suggested that “supportive” is, intentionally, a broader wording, which will cast the net of the offence more widely than would be the case if the word “supports” were used instead.
I think we are all clear that there is no difference in meaning in the context of the drafting. The existing Section 12(1) offence criminalises those who invite others to support a terrorist group. That word has the wider meaning that the noble Baroness described, repeating what the court said in Choudary, but in the new offence, we are talking about an opinion or belief. As a matter of syntax, an opinion or belief cannot support an issue; a person supports something. That is why parliamentary counsel has used the word “supportive” here. There is no intention to introduce a wider concept than the existing offence. Crucially, new Section 12(1)(b) requires that a person will be encouraged to support a proscribed group by the expression.
However, I can offer the noble Baroness a clear assurance that it would in any event have no meaningful impact on the effect of the clause, the scope of the offence or the range of causes that would be caught by it. This would be exactly the same whichever formulation were used.
Amendment 2 would remove the recklessness test and replace it with one that effectively repeats the existing position in the Section 12(1)(a) offence, so it would still be necessary to prove the same deliberate act of invitation to support.
The noble Baroness has made it clear that she does not support the purpose of Clause 1, and I respect that view, even if I do not agree with it, but I should make it clear to noble Lords that the amendment would entirely nullify the utility of this clause and, as such, were it to be made, we might as well simply strike the whole clause from the Bill.
I hope that with that explanation, noble Lords are satisfied and the noble Baroness will feel able to withdraw her amendment.
Lord Paddick
Before the noble Baroness sits down, perhaps she might address the remarks of the noble and learned Lord, Lord Judge.
Baroness Williams of Trafford
I heard what the noble and learned Lord, Lord Judge, had to say, but I do not agree. I hope that the reasons I set out explained why I do not agree.
Lord Paddick
Lord Paddick
My Lords, Amendment 3 is in my name and that of my noble friend Lady Hamwee. I will speak also to our other amendments in the group, Amendments 4, 5, 8 and 9.
It is a little confusing, but Amendment 15, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, was initially in this group, because it deals with it not being an offence to go to a designated area if you have good reason to do so. However, because Amendment 15 also contains a list of reasons that would make it legitimate for you to go to a designated area, it conflicts with the government amendment in group five and has therefore been placed in that group. However, with the leave of the House, I will address in this group the element of Amendment 15 that relates to something not being an offence.
I will start with the offence of being in a designated area, which is the subject of Amendments 8, 9 and 15. Noble Lords are rightly exercised about humanitarian aid workers, journalists and others going to a designated area and committing an offence—to which charge there is a defence, but apparently the defence cannot be mounted unless and until somebody has been charged. This means that those wishing to see a seriously or terminally ill relative, to use another example, may well be deterred from making the journey as, in the way the law is currently drafted, they will commit an offence whatever reasonable excuse they may have.
Our Amendments 8 and 9, and Labour’s Amendment 15, which we will debate in group five, effectively seek to put the reasonable excuse up front so that people are able to travel to a designated area with good reason, safe in the knowledge that, provided that the purpose of their visit is reasonable and legitimate, they will not be committing an offence. The wording we have used is similar to that in the Prevention of Crime Act 1953: the offence of possessing an offensive weapon in a public place,
“without lawful authority or reasonable excuse”.
In the case of offensive weapons—there is a precedent for this approach—a person does not commit an offence if they have lawful authority or reasonable excuse. This is instead of committing an offence and being able to use a reasonable excuse defence if and only if charged.
As the Bill is drafted, the person charged with an offence can tell the court that they have a reasonable excuse and the prosecution would have to prove that this was not the case. Section 118 of the Terrorism Act 2000 states that if the accused,
“adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
What then would be the drawback of saying that someone does not commit an offence, if they have evidence that is sufficient to raise an issue that amounts to a reasonable excuse with respect to entering or remaining in a designated area? If the police have evidence that the person is not intending to travel for the purpose for which there is a reasonable excuse, or that they did not engage in the activity that they said was the purpose of their visit, when they return to the UK the person can be arrested on the grounds that the police have reasonable cause to suspect that they may be about to commit, or have committed, an offence: that is, travelling to or remaining in a designated area without reasonable excuse.
At this point, I will address an issue raised by the noble Lord, Lord Carlile, on a previous group. The fact is that the grounds on which a police officer can make an arrest are very low. A constable can, for example, arrest somebody whom they have reasonable cause to suspect may be about to commit an offence. That is a very, very low threshold, and much lower than in the CPS charging guidelines. I give way.
Lord Carlile of Berriew
The noble Lord has read out only part of the grounds for arrest. There has to be a necessity for arrest. If he is going to read out the arrest conditions to your Lordships’ House, he should read them all, because necessity is essential.
Lord Paddick
I know that I am taking my life in my hands by arguing with a lawyer, but I believe that the noble Lord is referring to the Human Rights Act, which requires necessity and proportionality before the officer exercises the power of arrest. However, under the Police and Criminal Evidence Act, the constable can arrest somebody if they have reasonable cause to suspect that they may be about to commit an offence—which is what I have just said.
The advantage of legislating this way round, as proposed in the amendments, is that, if people are visiting sick or dying relatives, or are aid workers or journalists and have a genuine reason for travelling, they will not be committing an offence and will not be unreasonably deterred by the fear that they may be arrested, either on their way to or their return from a designated area.
Lord Carlile of Berriew
I am sorry; I cannot let this pass. If the noble Lord were to look at Section 110 of the Serious Organised Crime and Police Act 2005, he would find that one of the arrest conditions is that there has to be a necessity. Section 110(4) includes the words,
“exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question”.
That is why reasonable suspicion is not a sufficient ground for arrest—and we need to be clear about that.
Lord Paddick
Sadly, I do not have the legislation in front of me, so I cannot comment. No, I will not accept the noble Lord’s offer of taking his iPad to look at the legislation. I do not think that that is reasonable in all the circumstances.
If we accept that this is a reasonable way to approach the issue—that someone does not commit an offence if they have a reasonable excuse—what, then, is the difference between that and a journalist or academic being able to access material on the internet? They would be safe in the knowledge that, provided the purpose for visiting a website containing information that might be of use to a terrorist was reasonable and legitimate, they would not commit an offence.
I argue that the only difference is that here someone is entering into or remaining on a designated website rather than a designated area. Websites that contain information that might be of use to a terrorist are, if you will, designated areas of the internet, so entering or remaining on that website is an offence. Our Amendment 4 would ensure that it would be an offence only if a person collected, made a record of, possessed a document relating to, viewed or otherwise accessed by means of the internet information of use to a terrorist and they did not have a reasonable excuse for having or accessing that information.
Amendment 5 is consequential in that it would remove the “defence if charged” provision, which would be redundant were Amendment 4 accepted.
Turning to Amendment 3, similar arguments apply to the innocent or inadvertent publication of an image of a uniform or a flag. The ISIS flag on a friend’s bedroom wall that goes unnoticed when a selfie is posted on Facebook, which may well arouse reasonable suspicion that those in the picture support a proscribed organisation, could very well be an innocent or stupid mistake. Should the young person responsible be able to provide a simple and compelling excuse for his actions to the police officer on the doorstep rather than in an interview under caution, would that not be a better outcome?
There is nothing to be lost in having offences that are offences only if there is no reasonable excuse for the suspect’s actions. Police officers who fail to be convinced that the excuse is reasonable at the time they decide to make the arrest or who feel that the excuse might sound reasonable but needs to be verified would still have reasonable cause to suspect that the person might have committed an offence and arrest the person if it is necessary and proportionate to do so. However, it also provides the person accused of committing the offence with a legal remedy, and the police with a good reason to act reasonably, if there is clearly a reasonable excuse that is blatantly obvious and easily verifiable at the time of the arrest, yet the person is still deprived of their liberty.
I admit that the designated area offence and the obtaining or viewing of material offences have a more compelling claim for a “reasonable excuse means no offence” modification but there are circumstances where there might be a reasonable excuse for publishing an image in such a way or in such circumstances as to arouse suspicion that the person is a member or supporter of a proscribed organisation when they are neither of those things, and this will be immediately apparent to the officer sent to investigate. In my view, it is too late in the chain of events that could ensue for the reasonable excuse to be available only as a defence once charged.
No doubt the Government will say that the police can be trusted not to arrest in circumstances where a reasonable excuse is immediately apparent. With over 30 years of police experience and having witnessed at first hand the devastating consequences of innocent people being arrested and detained on the flimsiest of evidence, I am very concerned about the potential for abuse that this legislation as currently drafted provides.
Unless the Government can provide compelling reasons as to why the “reasonable excuse” defence should not engage at the beginning of the investigative process rather than at the end, I suggest that they might want to consider these arguments and undertake to discuss them further with interested Peers before Third Reading. If, however, when we come to debate his amendment in the fifth group, the noble Lord, Lord Rosser, decides that in the case of designated areas the arguments are compelling and the Minister’s response is inadequate, we will support him if he decides to divide the House on that issue. I beg to move.
Baroness Williams of Trafford
My Lords, I thank the noble Lord, Lord Paddick, for taking us through an explanation of his amendment and explaining it with reference to Amendment 15 and his point about people who have a reasonable excuse.
In relation to viewing terrorist information in Clause 3 and entering or remaining in a designated area in Clause 4, the amendments would reconfigure the offences. Rather than the person who committed the offence of engaging in prohibited conduct being acquitted because they use the defence of having a reasonable excuse, there would instead be an exception—they would not be capable of committing the offence in the first place in circumstances where they have a reasonable excuse.
In relation to the offence of publishing images under Clause 2, there is currently no “reasonable excuse” defence. Rather, the offence is committed only if an image of an article is published in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. Amendment 3 would insert the same reasonable excuse exception that I have just described, which would operate in addition to the reasonable suspicion requirement concerning the circumstances in which the image is published.
Noble Lords have set out their arguments that there should be, at the outset, no question that a person might be guilty of an offence if they have a reasonable excuse for engaging in the activity covered by these offences. It has been argued that that approach will prevent the CPS from charging a person in these circumstances rather than the person potentially being charged and then having to invoke a “reasonable excuse” defence. I recognise that the approach of structurally rearranging the legislation may seemingly provide a greater degree of comfort to a person who finds themselves under suspicion in respect of one of these offences despite having a reasonable excuse, but I am not persuaded that these amendments would secure the outcome sought in relation to Clauses 3 and 4.
Amendments 4, 5, 8 and 9 are unnecessary as they would, in practice, make no material difference to the position of subjects of investigations and of defendants facing a charge under these clauses or on the matters that the prosecution will need to prove and that the court will need to resolve.
We have debated how the existing safeguards influence investigative and prosecutorial discretion, and how they prevent cases from proceeding where there is evidence that the person has a reasonable excuse. The amendments in my name which expand on these provisions in Clauses 3 and 4, and which we will shortly come to, will strengthen these safeguards further by providing indicative lists of reasonable excuses.
I shall go briefly over this ground again. Charges may be brought only if the CPS determines that the full code test is met. This is met only if there is evidence to provide a reasonable prospect of conviction, and if so, whether a prosecution would be in the public interest. Those are very important points. If there is evidence to suggest that the person has a reasonable excuse for engaging in the otherwise prohibited conduct, there will not be a reasonable prospect of conviction because they will be able to successfully invoke the “reasonable excuse” defence. Furthermore, it would not be in the public interest and would be fundamentally inappropriate for prosecutors to charge a person who they believe is likely to be innocent of any criminal conduct as a result of having such a defence. The effect of this is the same as that envisaged by the noble Lord’s amendments. In either case, the CPS will not bring a prosecution if there is evidence that the person has a reasonable excuse which the CPS considers could not be disproved by the prosecution beyond reasonable doubt.
