Brexit: Economic Forecasts

Debate between Lord Strasburger and Lord Bates

Wednesday 24th October 2018 Lords Chamber

[Lord Strasburger]

To ask Her Majesty’s Government whether their forecasts for the next ten years show a better outcome for the United Kingdom economy if the United Kingdom were to remain in the European Union than if it were to leave.

[The Minister of State, Department for International Development (Lord Bates) (Con)]

My Lords, the UK is leaving the EU on 29 March 2019 and will begin to chart a new course in the world. The Government’s proposals set out in the 12 July White Paper are the best way to protect jobs and avoid a hard border between Ireland and Northern Ireland. When we bring forward the vote on the final deal, Parliament will be presented with the appropriate analysis to make an informed decision.

[Lord Strasburger (LD)]

My Lords, as full EU members we currently enjoy the best possible trading terms with the EU 27. Any other deal must, by definition, be worse. Our Government are striving for a deal with our biggest trading partner that can only downgrade what we have now—that is worth thinking about. Does the Minister know of any other country that has deliberately degraded its trading relationship with its biggest customer?

[Lord Bates]

I do not accept the proposition behind that question. The world is changing. Some 90% of the growth that will happen over the next 10 years will be outside the European Union. Six of our largest trading partners are in the EU, including Germany, France and the Netherlands, but the United States is No. 1, China is growing very significantly and there is Switzerland too. This is a great country in which to invest and trade. That is why we have the largest stock of foreign direct investment and why our exports and employment continue to grow, and I expect that to go on happening once a deal is reached.

Draft Investigatory Powers Bill

Debate between Lord Strasburger and Lord Bates

Wednesday 4th November 2015 Lords Chamber

[Lord Bates]

Accountability lies in that it was the Secretary of State, first, who made the decision and that is then checked by a judge. That would be the element of public accountability in that circumstance, but we are talking particularly about warrants which are required in relation to intercept, which is the most intrusive form of investigation power, not necessarily the communications data.

[Lord Strasburger (LD)]

My Lords, shortly after being introduced to this House I had the temerity to start raising concerns about the plethora of unfit legislation covering digital surveillance powers and the ineffective controls and oversight over their use. Initially, my questions in this Chamber were met with a mixture of stonewalling by Ministers and ridicule from certain noble Lords connected to the security establishment.

--- Later in debate ---

[Lord Strasburger]

I shall save my questions for the Select Committee, but in the mean time I shall ask just one. What is the timetable for the forming of the Joint Committee and when do the Government hope to receive its report?

[Lord Bates]

The Joint Committee is in the process of being formed, through the usual channels. It is hoped that that will happen in the next few weeks. It is hoped that it will have produced its report by the spring and that a revised Bill, if it is necessary to revise the Bill, will then be published for consideration in the other place.

Investigatory Powers

Debate between Lord Strasburger and Lord Bates

Wednesday 8th July 2015 Lords Chamber

[Lord Bates]

My noble friend speaks with great authority and experience. He is right to urge us to move as quickly as we can, given the statements that he quoted from the Home Secretary, which were made before the last election under the previous Government, about every day that goes by without these powers. A process has been set out here and the Prime Minister and the Home Secretary have been very clear that because of the importance of taking people with us and, as far as possible, being able to bring this forward in a cross-party way—not just cross-party, but of course including the Cross-Benchers in this House—we ought to be seen to be going through a very thorough process. That involves basing it on the Intelligence and Security Committee, the Anderson report, the RUSI report which is to come and the debates that have been scheduled ahead of time in both Houses before the Recess. There will then be a period to reflect on that over the Recess and the Government can then come forward with a draft Bill that I hope, because it has been deliberated over, will not be subject to the type of criticism that the noble Lord, Lord Blencathra, levelled at the previous Bill. On the basis of that, one might therefore hope or think that the period of time for pre-legislative scrutiny might be shortened, and that the period of time for scrutiny through the House might be quicker than it otherwise would have been had it not been for all the evidence, reports and consideration that have gone before.

I know my noble friend will not accept that answer fully but I hope he will accept that it is an answer and a position which we have taken with great care and consideration to ensure that, as we progress down this path towards reform and to new legislation, which will go much beyond RIPA’s sunset at the end of 2016, we will carry people with us, that it will be better legislation as a result, and that we will progress down that road in a position of trust between those who carry out those duties and the citizens of this country—

[Lord Strasburger]

My Lords, I am reluctant to delay us on an evening when there are some transport problems, but it may have slipped the Minister’s mind that I asked him a question concerning how the Government slipped through powers giving themselves the right to hack into computers and phones without any reference to or discussion in Parliament.

[Lord Bates]

I will check again in the record but I am pretty sure that the answer was that the powers to which the noble Lord referred have been laid before Parliament but will of course have to be approved by Parliament. An approval process will have to be gone through before they can come into effect. While I am looking at my notes, I can save my colleagues from the Home Office a letter by saying that the Interception of Communications Commissioner’s report, published in March 2015, said that there were 2,795 interception warrants in 2014, compared to 2,760 in 2013 and 3,372 in 2012.

