Police: Reduction in Numbers
Lord Phillips of Sudbury Excerpts(9 years, 8 months ago)
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Lord Phillips of Sudbury (LD)
My Lords, I saw out of my window a car being broken into. I dialled 999 and was answered by a lady from Bombay. Those doing the break-in took their time but the police arrived two days later. What does this incident say about the Question asked?
Lord Bates
I am happy to meet the noble Lord later to find out where he was living and the particulars of the incident. One of the measures that we have introduced, of course, is to differentiate—it does not apply in this case—between non-emergency calls and real emergency calls. The ability to triage calls is an important way of ensuring that the police respond to incidents where they are desperately needed as fast as possible.
Counter-Terrorism and Security Bill
Lord Phillips of Sudbury Excerpts(9 years, 9 months ago)
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Baroness Lister of Burtersett (Lab)
My Lords, I very much welcome Amendments 5 and 6, which write into the Bill the duty to,
“have particular regard to the importance of academic freedom”,
as defined in the 1988 Act, alongside the duty on freedom of speech, which was conceded on Report. I am really very grateful to the Minister. As a member of the Joint Committee on Human Rights, I thank him for listening and taking action so late in the day. I am sure he groaned inwardly when I burst into his office last week. No doubt he thought that everything had been sewn up. I am therefore particularly grateful that he was prepared to take action and go the last mile so late in the day.
I also thank the Bill team and the lawyers for executing the decision so neatly. I am sure that they also groaned—perhaps not quite so inwardly. I also welcome the Minister’s latest letter to noble Lords, in which he made clear that:
“‘Particular regard’ is stronger than ‘due regard’ because it elevates the consideration to the top of the list of factors to be weighed up i.e. freedom of speech is the most important other duty, rather than simply another one to be considered, such as health and safety”.
It might be helpful if he could confirm that, so that it is on the record.
I have one final question: what is the timetable is for finalising the guidelines and bringing regulations before both Houses?
Lord Phillips of Sudbury (LD)
For the sake of absolute clarity— because there has been a great deal of confusion about these aspects of the Bill—can my noble friend say whether it is correct that his Amendments 4, 5 and 6 make no difference whatever to the purport of the Bill, are merely clarifying and have no substance?
Baroness Kennedy of The Shaws (Lab)
I join in thanking the Minister for what he has done in reaching the right conclusion, particularly with regard to academic freedom. Balancing security with liberty and freedom is a very difficult business, and he has brought to this issue sensitivity, intellectual rigour and great listening skills. He has performed his function as a Minister in the most exemplary way, and I hope that others will follow suit. I wanted to thank him formally.
Counter-Terrorism and Security Bill
Lord Phillips of Sudbury Excerpts(9 years, 9 months ago)
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“( ) The Secretary of State shall not issue guidance to specified authorities which are qualifying institutions within the meaning given in section 11 of the Higher Education Act 2004 (qualifying institutions) until at least one calendar month after laying a report before both House of Parliament which includes estimates of the potential direct and indirect impact of implementation of such guidance with regard to—
(a) the culture of such authorities, particularly as regards academic freedom and mutual trust within the same, and(b) the cost and bureaucracy arising within the same pursuant to this Part.”
Lord Phillips of Sudbury (LD)
My Lords, I shall speak to Amendment 14B, and my learned—not my learned—
Lord Phillips of Sudbury
My—admirable and brilliant—noble friend Lady Williams is a co-signatory to that amendment and is going to speak to Amendment 14D. My noble friend Lord Norton of Louth, who unfortunately cannot be here, and the noble Viscount, Lord Hanworth, who is indeed here, also have their names to these amendments.
First, I thank the Minister again for the way in which he has tried to deal with the very many comments and complaints about the Bill. Major advances have been made. The most important, on which this amendment touches but does not major, is the agreement that there must be an affirmative resolution by both Houses before the guidance can take effect. That is a very important concession.
Amendment 14B deals with the preparatory work for the debate which will ensue when the resolution is put to this House and to the other House to bring the guidance into effect. What we say and what Amendment 14B provides is that there cannot be the debate on the affirmative resolution to bring the guidance into effect until at least 28 days after the Government have laid a report before both Houses containing what we would say is essential information in order for both Houses to be fully prepared to debate to best effect the guidance and whether to bring it into effect. We call this a common-sense measure.
The first thing to say is that it is abundantly clear that Part 5 has had very little coverage beyond this place. We heard earlier from the noble Lord, Lord Wilson, that the Cambridge colleges have only just woken up to Part 5 and the potential impact on them, and how they are all now riding very high horses, but very late in the day. Indeed, I have discovered exactly the same position in other parts of the university fraternity. There has been extraordinarily little media coverage of this extraordinarily important set of provisions. As a result, there is not, as one would have expected, the head of steam behind the reforms proposed from all round the House and intended to impact on the effect of Part 5 of the Bill.
Lord Bates
That is a fair observation. We are in unknown territory, but in order to have an impact assessment, some basic assumptions have to be made. Those are the assumptions we are using to understand how this guidance would be implemented on the ground. Academic institutions might be able to undertake particular research about its effect.
Lord Phillips of Sudbury
The concern we have is that an assessment of their costs has not been made. As I said in moving the amendment, the more that the universities and colleges have thought about this—and many of them have still not got the draft guidance—the more they realise that this is imposing a very considerable bureaucratic burden which they will have to pay for.
Lord Bates
Of course there is nothing in the Bill to say, stipulate or prescribe that, but there is nothing to stop it. I would have expected, although I am happy to reflect further on this—perhaps we should reflect further on these comments in the guidance when it comes forward—most higher and further education institutions to engage with the student body, particularly student associations, about how this should be implemented on their campuses in order for it to be effective, and not to be onerous but to be very targeted. That would be a very good thing to do.
I am conscious also that I was drifting in the direction of Amendment 14B from the noble Lord, Lord Phillips, rather than the noble Baroness’s Amendment 14D. Still, this has been a helpful debate to have; it has elucidated some important principles about the engagement of young people, and about ensuring that the costs and the impact of the duty and the guidance—when it is produced—should be evaluated and should be in the spirit of what is intended, which is to be light-touch, not onerous, and to be focused on what Clause 25(1) says about avoiding people being drawn into terrorism specifically. With that, I ask my noble friend to consider withdrawing his amendment at this stage.
Lord Phillips of Sudbury
I thank the Minister. I have to be honest with him and say that he has not addressed at all the nub of Amendment 14B, which requires the report first of all to concentrate on the cultural impact on universities, particularly the academic freedom and mutual trust within them between staff, students and so on. He did not say a single word about that, which leaves me concerned, because either he thinks it is insignificant or he has no answer to our request for a report. Since everyone tonight—
Lord Bates
My noble friend rightly chides us to say that we do not want to be overly bureaucratic or impose too many costs. To undertake qualitative and quantitative research on the scale that he proposes in the amendment would add a huge cost, if not to the Government then to the institutions themselves. We are simply saying here that we will set out some guidance and then leave it to the institutions for it to be evaluated. There will be a process—through HEFCE, should that be something that the consultation decides—for progress and how it is implemented to be evaluated. I would have thought that that would be more in keeping with the light-touch, focused approach that we are talking about, rather than avoiding getting drawn into a very bureaucratic approach, which he would rightly reprimand us for.
Lord Phillips of Sudbury
I have to disagree with the Minister. It seems to me extraordinary to argue that we cannot afford to do our homework, so let us just make this law and see what happens. Because that is what he is saying. Also, it is no good talking about guidance without realising that, once it is brought into force, it has the effect of law; it becomes enforceable, even unto the point—the Joint Committee made this point—of somebody going to prison. A vice-chancellor could end up in prison if he or she flagrantly refused to comply with what he or she thought was a serious incursion on academic freedom.
I remain confused as to how the Government can say, “Well, it will all come out in the wash”; we do not know what the academic consequences are, whether cultural or in any other way, but you can make a complaint later if it does not work. That is not good enough. This House should not be imposing a regime of this nature without the facts and without due research having been undertaken. We may be the only country in the developed world that will have a statutory regime of this nature. That alone should give serious pause for thought.