Furthermore, neither the existing model nor that proposed by the noble Lord provide immunity from either investigation or prosecution purely on the basis that the person states that they have a reasonable excuse. Under either model, the police will need to investigate the person to establish what activity they have been involved in and whether they may have a reasonable excuse for it, and to gather evidence.
It will rightly remain open to the CPS to prosecute if it believes, following the investigation by the police and on the basis of the evidence gathered, that the person does not have a reasonable excuse, despite any assertion that the person might make to the contrary. Under either model it would then be for the person to advance their reasonable excuse, for the prosecution to disprove it beyond reasonable doubt, and ultimately for the jury to determine whether or not it is a reasonable excuse. Unless we were to introduce a unilateral immunity from prosecution for any person who declares themselves to be innocent, this must always be the position and the noble Lord’s amendments would not change it.
Although these amendments would not make a significant change to the practical operation of the law in this area, they would depart from the commonly taken approach in the criminal law where offences provide a “reasonable excuse” defence. In particular, they would overturn what is a well understood and settled position, with clear case law, in relation to Section 58 of the Terrorism Act, which Clause 3 amends. I do not think that it would be wise to do so unless there was a very persuasive case for it, which I do not think is being made here.
I turn finally to Amendment 3. Clause 2 in its current form does not make any provision in relation to reasonable excuses. But it is not an offence of strict liability and it cannot be committed by the mere fact of publishing an image. Rather, it is committed only in particular circumstances which the prosecution is required to prove beyond reasonable doubt. These are where the image is published in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation.
We have previously debated the operation of this aspect of Clause 2, and I am happy to reiterate the Government’s clear position that it will provide both certainty and protection for those who have a legitimate reason to publish images of flags or other articles associated with proscribed organisations, and who are not themselves members or supporters of the organisation. This clear limitation on the scope of the offence is the best way to provide a safeguard for individuals such as journalists or historians, and the addition of a reasonable excuse provision is not necessary in addition. Indeed, it would be likely to overcomplicate and undermine the operation of the offence.
The Government do not consider that a person should in fact have a reasonable excuse for publishing such an image in circumstances which do not meet the criteria of the offence; that is to say, where a court is satisfied that the circumstances give rise to a reasonable suspicion that the person is a member or supporter of a terrorist organisation. Indeed, I would query whether there is a scenario which would not be covered by the existing safeguard but which should be considered a reasonable excuse. I cannot think of one. For those reasons, I invite the noble Lord to withdraw his amendment.
Lord Paddick
I am grateful to the Minister for her explanation. The Government seem to be relying on the CPS charging decision, which is very different from the decision that an operational police officer in an uncontrolled environment makes at the time about whether to arrest or not to arrest. The Minister said that there was no material difference, which there is not in terms of successful prosecution. However, it makes a difference to the likelihood of a person being arrested or people being deterred from engaging in completely legitimate activity for fear that they may be arrested, whether they have confidence in the police making the right decision or not.
The Minister talked about a commonly taken approach in law, yet I gave the example of the Prevention of Crime Act 1953, where a person does not commit an offense of possessing an offensive weapon if they have “lawful authority” or “reasonable excuse”; that is determined by the operational officer on the street at the time. I am afraid that I find few of the Minister’s arguments compelling. However, we will return to this issue, particularly in relation to designated areas, when we come to the fifth group of amendments. I beg leave to withdraw the amendment.
Lord Anderson of Ipswich (CB)
My Lords, the burden of proof should be on the prosecution and should be seen to be on the prosecution. Lawyers who know where to find Section 118 of the Terrorism Act 2000 may be untroubled by the point made by the noble Lord, Lord Rosser. However, the existence of that section is not widely known. Indeed, only last week I found myself in that great deliberative assembly, Twitter, correcting the damaging and widespread misapprehension, advanced in good faith, that the Terrorism Acts reverse the burden of proof. I support the idea behind the amendment, although—as I am sure the noble Lord, Lord Rosser, would accept—if it is to produce clarity, it would have to be applied a little more widely to a variety of existing offences under the Terrorism Act, including Sections 57 and 58.
Lord Paddick
My Lords, I agree with both noble Lords. The amendment seems to be common sense. As the noble Lord, Lord Anderson of Ipswich, said, while Section 118(2) places the burden of proof on the prosecution to disprove the reasonable excuse, you have to hunt pretty far to find it. Currently it does appear, if one takes an ordinary, common-sense meaning from what the legislation says, that the burden is actually reversed.
Lord Judge
My Lords, Section 118 got somewhat lost in the discussions earlier. I support this amendment but I wonder whether, when the Minister comes to reflect on it, we would need the words,
“the court or jury shall assume that”.
It is a straightforward point of drafting but, with respect to the matter, “the defence is satisfied unless” would seem adequately to cover the amendment.
Lord Paddick
My Lords, very briefly, I completely agree with my noble friend Lady Hamwee, who has addressed all the amendments in this group other than Amendment 15. I have added my name to Amendment 15 and made clear my reasons for supporting it during our debate on the second group of amendments. I do not wish to add further to my comments.
Earl Howe
My Lords, the noble Baroness, Lady Hamwee, has argued for the expansion of the Government’s list of indicative reasonable excuses to include peacekeeping and visiting a very seriously ill relative. I understood her not to have spoken to her Amendment 14, which proposed that we include in Clause 4 a power to further add to the list of reasonable excuses by regulations—I hope I was right in understanding that.
The first point I make is to stress again that this is an indicative and not an exhaustive list. I am not suggesting that the amendments from the noble Baroness are without merit, but, in a phrase, we need to draw the line somewhere. I firmly believe that Amendment 11 draws it in the right place. In this regard, we have taken into account the Australian precedent. Trying to put more and more situations beyond doubt—the argument put forward by the noble Lord, Lord Hylton—is simply unnecessary in this context. As I have argued before, we are consciously not creating an exhaustive list of reasonable excuses; it would be quite wrong to try. Juries will be able to make up their own minds on the reasonableness of particular excuses in the light of the circumstances of the case.
I entirely accept the importance of peacebuilding activity, and I am sure noble Lords would agree with me that it is vital that such activity continues. However, as I have explained, the government amendment does not preclude a person advancing this or any other category of reasonable excuse. I am of the view that legitimate peacebuilding activity could very well be a reasonable excuse. However, I must say again that it will ultimately be up to the jury to determine whether a particular excuse is reasonable on the basis of all the evidence.
Much the same arguments apply to Amendment 13, which would add visiting a seriously ill relative to the list of reasonable excuses. I am not sure how fruitful it would be to get into a debate about the difference between being “seriously ill” and “terminally ill”. Again, the line has to be drawn somewhere. Given that the Foreign Office would inevitably advise against any travel to a designated area, it is right that we set the bar at a high level. But I say again that it would be open to any person to advance as a reasonable excuse the fact that he or she was visiting a seriously ill relative.
Amendment 17 seeks to place on the Home Secretary a duty to lay before Parliament an annual report on the outcome of the review of a designation. This amendment misunderstands the nature of the duty on the Home Secretary to keep a designation under review. The requirement does not imply a set piece review with a beginning and an end, culminating in a report which can then be published.
Rather, the ongoing duty to keep a designation under review will ensure that, as the situation on the ground changes, the Government can react and make a judgment, as and when required, as to whether to alter any designation to reflect a change in the threat. However, I reassure the noble Baroness that, should the Government need to amend a designation, that will require a new regulation to be made, which in turn, by virtue of Amendment 20, would require the Secretary of State to issue a statement setting out the reasons why he considers that the legal test for designation is met.
The noble Baroness referred to international humanitarian standards. As she said, there are various commonly recognised international humanitarian standards. The point to appreciate is that the government amendment provides flexibility and future-proofs against developments in this area. She may know, for example, that the UN Office for the Coordination of Humanitarian Affairs provides guidance on principles and standards relating to humanity, neutrality, impartiality and independence. I say to the noble Earl, Lord Sandwich, that the concerns he expressed are satisfactorily addressed by government Amendment 11 as well as by the explanations that I have already given for the provisions of Clause 4 in Committee.
Amendment 15 in the name of the noble Lord, Lord Rosser, is in many ways similar to government Amendment 11. There is, however, a key difference, as he carefully explained. This is not an indicative list of reasonable excuses, but an exhaustive list of exclusions from the offence. We have already debated the difference between these two approaches when we considered Amendment 3 in the name of the noble Lord, Lord Paddick, in an earlier group, but it may be helpful to remind ourselves of the issues in play.
I reiterate that under either approach a person returning to the UK from a designated area abroad would not have immunity from investigation and possible prosecution. The police would still need to investigate to determine whether, under one approach, an offence had been committed or, under the other approach, whether the person has a reasonable excuse such that the investigation can be discontinued. It is worth noting that the police have been extremely clear for some time—since well before this new power was introduced—that any person returning from Syria who has travelled there for any reason can expect to be investigated to establish what risk, if any, they may pose. That is simply common sense given the level of risk associated with such areas.
That would likely also be the approach in any future scenario analogous to the Syrian example in which an area might be designated under Clause 4, whether or not an area is in fact designated. While I appreciate that the intention of the noble Lord’s amendment is to provide greater comfort and assurance to legitimate travellers so that humanitarian aid workers, for example, would not have the prospect of police investigation hanging over them, that would not in fact be the result. The only circumstances in which it could be achieved would be if we were to go further still and provide for any person who travels to a designated area simply to declare that they did so for a specified legitimate purpose, thus unilaterally providing themselves with immunity from any investigation or prosecution. However, that would be wide open to abuse by those who travel for terrorist purposes and would render the new power in the offence entirely unusable.
That leads on to my second point. I have explained that the noble Lord’s amendment would make little difference from the perspective of a potential defendant, and I appreciate that that may beg the question why we should not then accept it. That is simply because the Government’s preferred approach in providing for a reasonable excuse defence fits better with the grain of the Terrorism Act 2000. That approach has been in place for 18 years in Section 58 of the Terrorism Act 2000, which Clause 3 of the Bill amends as well as other provisions in the 2000 Act. As I previously said on the noble Lord’s closely related suggestions for changes to the burden of proof for these offences, which we have already debated today, that approach is well understood by the police, prosecutors and the courts, and clear case law on it is provided by the then Appellate Committee of this House, no less. It has not resulted in judicial concerns, inappropriate prosecutions, upheld appeals or any credible complaints that it has been unfair or inappropriate in its operation. I therefore reiterate that we are not approaching these matters from a neutral starting position. Rather, if we were to adopt the noble Lord’s amendment, we would be choosing to depart from the settled, long-standing position in relation to the Terrorism Act 2000, and I am simply not persuaded that there is any need or good reason to do so.
Furthermore, I am concerned that in unsettling that existing position we could create more uncertainty for defendants and judges in relation to Clause 4, not less, and we could also call into question the currently settled approach that the courts take to Section 58 of the 2000 Act as well as other provisions for similar offences, creating instability and uncertainty in our ability to prosecute serious terrorists. Those strike me as quite undesirable outcomes and risks that we should not run.
The noble Lord, Lord Rosser, asked me what would count as proof that an aid worker was employed by a legitimate NGO. The police have been clear that they will investigate any person returning from Syria to establish what risk they may pose. That would likely be the case in relation to any area designated under Clause 4, including investigating whether an offence has been committed under Clause 4. It will be an operational decision for the police as to how they would conduct that investigation and what proof they would seek. It is not possible for me to set out those considerations in advance.