Once again, I thank noble Lords for their contributions to this debate. It has been incredibly valuable and I will make sure that it is drawn to the personal attention of my right honourable friend the Home Secretary when the Official Report is prepared.

Communications Data

Debate between Lord Strasburger and Lord Bates

Wednesday 17th June 2015 Lords Chamber

[Lord Bates]

I will be as brief as I can. There is a specific issue here, in that, during the previous coalition Government, our coalition partners took a different view—I mean no detriment—so there was no clear government position on which to consult. That has changed. There is a very clear government view now that we need this, and fast.

[Lord Strasburger (LD)]

My Lords, there are half a dozen or so civil liberties organisations that could greatly assist the Government in coming up with a balanced investigatory powers Bill. Which civil liberties organisations have the Government consulted?

[Lord Bates]

They will have the same opportunity as anybody else to participate in the consultation process. There is also a statutory code of practice that has been introduced, and we are open to consultations. We will listen to them but I have to say that at present, when you see the threats that are faced by this country, I am going to listen more to the people who are actually trying to protect us and keep us safe.

Serious Crime Bill [HL]

Debate between Lord Strasburger and Lord Bates

Monday 2nd March 2015 Lords Chamber

[Lord Strasburger (LD)]

My Lords, when this Bill was last debated in another place, the Home Office rejected a new clause tabled by Julian Huppert and backed by cross-party Back-Benchers that was very similar to this Amendment 11 but had a number of key differences. My amendment seeks to probe the justification, if there is any, for the Government’s omission of those provisions.

The first of these relates to the protection that is due to other privileged material, as it is rightly intended to be provided for journalistic material. This is what might be called medical privilege, religious or spiritual privilege and elected representative privilege. When an individual makes contact with a doctor, priest or MP, they are entitled to a higher level of confidentiality than applies to other matters. Therefore, just as journalistic material should be subject to a process involving judicial authorisation before communications data are accessed by the police, so should this sort of communications data.

The justification for providing protection in respect of journalistic material in RIPA, provided by the Government when they eventually agreed, was that it was necessary to protect whistleblowers who could be identified by the police accessing the communications data of journalists. Surely the same applies in respect of the communications data of Members of Parliament, and their equivalent in the European Parliament, the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. Why are the Government in their new clause providing only that the code of practice should protect whistleblowers’ identity when they go to the press and not when they go to their MP to reveal serious wrongdoing?

The second justification given by the Government for judicial authorisation before the police could access journalists’ communications data was that there was confidential information inherent in the “metadata” that would be obtained; namely, that someone identifiable had contacted a journalist. Exactly the same applies in respect of communications data relating to medical practitioners. The fact that a certain person has been in communication with a healthcare professional with a specific specialty in itself reveals confidential information. Obvious examples are mental health care professionals, STD clinics, obstetricians and so forth. The Home Office has provided no justification for failing to provide protection for such data, nor indeed has it provided for safeguards to be written into the code of practice, which the amendments before us deal with. This is even more peculiar when one sees that the Government’s proposed change to the code of practice, which was all they were offering before the IOCCO’s report was published, makes specific reference to the types of privilege—medical, spiritual and Member of Parliament—which my amendment would require a code of practice to deal with. It is not good enough for the Home Office to say that it wants to go no further than the recommendations in the IOCCO’s report because that report in several places made reference to the equivalent public interest that attaches to the confidentiality in these areas.

The second matter that my amendment deals with is the question of notice for journalists of an application to a judge when their confidential sources’ identities may be revealed. Under PACE, when the journalist holds the confidential material—called “excluded material” under PACE—the default position is that the journalist is given notice; that is, that the application is heard by the court inter partes. When it comes to RIPA and communications data, the person who holds the material will in general be a telecoms company or an ISP. They are not going to be in a position, of course, to contest any application. They have no significant interest in protecting the confidentiality of any of the information they provide to the police, providing that the police are acting within the law. It is only the journalist who can and should, if circumstances permit, assist the court in identifying the degree of public interest in identifying any of his or her sources.

By analogy with the provisions in PACE, it seems only right that there should be provision in the new legislation that the Government have promised after the election to provide for judicial authorisation for journalists to be given notice of the application. No doubt it will be appropriate also to provide that that notice does not have to be given when there is a risk that such notice might significantly prejudice a criminal investigation because, for example, the journalist, himself or herself, is a suspect, or, if given notice, could destroy evidence, or because the journalist might tip off a contact who was a suspect in a criminal investigation that might lead to the suspect destroying evidence or absconding.

That is why my amendment seeks to require that the code of practice makes provisions for the circumstances in which the journalist could and should be notified of an application to access communications data that is likely to lead to the identification of a confidential source. It should make no difference to the question of whether, without prejudice to an investigation, a journalist can have the opportunity to make his or her case to the judge when the data in question are held by a third party telecoms company.