Lord Bates
I want to clarify a remark that I made earlier. The impact assessment, referring to the higher education sector itself, higher and further education co-ordinators, actually refers to our assessment of the burden on university staff, rather than on the BIS co-ordinators, as I may have led my noble friend to believe.
Lord Phillips of Sudbury
I am grateful for that, but I want to say a word on the second amendment. Most of the debate has been around the need to inquire of the students themselves how they view the consequences of the guidance becoming law. The Minister did not make reference to that. Does he agree in principle that universities, including the students, should be consultees prior to the guidance being finalised and brought into effect? This extends the duty of the consultation to universities under the provisions of Clause 28. I am bound to say that I cannot see, in view of all that the Minister has said, why the universities should not be consulted, along with the other two bodies named in the Bill. They are the people most affected and surely, therefore, the Government could at least say that they will be consulted before the guidance is finalised.
I hope that the Minister will respond to that and then I will consider withdrawing the amendment.
Lord Bates
I am not sure that I can add a great deal more to what I have already said on this point, but I am happy to reflect further on my noble friend’s last point and I shall write to him ahead of Third Reading to clarify the position.
Lord Phillips of Sudbury
That is a very fair way of wrapping this up, but just to make this clear, the Minister did not refer, in responding to the amendment, to the universities as such. All that he said was concentrated on the young people at the university. However, on the basis that he will have an open mind when looking at this—because it will cost the Government nothing to make the universities consultees, and I believe that it will go some considerable way towards assuaging the concerns that are behind both these amendments—I beg leave to withdraw the amendment.
Baroness Hamwee (LD)
My Lords, several groupings of amendments today and previously have called for quite a tour de force from my noble friend to respond. The House is very well aware of that and grateful to him for that, and for his openness to discussing the measures in the Bill. If I may say so, in the Modern Slavery Bill, too, he has set an extraordinarily high standard at the very end of the Parliament.
I follow the noble Lord, Lord Hannay, in my first point. My noble friend can take this as a comment or a question, as he feels most comfortable. My point is about further consultation. Such a strength of feeling has been shown in the debate on guidance that clearly the best outcome would be another round of consultation with the organisations concerned. The second best would be informal discussions between my noble friend and those who have expressed particular concern.
That takes me to my second point. I am well aware of the Government’s wish to move this along very quickly. My noble friend mentioned the commencement of Clause 28. I take that to mean that the guidance will follow shortly. People will be reading this debate in Hansard. They may have given up by this point, but some will have stuck it and will want to know when the guidance will be issued so that there will be a debate about it. If the Minister can say any more about the timing, that will be very useful to people outside the House.
Lord Phillips of Sudbury
My Lords, I have one more technical question to ask the Minister; I have given him notice of it. His Amendment 14E starts by saying:
“Guidance issued under subsection (1) takes effect on whatever day the Secretary of State appoints”—
so it appears to start by saying that this is solely about the timing of when the guidance should be brought into effect. But the second part of the amendment is technical, stating:
“A statutory instrument containing regulations … may not be made unless”,
it is approved by both Houses.
That seems a very odd way to put the fact that the guidance is to be approved as to content as well as the timing of its coming into effect. It would have been much happier if the provision had said at the start explicitly that not only is the guidance taking effect on the day set out in the regulations, but that the content will be laid before Parliament.
One can erect a technical, logical argument that the content must be included within the timing, so to speak, but as this is so important, I would be most grateful if the Minister can confirm that Amendment 14E as drafted is intended to mean that both Houses of Parliament must affirmatively approve the content as well as the timing of the guidance.
Lord Rosser (Lab)
My Lords, I will be brief. We thank the Minister for the meetings we have had with him on the Prevent guidance, and also for his words about the important contribution of my noble friend Lady Smith of Basildon. We also thank the Government for responding positively to the arguments we and other noble Lords have made for the Prevent guidance and any future revisions to be subject to the affirmative procedure. Clearly the guidance will be crucial, and hopefully in drawing up that guidance following the conclusion of the consultation the Government will take full note of the views that have been expressed.
In Committee my noble friend Lady Smith of Basildon asked what action was proposed to counter radicalism, recruitment and grooming online, and said that this did not seem to be catered for in the guidance which at that time was out for consultation. I ask the Minister if this issue of online radicalisation will be covered in the guidance.
Finally, the Government wish to extend the duty to have due regard to the need to prevent people from being drawn into terrorism so that it covers three and four year-olds in nurseries nationwide. Will the Government respond to another question put in Committee by my noble friend Lady Smith of Basildon, by at some stage providing information on how many nurseries, preschool providers and childminders had access to the Prevent guidance consultation document and were aware that they could respond? How many in this group did respond, and in what vein?
Counter-Terrorism and Security Bill
Lord Phillips of Sudbury Excerpts(9 years, 9 months ago)
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Lord Bates
I can tell the noble Baroness that the “particular regard” element is actually in relation to the Secretary of State’s duty. It is to say that she must have particular regard to the duties under freedoms of speech. The difference between due and particular in this context is that the latter, in all cases, elevates the freedom of speech consideration among all the considerations that must be borne in mind, whereas specifying that due regard must be had to a factor simply underscores the importance of that factor while leaving the degree to which it must be elevated by the specified authority to be determined by the circumstances of the case.
Lord Phillips of Sudbury (LD)
I cannot resist asking: how is this going to go down with schoolmasters and the rest?
Lord Bates
I will leave that to the schoolmasters. However, in this regard, my noble friend should find this reassuring because we are saying that the Secretary of State should have a particular regard. That is a higher threshold to be aware of: the importance of academic freedom of speech within universities. It is a higher test and it is appropriate to say that before she offers direction, she ought to be able to satisfy whether that test has been met. I shall hand back to the noble Baroness.
Baroness Brinton
I have attached my name to Amendment 14C, and rather than repeat the points made by my noble friend Lady Sharp of Guildford, I will say just that I endorse them. I will make a comment and then ask my noble friend the Minister a question on his Amendment 15D—which, as many other noble Lords have said this evening, takes us some way forward. I am grateful to the Minister and his civil servants for coming back with a proposal that means that we can actually discuss some of the boundaries—and therein lies my question. This relates to guidance: in particular, we discussed in Committee the revisions of the guidance to some of the very specific duties about checking presentations and making sure that people had been trained in specified authorities.
I have a more fundamental question about paragraph 50 in the current guidance, which I do not believe was proposed to be amended. It says that,
“universities must take seriously their responsibility to exclude those promoting extremist views that support or are conducive to terrorism”.
It is the phrase, “their responsibility to exclude”, that I want to focus on.
I am not sure that the qualifying statement,
“that support or are conducive to terrorism”,
is sufficiently clear as to provide reassurance. It is already illegal to directly or indirectly encourage others to commit terrorist acts, and universities are obliged to exclude those who do so. Beyond this, it is not clear which views should be understood to be conducive to terrorism. Non-violent extremism is not generally unlawful, and the Prevent strategy defines extremism as,
“vocal or active opposition to fundamental British values”.
These values and concepts include those that are rightly the subject of debate and consideration in universities. It is not appropriate for universities to be required to exclude those who lawfully oppose them.
In a letter to the Times on Monday, my right honourable friend the Secretary of State for Business, Innovation and Skills stated that the Bill,
“addresses terrorism and not extremism”,
which he described as, “a highly subjective concept”. I hope that the Minister will be able to confirm that the Secretary of State’s comments will be fully reflected in future versions of the guidance; and that universities will not be required to exclude from campuses those who, while acting within the law, advocate views that are classed as extreme.
Lord Phillips of Sudbury
My Lords, I will briefly remark on the labyrinthine complexity of the law in relation to education and universities as it is already. I have a terrible anxiety that this Bill—well intentioned as it may be—along with the guidance, will add a dimension of further complexity that will be counterproductive to a quite significant degree. It is going to make the task of the authorities in schools and universities—and I should declare an interest as a former chancellor of the University of Essex—burdensome to a remarkable degree. I support this group of amendments, but very much hope that the Minister, who has a gargantuan task in shepherding through this Bill, will tell us whether there is any prospect at all that this side of the finalisation of our deliberations, anything could be done to cast light and clarity on what I believe is a forest fit only for lawyers.
