Situation in the Red Sea
Viscount Hailsham Excerpts(9 months, 3 weeks ago)
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Viscount Hailsham (Con)
Would my noble friend agree that it is highly desirable that other countries that have substantial military assets should use them to participate with the United States and the United Kingdom in the relevant military action against the Houthis? There is no reason why we should be confined to doing it by ourselves with the United States; other countries should play their part.
The Earl of Minto (Con)
My Lords, I entirely agree with my noble friend’s point. However, it is the decision of each individual sovereign state to decide at what level they wish to become involved.
Investigatory Powers Bill
Viscount Hailsham Excerpts(8 years, 5 months ago)
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Viscount Hailsham (Con)
My Lords, I will confine myself to Amendments 39 to 42. I have a great deal of sympathy for the thinking that lies behind these amendments. To my mind, this is one of the most important parts of this part of the Bill, because judicial oversight seems to me to be absolutely essential if there is to be public confidence in the working of the Act, should this Bill be enacted.
My own feeling is that the provisions do not go far enough. It is a long time since I have had to study or discuss judicial review and I am cautious about doing so in the presence of many lawyers more distinguished than me, but my recollection, broadly speaking, is that the judicial commissioner will examine whether the powers have been exercised intra vires and not unreasonably. I am bound to say that I want to go beyond that. I should like to see some review of the merits—more particularly, addressing whether the issue of the warrant is properly supported by the material advanced in support of its issue and whether it is truly within the scope of the statutory criteria. I do not think this is provided for by the Bill as presently drafted. I am not saying that the amendments put forward solve the problem, but they are heading in the right direction. I would welcome any movement from my own Front Bench which may address this point.
I want to make one other small point about judicial review. I have already owned up that my recollection of judicial review is pretty faint, but I know that it develops a lot. There is not always a unanimity of view as to what the principles are because they develop and you get divided judgments, even from the Supreme Court. The principles of judicial review change as time goes on. It makes it very difficult to know whether the statutory requirement, as provided in this Bill, is satisfied.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I confess to taking a rather different view of this. This is a question of judicial oversight; it is not in principle judicial initial decision-making. I am perhaps a little out of date, although I have been at pains to keep up to date with developments, and as the noble Baroness and the noble Viscount have already recognised, there have been significant developments. This is not just about process; it is not what used to be called Wednesbury review, or perversity or irrationality. Nowadays it has developed into an appropriately flexible standard of oversight. Even without the explicit requirements to look at the necessity, the proportionality and the requirements of the human right to privacy, as there are here, there is in the modern concept of judicial review an ample opportunity.
In recent cases—I am looking at the Judicial Review publication of March of this year, so it is fairly up to date—the noble and learned Lord, Lord Mance, in one of these recent cases such as Kennedy, Pham, and so forth, said that it was,
“improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or”,
the EU law principle of proportionality. Therefore, even without the explicit requirement to look at proportionality, as there is in respect of all these oversight obligations, there is here an appropriate degree of flexibility.
You want an element of flexibility—you want the judge plainly to be able to take account of the nature of the underlying decision he is reviewing and of the extent to which there has been an invasion of privacy, against which this judicial oversight is designed to protect the citizen. This matter has been thrashed out; if you read the two days of debate in the other place, you see that there was some appropriate degree of give. However, I respectfully suggest that the oversight as now provided for is, if not more than adequate, certainly adequate.
Lord Carlile of Berriew (LD)
My Lords, we first have to decide what we want. Do we want judicial decision-making on these warrants and similar provisions, or the judges to review the legality of ministerial decisions? In my view, as a matter of constitutional principle, we do not want the judges to make the primary decisions but to review the legality of those decisions. I agree entirely with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in this regard.
For the nerds among us, there is a regular publication called the Administrative Court Digest—the AC digest—which I read with enthusiasm every time I receive it. It is extremely interesting, because it demonstrates that judicial review is not some kind of dry, legalistic test of precise processes followed by government and government officials but a wide-ranging test of legality. If the factual decisions that have been reached are so wrong that they should properly be regarded as unlawful, they are judicially reviewed as unlawful.
Viscount Hailsham
They have to be very wrong before such a conclusion can be arrived at.