Finally, Amendment 19, in the name of the noble Lord, Lord Anderson, would provide for the sunsetting of any regulations after two years rather than three. He seeks to split the difference between the one year he advocated in Committee and the three years proposed by the noble Lord, Lord Rosser. Again, this comes down to judgment. There is clearly no absolute right or wrong in this case; it is just that, on balance, the Government consider that three years is the right timeframe. Again, I pray in aid the Australian criminal code and, as I have already indicated, if the situation changes after six months, a year or two years, the Government would inevitably want to review the regulations well before the three-year period was up. The Government agree with the amendment put forward by the noble Lord, Lord Rosser, in Committee that three years is the appropriate period and I hope that other noble Lords are similarly persuaded. I realise that he has shifted his position since Committee, but I hope that on reflection he will feel content to revert to his original view.
I invite the House to agree with the government amendments in this group and I hope that I have been able to persuade the noble Lord, Lord Rosser, not to move his Amendment 15. If he is minded to do so, I invite the House to reject it.
Counter-Terrorism and Border Security Bill
Lord Paddick ExcerptsWednesday 31st October 2018
(6 years, 2 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 View all Counter-Terrorism and Border Security Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 131-II Second marshalled list for Committee (PDF) - (29 Oct 2018)
Lord Carlile of Berriew (CB)
My Lords, I am somewhat shocked by the implication that there is anything illiberal about the proposed extension of the law in this clause. In November 2017, the Secretary-General of the United Nations, speaking in London at the School of Oriental and African Studies, included in his speech the following sentence:
“While terrorism often starts in conflict zones, it reaches far beyond them, organizing and inspiring attacks and radicalizing people across borders and continents”.
The clause recognises exactly what the Secretary-General described. Those who have been interested in terrorism law for as long as the period since 9/11 will recall that the then Secretary-General of the United Nations, in a speech in Barcelona shortly after 9/11, made the point that the United Nations agrees in principle that terrorism should be prosecuted wherever the defendant is irrespective of where the terrorist act was committed.
If this Bill, as we are told by the Government, is intended at least in major part to modernise the law so that it faces up to the changes that have occurred at an exponential rate in electronic communications since 2001, this is exactly one of those measures that achieves just that. Let us imagine that somebody was in this country with impunity having committed an act somewhere else that is a terrorism offence in this country. We prosecute those who committed the act in this country, but not those who committed exactly the same act, which appeared on exactly the same postings on the internet and in exactly the same YouTube videos, in another country. That makes absolutely no sense.
I say to the noble Baroness—whom I much admire—who proposed the amendments that there is a danger of us losing touch also with the public view on these matters. A set of opinion polls appeared two days ago in which it was revealed that changes in the law of this kind are broadly supported by more than 80% the public. While I do not believe in legislating on the grounds of public opinion, in this instance I regard the public as being right and I urge your Lordships to reject the amendments and not to reject the principle in the clause.
Lord Paddick (LD)
My Lords, I support Amendments 31 and 33, which are in the name of my noble friend Lady Hamwee and to which I have added my name. I remind the Committee that my noble friend raises the amendments as a representative of the Joint Committee on Human Rights. I am putting forward the view of the Liberal Democrat Benches on these issues.
On Amendment 31, concerning extension of extraterritoriality to wearing a uniform and displaying an article in a country other than the UK, while I accept what the noble Lord, Lord Carlile of Berriew, said about an act of terrorism, such as blowing somebody up or that sort of serious offence, to expect somebody who lives in another country—let us say in Syria—to know that it is offence to carry an ISIS flag, and therefore that they would be prosecuted if they came to the UK for doing that in Syria, without having any connection with the UK prior to that occasion, makes, to use the noble Lord’s expression, absolutely no sense. There will be some things that are so clearly a terrorist offence that people should know that they are not acceptable.
Lord Carlile of Berriew
Can the noble Lord identify any individual in Syria who is not aware that supporting ISIS is regarded as a serious offence in most countries, including Syria?
Lord Paddick
I do not think that I can answer that question, and I do not think that the noble Lord can answer it either. This is about offences which if they were committed in the UK could lead to people being radicalised or encouraged to join a particular terrorism organisation. That cannot be said about an offence committed in another country. As for Amendment 33, surely it is only common sense that a person commits an offence overseas only if their actions are an offence in that country, or they have sufficient ties to the UK that they should know that their actions would amount to an offence if committed in the UK. I therefore support these amendments.
Lord Tebbit (Con)
Sitting here trying to cope with this extremely complex Bill and some very important issues, I find myself having to choose between the views of the noble Lords, Lord Paddick and Lord Carlile of Berriew. I, for one, have no hesitation whatever, looking at the records of the two men over the years, in knowing who I support. I support the Bill as it is and not as this amendment would propose.
Lord Paddick
“( ) For the purposes of this section the right to use a motor vehicle includes the right to use it as a borrower or by renting.”
Lord Paddick
My Lords, Amendment 36 is in my name and that of my noble friend Lord Marks of Henley-on-Thames, and I will also speak to our other amendment in this group, Amendment 38.
Part 4 of the Counter-Terrorism Act 2008 requires those convicted of certain terrorism-related offences to keep the police informed of changes in their circumstances. Clause 12 sets out additional requirements by amending Section 48 (notification of changes) to include a new subsection (4)(c):
“If a person to whom the notification requirements apply becomes the registered keeper of, or acquires a right to use, a motor vehicle the identifying information of which has not previously been notified to the police, the person must notify the police of the identifying information of that motor vehicle”.
Slightly worryingly, they must give notification within three days.
We are reminded of the terrorist attacks in Westminster and London Bridge, where hire vehicles were used and—if I am right—in the case of the London Bridge attack at least, the car was hired within 24 hours of the attack. Amendment 36 adds that the right to use a motor vehicle includes the right to use it as a borrower or by renting. I expect the Minister to say that “the right to use” includes borrowing with the consent of the owner, but it is questionable whether, were the person intending to use the hire vehicle for illegal purposes, the contract with the car hire company would allow it to be used for such a purpose and therefore the person would legally not have the right to use it. In any event, it is clearer and more reassuring to include reference to borrowing and hiring of cars in the Bill. As the noble and learned Lord, Lord Judge, said earlier, it is much better if the law says what it means.
Amendment 38 addresses Schedule 1, and the new Schedule 3A to the Counter-Terrorism Act 2008 in relation to the financial information that those subject to notification requirements must provide. It requires information to be provided about each account that the person holds with a financial institution, but it does not cover accounts held by others to which the person may have access—for example being an authorised signatory to an account held by someone else.
It also does not cover a credit card account held by someone else where a second card may have been issued to the person subject to the notification requirements. We believe these to be omissions to the financial notification requirements. Amendment 38 therefore includes accounts which they are entitled to operate.
Lord Kennedy of Southwark
My Lords, Clause 12, as we have heard, is concerned with the notification requirements in the Counter-Terrorism Act 2008; it inserts additional matters into the Act that have to be reported in respect of motor vehicles. Amendment 36 moved by the noble Lord, Lord Paddick, sets out and includes the issue of borrowing or renting a vehicle. He rightly set out the whole issue about people renting or borrowing vehicles for use in the terrorist attacks that happened in Manchester, London and elsewhere. This is very sensible and proportionate amendment which identifies a potential loophole. I hope the Government will support it.
On Amendment 38, which amends Schedule 1 to the Bill, the noble Lord raised a very important point about the notification requirements for financial information— someone may have access to or may operate a bank account; they do not have to be the account holder. He made an important point about being the authorised signatory or being able to use a credit card. I am worried that, as it stands at present, the Bill could allow people to get around the notification requirements it proposes.
The noble Lord has raised important points on both amendments and I hope the Government can respond positively.
Baroness Williams of Trafford
I thank both noble Lords for their contributions to the debate, and thank the noble Lord, Lord Paddick, for what I believe are helpful amendments. I appreciate that they are intended to ensure more comprehensive coverage of the information to be notified.
Amendment 36 relates to the notification of the details of any motor vehicle which a registered terrorist offender is the registered keeper of, or acquires the right to use. Sadly, we have seen the use of motor vehicles as weapons in a number of recent terror attacks. Here in Parliament we have seen first-hand the devastating impact that such an attack can have, in the Westminster Bridge attack which took place last year. The benefits are obvious, ensuring that convicted terrorists are required to inform the police of any vehicle of which they have use.
I therefore fully recognise and support the intention of Amendment 36. It is essential that the provision should extend properly to vehicles which are borrowed or hired, which is the point the noble Lord, Lord Paddick, made. Hired vehicles were used in both the Westminster Bridge and Finsbury Park attacks last year. The terrorists responsible for the London Bridge attack attempted to hire a much larger vehicle than the van that was eventually used in the attack. This was just in the UK. We have also seen the use of vehicles as weapons in the Nice truck attack in July 2016, the Las Ramblas attack in August 2017 and the Berlin Christmas market attack.
I assure the noble Lord that this issue was carefully considered in the drafting of Clause 12, and that the existing reference to vehicles which the terrorist offender acquires the right to use will fully cover vehicles that are borrowed or rented. The Explanatory Notes to the Bill make this point. I therefore suggest that Amendment 36 is not needed, and I hope the noble Lord will feel content to withdraw it.
Amendment 38 similarly relates to a possible gap in the information to be notified to the police, in this instance relating to financial accounts. As currently drafted, this clause specifies that an offender must provide details of any account that they hold with a financial institution, or that is held by a company through which they run a business. Amendment 38 would expand this to refer also to any financial account which the registered terrorist offender is entitled to operate. The noble Lord has explained that this is intended to cover a scenario where a terrorist seeks to use an account which is not held in their name but over which they have effective control, for example because it is held in the name of their child or a relative for whom they have a power of attorney.
I thank the noble Lord for this amendment, which may have considerable merit in ensuring that the notification requirements cover all accounts which a terrorist offender might be able to use for terrorism purposes. The amendment requires more detailed consideration but, for now, I hope the noble Lord will not press it pending that consideration, and on the assurance that I will let him know the outcome of that consideration ahead of Report.
Lord Paddick
I am very grateful to the noble Lord, Lord Kennedy of Southwark, for his support, and for the comments of the Minister. I welcome the fact that the Government will look carefully at Amendment 38. On Amendment 36, I ask that the Government also look at whether, when somebody hires a car, the contract says effectively that the person does not have the right to use that vehicle for an illegal purpose; that could be a gap in the legislation as drafted. I hope that the Minister will appreciate that we are trying to be helpful and supportive in suggesting these amendments.
Lord Pannick (CB)
I suggest to the noble Lord that the provision in the Bill is concerned with “a right to use”, which must mean any right to use. It is not confined to a right to use the vehicle for the terrorism purpose that we are concerned about. Therefore, it is not necessary to pursue an amendment here, given that there is a notification requirement if there is any right to use the vehicle; clearly the person has a right to use the vehicle.
Lord Paddick
I am very grateful to the noble Lord. I am not sure whether the point I am about to make is contrary to what he has just said but our concern is that that there could be a line in the contract, when somebody hires a car, that says, “You are not entitled to use this car—you have no right to use this car—if you intend to use it for an illegal purpose”. In other words, the contract between the renter and the company will be null and void, and therefore someone has no right to use this vehicle if they intend to use it for an illegal purpose. I am not sure whether words to that effect are part of a vehicle hire contract but it perhaps at least needs to be looked at before we come back to this issue. However, for the moment, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, as we have heard, registered terrorist offenders, after release, have to notify the police of certain details and of changes to those details. The periods for which they are required to notify range from 10 to 30 years, depending on the length of the sentence, and the reporting provisions apply automatically without the possibility of review.