Finally, I echo what many others have said, most recently the noble Lord, Lord Deben: that it is so easy to contrive a situation in legislation that is counterproductive. I have a fear bordering on a certainty that the good intentions of the Bill will prove to be just that: because what I believe the Government have not taken nearly enough into account is that universities are engines of enlightenment, truth, fact and tolerance. However, what is being imposed upon them will have a chilling and bureaucratic effect, particularly—I repeat—via the guidance that, we must not forget, as the Joint Committee on Human Rights put it, will expose universities to being found,
“in breach of the new duty and therefore subject to direction by the Secretary of State and, ultimately, a mandatory court order backed by criminal sanctions for contempt of court”.
I fear that it will end up undermining the unique virtues of the university sector. Of course, that would be the ultimate farce because the Bill is designed to uphold the values of which universities are exemplars.
Lord Bates
I am grateful for both those interventions. However, I think they make my point: the fact that the guidance is there to put in place in universities for speakers but it is just brushed aside and ignored seems to give some veracity to the arguments put forward by the extremism task force, which reviewed our counterterrorism strategy and arrived at the conclusion that there is something to be said for having a more statutory footing.
Lord Phillips of Sudbury
I am sorry to interrupt the Minister. Could it not be that the universities simply thought that the guidance was—I will not use too strong a word—hopeless and misguided?
Lord Bates
It could be. I do not know what was in their minds.
The pressure and stipulation that are contained even in the consultation document issued in December, which we went out to consultation on—sadly, I have then gone and pre-empted the consultation by assuring your Lordships that certain sections of it would not apply—are a much lighter touch. There is no question, none at all, of the Government telling people who to have on their campus, in their university or in their college to speak. All we ask is that they have systems and procedures in place by which they ensure that the people who come on to their campus—
Counter-Terrorism and Security Bill
Lord Phillips of Sudbury Excerpts(9 years, 9 months ago)
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Lord Phillips of Sudbury (LD)
Before the noble and learned Lord, Lord Lloyd of Berwick, sits down, perhaps I may say that I always listen immensely carefully to what he says, by dint of his experience, but I am not fully clear why he is adamantly against the Bill as a whole. I understand that it is largely due to its potential counterproductivity, as he sees it. However, I am not clear why he is in favour of this set of amendments.
Lord Lloyd of Berwick
For the very reason that, as I have tried to explain, I can see no reason for the Bill to be brought forward now. I hope the noble Lord will understand that. Therefore we have, in any event, a gap. Much more important than that, however, is that the other Bill will save lives; this Bill will not.
Counter-Terrorism and Security Bill
Lord Phillips of Sudbury Excerpts(9 years, 10 months ago)
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Lord Bates
Of course, many of us subscribe to the view that one of the greatest forces against extremism is the freedom of speech that exists within universities so that people’s radical views can be challenged, and should be challenged, in an open way. Nothing being brought forward today says that the Government are going to tell any university who it should invite to speak. Nothing is going to tell any university who it should have on its faculty or in its student body. That is for the university to decide. All we ask is that at a time of national alert on issues of terrorism universities have due regard to their responsibility to the challenges and vulnerabilities of their institutions and the students who are in their care. That is where we are coming from on this. On the great sweep of what the noble Lord said, I fully endorse it.
Lord Phillips of Sudbury (LD)
The Minister just, for the second time during his winding up, referred to the phrase “having due regard” in Clause 21 of Part 5 as if to placate those who are concerned by the directions which are still out for consultation. Is the reality not that Clause 25 gives the Secretary of State power to make directions with regard to any of these matters and then to follow that up by a mandatory order? If that mandatory order is breached there are serious punitive consequences, so is it not a trifle inadvertently misleading to refer again and again to this merely having “due regard to”?
Lord Bates
My noble friend has great legal expertise in the terms being used here. We are saying that, clearly, if you put anything on a statutory footing—even to “have due regard to” the guidance—then there must be a consequence should you fail to have due regard or are found not to have due regard; and that that must be specified in the legislation. That is all we are doing here. I am sure we are all of the view that such a measure would be used only in extreme circumstances. We fully expect that all universities will do what the best universities are doing already, which is to have their systems and procedures in place for this. As I have said, I am very conscious that we will be returning to this in further groups; but in the mean time I would be grateful if my noble friend might consider withdrawing the amendment.
Lord Macdonald of River Glaven (LD)
My Lords, I put my name to Amendments 110 and 112, along with the noble Lord, Lord Pannick, and I declare an interest as the warden of Wadham College, Oxford.
Under the terms of the Education (No. 2) Act 1986, universities are under a statutory duty to,
“take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.
The Act goes on to say that this includes the duty,
“to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with … the beliefs or views of that individual or of any member of that body; or … the policy or objectives of that body”.
Universities are required under this statute to have a code of practice in place to facilitate the discharge of these important duties. We might contrast the terms of that statute with the relevant clauses of the Bill and the proposed guidance associated with it.
It is very easy to understand why Parliament should have passed those parts of the Education Act. It was to underline not just the importance of free speech as a public good in itself, but to highlight its particular relevance—its inescapable importance—to institutions of higher learning. That is to say, you cannot have one without the other. Noble Lords will remember the context in which that legislation was passed. Speakers were being howled down in some of our universities, to the shame of those institutions. Some were being refused facilities to speak—the so-called “no platform policies” that some institutions adopted, again, to their shame. An institution that shouts down a speaker with unpopular views or bans arguments that cause offence is not really a university at all: it is an intellectual closed shop. That is something very different and much less attractive.
Under the proposed guidance accompanying this Bill, which universities will be under a duty to have regard to in discharging their new policing obligations—for that is what they are—academics must devise processes to exclude from those universities people who intend to speak or give presentations in a way that may be guilty in some way of exhibiting traits of what the guidance terms “non-violent extremism”. The definition of non-violent extremism has already been drawn to the attention of the Committee. I suppose in the sense of non-violent extremism, it must, if we extract it from the proposed guidance accurately, be,
“vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs”.
It is those things that must be banished from British universities.
The patent lack of understanding in this Bill about how universities work—and some noble Lords have already alluded to this—becomes very clear when one considers the processes that the guidance mandates our universities to follow in order to discharge their new speech-policing obligations under the Bill. They are to be found in the guidance. The proposed guidance states that, in order to comply with the duty,
“all universities should have policies and procedures in place for the management of events on campus and use of all university premises”.
The guidance goes on:
“We would expect the policies and procedures on speakers and events to include at least the following … Sufficient notice of booking (generally at least 14 days) to allow for checks to be made and cancellation to take place if necessary … Advance notice of the content of the event, including an outline of the topics to be discussed and sight of any presentations, footage to be broadcast etc … A system for assessing and rating risks associated with any planned events, providing evidence to suggest whether an event should proceed, be cancelled or whether mitigating action is”,
to be contemplated or required.
Lord Phillips of Sudbury
I am sorry to interrupt my noble friend. I was under the impression that the noble Lord, Lord Bates, indicated in his letter dated 27 January that the Government would now withdraw paragraph 66 from the proposed guidance. It might save an awful lot of consideration in this Chamber if that is indeed the case.
Lord Macdonald of River Glaven
If that is the case, no doubt my noble friend the Minister will make that clear.
The greater point is that universities are not places of surveillance in the sense intended in this Bill, and they cannot become so without fracturing what is best about them. As far as I can tell, no concern at all appears to be expressed in the legislation or in the guidance that what is being proposed is a form of institutionalised censorship with academics at its heart.