Lord Carlile of Berriew
With great respect to a respected lawyer, that is not correct. If the decision is disproportionate, these days it is subject to judicial review. If the noble Viscount would perhaps take his weekend to read through the AC digest, he would find that in example after example, relating to every department of state. I am therefore content with what is offered by the Government, and so, importantly, is David Anderson, the current Independent Reviewer of Terrorism Legislation. I hope that we will proceed fairly quickly beyond this issue.
Lord Lester of Herne Hill
My Lords, I can be remarkably brief—for a barrister. The answer to the question from the noble Lord, Lord Pannick, was given by Mr Justice Felix Frankfurter in a famous phrase in a case many years ago where he said that one should not burn the house down to roast the pig. As the Bill stands, this is exactly the problem. Taking a power of this breadth risks burning the house down to roast the pig.
I do not have the ethical problem referred to by the noble Lord, Lord Carlile of Berriew. Of course he should go and sit in the park in order to prevent the Orwellian nightmare of being snooped upon. That is perfectly ethical, but it would be outrageous if we, as members of the legal profession in Scotland, Northern Ireland, Wales or England, had to take that kind of precaution because of the hypothetical chilling effect of thinking that we were under surveillance.
I do not think it is necessary to take this power and I look forward to listening to the hypothetical or real examples that might be given to seek to justify where we now are. I thoroughly support this Bill, so I hope that the Government will give way on this because at the moment they are in an unattractive position.
Viscount Hailsham
My Lords, I want to address Amendment 48 in a few words. I find myself uncomfortably caught between the issues raised by the Bill as drafted and Amendment 48. I agree very much with the criticism of the Bill that has been articulated by the three noble Lords who have already spoken. The test in the Bill as drafted is subjective, very wide and likely to have some of the undesirable consequences identified by the noble Lords. I also think that the amendment is, curiously, too narrow. As I interpret it, it requires compelling evidence of a criminal purpose.
A long time ago, when I was in the Home Office, I had responsibility for one of the prevention of terrorism Bills which was going through the House of Commons. One of the issues we had to consider in Committee was very similar to the point made by the noble Lord, Lord Carlile. What happens when a lawyer receives, through the legal process of discovery, information which is capable of supporting terrorism? We decided as a matter of principle that that information would not be disclosed to the defending lawyer because of the risk of transmission to the client, who might use it for the purposes of terrorism.
I am therefore concerned that while the Bill as drafted is too broad, the amendment is too narrow. It does not capture the situation when an innocent communicator can communicate to a client, who may be a terrorist, information which that person can use for an act of terrorism. I am glad to hear that this is a probing amendment, which has been accurately advanced, and that the Government are minded to be responsive to the anxieties expressed. I hope that the Minister will keep in mind my own anxiety, that while Amendment 48 has a great deal of merit, it is too narrow, while the Bill as drafted is too broad.
Baroness Hayter of Kentish Town (Lab)
My Lords, I will not dare to try to better the arguments already made in this debate but will only emphasise two things with regard to the amendments to which I have added my name.
The first, which has already been mentioned by the noble Lord, Lord Pannick, is that this so-called privilege is of the utmost importance to clients—the description always sounds as if it is your privilege rather than ours. I speak as the former chair of the Legal Services Consumer Panel, where we represented the interests of those who—often in times of trouble—need the help and advice of a lawyer.
We know that very many people who could do with legal assistance do not go, partly because they do not know that they need it, partly because they do not know how to get it, partly due to cost, but also because it is all a bit too intimidating. It often falls to the lawyer to reassure them not just about the particular case, but that what passes between them will be absolutely confidential and—for example, in the case of a domestic break-up or a child’s custody—will never be revealed to their former partner or others involved, including agencies of the state.
Therefore, this confidential relationship is key to people getting good advice and advocacy and a fair hearing, as well as being key, as we have already heard, to the role of our lawyers and the rule of law. However, we also understand that there will be occasions when some details of this relationship might be caught by powers included in the Bill. We look for some assurance that the maintenance of clients’ confidence is absolutely understood, and that any such occasions will be as limited as we have heard, and only after proper due process.