In considering the provisions, the Joint Committee on Human Rights commented that this was an interference with the Article 8 right to privacy, which of course does not mean that it is always objectionable. I understand that the domestic courts heard that the current scheme, when applied to 10-year periods, is in accordance with the law, in pursuit of a legitimate aim and proportionate, and so there is not a violation of Article 8. However, the courts have previously held that indefinite reporting requirements do violate Article 8, and, importantly, the European Court of Human Rights held that notification and registration requirements for up to 30 years in very similar circumstances to the UK system were compliant with Article 8 only because a review was possible. The sex offenders register has a review at the 15-year mark. We thought that that was a comparator worth referring to.
We are concerned that the revisions to the current system are likely to be considered as disproportionate and unjustified interference with the Article 8 rights because of the lack of the possibility of a review. In the light of the increased level of intrusion into private life and the lengthy period of time for which the requirements are imposed in some cases, we think that a review should be added to the provisions—that is, a review of the necessity of the notification and registration requirements—and that each individual subject to the requirements should have the right to make representations at that review.
I understand that the Government do not regard a review as necessary to ensure proportionality because the period is not indefinite. Indeed, the requirements are not indefinite but they might last for 30 years, which, if you are the subject of them, must feel close to indefinite. What harm would be done by providing for a review and right of appeal?
We anticipated that the Government might be concerned about matters being dealt with in open court, so, as well as the review involving the police, we provide in proposed new subsection (5) that the right of appeal can be dealt with by the Special Immigration Appeals Commission.
There are very detailed notification requirements in many sections of the 2008 Act, and non-compliance carries penalties. In the Public Bill Committee in the Commons, the Minister described these as providing,
“the necessary but proportionate means to monitor the whereabouts of convicted terrorists”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 3/7/18; col. 106.]
There are two issues: the means and, separately, the period. These are linked but, in my view, are not exactly the same. The amendment deals with both but was prompted in particular by the length of the period. I beg to move.
Lord Paddick
My Lords, as I have added my name to this amendment, I should like to say briefly that we support the principle that there should be the possibility of a review to ensure that these provisions are necessary and proportionate. The appeal process appears to get round any possible issues with matters that cannot be placed in the public domain.
Lord Rosser
My Lords, I shall be very brief. My name and that of my noble friend Lord Kennedy are also attached to this amendment. As has been said, it reflects a recommendation from the Joint Committee on Human Rights. I simply comment that circumstances can change and therefore ask whether it is unreasonable that an individual covered by the enhanced notification requirements should be able to seek a review of the necessity and proportionality of those requirements, as recommended by the JCHR.
Baroness Williams of Trafford
I think that my noble friend in fact agrees with my point, if I am not mistaken.
Lord Paddick
Can the Minister just confirm that, even for those terrorism offences that might be considered more minor—not that any terrorism offence is minor— there is no chance at all of rehabilitation for those individuals: that they will for ever, or for a very considerable time, pose a risk and that a complete change of behaviour is not possible?
Baroness Williams of Trafford
I have to say that there is always a chance of rehabilitation, given the deradicalisation programmes that go on, but there will always be an element of risk, I would suggest.
Lord Judd (Lab)
My Lords, like the previous amendment, Amendment 39 comes close to the overriding, overarching issue of how we protect our security without changing the nature of our society from the society we want to protect. It is a delicate path which we have to tread carefully. I know that the Minister takes this point seriously, but the last amendment and this one come close to that consideration.
We must always remember that in these situations it is not only the people immediately involved to whom action may convey messages but the wider community. We must bust a gut in difficult situations to ensure that we always demonstrate that we are a different kind of society in which the principles of law matter and we do not lightly undermine them.
Lord Paddick
My Lords, I support the amendments in this group. I have added my name to Amendments 39 and 41 but, for some inexplicable reason, not to Amendment 40. I assure the House that that is a mistake. All I will say is that I am sure that the Minister has listened carefully to the noble Lords, Lord Anderson of Ipswich and Lord Carlile of Berriew.
Lord Pannick
My Lords, perhaps I may add my name to the long list of noble Lords concerned about the width of the provision in the Bill. I too hope that the Minister will say to the Committee that she and the Government will take this matter away, think about it and come back to it on Report.
Counter-Terrorism and Border Security Bill
Lord Paddick ExcerptsMonday 29th October 2018
(6 years, 2 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 View all Counter-Terrorism and Border Security Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 131-II Second marshalled list for Committee (PDF) - (29 Oct 2018)
Lord Paddick (LD)
My Lords, I support Amendments 26 and 27 in the names of the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Judge. The rigour that these amendments bring is similar to that in the amendments that the noble Lord will attempt to introduce when we get to proscribed organisations. It seems something that he feels, from his experience as a former reviewer of terrorism legislation, is very much lacking.
Amendment 29 appears to be perhaps a way of getting round the problem of there being intelligence that cannot be put into the public domain around decisions made in connection with this clause, in that the Intelligence and Security Committee of Parliament has the necessary clearance to review that evidence. Perhaps the noble Earl could comment on that.
Earl Howe
My Lords, Amendments 26 and 27 would add to the existing requirement in the Bill that the Secretary of State keep under review any designation made under Clause 4 and revoke it if the legal test for designation is no longer met in respect of it. As the noble Lord, Lord Anderson, explained, they would specify that such reviews must take place on an annual basis and would prescribe the options open to the Secretary of State when conducting such a review, as well as requiring the outcome of the review to be published.
I should start by saying that I am in full agreement with the principle that any designation under Clause 4 should not be indefinite, that it should be kept under review and that it should be revoked as soon as it is no longer necessary.
In saying that, perhaps I can take the opportunity to correct something stated by my noble friend Lady Williams when she said earlier that the list of proscribed organisations is subject to regular review. This was an inadvertent slip by my noble friend, for which, on her behalf, I apologise. I understand that she has already approached noble Lords privately to make that correction, but I do so on the record.
Where I depart from the noble Lord’s views, much as I respect them, is that I believe the current drafting of the Bill is the most effective way of delivering the objective. In particular, I cannot agree that a rigid requirement for an annual review is needed or is appropriate. I say that, first, because the type of situation in which this power is expected to be used may be fluid and rapidly evolving, but it may equally be one where there is an obvious and enduring threat. In the former case, an agile review, more frequent than once a year, may be appropriate—I accept that the amendment would not preclude this. In the latter case, an annual review may simply be unnecessary, and may be a poor use of the time and resources of those in government and the security and intelligence agencies tasked with protecting us from the terrorist threat.
I note in this regard that the Australian legislation sunsets a designation after three years, but with the option of an area being redesignated. If we were to go down this road—as the noble Lord, Lord Rosser, seeks to do with his Amendment 28—three years strikes me as more appropriate in this context compared with the annual review provided for in these amendments. Once again I have in mind the Syrian example, where the nature and extent of the threat, and the involvement and intent of UK nationals and residents, is self-evident and has indeed been proactively publicised by its protagonists over an extended period of time.
However, secondly, I say this because, regardless of its frequency, a formal review process at a fixed point is not likely to be appropriate. In all cases where the level of terrorist threat is so high that it is appropriate to designate an area under Clause 4, as your Lordships would expect, the Government and the security and intelligence agencies will keep the situation in that area under extremely close and continuous review.
This will be a comprehensive ongoing assessment across the full spectrum of government. It will involve consideration and ongoing review of every aspect of the Government’s response to the situation, including their use of legal powers and any designation under Clause 4. In reality, this is a closer and more effective consideration than that envisaged by the amendments of the noble Lord, Lord Anderson. It will enable the Government readily to identify if the situation on the ground has changed such that the legal test for designating the area is no longer met, and to take prompt action should this be the case.
I remain to be persuaded that the more elaborate annual process provided for in these amendments would serve the public interest, or would be an effective use of resources, or would lead to any more rigorous or effective a review of whether a designation remains necessary. As I have indicated, I can see more merit in a backstop three-year sunset clause with the option of redesignation. I am ready to consider this option further ahead of Report.
Amendment 29 would require that before a Motion to Approve any designation regulations may be tabled, the regulations must have been reviewed by the Intelligence and Security Committee, and the committee must have laid before both Houses a report providing a recommendation on whether the regulations should be approved.
I recognise and appreciate the constructive spirit in which this amendment is intended and I am happy to make clear that I share the view that Parliament should have as well informed a debate as possible on any regulations made under this power. However, I am not persuaded that involving the Intelligence and Security Committee in this way is the right approach or would be an appropriate extension of the committee’s role, which is what it would amount to. The Intelligence and Security Committee has a specific statutory remit under Section 2 of the Justice and Security Act 2013, which focuses on the administration and operation of the intelligence agencies. This is extended to certain aspects of the Government’s activities in relation to intelligence or security matters by means of a memorandum of understanding agreed under Section 2(2) of the 2013 Act.
Section 2(3) of the 2013 Act specifically excludes from the committee’s remit any matter that is,
“part of any ongoing intelligence or security operation”.
This clearly and intentionally establishes the committee’s role as one of retrospective oversight and review—not one of real-time authorisation, approval or review of operational decisions or the use of powers.
This reflects the long-standing principle that national security and the exercise of executive powers in this area is a matter for the Government of the day. There should of course be effective and robust oversight of decisions the Government have made—including, where appropriate, by the Intelligence and Security Committee and, in the case of this power, through debates in Parliament on any regulations designating an area, as well as by the Independent Reviewer of Terrorism Legislation. However, that is of a very different nature from the role proposed for the Intelligence and Security Committee in this amendment, which would be a significant extension of the committee’s role. I do not know if it is one that the committee would necessarily welcome, and it is not one that the Government consider appropriate.
Setting aside more fundamental questions of principle, I can see the amendment also giving rise to difficult practical issues—for example, around the speed with which the committee would need to prepare reports given the need for regulations to be approved within 40 sitting days; and around the extent of redactions that might be needed in such reports to protect sensitive intelligence, which might have informed the committee’s considerations but which could not be shared more widely to inform the consideration by Parliament.
I am, however, happy to give a clear assurance that the Government will always provide Parliament with as much information as possible about the reasons why any designation under Clause 4 is necessary. This will, of course, be constrained to some extent by the need to protect sensitive intelligence which cannot be revealed in public. However we recognise that this does not mean that Parliament will simply take on trust that a designation is necessary. We will always need to make a clear case for it.
I hope these arguments have reassured noble Lords that the current drafting of the Bill will deliver the outcomes they seek. I hope too that the Committee will take comfort from the fact that we will consider further Amendment 28. In the meantime, I ask the noble Lord, Lord Anderson, to withdraw his amendment.
Terrorist Attacks
Lord Paddick Excerpts(7 years ago)
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Lord Rosser (Lab)
My Lords, I thank the Minister for repeating the Statement made earlier in the House of Commons. We share the view expressed that responsibility for these awful incidents rests solely on the shoulders of the perpetrators. We all owe a debt of gratitude to our intelligence and security services and the police for the work they do seeking to protect us from acts of terrorism. Without their commitment and dedication, this country would not feel like a safe place to live. We know only too well from an act of terrorism here on our doorstep that their commitment and dedication can result in loss of life—in this instance, of a police officer doing his duty to the full. We should all be grateful to David Anderson QC for his report, although our first thoughts must be with the families and loved ones of those who died or suffered life-changing injuries in these awful incidents.