If the guidance means what it says, and we must assume that it does, it calls into question a situation in which people in British universities would not be allowed to argue, with Plato perhaps, that democracy is flawed. It is not a crime to argue that democracy is flawed. No one in a British university could deliver a lecture that evinced a lack of respect for someone else’s religion. It is not, thank goodness, a crime in this country to demonstrate a lack of respect for someone else’s religion. Perhaps no one in a British university would be allowed to decry individual liberty in favour of, say, collective empowerment—a notion with a long intellectual pedigree. Again, it is not a crime to express that view in the United Kingdom. Obviously, the point is not whether noble Lords agree or disagree with any of these propositions, or whether any noble Lord would wish to advance any of them—for my part, I would not particularly. The question is rather whether we have really reached a state of affairs in this country in which it is now necessary for a senior politician, even a politician as senior as the Home Secretary, to be granted the power to influence, by power of direction if necessary, what can and what cannot be said in a university in the absence of any crime being committed. That is the point. This legislation seeks to control not only violent extremism but also speech in universities even where that speech is not otherwise a crime. This is its central failing and it is the reason I have put my name to the amendments tabled by the noble Lord, Lord Pannick.
The role of surveillance and control is one that is entirely inimical to the purpose of a university as we have understood it, which is to analyse, to explain and to discover. In that sense, open debate is the lifeblood of an institution of higher learning. Of course, as noble Lords have recognised, universities do not have immunity in the face of the criminal law—and they should not be immune to it. Indeed, like everyone else and every other body, they have existing obligations under anti-terrorism legislation, including the obligation to disclose to the authorities information they have about terrorism activities. But no one is suggesting that they are failing to discharge those obligations, and this Bill neither defines nor seeks to address any such failing. That is because there is none.
Let me conclude by pointing out one striking omission from the proposed guidance that is to accompany the Bill. Nowhere within it is there any attempt to explain how its terms are consistent with the entirely appropriate and laudable legal obligation placed upon universities to secure freedom of speech. There is no attempt to square that circle. This may be because no one in the Home Office considered the Education Act properly before deciding to legislate for our universities in this way, or it may be because it is simply obvious that the freedom of speech duty mandated in the Education Act is in conflict with the Bill, so any attempt to argue that they can coexist is doomed to failure.
These proposals may spring from the best of intentions. They doubtless spring from a desire to do something, perhaps anything, about the real problems we face around radicalisation. However, in practice they will inevitably undermine the place of freedom of speech in our universities. They are wrong in principle and they are unworkable in practice.
Lord Bates
I accept the point that my noble friend makes about charities. That is the reason why the Charity Commission has taken robust action against some charities that are not fulfilling that public duty. We will certainly look at that further.
I am conscious that this has been a long debate and I have given a commitment to reflect on it. Specific questions were raised. If they are not addressed in discussion on subsequent groups of amendments, I give an assurance to write to your Lordships ahead of Report. Given that important commitment which I wanted to get on the record—namely, that in relation to some of the amendments, particularly Amendments 105, 112A, 112B and 112D, I would very much like to reflect on the debate that we have had—I hope that the noble Baroness and other noble Lords will feel able not to press their amendments at this stage.
Lord Phillips of Sudbury
My Lords, the Minister made a remark earlier that went to the highly contentious issue which at least half a dozen noble Lords have raised relating to paragraph 66 of the guidance. It says—I quote from the letter that the Minister wrote yesterday—that,
“we note the difficulties of requiring all visiting speakers to submit their presentations in advance, and … we will be making changes to that text in the … guidance”.
There is no equivocation there. The Minister says that that will be changed. Earlier in his speech, he said that he would look at this and consider the response to the consultation. There is a big difference there and it is very important to a lot of people here to know what the position is.
Lord Bates
Normally I go beyond what I am instructed to say by my patient Bill team who work behind me, but on this occasion, I think that I am probably behind them in that the letter says in terms that we have heard enough already to reach a judgment on the practicalities of the provision in paragraph 66 and that we will rework that, notwithstanding the answer which I accept that I gave to the noble Lord, Lord Hannay, earlier, that we would reflect on the issue and did not want to prejudge the consultation. I suppose that we have prejudged the consultation in that particular regard because we do not want what we consider is the important issue of keeping the universities within the broader statutory provision to be, as it were, misunderstood or challenged on relatively small procedural matters which could cause alarm and are many miles away from where the principal focus of our efforts should be.
“Impact Report
(1) Before the provisions of this Chapter may come into force in respect of the specified authorities set out in Schedule 3 under the heading Education, child care etc., the Secretary of State must prepare a Report on the potential direct and indirect impact howsoever of this Part on the specified authorities affected, on those attending the same in whatever capacity, and on society generally.
(2) In particular the Report shall assess the impact referred to in subsection (1) in relation to the cultural and financial consequences.
(3) The Report shall also specify comparable legislative arrangements in other Member States of the European Union, the United States of America and the countries of the Commonwealth.”
Lord Phillips of Sudbury
My Lords, Amendments 115A, 118A and 123 stand in the names of the noble Viscount, Lord Hanworth, who is a professor at the University of Leicester, the noble Lord, Lord Hannay of Chiswick, who is pro-chancellor of Birmingham University, the noble Lord, Lord Norton of Louth, who is a professor at the University of Hull, and has had to go back at this hour in order to meet his students in the morning, and myself—and I was for 11 years chancellor of the University of Essex. It is no surprise, therefore, that this group of amendments addresses what we take to be the severe inadequacies of Part 5 of the Bill in so far as it relates to schools and universities. We have no view to express on, for example, the issue of prisons in relation to Part 5. Part 5 is made up of a strange bag of entities, and we believe that universities and schools deserve particular and different treatment.
We well understand that the issues the Government are grappling with in the Bill are of extraordinary difficulty—they are damned if they do and damned if they don’t. The only thing one can say, in the light of the debate today, is that as far as I can recollect not one single person has spoken in favour of Part 5, and nearly everybody has addressed their remarks to its treatment of universities and schools—much more of universities than schools, it has to be said.
I pay tribute to some of those who have tried to assist us in our work—Universities UK, the National Union of Students and the Association of School and College Leaders. A number of us also had a useful communication from the Muslim Council of Britain, which is particularly concerned about the unintended effects on Muslim communities.
One thing that has been universally remarked on, although in different language—it is manifestly true of the impact of Part 5 on universities—is the extraordinary complexity, bureaucracy and cost that it will impose on educational establishments. I shall come to those in a little more detail when I go through the amendments.
The other thing that has come through again and again is the absence of adequate preparation for the Bill, and for this part in particular—an absence of remotely sufficient fact or evidence to justify the huge change in regime that will afflict universities if the Bill goes through unamended. It is also striking that the consultation, too, seems to have been highly inadequate. I think that the Minister referred to 160 responses. I do not know how many universities there are, but there are a lot more than that, let alone higher education authorities and thousands of schools. Indeed, I hope that the whole population is interested in the fate of our universities consequent upon the well intentioned but, we believe, severely misguided measures in this part of the Bill.
If it were not for the factor of realpolitiks, I and, I think, other supporters of these three amendments would wish to see universities taken right out of Part 5. However, we are not arguing for that because, as I say, we are trying to be as pragmatic and concessionary—if I can use that word—to the Government as possible, understanding that they would have to bear the brunt of public unrest if, in a week’s time, some terrorist event were to take place in our blessed islands.
Amendment 115A is headed, “Impact Report”, and would require the Secretary of State to,
“prepare a Report on the potential direct and indirect impact … of this Part”,
of the Bill on universities and schools, and the impact,
“on those attending the same in whatever capacity, and on society generally”.
The amendment follows that up by saying that the report must assess the impact in relation particularly to the “cultural and financial consequences”. I stress that the cultural consequences are even more important than the financial ones. I noted that in the course of this very revealing debate a great number of noble Lords focused particularly on culture, including the noble Lords, Lord Judd and Lord Hennessy, and the noble Baronesses, Lady Kennedy of The Shaws and Lady O’Neill of Bengarve.
The third aspect of the impact report that we want to see the Government prepare before universities and schools can be brought under this part of the Bill is a comparable study of legislative arrangements in other member states of the European Union, the United States of America and countries of the Commonwealth. My noble friend Lady Hamwee referred to the regimes in Germany and Denmark, which deal with the issues we are confronting. I think she said that, as far as she was aware, neither of the sets of requirements was statutorily compulsory.