We look forward to hearing in the Minister’s response the Government’s current thinking and perhaps some indication of what they will be willing to bring forward on Report.
Investigatory Powers Bill
Viscount Hailsham Excerpts(8 years, 5 months ago)
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Viscount Hailsham (Con)
I reinforce what the noble Baroness has said with regard to Clause 2(4). The first line—
“The other considerations, may, in particular, include”—
means in effect that the criteria and considerations set out are open-ended. While the public authority may have regard to any of the considerations set out in Clause 2(4), it can also have regard to any other considerations that it deems fit. That seems a very unsatisfactory state of affairs.
Lord Lester of Herne Hill (LD)
My Lords, I put my name to a couple of these amendments and I would like to speak to them. Under our constitutional arrangements, the Human Rights Act is the next best thing that we have to a constitutional guarantee of fundamental rights and freedoms. The Minister has rightly put his name on the front of the Bill, stating that in his opinion it is compatible with the convention rights. I have put my name to these amendments to seek to make sure that what the Minister has put on the face of the Bill becomes transparently clear in the statute when it is enacted.
Article 8 of the convention, which guarantees the right to personal privacy, indicates that any exception must be provided by law—that is to say, satisfy legal certainty—and by the principle of proportionality, and that any interference must be necessary and no more than necessary to safeguard other compelling public interests. The problem with the Bill as drafted is that it does not go quite far enough to ensure full compliance with the Human Rights Act and with Article 8 of the convention. That is why the amendments in the name of my noble friend Lady Hamwee are needed, in my view. First, it is important not merely to have regard to but to make sure that there is full compliance with the principle of proportionality. That is what these amendments seek. Secondly, without repeating what has already been said, it is very important that the obligations on public authorities—for example, not to use the powers listed in Clause (2)(1)—are no more than what,
“could reasonably be achieved by other less intrusive means”.
That is classic principle-of-proportionality language.
I very much hope that in one way or another the Government will come to accept these amendments or something very similar to them so that we can make sure that lawyers like me are not able to go to court to challenge all of this under the Human Rights Act, but that Parliament gets the statute clear to put beyond doubt the application of the principles of legal certainty and proportionality, which is what these amendments are designed to do.
I will say just a word about Amendment 14, not because I want to make an elaborate statement about it but because, as I said at Second Reading, it is very important that we have a board or commission with the requisite powers. I will come to that in later debates on the Bill.
Viscount Hailsham (Con)
May I press my noble friend more on this point? With regard to subsection (3), there is a test of relevance. Subject to the test of relevance, it seems to me that, under subsection (4), the public authority can in effect have regard to any consideration it deems fit. Is that correct?
Earl Howe
As I have said, it is not intended to be an exclusive list. There are, of course, factors that may well be relevant and a public authority will wish to have regard to that are not included in the list. We did not intend the list to be exclusive. However, I am grateful to my noble friend and, once again, I will take advice on whether the wording quite fits the intent.
The House has a proud tradition of respect for human rights. The Human Rights Act is referred to in Clauses 1 and 2. It is the Government’s view that those references make it absolutely explicit that the obligations and protections in that Act apply to the exercise of functions under the Bill. While I am sympathetic to the intention behind Amendments 9 and 13 and I listened with care to the noble Lord, Lord Lester, as I always do, I do not think the amendments are necessary. Public bodies are already required to act in accordance with the Human Rights Act 1998. Our position is aligned. The Human Rights Act is not an optional consideration when exercising the investigatory powers in the Bill. The Government consider it unnecessary to restate the position for that reason. Furthermore, we do not want to cast doubt in other places in statute where it is not restated, as that may serve actually to undermine the strong standing of the Act and the rights contained within it.
Turning to Amendment 10, I do not believe there is a divergence in principle here; this is merely a matter of drafting. The clause sets out that a public authority must have regard to certain considerations, and that duty is subject to the need to have regard to other considerations that exist elsewhere in the law. It would be superfluous to state that public authorities must have regard to things that they already must have regard to. For example, a warrant can be issued only where it is necessary and proportionate, and this is explicit in the relevant parts of the Bill. Equally, the need to comply with the Human Rights Act is encompassed within that Act: it does not need to be restated here. I hope that provides some reassurance and that the noble Baroness will, on that basis, choose not to press this amendment.