Those who have the burden of responsibility of protecting us are entitled to expect our full support. Her Majesty’s Inspectorate of Constabulary has recently reported that policing is under significant stress. Officer numbers have declined significantly since 2010 and further reductions in numbers of officers and police staff are on the way. A government claim that reserves totalling £1.6 billion are available to the police has been dismissed by Her Majesty’s Inspectorate, which said that not only was the figure £200 million less than the Government had claimed but also that two-thirds was already earmarked to be spent.
The chair of the National Police Chiefs Council has been quoted as saying, “We’ve made £1.6 billion efficiency savings in the last five years and predict we’ll save another £0.9 billion in the next five. This at a time when HMIC recognises policing is under significant stress from rising demand and reported crime that is increasingly complex with … budgets due to fall in real terms over the next three years”. The Metropolitan Police Commissioner has warned of cuts to officer numbers if her force has to make a further £400 million in savings because of budget pressures. The indicative profile of the counterterrorism police’s grant allocation over the next three years sees a reduction of 7.2% in its budgets. Can the Minister say what the Government now intend to do to address that situation in the light of the Anderson report and the continuing, indeed increased, terrorist threat?
The Anderson report refers to the work of M15 and counterterrorism police in improving their co-ordination and reliance on community policing, even though the Government have previously attempted to maintain, in the face of reductions in community and neighbourhood policing numbers, that counterterrorism and community policing are unrelated activities. What do the Government intend to do to bolster community policing, now that they have been told, not for the first time, that it is a vital part of counterterrorism activity, building confidence and trust among communities and securing crucial intelligence?
David Anderson has said that, in the case of the Manchester terrorist attack, MI5 and counterterrorism police,
“could have succeeded had the cards fallen differently”.
How do the Government interpret that? We know that the police and security and intelligence services have more people who should be monitored than they can properly cope with. Do the Government intend to increase the resources available to address that reality?
Another area that is important in countering terrorism is the effectiveness or otherwise of border controls. Currently, scarce resources are available to be spent on telling people who have lived in this country for over 50 years that they face deportation before bundling them off to an immigration detention centre. On the other hand, resources are not available to prevent 11 people in a lorry from apparently being smuggled into this country undetected by border controls and found in a layby in Wiltshire only when they start banging on the side of the vehicle—11 people who could have constituted a terrorist threat. Is it not time that the Government had a hard look at not only whether they are providing sufficient resources to our hard-pressed security and police services to counterterrorist threats but whether they have their priorities right in how the resources available should be used?
The Statement refers to the fact that the Government will shortly be announcing the budgets for policing for 2018-19. The Home Secretary has said that she is clear that we must ensure that counterterrorism policing has the resources needed to deal with the threats that we face. In the Statement, the Home Secretary also said:
“I would like to remind honourable Members of the context. Andrew Parker, the director-general of MI5 recently said that we are facing ‘a dramatic upshift’ in terrorist threats”.
If the Home Secretary is to deliver on what she has said, and the Government with her, about the need to ensure that counterterrorism policing has the resources needed to deal with the threats that we face, it has to be very clear in announcing the budgets for policing for 2018-19 that no one will have any grounds for saying that the police and counterterrorism activity are being left underresourced.
Lord Paddick (LD)
My Lords, I too thank the Minister for repeating the Statement and associate these Benches with the Home Secretary’s sentiments concerning those affected by the terrorist outrages. As the noble Lord, Lord Rosser, has just reiterated, there is no doubt that the blame for the suffering that was inflicted remains with those who carried out these criminal acts and those who supported them. As far as I am concerned, we have the best intelligence and policing services in the world.
It is important to explain what a “dramatic upshift” in terrorist threats actually means. Having been briefed by those at the highest level, my understanding is that the number of people being influenced by extremist propaganda, particularly online, who are then tempted to conduct unsophisticated attacks such as those at Westminster, London Bridge and Finsbury Park, is increasing. Can the Minister confirm that it is the volume rather than the degree of sophistication, the amount of strategic planning or the co-ordination that is seeing a “dramatic upshift” in the threat?
In the case of the Westminster, Manchester and Finsbury Park attacks, which were apparently carried out by so-called “lone wolf” attackers, can the Minister explain how end-to-end encryption mentioned by the Home Secretary would have made any difference to the likelihood of those attacks being prevented? Bearing in mind that in all these attacks, except the London Bridge attack, none of the murderers was under active investigation, how would their communications have been monitored, whether end-to-end encrypted or not? In the case of the one attacker who was an active subject of interest, can the Minister confirm that the investigative means that were deployed against him could have overcome end-to-end encryption? Is it not the fact that end-to-end encryption is a global issue that cannot be banned, and that we should be focused on what we can do something about, rather than on what we can do nothing about?
Can the noble Earl confirm that David Anderson agrees with MI5 and Counter Terrorism Policing’s conclusion that they could not,
“find any key moments where different decisions would have made it likely that they could have stopped any of the attacks”?
The Home Secretary reflects David Anderson’s conclusion that intelligence is imperfect and investigators are making tough judgments based on incomplete information, and she promises to deliver the resources Counter Terrorism Policing needs to deal with the threats we face. Does the Minister agree that a vital part of the intelligence picture is provided by community policing, to which the noble Lord, Lord Rosser, alluded? The day after the London Bridge attack, a neighbour of one of the attackers told journalists how he thought that the man was being overfriendly and was asking about hiring a van without using a credit card on the day of the attack. Despite, as the Home Secretary said, a “number of” investigative means being deployed against him, this intelligence, which might have been discovered by a community policing team to whom the neighbour may have had links, did not surface until afterwards.
Her Majesty’s Inspectorate of Constabulary and the Commissioner of the Metropolitan Police, among many others, have warned about the erosion of police resources and the demise of community policing. Despite assurances from Ministers to the contrary, the facts are that police budgets continue to fall in real terms. For example, the Metropolitan Police has already had to make savings of £600 million, with £400 million of cuts in the pipeline. Does the Minister agree that effective community policing is as important, if not more important, against the current unsophisticated threat, as Counter Terrorism Policing, and that community policing must also have the resources needed to deal with these threats?
Earl Howe
My Lords, I am grateful to both noble Lords for the very appropriate sentiments that they have expressed in relation to these terrible attacks. They asked about police numbers and the police budget. Overall police numbers is a big subject and it is probably appropriate that I write to them as comprehensively as I can with the details of the approach that the Home Office is taking.
As regards counterterrorism policing in particular, however—that is surely our focus for these purposes—we will, as the Statement made clear, shortly announce the budgets for policing for 2018-19. Ministers are absolutely clear that we must ensure that counterterrorism policing has the resources needed to deal with the threats that we face. We agreed £24 million of additional funding for CT policing this year, following the recent attacks and the move to “critical”. We will continue our regular dialogue with the National Counter Terrorism Policing Headquarters and wider policing to understand demand in relation to the increasing complex threat that we face from terrorism.
It is, however, worth reflecting that, when it comes to policing in the community, it should be incumbent on all of us—communities as a whole—to play our part in being vigilant. We have, through various means, encouraged communities to report on suspicious activity. To defeat terrorism, CT policing launched the national awareness campaign, Make Nothing Happen. The campaign urges the public to act on their instincts and report suspicious activity, including all types of extremist behaviour, to the police.
I was asked by both noble Lords about the words used by David Anderson in relation to the Manchester attack, when he said that MI5 and counter-terrorism policing got a good deal right and,
“could have succeeded had the cards fallen differently”.
MI5 and the police conclude in their reviews that a successful pre-emption of the plot would have been unlikely had an investigation been open on the basis of the available intelligence. Ministers have probed this issue carefully both with David Anderson and with MI5 and the police, and having done that, we believe that the decisions made by MI5 and the police were entirely reasonable. However, while the scope of the inquests relating to the Manchester attack has not been set, I expect that the coroner will want to consider whether the state could have prevented the deaths. In any event, it is vital that we learn the lessons from these attacks. There are, as I have mentioned, 126 recommendations arising from the reviews, and we will be working with MI5 and the police to ensure that they are implemented.
I was asked about border controls. Of course, that is a very relevant topic when we consider the number of individuals who have travelled to Syria and parts of Iraq during the recent conflicts there. The flow has reduced considerably in recent months. Approximately 850 UK-linked people of national security concern have travelled to engage with the Syrian conflict. We estimate that just under half of these will return to the UK and more than 15% have been subsequently killed while fighting in the region. Everyone who returns from taking part in the conflict in Syria or Iraq must expect to be investigated by the police to determine whether they have committed criminal offences and to ensure that they do not pose a threat to our national security. Where there is evidence that criminal offences have been committed, those responsible should expect to be prosecuted under the full weight of the law.
The noble Lord, Lord Paddick, asked whether the intensification of the threat was a reflection of the volume of cases that the security services and the police are dealing with. Broadly, the answer to that is yes. Much of the radicalisation that we are concerned about is, of course, radicalisation online. The internet must not be used as a safe space for terrorists or for those who mean us harm. The noble Lord will know that the Government were at the forefront of encouraging Facebook, Microsoft, YouTube and Twitter to jointly launch the global internet forum to counter terrorism this year. Collectively, the launch of the forum and the development of the hash-sharing database is welcome progress, with 40,000 hashes so far. On an individual basis, since the Prime Minister led an event at the UNGA on preventing terrorist use of the internet, we have seen the companies be more public with their efforts, which is welcome. Recently, YouTube stated that 83% of its extremist videos had been taken down after being identified automatically, and Facebook stated that 99% of removed terrorist content is automatically detected, and 83% of original and uploaded copies are removed within one hour of upload.
On end-to-end encryption, which the noble Lord, Lord Paddick, asked me about, encryption of that kind undoubtedly makes the job of MI5 and policing harder—there is no getting away from that. As I am sure he will understand, there is a limit to what I can say about these particular cases and the part that end-to-end encryption played in them. For example, there is a potential prosecution relating to the Manchester attack, which none of us would want to compromise. However, the noble Lord is right that end-to-end encryption cannot be banned. His part in the passage of the Investigatory Powers Act, which I am sure we both remember with a good deal of pleasure, will remind him that we had long debates on this subject during which it was made clear that end-to-end encryption was something that the security services and the police had to live with.
Investigatory Powers Bill
Lord Paddick ExcerptsWednesday 16th November 2016
(8 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 70-I Motion to be moved on consideration of Commons reasons (PDF, 76KB) - (15 Nov 2016)
Lord Myners (CB)
My Lords, I am pleased that my noble friend has taken the stance she has. She speaks of the constituency who feel that they have been treated unfairly by the press. I think we all recognise that. However, there is another constituency—those of us who have benefited from the work of a strong, independent, investigative journalistic cadre. I speak as a former chairman of the Guardian newspaper. Many of the stories that the Guardian has covered, which I believe deeply are to the benefit of its readers and society, may not have been written in the way they were had Section 40 been activated.
I see what has been written about Sir Philip Green by Oliver Shah in the Sunday Times as an example of journalism that would have been chilled by the impact of this section. This section is a charter for the venomous and the vexatious, the pernicious and the provocative, the scurrilous and the spiteful. I am grateful and pleased that the Secretary of State for Culture, Media and Sport has launched a public consultation so that we can again look at the advisability of applying a presumption in favour of the claimant, which will simply encourage the worst of litigation without achieving the justice that so many in this House seek.