Amendment 118A deals with Chapter 2 of Part 5 and Amendment 115A deals with Chapter 1. Chapter 2 of Part 5 concerns the local authority panels and the whole edifice of district council and county council panels, with their police reports and panoply of partners, and a whole range of stuff about that. I totted it up and I think that Part 5 covers 12 pages of the Bill and a further 39 pages in the draft guidance, so we are dealing with a huge corpus of new statute law because the guidance will be statutory.
Amendment 118A states that,
“the Secretary of State must prepare a Review of the workings of the existing voluntary ‘Prevent’ strategy”.
Again, it is striking that there are no adequate facts or evidence on which to base any reliable new regime. I call in aid a Written Answer to my noble friend Lord Scriven in which the good noble Lord, Lord Bates, said, inter alia:
“The Government does not hold information about the Prevent policies and processes of all the authorities on which the duty would fall”.
That is not a basis on which to bring forward legislative impositions—for that is what they are. It would be folly for us to go ahead without requiring the Secretary of State to produce a sufficient review so that Parliament, when it comes to consider Chapter 2, will have at its back enough information, fact and evidence to enable it to reach the right decision. Amendment 118A also talks about the review dealing with the effectiveness and shortcomings of the present Prevent strategy.
Lord Bates
Obviously I am sorry if the noble Lord feels that the response was not adequate. The amendment was trying to say that there should be some regular means of assessing the effectiveness of the measure and its impact on higher education institutions. I was trying to set out several existing mechanisms by which that reporting and accountability to Parliament could take place. In relation to the other point, I said earlier that in a sense, as a first stage, my letter of yesterday was a step down the path towards what I hoped he would find was a fuller response regarding how this might work. I shall look to take further steps as we move into Report and Third Reading in this House.
Lord Phillips of Sudbury
My Lords, I thank my noble friend the Minister, but I am afraid that I shall be even less complimentary than my co-signatory to the amendment, the noble Lord, Lord Hannay. I believe that my noble friend gave us no new facts at all. We have had extraordinarily little by way of evidence or factual backing for this. For example, his letter, which he put in the Library yesterday, refers to two students—one, I seem to remember, a Swedish student and the other an American student—who had been influenced at their universities. There was nothing about English students. We have had nothing about the cost to universities, direct and indirect. He has not attempted to deny, because it is undeniable, that it will be a heavy bureaucratic burden, as my noble friend Lord Hanworth said. If we are acting responsibly, we really need to know these things before we plunge in. It is no good saying that there will be a report next year. It will then be too late to reverse the compulsory legislative nature of this measure, destroying the hugely valuable voluntary basis upon which the Prevent strategy currently takes place.
Lord Bates
All the way through, we have tried to say that we envisage a light-touch duty to have regard to systems which will already be in place. I do not imagine that there is an academic institution in the land or in the world that does not have policies for the welfare of its students, for risk assessments, for online safety and for the conduct of meetings. Therefore, I expect that we are talking here about, if necessary, a small addition to what is already happening in existing institutions.
Lord Phillips of Sudbury
I thank my noble friend for that but I have to disagree with him. He talks about a small addition to the present state of affairs. The universities are telling us loud and clear that it is not a small addition; it is a massive new addition. Before we make this decision, some attempt has to be made to find out the cost to government. I think that even the present voluntary panels in the counties cost £26 million a year. That will be but chicken feed if the universities are subject to this new regime with this vast statutory guidance.
I will leave it at that for tonight, but I hope that my noble friend will endeavour to come back at Report, as the noble Lord, Lord Hannay, suggested, with something a great deal more satisfactory by way of background to the need for this than we currently have. Perhaps we can have a conversation before then, but the time is terribly short. I beg leave to withdraw the amendment.
Counter-Terrorism and Security Bill
Lord Phillips of Sudbury Excerpts(9 years, 10 months ago)
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Lord Rosser
My Lords, Amendments 2 and 55 provide for the new powers in the Bill to seize travel documents, including passports, from individuals thought to be leaving the country for purposes related to terrorism and the power to place an individual on a temporary exclusion order in order to provide for what the Government have described as a managed return to cease two years from the date that this Bill becomes an Act unless both Houses have passed affirmative resolutions providing for the powers to continue in force until a later date.
The powers in question in the Bill would enable immigration officers, customs officials, qualified officers and senior police officers to take a passport away from an individual and leave them in a situation where they were no longer a passport holder for a period of 14 days or, following a court review, 30 days. The powers in the Bill also provide for the Home Secretary to make whatever arrangements he or she thinks appropriate in relation to the individual concerned during the period when they have no passport or on that period coming to an end.
The temporary exclusion order requires an individual not to return to this country unless that return is in accordance with a permit issued by the Secretary of State prior to the commencement of the journey back or, alternatively, the return is the result of the individual’s deportation to this country. As the Bill says, the effect of the temporary exclusion order while it is in force is that the issue of a British passport to the excluded individual while he or she is outside the United Kingdom is not valid. These two measures in the Bill as it stands will be as permanent as any other legislation passed in this House which likewise does not contain a clause providing that it ceases to have effect on a certain date unless both Houses have passed resolutions before then providing for it to continue.
The reason for these new powers being sought is that the security situation has deteriorated, particularly as a result of some hundreds of people leaving this country, often at very short notice or unbeknown until a very late stage by family or friends, to join up with, or otherwise become involved with, terrorist organisations, not least in Syria and Iraq. The power to take away the passport and other travel documents is to give the authorities an opportunity to make inquiries about an individual in question and their intentions, and within 14 days or 30 days decide whether to return the passport or travel documents or take another course of action. The power to invalidate an individual’s British passport while a temporary exclusion order is in force is to enable that individual’s return to this country to be made subject to complying with terms determined by the Secretary of State.
It may be that it is the Government’s view that the worsening in the security situation as a result of individuals leaving the country to engage in terrorist activity, or subsequently seeking to return, is effectively a permanent development. If that is the case, it would be helpful if the Government said so. If it is not their view, there is a real danger that this measure, which, presumably, most if not all would prefer it had not become necessary to enact, will remain on the statute book long after it is really needed. Governments of all political colours and relevant authorities do not always willingly give up powers—in this case significant powers in relation to retention or invalidation of passports—which they might feel, even after the immediate need has passed, could still come in useful at some time in the future.
The purpose of our amendments is to ensure that there is a proper debate on the need for these powers to continue, in this case, beyond a period of two years from this Bill becoming an Act. The knowledge that Parliament has to agree will help concentrate minds on whether the case still exists, which it may well might, and will at least ensure that the measures which are being introduced in the light of a particular security development in respect of people from this country travelling to engage in terrorist activity or subsequently returning from such activity or involvement does not continue on our statute book longer than the national security situation demands. I beg to move.
Lord Phillips of Sudbury (LD)
My Lords, I strongly support Amendments 2, 3 and 4. The measures contained in the Bill are of fundamental importance, but they are extremely difficult to construct in a way which holds an appropriate balance between state security and individual liberty. The notion in the amendments that the outcome of what we are doing should be reviewed by the independent reviewer within two years and put to Parliament is eminently sound. My only query is whether or not the role of the independent reviewer in looking over the consequence of this part of the Bill might not be better addressed to the whole of it. There are other parts of the Bill whose outcomes are no less difficult and problematic to anticipate. I hope the Government will give a positive response to these amendments.
Baroness Ludford (LD)
My Lords, on Amendment 2, can the noble Lord opposite explain whether there is any particular reason for choosing two years for the sunset clause, after which time, subject to an affirmative resolution, there would be a permanent continuation? What is the logic behind that two-year split? Why is there not, in a sense, a rolling sunset clause every two years? If there is a rationale to it, perhaps the noble Lord can explain the reason for that two-year review and then no more, as it were, apart from the normal rules that apply to primary legislation.
Lord Phillips of Sudbury (LD)
Does the Minister not accept that there is a difference between the judicial oversight, on which he laid some emphasis, and the political oversight that comes from having a sunset clause? Her Majesty’s justices can take only certain legal considerations into their protection of legislation. They cannot consider the wider political considerations that bear upon the matter in hand. Does he see the distinction?
