Counter-Terrorism and Security Bill
Lord Armstrong of Ilminster Excerpts(11 years ago)
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Lord Armstrong of Ilminster (CB)
My Lords, I declare an interest as a former Permanent Under-Secretary of State at the Home Office and as a former chancellor of the University of Hull. I have therefore listened to this debate with great interest and concern. I find myself in a situation that was described in Committee by the noble Lord, Lord Pannick. I agreed with everything he said then, although I shall not repeat it.
The debate has swayed around the issue, and it seems very difficult for us to try to assign primacy between the duties under the Bill and the duties towards freedom of speech. The duty of preserving freedom of speech is, as so many speakers have said, of fundamental importance. However, we have seen that it is possible for people who wish to do so to be rather successful in radicalisation within the restrictions on freedom of speech within the law, so I have sympathy with what the Government are trying to achieve.
The merit of Amendment 14A proposed by the noble Lords, Lord Macdonald and Lord Pannick, and Amendment 15D proposed by the Government is that while the duties obviously conflict, the ultimate choice of what to do is left to the universities. No primacy on one or the other duty is expressed. The decision is left, presumably case by case, to the universities. That seems to be almost the only position possible if we are to retain some kind of inhibition on radicalisation in places of higher education.
Lord Scott of Foscote (CB)
My Lords, there have been some memorable speeches this evening. I want to add just a word or two. I have an interest: I have four children, two of whom are Muslims, and 12 grandchildren, seven of whom are Muslims. They are as indignant as anybody else about the outrages that are committed from time to time by members of their religion. They would be wholly supportive of everything that has been said in this debate.
Amendment 15D, as proposed by the Minister, seems to deal satisfactorily—with some exceptions which I propose to mention—with the main issue in this debate; that is, to reconcile the conflict between, on the one hand, the duty on universities to encourage and allow freedom of expression, and, on the other, the Clause 25(1) duty to protect people from being influenced into terrorism. Amendment 15D seems to deal with that, subject to some grammatical points on its second subsection where it refers to the two relevant duties.
One of the duties, imposed by Clause 25(1), is to protect people against terrorism; the other, under the Education Act (No. 2) 1986, is to allow and encourage freedom of speech. Those two duties are often in conflict, and the reconciliation between them is sought to be done with subsection (2) of the proposed new clause in Amendment 15D. It says:
“When carrying out the duty imposed by section 25(1)”—
which is the protection against terrorism, “a specified authority”, such as a university,
“to which this section applies must, if subject to the duty imposed by section 43(1) of”,
the Education Act,
“have particular regard to it”.
I read that several times as I was quite uncertain which of the two duties the “it” referred to. I hope it was referring to the freedom of speech duty but, as a reading of the subsection shows, it is grammatically perfectly capable of referring to the Clause 25(1) duty. That really ought to be sorted out before this amendment becomes final. It could be dealt with perfectly easily by ending subsection (2) with the words: “having particular regard to the freedom of speech duty”.
In subsection (3) of the proposed new clause, there is again this ambiguity as to what “that duty” refers to. There are two duties and it might be referring to either. I think that the duty being referred to in subsection (3) is probably the Clause 25(1) duty. These might be described as pedantic points, but they are the sorts of points that a chancery barrister, as I was when I began my legal career, would love to make in taking up the time of a judge in court. Goodness knows what answer the judge would give: different judges might give different answers, and that would mean that the legislation had a flaw in it. It is an ambiguity that needs to be corrected.
Counter-Terrorism and Security Bill
Lord Armstrong of Ilminster Excerpts(11 years ago)
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Lord Armstrong of Ilminster (CB)
My Lords, at this stage there is no need for me to rehearse all the arguments in favour of this group of amendments. The terrorist threat has increased and is increasing, and those upon whom we rely to prevent and detect terrorist crime depend on access to the communications data of those intending and planning to commit terrorist crime. I will not go in detail into everything that the noble Lord, Lord Paddick, has said, although I do not think that the noble Lord, Lord Blencathra, or I could agree with all of it.
Those agencies have been increasingly conscious that the provisions in RIPA 2000, now nearly 15 years old, badly need updating to take account of technological changes. The agencies have enjoyed the voluntary co-operation of many of the service providers, but many of the companies concerned, as we heard in the committee chaired by the noble Lord, Lord Blencathra, would like to see that voluntary co-operation underpinned by statutory provision. There are no doubt some who are reluctant to co-operate without there being statutory provision.