On Amendment 11, Clause 2(2) sets out the principles that public authorities must have regard to when exercising certain functions under the Bill. It is not an exhaustive list, and subsection (4) sets out some of the other factors that may be taken into consideration. Again, I emphasise that subsection (4) does not contain an exhaustive list. There will be other principles outside this list that public authorities will need to have regard to, and we should not cast doubt over that, as the amendment would.
My noble friend Lord Hailsham questioned the use of the word “may” as opposed to “must”. The use of “may” in subsection (4) should not be taken to imply that it is optional for public authorities to have regard to the principles listed in that subsection. The law requires, for example, that public authorities must always comply with their obligations under the Human Rights Act.
There are of course some factors listed at subsection (4) that will not be relevant in all circumstances: for example, it may not be meaningful, when modifying a national security warrant, to have regard to the public interest in the prevention of serious crime. But, to be clear, the use of the word “may” does not absolve public authorities from their wider obligations under this Bill or any other legislation.
I turn now to Amendment 12. Economic well-being is of course one of the statutory purposes of the security and intelligence agencies, and the reference to it in Clause 2 is intended to reflect that—nothing more. When powers under the Bill are authorised in the interests of the economic well-being of the United Kingdom, there must be a link to national security. The language at Clause 2 does not alter or undermine that; it simply reflects the statutory purposes of the agencies. As drafted, Clause 2 provides clarity and consistency with existing legislation. Given the specific limitations elsewhere in the Bill, any amendment to Clause 2 along the proposed lines is unnecessary.
Amendment 14 is the final one in this group. Your Lordships’ Committee is in no doubt of the importance of the office of the Independent Reviewer of Terrorism Legislation. David Anderson QC, who has occupied the role since February 2011 and whom both my right honourable friend the Home Secretary and I hold in the highest regard, does an excellent job of reviewing key counterterrorism statutes. His independent oversight and recommendations help us to ensure that our counterterrorism legislation is fair, effective and proportionate, and that it strikes an appropriate balance in the face of the very real and serious threat we face from terrorism.
Following the passage of the Counter-Terrorism and Security Act 2015, the Government undertook a consultation on whether David Anderson would benefit in his role from the support of a privacy and civil liberties oversight board. Having been informed by a public consultation on the board’s establishment, by David Anderson’s own recommendations on this matter and by the need to ensure the best value for public money, the Government decided that they could most effectively support the reviewer in discharging his statutory functions by instead providing him with specialist legal assistance in the form that he recommended in his July 2014 annual report.
Lord Paddick (LD)
My Lords, my noble friend Lady Hamwee and I have Amendments 19 and 66 in this group. The relevant part of Clause 4 that we are talking about here deals with the definition of “interception”. Clause 4(1)(b) talks about interception being,
“to make any content of the communication available, at a relevant time”.
It is the expression “at a relevant time” that we wish to probe. Clause 4(4) describes “relevant time” as being during transmission, or before or after transmission. For us, that begs the question: what does “relevant time” therefore mean? Why does it have to be stated that “relevant time” is necessary, bearing in mind that it seems to cover every time before, during and after transmission?
I turn to Amendment 66. Clause 42(1) talks about interception being effectively lawful if both,
“the sender and the intended recipient … have each consented”.
This amendment simply suggests that that consent should perhaps be in writing. I beg to move.
Viscount Hailsham
My Lords, I would like to raise two points, if I may, about Amendment 66. I entirely agree with the suggestion that the consent should be in writing, and I would rather hope that the Minister will give us some reasons why it should not be, because on the face of it, it is an extremely sensible suggestion. As we all know, there is sometimes a certain degree of opaqueness regarding what people have or have not done. Looking at Clause 42, to which Amendment 66 applies, I have some difficulty in understanding the relationship between subsections (1) and (2). I am not sure why subsection (2) is there, given the language contained within subsection (1). Perhaps my noble friend can help us on that.