Lord Bates
I see the distinction between the issues—as did the other place and the Constitution Committee. But in this area, we believe that a sunset clause is not necessary in relation to this chapter of the Bill. In other parts, such as Part 2, when we will come to TPIMs, the sunset clause is there. It is not a general principle written through the Bill; we are looking at this area by area, and we remain open to advice from your Lordships’ House, Parliament and the independent reviewer as to what their thoughts are on the necessity of that.
People have not happened upon the sunset clause up to now because they have found it too difficult to arrive at a precise point for where the amendment should be. Should it be at two, three or four years? We have heard a range of different discussions. It remains there, open to review, and the procedures will be subject to regulations, which will give rise to further debate and scrutiny, but it is not appropriate to offer a fixed and arbitrary time limit for this chapter of the Bill.
Counter-Terrorism and Security Bill
Lord Phillips of Sudbury Excerpts(9 years, 10 months ago)
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Lord Phillips of Sudbury (LD)
My Lords, the night is wearing on. It is nearly half-past nine and there are another seven speakers to come. I have chucked away my speech: I am going to make a few rather jagged points and sit down. I commend, as other noble Lords have done, our two maiden speakers who, as I am sure we all agree, did extraordinarily well. Their presence here will be of great value to us over the years to come.
I want to tell my noble friend the Minister that I understand what an intensely difficult task it has been to put the ideas behind this Bill into print. It is almost impossible to arrive at precisely the right conclusion. However, the House of Commons did move in the right direction and it is clear from the speeches tonight that the bulk of opinion in this House is that we have some way to go, that we can go there and we can do it without undermining the essential protection for which the measure is needed. We are considering this in the aftermath of the dramatic events in Paris at the weekend. It is impressive that nobody has been carried away by that, but we have paid due deference to it. This has been the House of Lords at its best: measured, completely lacking in partisanship and extremely thoughtful.
The difficult balance between public safety and human rights needs the most careful and prolonged contemplation. Unlike the noble Lord, Lord Rooker, I regret the time we have been given for this measure and I do not think it is necessary to push it through before the election. I feel very strongly that, if we insist on legislating before the election, the consultation and report which the independent reviewer, David Anderson, is in the process of undertaking should mean that Part 5 is left out of the Bill. I will come back to that in a minute.
The danger is that the intangible values are given less credence and force in our deliberations than the tangible effects of terrorism, which are only too obvious and dramatic. A corpse will always carry more conviction than philosophy, but here at least we realise that that is a short and dangerous road to take. The background to all this is that we must get the culture as beneficent as it can be vis-à-vis our minorities—our Muslim minorities in particular—and create what the right reverend Prelate the Bishop of Durham called a culture of fraternity and my noble friend Lord Paddick spoke of at some length using different language. We have to help sustain a culture of inclusion, of mutual value and co-operation and of tolerance. A number of speakers have remarked on some of the interesting work being done by the churches. In my own small town of Sudbury in Suffolk we have an amalgamation called Churches Together, which includes non-Christian as well as Christian faiths. That is far more important than this Bill. The fruits of the work that we do at grass-roots level, through communities, will determine, far more than legislation, whether this country lives in peace or in fear.
I agree with the majority of speakers on the legal aspects of the Bill. Particularly, I could not disagree with a word said by the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Thomas of Gresford. We absolutely have to have judicial oversight. If we cannot have it because there is a genuinely instant and plangent emergency, then we must have it as soon as possible after the emergency. We must have reference to this House when regulations are issued and we must have affirmative resolutions in matters as important as these. In Part 5, guidance is issued by the Secretary of State that does not come through Parliament at all. That is not right.
We have had some distinguished contributions on Part 5 from the noble Lords, Lord Hannay of Chiswick and Lord Hennessy of Nympsfield, and the noble Baroness, Lady Lister of Burtersett. I want to put their comments in a fuller context because I think it makes what they said even more compelling. Part 5, which runs to some 12 pages of small print and has two chapters, applies to not just universities but also to “specified authorities”, which, in Schedule 1, are a whole range of bodies, including health authorities, police authorities, probation authorities—you name it—and, of course, education authorities. But the thing to remember is not just that the authorities covered by Part 5 must have,
“regard to the need to prevent people from being drawn into terrorism”,
as stated in Clause 21(1), but that guidance will come in on the back of that which they have a duty to follow. The Secretary of State can issue directions if he considers that any of these specified authorities is not doing exactly what it should do vis-à-vis the guidance. Ultimately, enforceable mandatory orders can be issued under Clause 25(2). That is heavy-duty regulation and it is all in pursuit of a statutory demand—namely, to have,
“regard to the need to prevent people from being drawn into terrorism”.
That is so vague that I suggest it will give a thousand lawyers a thousand years’ work to define. My noble friend the Minister smiles at me as he knows that I am a lawyer, but there are limits, and I think that this part of Chapter 1 of Part 5 goes too far.
Nobody has referred to Chapter 2 of Part 5, which covers local authority support panels. Local authorities include all district and county councils. Their function is somewhat the same—that is, to assess,
“the extent to which identified individuals are vulnerable to being drawn into terrorism”.
That statutory obligation is placed on every single district and county council. They have to have a support plan for each individual, which they have to review, revise and assess, and they are governed by guidance. Even worse, they have to have partners—although I should not say that because that prejudges the utility of the measure—which are as voluminous as are the specified authorities in Chapter 1 of Part 5. Indeed, they are the same sort of bodies. The partners are under a statutory obligation, set out in Schedule 4, to co-operate with these local authority panels. If they do not do so, there is potentially a punitive regime for such a failure. The bureaucracy attendant on Part 5 is massive, whether you are dealing with Chapter 1 and the duty to prevent people entering terrorism, or Chapter 2, which deals with identifying individuals who are vulnerable to terrorism and then supporting them with plans and so on. That is a massive creation of bureaucracy, both locally and centrally.
I would not mind if I felt that it would work but I have a terrible feeling that, quite apart from the in-principle issues raised by Peers vis-à-vis the freedom and culture of universities, I concur with every word that they said about the complete inappropriateness of lumbering universities most of all, but schools and probation services too. I speak as someone who was chancellor of the University of Essex for 10 years. This part of the Bill is severely misconceived. I deeply hope that it will be excluded for the time being. If on further reflection and after David Anderson’s report it appears necessary to do something along these lines, so be it. We will do it. However, the voluntary aspect of the status quo is essential to its effect. I am sure that we can build on the status quo. The Government could fund support for what is being done, and no doubt provide inspectors who could go round the country and see what is being done, but we do not need a statutory framework.
I could say so much more, but 10 minutes have gone and the night is old. I will end merely by saying, “Je suis Charlie”. Perhaps I will not; your Lordships will think that I am a Charlie.
Data Retention and Investigatory Powers Bill
Lord Phillips of Sudbury Excerpts(10 years, 4 months ago)
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Lord Phillips of Sudbury (LD)
My Lords, Amendment 1 is an amendment of modest pretensions, but I think it significant and worthy of the attention of the House. What it does is address the use of the word “considers” in Clause 1(1) and proposes that that word be replaced by the word “believes”. To make sense of that, I hope that noble Lords will find it helpful if I say that this is a key clause because it gives the Secretary of State the power to issue retention notices to telecommunications operators. As we know, that class of people includes all great companies in the internet and web world. It allows the Secretary of State to issue a retention notice so that they in turn have to retain what are called “relevant communications data” according to that notice.
However—and this is the important point—the Secretary of State can do that only in certain circumstances: namely, according to the clause, when he or she,
“considers that the requirement is necessary and proportionate”.
My dissatisfaction with that formulation is simply that, in Sections 22, 28 and 29 of the Regulation of Investigatory Powers Act 2000, which bestow comparable powers on the officeholders there mentioned, precisely the same formulation contains the word “believes” rather than “considers”. In precisely comparable circumstances, where necessity and proportionality must be present, the officeholder concerned has to believe in that necessity and proportionality.