The Bill provides us with an opportunity to put in place some of the statutory provisions which would have been provided by a revised—“Blencathrated”, if I may call it so—communications data Bill, for the introduction of which we shall now have to wait until the next Parliament. These amendments are designed to take advantage of that opportunity. Their scope has been reduced since similar amendments were proposed in Committee. We have been denied the possibility of Blencathrating these amendments because the Home Office is not willing to produce a revised communications data Bill or the relevant parts of it. Therefore, these amendments are no more than a stop-gap, as the noble Lord, Lord King, described them, and they are no more than temporary to fill a stop-gap because there is a sunset clause which ensures that they will disappear in their present form in December 2016. Most of this limited stuff is taken up with safeguards, and more than three pages are taken up with an interpretation clause of definitions.
We know that the police and the intelligence and security agencies feel the need for these provisions and would welcome these amendments, limited and imperfect though they are. As has already been said, in passing these amendments your Lordships would not be deciding that they would be part of the Bill before us when enacted; we would be giving the other place the opportunity to take that decision. Surely that is where the final decision should lie.
If the noble Lord, Lord King of Bridgwater, were to decide to press these amendments, I would support them because I would not wish to have on my conscience any sense of shared responsibility for what might ensue if failure to include these provisions in the Bill resulted in failure to prevent a terrorist attack which might have been prevented, as well as all the consequences which might result from such an outrage, as was vividly and notably referred to by the noble Lord, Lord Tebbit.
Lord Harris of Haringey
My Lords, this is something of a mess. I was certainly alerted—and I know that other noble Lords will have been alerted at the same sort of time—to the developing problem of a gap in terms of communications data eight or nine years ago. It was so long ago that I can no longer remember exactly when it was. The gap is occurring because of the nature of the way in which communications take place using the internet, and it is a gap which is worsening and getting bigger.
Communications data, as opposed to intercept, are used in virtually all major crime and terrorist cases. They are an essential component, concerning who was there, who was where and who was communicating with whom. That is nothing new; what has changed is the way in which those messages are transferred from one place to another. It is a fact that it is no longer easy, using conventional means and conventional mechanisms, to keep track of that information, and that is causing the problem. It is a problem and a gap which has been getting worse over the last few years.
Something urgently needs to be done to remedy that gap, but it has not happened. The previous Government and this Government have failed to do something about it. We are now moving inexorably towards a general election, which is a few weeks away, and it will be down to whichever Government are in place after that to deal with this. I share the concern of the noble Lord, Lord King, that, following the election, that may not be a rapid, simple or straightforward process.
What do we do now? The first thing is not to oversell the importance of either these amendments or the mythical Blencathra’d amendments that may or may not exist somewhere else. The amendments will not be a magic bullet. The mere passage of these proposed new clauses, or a version of them, does not mean that terrorism will be prevented or that serious crime will stop, but they would be an essential and necessary tool in trying to minimise the risk. Let us not pretend that the failure to include them will automatically mean that there will be a terrorist atrocity. However, it will mean that such an atrocity will be that bit more likely and that it will be that much more difficult to deal with it and stop it.
This is not just a question of the legislative provisions and the fact that we are being dilatory in getting round to dealing with this issue. I understand and have all sorts of sympathy for Ministers in the context of a coalition where one side of the coalition is less keen on such a provision than the other and starts to position itself in advance of a general election. I have lots of sympathy for all that, but the fact is that collectively Governments over the past eight to 10 years have failed to address and deal with this issue.
There is a second vital element, which is that there is a degree of public support for and public buy-in to the changes that have been made. That is why not pretending that this is a magic bullet is so important. In the past, security measures have been oversold as the one necessary thing that will stop all these atrocities, and every time that excuse is used it has bred public cynicism about these measures.
Part of what has to happen is a proper public debate about why these powers are needed, why they matter and why they do not constitute the infringement of civil liberties and personal liberty that some people assume. Failing to have that debate has been a wasted opportunity over the last few years. When the Joint Committee produced its report, the Government should have used that as the opportunity to say, “Let’s have that public debate”. Had they done so, we might now be in a position where there was a public understanding of these issues and a readiness to go forward.
The reality is that if the noble Lord, Lord King, presses his amendments, people will say that the parliamentary process has been abused, and we have no doubt already had dozens and dozens of emails and letters saying precisely that. It is an abuse of the process because it does not allow the normal times for debate, but we have failed to give ourselves the time for that, and that is why we are in such a mess.
Should we agree to these amendments? No, because they do not incorporate the views of the Joint Committee; no, because we have not had an opportunity for the public debate; and no, because we have not had the report of the Independent Reviewer of Terrorism Legislation. I do not want to get into why we have not had all those things but the fact is that we have not. It would therefore be wrong to press ahead with these amendments at this stage, much as I personally believe that something along these lines is necessary and much as I personally believe that we should have taken action much sooner. However, the reality is that those other things are not in place. I blame the Government—of course I would because I am on this side of the House—for failing to have those other elements in place and for failing to ensure that there has been the necessary public debate. However, to press today without public support and public debate, and in the absence of having the views of the independent reviewer, clearly would be a mistake, particularly in the context in which people would see that the legislation had been rushed through by some sort of legislative sleight of hand.