Lord Paddick (LD)
My Lords, I am very grateful to the Minister, who has in part repeated what he said the last time we considered these issues. I raise again my concern that this public consultation is not, as he describes it, a serious consultation. I explained last time that Cabinet Office guidelines—I appreciate there are no rules, laws or regulations about it—say that consultations should be for 12 weeks; this consultation is for 10 weeks. Consultations should not run over a holiday period; this consultation includes Christmas and new year. Why does it not follow Cabinet Office guidelines?
I do not share the concerns of the noble Lord, Lord Myners. Like the noble Baroness, Lady Hollins, I emphasise that the majority in this House voted for her original amendment, and I am sure it will not be long before this House has another opportunity to vote to force the Government to implement the provisions of the Crime and Courts Act 2013 that protect innocent victims from unreasonable and unnecessary press intrusion. The Government should know that we on these Benches will support such a vote.
Lord King of Bridgwater (Con)
My Lords, the noble Lord, Lord Paddick, said that a majority in this House supported the noble Baroness, Lady Hollins, in her amendment, but there is an even bigger majority in this House for ensuring that the Bill becomes law. We are now dealing with a very serious threat, a very serious situation, in which the provisions in the Investigatory Powers Bill are important. As your Lordships know, if the Bill does not make progress now, with the sunset clause on the present arrangements we would be naked in having no provision in law to govern the working of investigatory powers. There is absolutely no doubt that the noble Baroness has done the right thing. We could not possibly go on with this and provoke that risk at this time. Whatever the merits of these amendments—and I have not gone deeply into their merits—there is no doubt that I speak for the overwhelming majority in this House when I say that the Bill has got to become an Act soon so that we have proper provisions in place to defend our country and our citizens against the risks they might otherwise face.
Investigatory Powers Bill
Lord Paddick ExcerptsWednesday 2nd November 2016
(8 years, 1 month ago)
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Lord Lipsey (Lab)
My Lords, I have some sympathy with the Minister’s position that this is not a brilliant place in which to legislate on press matters, but we need to put this in a bit of perspective. In the previous Parliament, there was total agreement in both Houses, among the Government and the Opposition, about what needed to be done to bring Leveson into effect. What happened after the election? Absolutely nothing. It was left to go sour outside the fridge.
The only reason we now have a lively debate on Leveson starting up again is because of the noble Baroness’s amendment and the decision of this House, which I was part of, to pass it by an enormous majority. That is the only reason we are talking about Leveson now. We would not have had a Green Paper yesterday without this debate. We would have been stuck in the Whittingdale position of not yet being convinced that the time was right.
It was quite staggering, reading the Commons debate yesterday, to see the number of Conservative MPs in particular who stood up and said, “Well, Leveson’s passed; it’s a long way behind us now and is not relevant any more. Press regulation has moved on”. Why has such a time passed by? Because the Government have done absolutely nothing to further Leveson. Meanwhile, the divides over Leveson have visibly grown.
I feel a deep sense of disappointment that Sir Alan Moses, who as chair of IPSO started off appearing to want to change it, has now become yet another of the press natives, totally defending everything IPSO does. I was disappointed in the IPSO-funded Pilling report, which seemed to me to give meaning to the word whitewash. I am disappointed by the arguments being used by the local press, claiming that the Hollins amendment in some way threatens it. The Hollins amendment is confined to phone hacking, and one thing local papers certainly never do is phone hack. It is completely irrelevant to them, yet they are doing this. This is not a way of moving things forward.
Having said those things quite strongly, I want to make it clear that, from a wholly personal point of view, I am in favour of looking for a compromise on these matters. I am an ex-journalist and know how strongly journalists feel about state interference in the press. I happen to think that these fears are exaggerated in the case of the royal charter disposition, but they do exist. I would be prepared to give some weight to that, if only the press would give some weight to the case against IPSO as it is constituted, which is set out at great length in a good document by Martin Moore, which many noble Lords will have read. Essentially, the proprietors and newspaper companies have IPSO in an iron grip called finance: they decide what finance it gets and what code is followed. They have IPSO under their control.
Some may feel IPSO is a brilliant regulator as things stand. Some, having read the recent decision in the Kelvin MacKenzie case about the newsreader who read out the news in a Muslim outfit—I will not go into it—may be less convinced that IPSO, as we now have it, is effective. The truth is that the moment it is accepted that IPSO is right, everything is settled and the Government are going to do nothing by bringing in Section 40, IPSO will start to slide back, as press regulators have on every occasion once Parliament’s eye is off them.
I would like to see the Government in an active search for a compromise and using the threat of Section 40—it is a threat—to advance that. I think they will do so with a stronger hand if, in the meantime, this House insists on the amendment being made to the Bill, so that the press representatives can see that the time has come to compromise and not insist that they must have their whole way without any concessions of any kind whatever. If we politicians do not stand up to the press, the press will walk all over us. I hope everybody in the House will therefore support the noble Baroness, Lady Hollins, in her attempt to prevent this happening.
Lord Paddick (LD)
My Lords, I support whole- heartedly what the noble Baroness, Lady Hollins, and the noble Lord, Lord Lipsey, have said, and will address the comments of the Minister. He talked about a 10-week public consultation on Section 40 of the Crime and Courts Act 2013 together with Leveson 2 showing government commitment to the issues. My understanding is that Cabinet Office guidelines on consultation say that it should be for a minimum of 12 weeks and should not be over a holiday period, which this only 10-week consultation is. I wonder whether that calls into question the Government’s commitment.
The noble Earl talked about the context of the Bill and its long passage. If the Government are concerned about the sunset clause, which the Bill addresses, why, if the House passes the amendment this afternoon, is no further consideration to be given to it until 15 November—when it could be further considered either this evening or tomorrow, as my noble and learned friend pointed out?
The noble Earl also said that the Bill is not the place to consider this issue. The Public Bill Office clearly disagrees with the Government because, yet again, it has allowed this amendment to the Bill to be considered.
Yes, we must ensure a free press, but that does not mean a press able to do whatever it wants. We need a press that is also accountable, and that is what the amendment is about.
Lord Pannick (CB)
My Lords, I cannot support the amendments of the noble Baroness, Lady Hollins. I declare an interest: I have given advice to a number of newspapers on press regulation issues.
There are different views on the wisdom or otherwise of Section 40 and of Leveson part 2, but the merits or dangers of press regulation should not be allowed to determine the issue before the House today. It is very simple. There are two reasons. First, the Bill is vital to national security. This House has spent hours in Committee and on Report improving the Bill’s contents in a non-partisan spirit. Whatever views noble Lords may have on Section 40 and on the failure yet to implement it, that is no justification for the passage of this important Bill to be held hostage by those who wish to further the cause of Section 40. I say to the noble Lord, Lord Paddick, that this is not about whether the amendments are within scope—plainly they are—the point is whether it is justified to hold up a Bill of this nature, a Bill about security, to advance a point of view on press regulation.
The second reason why I cannot support the amendments of the noble Baroness, Lady Hollins, is because whether or not to implement Section 40 is now the subject of a 10-week consultation. I simply cannot understand the objections to the Government having a 10-week consultation. The noble Lord, Lord Paddick, says that it should be 12 weeks; perhaps it should and perhaps it should not, but that is not a substantial point. The noble Baroness, Lady Hollins, and those who agree with her can argue their case about Section 40 and Leveson during the consultation. It is quite indefensible to hold up this vital Bill when the issue about which the noble Baroness is concerned—perhaps rightly—is the subject of active consultation.
Investigatory Powers Bill
Lord Paddick ExcerptsWednesday 19th October 2016
(8 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
Lord Paddick
“( ) A bulk acquisition warrant may not require data which relates to or includes internet connection records.”
Lord Paddick (LD)
My Lords, Amendment 196A is in my name and that of my noble friend Lady Hamwee. It seeks to remove internet connection records from the type of communications data that can be acquired in bulk. Noble Lords will be very well aware of my views, and the agreed view of the Liberal Democrats, on internet connection records. We believe that they are unnecessary and disproportionate, for the reasons that I have articulated in detail throughout the passage of the Bill.
I shall just remind your Lordships what internet connection records mean. Internet service providers are being forced to keep a record of every website that everyone in the UK has visited in the last 12 months, whether the subscriber is suspected of crime or not. Even though only the first page of each website visited is shown, visiting www.relate.org.uk could, for example, immediately indicate that your marriage was in trouble. However there are some safeguards, including some concessions extracted by the Labour Opposition, to ensure that only the internet connection records of those suspected of crimes that could result on conviction in a sentence of 12 months’ imprisonment or more can be examined by law enforcement agencies.
We are also grateful to the Labour Opposition for securing the review of bulk powers carried out by David Anderson QC, the Independent Reviewer of Terrorism Legislation. We are particularly grateful to David Anderson for highlighting in paragraph 2.41(b), on page 33 of his report on bulk powers, that,
“it is not currently envisaged that the bulk acquisition power in the Bill will be used to obtain internet connection records”.
However, in a footnote at the bottom of that page, Mr Anderson states that he has been told,
“that this is no more than a statement of present practice and intention: neither the Bill nor the draft Code of Practice rules out the future use of the bulk acquisition power in relation to ICRs”.
In Committee, the noble and learned Lord, Lord Keen, said:
“I can confirm to the Committee that the agencies do not currently acquire internet connection records in bulk and have no current intention to do so. It is however important to ensure that we do not legislate against the possibility of internet connection records being acquired in bulk, should agencies make a case which demonstrates that this might be necessary and proportionate in the interests of national security in future”.—[Official Report, 7/9/16; cols. 1087-88.]
Surely we should be legislating for a proven need, not not legislating against a possible but unlikely proven one.
Noble Lords will remember that the security services—GCHQ, MI5 and MI6—have all said that they do not need internet connection records in order to do their work. The power to acquire communications data in bulk, including the power to acquire ICRs in bulk, is available only to those agencies. The power to acquire internet connection records in bulk is therefore not needed. They are not collected in bulk at the moment, and there is no current intention to do so. If this were an opposition amendment to include ICRs in bulk data acquisition, the Government would quite rightly say it was unnecessary. The power to acquire ICRs in bulk also strips away all the safeguards that are in place when law enforcement agencies apply for individual internet connection records.
This is the online equivalent of Section 44 of the Terrorism Act, which allowed the police to stop and search people without any reasonable suspicion. The former Home Secretary, now the Prime Minister, Theresa May took that power away from the police because she considered it disproportionate.
Lord Harris of Haringey (Lab)
Surely Section 44 was for target hardening and deterrence rather than for any other purpose.
Lord Paddick
I am very grateful to the noble Lord, Lord Harris, but that is not what I understood Parliament’s intention was when the legislation was enacted. We can argue the point. If the analogy with stop and search sounds familiar to noble Lords next to me, including the noble Lord, Lord Harris of Haringey, it is because it is an analogy that was used by the shadow Home Secretary Diane Abbott in describing the powers under the Bill, which she describes as draconian.
The pieces of this legislative jigsaw are beginning to fall into place. Telephone operators already keep a record of the details of every phone call made and every text message sent. Internet service providers are being forced by this Bill to keep a record of every website, you, I and everyone else in this country have visited over the previous 12 months, which is a provision this House agreed to on Monday in a Division when it rejected the Liberal Democrat amendment to prevent it. A request filter, operated by or on behalf of the Government will be constructed. It will have direct feeds into the databases of communications providers, including access to the sensitive personal information of every subscriber to telephone and internet services in the UK, every call they make and every website they visit. The House agreed to that provision in a Division on Monday when it rejected the Liberal Democrat amendment to prevent it. The power is then given by this part of the Bill to allow all that sensitive personal information—details of every phone call made and every website visited—to be downloaded at will by the security agencies with no further authorisation. I hope that at least some noble Lords are feeling uncomfortable at that prospect. Our amendment removes internet connection records from the data that can be acquired under a bulk acquisition warrant. I beg to move.