Some may think, “Well, what’s the difference?”—and, indeed, that is the key question. I think that there is a difference. I think that “believes” is a stronger requirement than “considers”. I looked at the Oxford English Dictionary definition of the two words. “Consider” is defined thus: “think carefully” about something—typically before making a decision. On the other hand, “believe” is defined as “accept the truth … of”—feel sure of the truth of whatever it is. That is what I thought before looking up the words in the dictionary, but I was surprised in discussions with the office of the parliamentary draftsmen to find that there is considerable doubt on their part that there is any difference in this context between “considers” and “believes”. If that be so, to agree my amendment will not change the purport of the Bill one iota—but if on the other hand I am right and there is a significant difference, it would be wise and proper of us to insert “believes” rather than “considers”.
Since Clause 1 refers expressly to Section 22 of RIPA 2000, I am bound to say that I think that a court—we have many noble and learned former judges here and I hope that they will add their opinion—would seek, given a difference of wording, to render a difference of meaning as between Section 22 of RIPA 2000 and what will be Section 1 of the Data Retention and Investigatory Powers Act. As a long-in-the-tooth lawyer, that is the way that I am working, which seems to me to be right and proper.
Why do I think that the amendment is worth while? I am at one with a huge number of our fellow citizens outside this place who are extremely unhappy about the whole of this Bill and the method and manner in which it has been brought forward. The fact that, this very day, we are going to complete all stages is an indication of the radical nature of the procedures adopted to push this Bill through, as was the case in the Commons the day before yesterday.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I am grateful to my noble friend for tabling this amendment. He slightly wandered off it into more general objections, which he might have made at Second Reading yesterday.
On his particular amendment, the requirements in Clause 1(1) of the Bill respond to the European Court’s criticisms of the data retention directive—to ensure that no more data than are required are retained. It is worth reiterating that the judgment concerns the EU data retention directive, not the UK data retention regulations. In the UK we have always taken a tailored approach—if I might use that word—to retention notices. We do not and have never required every communications provider to retain all its data. Ministers have always issued retention notices to selected companies based on the nature of the company and the threat, and we have required the retention only of the data types listed in the schedule of regulations.
Following the judgment, we are putting that good practice in the legislation. This Bill will require the Secretary of State to issue data retention notices to communications service providers on a selective basis: only if she considers the obligation to be necessary and proportionate for one of the authorised purposes. We also add a requirement to keep notices under review. I think therefore that we are in close agreement on what is required.
Ministers have not required an operator to retain data without first going through a serious and careful consideration of the value to be gained by law enforcement and intelligence agencies from the data retained. This Bill ensures that these considerations are law. We feel that it is appropriate for Ministers to “consider” these issues. They have never taken this consideration lightly and I can assure noble Lords that they have no intention of doing so in future. I do not believe that a Minister having due consideration to the issue of a notice could decide to proceed if he or she did not believe that to do so was necessary and proportionate.
In other words, I do not believe that changing the word “considers” would have any material effect. I know that my noble friend met with parliamentary counsel this morning and was told that it does not. Accordingly, I invite him to withdraw his amendment.
Lord Phillips of Sudbury
Before the Minister sits down—I am keen to have his response to this—if, as he now confirms, the Government think that there is no difference in meaning between “considers” and “believes”, why not have consistency between the language of RIPA and that of the Bill so as to avoid confusion and argument in future?
Lord Taylor of Holbeach
If my noble friend had been listening to yesterday’s Second Reading debate, he would have understood that it was the view of the House in general, and certainly of the Government, that the review that will be undertaken will indeed look at RIPA and decide whether the terms stated in it are appropriate for future-proofing the legislation. Meanwhile, the Bill is presented to the House in ways that we believe are appropriate to deal with the problems that I outlined when I introduced it yesterday.
Lord Phillips of Sudbury
My Lords, I regret to say that I find that answer completely unsatisfactory. There is every reason in the world, I suggest, why we have commonality of language, particularly in clauses that expressly relate one to another. If it is felt after the review that the language of RIPA 2000 needs changing, a change could be made to this legislation as well. In the mean time, though, there is going to be confusion, and it is a difficult enough Bill without adding unnecessary complexity to it. However, since no one in the House has risen to support the amendment, I beg leave—with good grace, I hope—to withdraw the same.
Lord Phillips of Sudbury
My Lords, the amendment is also in the names of the noble Baroness, Lady Kennedy of The Shaws—who unfortunately cannot be here, although those who heard her speak last night will have a good idea of what she might have said—the noble Baroness, Lady Kidron, and my noble friend Lord Hodgson of Astley Abbotts.
We have something of a paradox of timing in relation to the Bill, in that, as we all know only too well, this measure has been rushed, helter-skelter, through both Houses. It is fair to say that the vast majority of Members in both Houses are deeply worried by all that but have none the less accepted the view of the Government as to the need for that expedition. On the other hand, we have a sunset clause in the Bill—designed to be some sort of reassurance—requiring the Act to be repealed in two and a half years’ time, at the end of 2016. The point behind the amendment is self-apparent, namely that if six months is too short—that was the proposal in the other place, that the repeal should take place at the end of this year—to wait two and a half years hence is too long. That is why we have suggested a repeal date of 31 December next year.
It is common ground that this complex measure—I think the noble Baroness, Lady Kennedy, called it “obscurantist”, and she is a lawyer—which is wedded to RIPA 2000, itself a highly complex piece of legislation, needs review and is being reviewed from various quarters, as we have heard from my noble friend Lord Taylor. I am sure we are all very grateful for that. However, is it not also the case that, because we have not had a chance to consider the Bill properly, we do not know whether there are serious lacunae in it? The proposition of those of us behind the amendment is that to wait two and a half years before anything must be done about those deficiencies is just too long. We have suggested this compromise of a year and a half from now.
I finish by repeating the importance of the Bill for our reputation as a House of Parliament and for Parliament as a whole. Although we may be satisfied that what we are doing is necessary, appropriate and proportionate, I am afraid millions of our fellow countrymen are not of that view. There is therefore a wider issue behind this amendment. It will provide some reassurance that the delay—it will be seen as such—in allowing a thorough review of this legislation, which will find an outlet and remedies by the end of next year, is a reasonable compromise; to leave it for two and a half years is not. I have that phrase of John Pym, in the other place in 1642, ringing in my ears. He said in that tense Parliament that we must not lose the,
“vigour and cheerfulness of allegiance”,
of our fellow Britons. I beg to move.
Lord Rooker (Lab)
My Lords, I oppose the amendment. I was unable to speak yesterday. I do not propose to make a Second Reading speech, but I wish to make a case for the Bill to remain as it is. I first draw attention to my declaration of interest in the register as a member of the independent surveillance panel, put together by the Royal United Services Institute for the Deputy Prime Minister’s work, which will go on for the next year and beyond the next election.
Frankly, we need time to do the job: 18 months is not long enough. I am not even going to use the excuse of a potential change of Government after the general election. The fact is that it is important that the sunset clause is there and it is important that it cannot be extended: it will go. However, time is needed to do the job properly. It is not as though nothing is going to happen for two and a half years. It will take two and a half years to pull together the reviews of RIPA and the other reviews that are taking place to bring legislation to Parliament very early in 2016, because this will finish at the end of 2016. The idea that it has been left to the last minute is nonsense. We need that time to do the job, and to explain and consult.
Public trust has to be secured. I am convinced that the fair-minded public, when they are treated as mature adults, will support an accountable system for interceptions and surveillance, rather than take what is said by unaccountable NGOs and newspaper editors. Contrary to what was said earlier on, the public have no idea what exists in the system in terms of these arrangements. We have to look at the use of modern technology.
Lord Taylor of Holbeach
What the noble Lord is talking about is political leadership. Political leadership, I am sure, will mean that there are opportunities to discuss this matter during a general election.
This has been a good debate, and I am quite happy that we have had to discuss this issue, but I urge the noble Lords who have proposed the amendment to withdraw it.
Lord Phillips of Sudbury
My Lords, I agree with my noble friend that this has been an excellent and worthwhile debate. On behalf of my co-sponsors, I thank all those who have taken part.