Baroness Hayter of Kentish Town (Lab)
My Lords, I wish to speak briefly to Amendment 68, which is in my name and that of my noble friend Lord Rosser. Clause 45(1)(a) permits interception by a Revenue & Customs officer under Section 105 of the Postal Services Act 2000. That is the provision that contains the power to open postal items, so that is clear enough. However, Clause 45(1)(b) permits interceptions by, again, a Revenue & Customs officer under the same Section 105 “and another enactment”. It is the phrase “and another enactment” that I am not quite clear about. If Section 105 is sufficient, why add the words “and another enactment”? If it calls on some other law in order to legitimise this activity, should that not be detailed in the clause? Amendment 68 therefore proposes deleting the second arm—the “and another enactment” bit—unless the Minister can make some sense of it for me.
Viscount Hailsham
Could I press my noble friend a little more on Amendment 66? Of course I understand that there will be circumstances when written consent cannot be made, but there will be many other circumstances when it can be obtained. I note, for example, that it involves the consent of both parties. That suggests that it happens some time before the interception takes place. I should have thought it perfectly possible to have a proviso that the consent should in general be forthcoming and evidenced in writing, but that there should be a disapplication in urgent situations. In dealing with that matter, can my noble friend help me as to why we have subsection (2) as well as subsection (1) of Clause 42?
Earl Howe
My Lords, I am very sorry to have to disagree with my noble friend about the consent in writing, which would be likely to result in completely impractical situations. It is not clear what real advantage would be gained. In any case, most of the time, prior consent in writing would simply not be an option. Taking the example again of a telephone call, it is difficult to see how the normal transaction of business would not be completely impeded if we insisted on this provision.
I shall endeavour to respond to my noble friend about his question on subsections (1) and (2). I do not have a ready interpretation to give him now but, if I can during the proceedings, I shall do so.
Report of the Iraq Inquiry
Viscount Hailsham Excerpts(8 years, 5 months ago)
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Earl Howe
My Lords, it is very important to make that distinction. At the same time, it behoves those in the Ministry of Defence, particularly at a high level, to reflect on what more might have been done to support troops in the field. There is a criticism in the report, as the noble Lord will know, about the equipment that our troops had—the noble and learned Lord referred to this. There are two elements to that criticism: one is that the equipment was inadequate and/or deficient; the other is that the Ministry of Defence and the senior military did not respond quickly enough to reports from the field that improvements should be made. It is very much the latter, as much as the former issue, that we should now reflect on.
Viscount Hailsham (Con)
My Lords, does the Minister agree that, while there are many criticisms of the Government contained in the Chilcot report, we should remember that Mr Blair and his colleagues were not actuated by ignoble motives but were, rather, seeking to sustain the national interest? I say that as one who was not misled by what happened—I voted against the Iraq war. I am glad to say that I played a part in drafting the Motion against it. I also had a Motion on the Order Paper in the other House calling for Mr Blair to be called to account, if necessary by impeachment. But, that said, is it not right that we should temper our criticisms by bearing in mind that Mr Blair and his colleagues were seeking to serve the national interest and were not motivated by ignoble motives?
Earl Howe
I fully agree with my noble friend. I think that, in reading the report, there is no suggestion that Sir John has reached that adverse conclusion about Mr Blair’s motives. Indeed, it is apparent how dedicated Mr Blair was at the time to pursuing what he judged to be the right course for the nation. We may or may not agree with what he did, but there is no doubting his integrity or his dedication.
Refugees and Migrants: Royal Navy and NATO Interception in Mediterranean
Viscount Hailsham Excerpts(8 years, 9 months ago)
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Earl Howe
My Lords, if it became necessary for our ships to dock in a Turkish port for any overriding reason, I have no doubt that the Turkish authorities would allow us to do that—but not to disembark anyone that we may have picked up en route; it would be purely for the servicing of those ships. But I do not anticipate that that will be necessary. As regards asylum claims, it is important to understand that migrants cannot make claims for asylum in the UK on UK-flagged vessels outside UK territorial waters—lest that should be a concern of the noble Baroness. If we do pick up any migrants—again, I stress that that is not our primary role—we would take them to Greece in the first instance.
Viscount Hailsham (Con)
My Lords, can the Minister tell the House the degree to which we are liaising with the Turkish authorities? It really does seem that the Turks are much better placed to stop those ships leaving their coasts than we are to intercept them on their way.