The courts have found it extremely useful to hear representations from the media about non-broadcast footage when the police had applied under PACE for the release of that material. The protection of whistleblowers requires that the only people who can speak up for them in court before they are identified under this legislation are given notice of the application, subject to not prejudicing the investigation. This is a concern for my party and the National Union of Journalists.

Before I finish, I should like to raise a number of questions to the Minister on this area. After Julian Huppert tabled his new clause, which would provide for judicial oversight in RIPA for applications relating to journalistic sources, the Government agreed to make a temporary arrangement that the police would be directed to use PACE when such circumstances arose, and that this would be achieved by a change to the code of practice. My first question is: when will the Government bring forward the proposed code of practice, because time is short before Parliament prorogues? Secondly, will my noble friend and officials meet urgently with me and the National Union of Journalists to discuss the form of that code of practice? Thirdly, is it intended that the code of practice will, as I have indicated by this amendment, set out the circumstances in which journalists can be given notice of an application under Schedule 1 of PACE, even though the existing PACE provisions do not provide that they be given notice because they are not holders of the data or material? Fourthly, will the Home Office take the opportunity in this code of practice to make it clear that the police should use PACE procedures for other forms of privilege before obtaining communications data relating to the other forms of privilege that I have set out, as well as to communications data that might reveal contact between a lawyer and his or her client? As I explained, the Government’s previously proposed change to the code of practice did specify that consideration needs to be given to these other forms of privilege on the same basis as that given to journalistic privilege.

The Government, in response to Mr Huppert’s proposed new clauses, also published draft clauses that they said would be included in any update of RIPA legislation following the report of the Anderson review, early in the next Parliament. Those draft clauses were made available to Members of the other place only about an hour before the debate on Mr Huppert’s new clause. It therefore seems appropriate to use this opportunity to ask the Government to explain some of their provisions before this legislation goes through, given that Members of the other place were not given that opportunity before deciding not to press Mr Huppert’s new clause.

My first question is why there is a provision in the draft clauses to bypass judicial authorisation for RIPA requests for telecoms data in the circumstances of “imminent threat to life”, when such provision does not exist in PACE. Why is the threshold used by the Government to decide when the journalistic privilege requirement to put the application before a judge is triggered higher in their draft clauses than in PACE? The draft clause states that the requirement for judicial authorisation is triggered when the purpose in whole or in part is to identify a journalist’s sources, whereas in PACE the threshold or test, much more appropriately, is that the application is likely to reveal the source. As I have explained, I believe there should be circumstances in which a journalist should be notified of an application to access their communications data, and that this should be included in the new legislation.

The Government’s draft clause, unlike PACE, does not even provide for notice to be given to those who hold the data. Will the Government explain this or reconsider it? The Government’s draft clauses do not contain the same provision as in PACE for it to be an offence to destroy material sought under an order granted by a judge. Will the Minister please explain this? Finally, will the Minister explain why in the draft clause there is no provision for the judge making the decision to have regard to the public interest in maintaining the confidentiality of journalistic sources? This was proposed by the amendment in the other place. I beg to move.

[Lord Bates]

My Lords, in responding to my noble friend Lord Strasburger, I pay tribute to him for the way he has engaged with this issue. We have had some conversations about this, and I know that this is a subject he feels very passionately about. He also brings a great deal of expertise to the role, and a knowledge of how communications actually work.

The special case being made for journalists here is the fact that not only did the Interception of Communications Commissioner confine his particular examination in his report to looking at journalists, but someone who speaks to, say, a lawyer does not reveal what was said. If someone is trying to establish the source of a leak, knowing who spoke to a journalist may be more important than actually knowing what was said. This does not extend in the same way to other professions. That is what we are trying to say. It is a different way of looking at the particular situations in which journalists find themselves. I also say to my noble friend that we will very shortly lay before Parliament for approval the draft acquisition of communications data code of practice, following the public consultation. That will provide another opportunity to look at this.

My noble friend asked some specific questions about when the Government will bring forward the proposed code of practice. As the Minister for Modern Slavery and Organised Crime made clear in the House of Commons last week, the Government hope that the code of practice will be in place as soon as possible, but obviously this will be subject to parliamentary approval. My noble friend asked whether the Minister and officials will urgently meet with him and the National Union of Journalists to discuss that code of practice. Officials have already met with the National Union of Journalists early in the process. The NUJ has also responded to the consultation, and we have considered their response. Following the consultation, we have implemented significant changes in the code, as I have stated, and will publish it shortly. However, I am of course very happy to meet my noble friend and any others from the NUJ whom he wishes to bring with him.

It was also asked whether the code of practice will set out the circumstances in which journalists can be given notice of an application under Schedule 1 of PACE. My honourable friend Karen Bradley addressed the issue of providing notice in the House of Commons when considering these amendments in another place last Monday. It has never been the practice in this country that those who are subject to a communications data application are notified. There are obvious reasons for that, given that the crime may be under active investigation. We do not intend to depart from that, but we are of course very happy to listen to concerns.