We have a wealth of experience in this place, which has been demonstrated today wonderfully well. I shall be quite frank: my views have been influenced by what has been said. So long as the Minister was serious, as I am sure he was because he is a sincere man, and so long as the tenor of what he said is carried into effect in the time ahead of us—namely, that, as he put it, the Government will make haste but take the public of this country into consideration in defining and putting together the new legislation to come—it is appropriate for this amendment to be withdrawn. The arguments made about the timescales, especially given the forthcoming general election, seem to me to be correct. On that basis, I beg leave to withdraw the amendment.
Data Retention and Investigatory Powers Bill
Lord Phillips of Sudbury Excerpts(10 years, 4 months ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, when I repeated the Statement of my right honourable friend the Home Secretary last Thursday, I outlined to the House the urgent need for this legislation. I am sure that noble Lords will agree with me that it is essential for both the Government and this Parliament to ensure that law enforcement, and the security and intelligence agencies, have the powers they need to do their duty. Those powers are now at risk. If we do not take urgent action, lives could be lost. As your Lordships’ House has already heard, the situation is pressing. The timetable for this legislation is, accordingly, inevitably very tight, and I will talk about the reasons for that.
However, it may be helpful to the House if I make clear that Members who wish to table amendments for the Committee stage of the Bill are now able to do so. Amendments for the Marshalled List may be tabled up until the rising of the House, at which point the Legislation Office will produce a Marshalled List in the normal way. Members will also be able to table manuscript amendments for the Committee stage of the Bill tomorrow morning. Arrangements for tabling amendments for subsequent stages of the Bill will be announced in due course.
Perhaps I may turn to the legislation itself. I should like to take a moment to reassure the House. This Bill does not provide any new powers. It does not alter or amend existing powers. It simply provides a clear basis, in respect of both data retention and investigatory powers, for the exercise of existing powers. Crucially, and quite rightly, the legislation is sunsetted. Its provisions will be repealed at the end of 2016. The intention—Clause 7 has been amended in the Commons to provide an explicit legal basis for this—is that we will have time in the interim for a proper debate about what powers are required in the future. There will be a review, led by the independent reviewer of terrorism legislation, David Anderson QC, into what powers and capabilities might be required in the future, considered in the full context of the threat. That review will consider capabilities but it will also consider safeguards to protect privacy, the challenge of changing technologies, issues of transparency and oversight, and the effectiveness of current legislation.
David Anderson’s work will be far-reaching. It will provide a robust, independent basis for the subsequent work of a Joint Committee of Parliament, to be established following the general election. There will be a public debate and Parliament will have the necessary time to consider legislation on these important and complex issues. I know that some noble Lords have questioned the timing of the sunsetting provision. I hope now that the Government’s intentions behind that timing are clear.
Noble Lords will also be aware of the wider package of measures, announced by the Prime Minister last week, which will strengthen safeguards and reassure the public that their rights to security and privacy are equally protected. We have now published terms of reference for the various measures, including the privacy and civil liberties oversight board. Following ongoing discussions with the Opposition and consideration in the Commons, we have amended Clause 6 to ensure that the independent Interception of Communications Commissioner will now report every six months. I am sure that your Lordships will agree that these measures will help to ensure a better-informed public debate.
I now turn to the purpose of the Bill and the matters before us today. Communications data—the who, where, when and how of a communication, but not its content—can be used to piece together the activities of suspects, victims and vulnerable people. They can prove or disprove alibis, identify links between potential criminals, tie suspects and victims to a crime scene, and help find vulnerable persons at risk of imminent harm. Only this morning, noble Lords will have seen the news that the National Crime Agency has made more than 600 arrests as part of a six-month operation targeting people accessing child abuse images online. Senior officers are clear that, without access to communications data, many of these investigations would hit a dead end.
Those data are held by communications service providers for their business purposes and where they are required to do so by law. They are then accessed by law enforcement, subject to stringent safeguards, where it is necessary and proportionate to do so for a specific investigation. But, as I explained last week, a recent judgment in the European Court of Justice has put into doubt the legal basis on which we require service providers in the UK to retain communications data. As a result, we run the risk of losing access to data that are vital to a wide range of investigations. This could be devastating. It would seriously undermine the ability of the police, the National Crime Agency, the intelligence services and others to prevent and detect crime, catch terrorists, and safeguard and protect children and others at immediate risk of harm.
The Bill also deals with investigatory powers and, specifically, the interception of communications. The content of a communication—the text of an e-mail or a telephone conversation—can play a critical role in the work of law enforcement and the intelligence agencies. The majority of the Security Service’s top priority counterterrorism investigations use interception in some form to identify, understand and disrupt the plots of terrorists. The police and the National Crime Agency rely on interception to prevent and detect serious crimes, including drug trafficking, human trafficking and child sexual abuse.
The House will know that interception can take place only if there is a warrant authorised by a Secretary of State and that can happen only where he or she considers it necessary and proportionate and where the information sought cannot reasonably be obtained by other means. The legislation that provides for interception—the Regulation of Investigatory Powers Act 2000 or RIPA—obliges telecommunications service providers to give effect to interception warrants. This Government, like our predecessors, have maintained that this obligation applies to companies with customers in the UK, irrespective of where those companies are based. Given the increasing reliance of suspects in the UK on internet-based communications, the compliance of overseas companies is increasingly important to the UK’s interception capability. However, in the absence of explicit extra-territoriality, some overseas companies have now started to question their obligations under RIPA. Those companies have made it clear that they will comply with the law only where there is an explicit obligation to do so. Unless we put the matter beyond doubt, we could, very shortly, see a damaging loss of capability.
I now turn to the Government’s response to this situation. The Bill before the House today is a narrow and focused response to these two issues: the ECJ judgment and the potential loss of compliance with RIPA. On both matters, it makes explicit what we have always asserted to be the case. The first part of the Bill deals with the issue of data retention. At present, we can oblige companies to retain data where they are issued with a notice under the data retention regulations passed by Parliament in 2009. This means that the data are available when the police need them for an investigation. In spite of the ECJ judgment ruling, we have been clear that these regulations remain in force. However, in the light of the judgment, it is necessary to put the legal basis for these requirements beyond doubt. If we do not, there is a risk that these companies may begin to delete crucial data. Equally, if there were a successful challenge in the domestic courts, this would lead to an immediate loss of data.
Accordingly, Clauses 1 and 2 of the Bill provide a clear basis for data retention. They will replace the existing data retention regulations of 2009, maintaining the status quo. The data types to be covered by this new law will be identical to those in existing law. Although the European Court of Justice was critical of the data retention directive, it recognised the importance of data retention in preventing and detecting crime. Crucially, while the court asserted that the directive itself lacked the necessary safeguards, it did not take into account the robust regimes that exist in member states governing the access to the data. We believe that our retention and access regimes already address many of the ECJ’s criticisms. Among other safeguards, they include an authorisation process that was scrutinised in detail and endorsed by the Joint Committee on the Draft Communications Data Bill, ably chaired by my noble friend Lord Blencathra, and they are subject to robust, independent oversight by the Interception of Communications Commissioner.
The Government have, however, considered the judgment at length and are bringing forward changes that will extend the safeguards in place in order to respond to elements of the judgment and to ensure that the Bill is compliant with the European Convention on Human Rights. These include: the imposition of a requirement on the Secretary of State to consider the necessity and proportionality of a data retention notice before issuing it; specifying that the length of time for which data must be retained should be a maximum, rather than an absolute, period of 12 months; and the creation of a code of practice for data retention, which will place on a statutory footing well-established best practice.
A number of further safeguards will be introduced through the regulations made under the Bill. These regulations were published in draft last week.
Lord Phillips of Sudbury (LD)
I apologise for interrupting the flow of my noble friend’s speech. However, he started by saying that the Bill introduced no new powers and did not amend existing powers, but he appeared just now to indicate that there were new powers in the Bill. Have I got it wrong?
Lord Taylor of Holbeach
My noble friend has got it wrong: it is about safeguards. I am talking about safeguards, not powers. I am talking about the Bill imposing limits on the discretion of the Secretary of State through the regulations and the Bill itself. If my noble friend will allow me to continue he will see that I am placing that in the context of seeking to provide a basis for continuing the provisions of the Bill without extending the powers that are available to the Secretary of State or the Government under the Bill.