Lord Carlile of Berriew (LD)
My Lords, it will not surprise my noble friend to learn that I oppose the amendment that he has just moved. We made reference during our previous day on Report to papers that were presented by the Government at the time of First Reading. Those papers included, as was mentioned on Monday of this week, a paper in which GCHQ explained why the bulk acquisition of communications data material might be crucial to interdicting a major terrorism event which it thought was likely to occur, or might possibly occur, in the near future.
The issue was then referred to David Anderson—and I am surprised that my noble friend does not accept what Mr Anderson, the independent reviewer, said on the matter. He reminded us that three of the powers under review—bulk interception, bulk acquisition of communications data and bulk personal datasets—were already in use across the range of MI5, MI6 and GCHQ activity, from cyberdefence, counterterrorism and counterespionage to combating child sexual abuse and organised crime. He said:
“They play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”.
The GCHQ paper to which I referred dealt with “further afield”.
Mr Anderson continued:
“After close examination of numerous case studies, the review concluded that other techniques could sometimes, though not always, be used to achieve these objectives: but that they would often be less effective, more dangerous, more resource-intensive, more intrusive or slower”.
Mr Anderson concluded that there was a proven operational case for three of the powers already in use, and he agreed that there was a distinct though as yet unproven operational case for the fourth power: bulk equipment interference. He also recognised the “breath-taking”—that was his word—pace of change in this area, and that we needed to make sure that the authorities had the proportionate powers that were required to protect this country, and other countries, from terrorism.
Therefore, the Bill provides the powers with a very elaborate set of protections. We also have—it is available in the Public Bill Office—the Bulk Acquisition DRAFT Code of Practice, dated autumn 2016: it is very recent. In paragraphs 3.10 and 3.11 of the code—and, indeed, elsewhere in the code—the most elaborate protections are described. For example, paragraph 3.10 contains operational guidance and advice for those who are dealing with these matters and states in terms:
“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.
Paragraph 3.11 of the code sets out in four very carefully drafted bullet points the elements of proportionality that should be considered before the powers are used. It includes assessing whether other methods have been considered and whether those other methods could have provided a reasonable outcome without the necessity of the invasion of privacy which undoubtedly the provisions describe.
I therefore ask my noble friend to state, when he comes to reply to this short debate, what his view is of the code of practice—and, in particular, of the part to which I referred.
Lord Paddick
The amendment relates specifically to internet connection records being acquired, and I have yet to hear my noble friend address any of his remarks to the issue of those records.
Lord Carlile of Berriew
If my noble friend wants me to be specific, I will, but I was trying not to take up too much time. Let us take the example of a piece of information, given to a security service, that people in possession of a bulk delivery of a certain type of telecommunications equipment, say a phone brand, are involved in the planning of a terrorist event. In order to find out quickly who these people are, the authorities would need to attack the bulk, so as to exclude all people who are not involved in the planned event. This is an absolutely routine technique that is used. I see one or two of my noble friends turning round in surprise. If they are surprised, they have not even read modern spy novels, let alone about the reality of what is being done by intelligence agencies all around the world.
The answer to my noble friend is as simple as that. I will just repeat my question, because I would like him to reply to it in due course. I take it that he has read the code of practice. What is missing from the code of practice that is required in order to provide the protection he wishes for? It is all in the code of practice; it is all in the statute. I apologise for repeating something I said on Monday, but these provisions, as drafted, are a careful and responsible response by a Government who wish to do no more than the state absolutely has to, safely, to protect their citizens.
Lord Paddick
I am grateful to the Minister and to other noble Lords who have contributed to this debate. As regards the comments of my noble friend Lord Carlile of Berriew, despite my request that he specifically address the issue of internet connection records, I did not hear him do so. We are not against the bulk acquisition of communications data in general or per se. We oppose only the bulk acquisition of internet connection records as part of those data.
On the question my noble friend Lord Carlile raised about the codes of practice, of course they are comprehensive. However, through this amendment we are trying to prevent internet connection records being acquired in bulk, which is allowed for in the codes of practice.
The noble Lord, Lord Rooker, was of a different opinion from the one that I quoted—that the Bill was draconian. I am grateful to him for giving me the opportunity to emphasise to the House that it was the current Labour shadow Home Secretary, Diane Abbott, who described the Bill as draconian.
Lord Rooker
For the avoidance of doubt, I understood that—that was the point I made.
Lord Paddick
I did not suggest in any way that David Anderson agreed with this amendment, or that the lists of everybody’s websites would be read, as the noble Lord, Lord Rooker, suggested.
As regards the comments made by my noble friend Lord Campbell of Pittenweem, he referred to case studies in the David Anderson report on bulk data. I cannot emphasise this enough to noble Lords: internet connection records do not currently exist. The telecommunications companies will have to create them. Therefore any case studies in David Anderson’s report do not relate to the bulk collection of internet connection records. Internet connection records do not exist, so they cannot be collected in bulk at the moment.
I acknowledge the great experience of the noble Lord, Lord King of Bridgwater, and his passion about these issues. He emphasised that everything needs to be done to prevent a terrorist attack, and I agree with him 100%. The point that I made in my opening speech when I quoted David Anderson directly, saying that it was a direct quote from him, was that GCHQ, MI5 and MI6—the agencies responsible for keeping us safe from terrorism—say that they do not need internet connection records. Even the Minister said that at present there is no anticipated need to collect internet connection records to prevent a terrorist attack.
I am very grateful to the right reverend Prelate the Bishop of Chester for saying that we are making a fundamental point here. The difference between today’s debate and Monday’s debate is that requiring individuals’ internet connection records has to be based on reasonable suspicion. Thanks to the intervention of the Labour Front Bench, the level of the seriousness of the crime that needs to be suspected before those records can be handed over is higher than the Government first suggested. However, this power would allow everybody’s internet connection records to be acquired in bulk by the security agencies with no reasonable suspicion at all.
Lord Paddick
I am sorry but this is Report and I do not have to give way, unless the noble Lord wishes to clarify what I have just said.
Lord King of Bridgwater
I wish to make an intervention. The noble Lord said again that nobody wants this power. Can he explain why it is in the Bill?
Lord Paddick
It is not for me to explain why the Government want in the Bill a power that currently does not exist, because internet connection records do not exist, and which the security services say they do not want but which the noble and learned Lord says might be needed in the future. It is not for me to justify this power; I am saying to the House why I do not believe it is justified. The noble and learned Lord and the noble Lord, Lord Rosser, made the point that this is an existing power, but how can you have an existing power to acquire something that will not exist until the Bill is enacted?
I have tried to explain very clearly—although unfortunately some people have not heard what I have said—why we cannot accept this provision, and that is why I want to test the opinion of the House.
Lord Paddick
Lord Paddick
My Lords, the amendment is in my name and that of my noble friend Lady Hamwee. I shall speak also to all the other amendments in this group, Amendments 203B to 203D, 204A to 204F, 205A, 208A to 208C, 209A, 210A and 210B, 215A, 217A and 218A. The sole effect of all the amendments would be to remove from the Bill the power to engage in bulk equipment interference.
This is a new power for the security and intelligence agencies to carry out equipment interference in bulk overseas. It is not a power they currently have and, according to David Anderson QC, it is not something that they currently do. As a result, David Anderson said in his review of bulk powers that the operational case for bulk equipment interference was “not yet proven”. The noble Lord, Lord Murphy, has said:
“The case for bulk equipment interference was less strong, but nevertheless still there”.—[Official Report, 7/9/2016; col. 1049.]
As the noble Lord, Lord Rosser, said in Committee, there is a difference between an operational case, let alone an unproven one, and proportionality or desirability. Quoting Mr Anderson, he pointed out that Mr Anderson assessed only the operational cases in his review, saying that the issues of proportionality and necessity were a matter for Parliament—which is why we are debating these amendments today.
We heard in earlier debates about the potentially broad scope of targeted equipment interference warrants. They can specify all equipment used by anyone in a particular organisation or more than one organisation involved in a single investigation or operation; all equipment used by members of a group with a common purpose or engaged in a particular activity; equipment in a particular location or more than one location for the purpose of a single investigation or operation; and equipment being used or that may be used for a particular activity or activities. That is all contained in Clause 108.
Although I realise that the primary focus of this House should be to protect the citizens of this country, I ask noble Lords to consider how they would feel if overseas Governments took our lead and enacted similar legislation that could be deployed against the UK and its citizens. UK citizens’ communications could be acquired through the use of bulk equipment interference warrants if they communicated with others based overseas.
In paragraph 7.37 of his report into bulk powers, David Anderson QC warns that considerable caution is required for a series of reasons. He concludes in paragraph 7.38:
“All this means that bulk EI will require, to an even greater extent than the other powers subject to review, the most rigorous scrutiny not only by the Secretary of State but by the Judicial Commissioners who must approve its use and by the IPC which will have oversight of its consequences”.
It is the nearest David Anderson comes to expressing an opinion on necessity and proportionality and, reading between the lines, it is clear that he is not keen.
For those reasons—and as the Intelligence and Security Committee initially recommended, although it was subsequently persuaded—we believe that bulk equipment interference warrants should be removed from the Bill. I beg to move.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, these amendments would remove the bulk equipment interference provisions from the Bill. Before I address the amendments specifically, it is worth pausing to reflect briefly on the importance of bulk powers in the round and the very significant steps that the Government have taken to ensure both that a robust operational case has been made for their necessity and that the most rigorous safeguards will apply to their use.
Extremely detailed and extensive scrutiny has been applied to bulk powers during the passage of the Bill, both in Parliament and, of course, by David Anderson QC as part of his bulk powers review. The conclusion of that review was that bulk powers,
“have a clear operational purpose”;
that they,
“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”;
and that where alternatives exist to their use,
“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or—crucially—slower”.
The Government have now tabled amendments giving full effect to the sole recommendation of that review, establishing in statute a Technology Advisory Panel to the Investigatory Powers Commissioner. We have also accepted an amendment tabled by the Intelligence and Security Committee which introduces a specific offence in the Bill to address deliberate misuse of the bulk powers. We have addressed wider concerns of that committee by adding very significant detail to the Bill on the safeguards that will regulate the use of these powers. I am grateful for the intensive scrutiny that has been applied to the bulk provisions in the Bill and believe that those provisions are all the stronger for it. There should now be no question that these powers are necessary and they are subject to world-leading safeguards.
Lord Paddick
I am grateful to the Minister for his comments. He kept saying that this power to conduct bulk equipment interference was absolutely essential to keeping us safe. What I do not understand is, first, why the very broad powers provided and the very broad range of targets that could be specified using targeted equipment interference could not be used in almost every case, rather than this power. Secondly, if bulk equipment interference is absolutely essential, if it could be authorised under existing legislation, why has it never been used by the security services? That is what David Anderson says.
As the Minister took the opportunity to talk about bulk powers in the round, perhaps I might get two things on the record. First, I cannot stress strongly enough that we are not opposed to the bulk acquisition of communications data generally. We are not opposed to bulk powers generally. We have specific issues with specific powers. Secondly, it has been suggested to me that I am standing here saying these things because it is my party policy. My party policy was decided by a working group that I chaired. I wrote the conclusions to that policy paper. I not only agree with the conclusions of that policy paper, I believe that they are absolutely the right conclusions. However, we have made the points that we wanted to make. They are on the record. I beg leave to withdraw the amendment.