Earl Howe
My noble friend is absolutely right. This is why NATO is in a support role, as I emphasised, to alert the authorities in the Turkish coastguard and FRONTEX, which is the EU border control agency, to intercept the ships. It is not our role to intercept those ships; it is for the Turkish and, if need be, the Greek coastguard authorities. They have assets in the area which are well placed to do that.
Strategic Defence and Security Review
Viscount Hailsham Excerpts(9 years ago)
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Viscount Hailsham (Con) (Maiden Speech)
My Lords, for well over 50 years, I have been a silent attender at the deliberations of this House, initially on the Steps of the Throne, then later at the Bar of the House. I have always been immensely impressed by the important role that this House plays in the working of the British constitution. Therefore, for me, it is a huge privilege and pleasure to have the opportunity of addressing your Lordships directly from these Benches.
Inevitably, one is conscious of those who have been before. If your Lordships will forgive me a personal observation, when I look at the Privy Council Bench occupied by three of my noble friends, whom I have known for a very long time, I am conscious of my father and father-in-law. They used to sit there together, mostly in harmony and very often grumbling about the shortcomings of a government spokesman.
I am also very touched to see the noble Baroness my wife on the Cross Benches. This is not an Oscar ceremony and anyway I eschew the emotional stuff but it was very brave of her to marry a prospective politician and very resilient of her, if I may say so, to attend his maiden speech—she has heard an awful lot of the other ones. Frankly, without her I would not have survived the political course.
I am extremely grateful to the noble Lords, Lord Garel-Jones and Lord Goodlad, who did me the honour of introducing me to this place. We go back an awfully long way—back to 1979 and the Government Back Benches, to the Government Whips’ Office and, of course, to the Foreign Office, where we had the privilege of serving under the noble Lord, Lord Hurd of Westwell, who to my mind is one of the most distinguished Foreign Secretaries this country has had since the war.
I am deeply touched by the kind reception I have received from so many of your Lordships and the staff of this House. In return, I am very conscious that the qualities expected of a Member of this place are very different from those that are expected down the corridor; in particular, a more collegiate, less partisan approach to debate and a certain self-restraint as to the frequency and length of one’s interventions. It is in that spirit that I respond to the Motion so well moved by my noble mentor, the noble Earl, Lord Attlee. I will confine myself to making four substantive points and no more.
First, the defence review is to be welcomed, especially as regards the enhancement in equipment and the recognition for nimbleness and flexibility. The Chancellor is to be congratulated on making the resources available. But our forces are lean and in a crisis we may not have the opportunity to repair the deficiencies. So I hope that the Government will be sensitive to the need to accelerate some of the programmes. In that context, I will make a point about Paris. Our security forces are well used to dealing with prolonged sieges and terrorists who are anxious to escape with their lives, but we face something different now; namely, suicidal killers intent upon widespread and immediate murder. In respect of them, I hope that our services are properly armed, equipped and trained.
The second point I want to make relates to keeping your word. One needs to be very cautious about giving assurances and uttering threats but, once done, they must be honoured; otherwise, policy-making loses all credibility.
My third point relates to Russia. Putin’s Russia is never going to be a comfortable neighbour, but we now have real issues in common. I hope that we can come to some modus vivendi. True, it will be at a price. The annexation of Crimea will not be reversed and the displacement of President Assad will not be the first priority, but I think we can come to a modus vivendi.
Lastly, on ISIL, I speak as one of those who voted against the second Gulf War. I was a teller on that Motion and assisted with its drafting, but I think that the House of Commons made the wholly right decision yesterday. I do not believe that bombing specific targets in Syria will defeat that organisation, but not to play our part will diminish our standing among those already engaged. It would also display a shaming degree of disengagement. The moral and ethical basis for such action clearly exists. The recent Security Council resolution gives explicit legal authority and, incidentally, it was declaratory only of long-existing principles of deterrence and self-defence. Precisely those principles justify the use of lethal force against individuals such as Jihadi John, who have committed heinous crimes against all humanity. For they have made themselves outlaws in the true sense of the word in that by putting themselves outside the reach of the law, they have also put themselves outside the protection of law.
Those are the four points that I venture to place before your Lordships’ House for your consideration.