Lord Paddick
“(c) specifying the distinct service or product to which the notice applies”
Lord Paddick
My Lords, Amendments 250A and 251A, in my name and that of my noble friend Lady Hamwee, relate to technical capability notices through which the Secretary of State can require an operator to have a capacity to provide any assistance necessary that might be required to give effect to the powers under the Bill. We have received representations on behalf of operators asking that those notices should be specific about the distinct service or product to which the notice applies, rather than a blanket, “You must have the capability to do anything we may require you to do under the powers contained in legislation”. Amendment 250A is intended to have that effect, while Amendment 251A tries to limit the scope of technical capability notices. The power to issue a technical capability notice applies to any provider capable of being considered a telecommunications provider under the very broad definitions in the Bill. It would not be proportionate or necessary for this power to be so broad. The amendment aims to narrow the definition to exclude services that are not primarily communications services, even when there may be a communications element. Whether the wording of our amendment achieves that is a matter for debate, but that is what is intended. I beg to move.
Lord Paddick
I can certainly tell the noble Lord that Yahoo! was one of the operators, but I do not have a list to hand.
Earl Howe
My Lords, Amendment 250A would define a technical capability notice as,
“specifying the distinct service or product to which the notice applies”.
I do not believe this amendment is necessary. The safeguards that apply to the giving of a notice under the Bill already ensure that a technical capability notice cannot be of a generic nature. I will not go into detail here about the lengthy process that must be undertaken before a notice can be given; we have discussed them at length previously and we will undoubtedly review them again shortly during our discussions on encryption. But it might be helpful for me to summarise.
Before giving a notice, the Secretary of State must consult the company concerned. This process will ensure that the company is fully aware of which services the notice applies to. The decision to issue a notice must be approved by the Secretary of State and a judicial commissioner. The obligations set out in the notice must be clear so that the Secretary of State and judicial commissioner can take a view as to the necessity and proportionality of the conduct required. As I have already mentioned, we propose a similar role for the judicial commissioner when a notice is varied. The operator may raise any concerns about the requirements to be set out in the notice, including any lack of clarity regarding their scope, during the consultation process. The operator may also seek a formal review of their obligations, as provided for in Clause 233. The safeguards which apply to the giving of a notice have been strengthened during the Bill’s passage through Parliament, and will ensure that the regime provided for under the Bill will be more targeted than that under existing legislation. It is for these reasons that I consider the amendment unnecessary.
Amendment 251A seeks to narrow the category of operators to whom a technical capability notice could be given. This change would exclude operators that provide services that have a communications element but are not primarily a communication service. This amendment, which has already been discussed in the Commons, is also unnecessary and, in my view, risks dangerously limiting the capabilities of law enforcement and the security and intelligence agencies. We are aware that the manner in which criminals and terrorists communicate is diversifying, as they attempt to find new ways to evade detection. We cannot be in a situation where terrorists, paedophiles and other criminals can use technology to escape justice. As David Anderson said,
“no-go areas for law enforcement should be minimised as far as possible, whether in the physical or the digital world”.
It is important that the Government can continue to impose obligations relating to technical capabilities on a range of operators to ensure that law enforcement and the security and intelligence agencies can access, in a timely manner, communications of criminals and terrorists using less conventional services, such as those offered by gaming service providers and online marketplaces. It may be appropriate to exclude certain categories of operators from obligations under this clause, such as small businesses, but it is our intention to use secondary legislation to do so. It would not be appropriate to impose blanket exemptions on services that have a communications element but are primarily not a communication service, since to do so would make it clear to terrorists and criminals that communications over such systems could not be monitored.
For all the reasons I have set out, I hope that the noble Lord, Lord Paddick, will feel able to withdraw his amendment.
Earl Howe
With the leave of the House, I am grateful to the noble Lord for raising that point, which I think will come up in the next group of amendments when we discuss encryption because it is centre stage in that issue. He is absolutely right and I hope that I can assuage his concerns in the next debate.
Lord Paddick
I am very grateful to the Minister, particularly for his explanation around Amendment 251A. I completely accept that the whole range of ways in which people can communicate potentially needs to be covered. I am encouraged by the fact that there may be some exceptions in secondary legislation. It is unfortunate that we do not have sight of that before I withdraw this amendment but life is like that.
Bearing in mind the fact that the Minister did not articulate any downside to Amendment 250A, I wonder why the Government will not accept it, given that it appears not to limit the Government’s action in any way. However, at this stage, I beg leave to withdraw the amendment.
Lord Paddick
My Lords, I will speak to our Amendments 252 to 254 and the other amendments in this group. To save the noble Lord, Lord Rooker, having to get to his feet, this one is from Apple.
As the noble Lord, Lord Harris of Haringey, just outlined, it is essential that end-to-end encryption is not compromised by technical capability notices. I anticipate that the Minister might say that Clause 231(3)(c) covers this in that it would not be technically feasible for the operator to remove electronic protection of this nature, but we support this amendment and believe that it needs to be explicit in the Bill. However, we do not believe that this amendment covers other forms of encryption. Our Amendment 252 is intended to protect UK operators from the real or perceived disadvantage they would be placed under if technical capability notices required them to make modifications that would make their product or service less secure than overseas operators, who may not be subject to or may refuse to comply with a similar technical capability notice.
Similarly, Amendment 253 is intended to prevent a technical capability notice stopping UK operators from innovating to improve the levels of security or encryption provided by their products and services in a way that would disadvantage them against overseas operators, which may not be subject to or refuse to comply with a similar technical capability notice.
Amendment 254 is intended to deal with the criticism of our amendment in Committee by the Minister, who said that he believed that it,
“would remove the Government’s ability to give a technical capability notice to telecommunications operators requiring them to remove encryption from the communications of criminals, terrorists and foreign spies”.—[Official Report, 13/7/16; cols. 272-73.]
This new amendment makes it clear that technical assistance can be given to enable interpretation and deciphering provided that it does not open the door to unauthorised access to encrypted materials by criminals, terrorists and foreign spies—essentially, what the noble Lord, Lord Harris, just said.
Amendment 252A, in the name of my noble friend Lord Strasburger, is an attempt to combine all the other amendments in this group into a much better-worded amendment. I look forward to hearing from him why this might be the case.
Lord Strasburger (LD)
My Lords, I shall rise to that opportunity. Amendment 251, in the name of the noble Lord, Lord Harris, and my noble friends Lord Paddick and Lady Hamwee, addresses one particular kind of encryption—namely end-to-end encryption—and it is very good as far as it goes, which is end-to-end encryption. My own Amendment 252A is also in this group and is complementary to Amendment 251. It is, in my humble opinion, a neater way of dealing with encryption that is not end-to-end encrypted than the combination of the other amendments in this group: Amendments 252, 253 and 254. It is an alternative to them.
We have been around the block many times on the subject of encryption in the context of Clauses 229 to 231. It has come up several times in our debates on the Bill, as well as in questions in this House and in the Joint Committee on the Bill. Yet we are no closer to a clear and unambiguous understanding of the Government’s position on this vital issue, as the noble Lord, Lord Harris, has so eloquently said.
It might help if we start from common ground. I doubt that any noble Lord, myself included, would deny the authorities the option of requiring an operator to decrypt a communication where: the operator already possesses the capability to do so; the sender or receiver of the communication is genuinely suspected of committing or planning a serious crime; and the appropriate process has been followed and the action has been judged necessary and proportionate by a judicial commissioner. I do not think that anybody would argue about that.
I believe there is more common ground. Ministers have repeatedly confirmed that the Government fully accept that many uses of the internet that are now an essential part of everyday life, both for individuals and for large organisations, cannot possibly continue to happen without the security provided by unbreakable encryption.
If we take those two points as read, we are left with two questions about what happens if the operator is not able to decrypt the communication. The first is: should the Secretary of State be able to force an operator to redesign its product so that in future its encryption has a weakness that permits the operator, or perhaps GCHQ, to read a suspect’s messages? The other question is: should the Secretary of State have the power to prevent an operator introducing new or modified encryption services which neither the authorities nor the operator can break? The answer to both those questions is an unequivocal, “No, the Secretary of State should not have those powers”, and noble Lords will be hard pressed to find a single cryptography specialist who has a different view. If the Government concur, as I hope they do, they should have no problem accepting Amendments 251 and 252A, which would remove the ambiguity in the current drafting.
Lord Paddick
Lord Paddick
My Lords, I shall also speak to Amendment 258B. The powers in the Bill are significant, as are the checks and auditing measures, but the Government accept, in providing for a review of the operation of the Act and in anticipating that a Select Committee of one or both Houses of Parliament will also want to look at the operation of the Act, that a full, independent review is both necessary and desirable. The Bill sets the initial period at five years and six months and requires the Secretary of State to prepare a report within six months of the initial period. These amendments would ensure that before any Government are held to account by the electorate at a general election, the electorate know what that Government have used the powers in the Bill for.
Amendment 258A adds to the requirement to produce a report within six months of the initial period that the report must be produced at least once during each Parliament. Amendment 258B reduces the initial period from five years and six months to two years and six months, to ensure that the actions of the present Government are clear to the electorate at the next general election, subject, obviously, to the current Government remaining in office for the full term. I beg to move.
Lord Rosser
There is obviously going to be a desire to know how the Act is operating and the Bill does provide for a report from the Secretary of State, but it is, let us just say, some time after the day on which the Bill becomes an Act. Assuming that the Government do not accept the amendment, I hope that in responding they will set out, or give some indication, of the bodies and committees which will look at how the Act is operating, including whether it is doing so in line with the terms of the Bill. In that, I include the codes of practice and, particularly in light of the last discussion we had, the statements on the record from the Government in the two Hansards during the passage of the Bill.
Lord Keen of Elie
My Lords, we remain sympathetic to the desire for ongoing scrutiny of the Bill, and this is already provided for. In these circumstances we suggest that these amendments are not necessary. The Bill requires that the operation of the Act will be reviewed after five years, which is an entirely appropriate period. It is also consistent with the recommendation, as indicated, of the Joint Committee that scrutinised the draft Bill. We must ensure that, before a review takes place, all the Bill’s provisions have been in effect for a sufficient period that a review is justified and can be meaningful. A review after three years, as provided for by Amendments 258A and 258B, runs the risk that this would not be the case.
We also fully expect the review after five years to be informed by a report of a Joint Committee of Parliament, in line with the recommendation made by the Joint Committee. In addition, concurrent with such a review the Intelligence and Security Committee of Parliament would have the opportunity to assess the more sensitive aspects of the operation of the Act. Let us remember that, in addition, the exercise of the powers provided for under the Bill will of course be subject to the ongoing oversight of the Investigatory Powers Commissioner, who will be obliged to make an annual report to the Prime Minister.
The Government have listened to the previous debates in Parliament and amended the Bill to ensure that the Investigatory Powers Commissioner must, in particular, keep under review and report on the operation of safeguards to protect privacy. Furthermore, the Investigatory Powers Commissioner’s reports must be published and laid before Parliament, providing Parliament with ongoing scrutiny of the operation of the Act. Accordingly, I invite the noble Lord to withdraw the amendment.
Lord Paddick
My Lords, I am grateful to the noble and learned Lord for his explanation. We are still of the view that at least once every Parliament, before a general election is called, a Joint Committee of both Houses of Parliament, as suggested by the noble Lord, Lord Murphy, should look at what the Government have been up to during their time in office so that the electorate are fully aware of how the Government have used the Bill. However, at this stage I beg leave to withdraw the amendment.