The noble Lord, Lord King, gave the Government a week’s opportunity to move forward. The Government have not taken that opportunity. For the very reasons I have given about not having public support or having built things up, I do not believe that they should have responded to the noble Lord’s amendment last week by bringing forward their own amendments to do all this overnight. But it would have been an enormous step forward, and still would be an enormous step forward, if before Third Reading the Government were to publish the revised versions of the legislation that they have, even if they are not the final product, so that that public debate can start. Some of the myths about communications data and what the Government are trying to do could be dispelled.
We are in a sorry mess. Frankly, I do not think that the amendments in the name of the noble Lord, Lord King, solve the problem. They could conceivably make it worse. But for goodness’ sake, we need to treat people like adults, not pretend that this is a magic bullet, and allow the public debate to take place.
Counter-Terrorism and Security Bill
Lord Armstrong of Ilminster Excerpts(11 years ago)
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Lord Armstrong of Ilminster (CB)
My Lords, the issue raised by this group of amendments, long as it is, is straightforward enough. We rely on the police and the intelligence and security agencies to protect us and our liberties from the threats to our way of life presented by terrorism. Their ability to do so depends to a large extent on their ability to have access to the data derived from the use of communications by the would-be terrorists.
The regulation of the use of communications data was last reviewed 15 years ago. Since then there have been great changes, as many speakers have said, in the technology of communications, the significance of which, for the regulation of communications, needs urgently to be reviewed.
The threat from terrorism has unquestionably increased. The sophistication of those who use communications for malign purposes has also increased. As we have been told, the efficacy of the activities of the police and intelligence and security agencies in this area have been impaired by the activities of Mr Edward Snowden.
The Government published the draft of a new Communications Data Bill earlier in this Parliament, two or three years ago. That was scrutinised by a Joint Committee of the Houses of Parliament, chaired by my noble friend Lord Blencathra—since I was a member of that Committee, perhaps I may call him that. That committee made extensive criticisms of and recommendations for the draft Bill and the Government accepted almost all of them.
There is reason to believe—indeed, as my noble friend Lord Blencathra has already said, he and I have seen—that the Home Office produced a revised version of the draft Bill, to take full account of the Joint Committee’s recommendations. Unfortunately that revised Bill has not been allowed to see the light of day, let alone been submitted to Parliament for consideration. That will not now happen until there is a new Parliament. If a revised Bill is not introduced until after the election, it might be that it cannot be passed until well into 2016. That would be another year’s delay, which we can ill afford.
The present Counter-Terrorism and Security Bill provides an opportunity to put into effect, within the next few months, the measures proposed in the revised Communications Data Bill, insofar as they affect the response to the enhanced threats from terrorism and the agencies responsible for countering those threats. That is what the amendments seek to achieve. The amendments also provide for a sunset clause that would ensure that the whole matter is reviewed early in the new Parliament. Since we do not have the revised version of the draft Communications Data Bill, those responsible for these amendments have had to rely on the original Bill. No doubt the amendments are to that extent defective. But Parliament should not be denied the opportunity of considering whether and how to achieve the changes required immediately and without the delay consequent upon waiting until the next Parliament.
I expect—though I cannot commit them—that those who are putting forward these amendments would be prepared to withdraw them if the Government would undertake this evening to introduce on Report revised versions, taking account of the criticisms and recommendations of my noble friend Lord Blencathra’s pre-legislative scrutiny committee, but also adopting the proposals in the amendments for confining the changes to the police and intelligence and security agencies and providing a sunset clause ensuring that the issue has to be considered in the wider context of a review of the regulation of communications data by the new Parliament. With that qualification, I fully support the amendments proposed by the noble Lord, Lord King, and his colleagues.
These amendments provide an opportunity to address without delay acknowledged shortcomings in the effectiveness of the present regime. It is suggested that they would be an unacceptable intrusion on the liberty of the citizen. That can be much exaggerated. It is not government agencies that will store the data, and those agencies will be able to obtain access to the stored data only subject to demonstrable need and justification and subject to rigorous procedures and controls that were examined and found fit for purpose by the committee—as my noble friend Lord Blencathra has said.
Even so, they will of course represent some potential interference with the freedom of action of those whose data are extracted from the store. But those are or may be the people whose freedom of action we wish to limit or restrain, because their intentions are malign and, if realised, will compromise the life, liberty and happiness of the rest of us. The price of liberty is eternal vigilance, but if vigilance fails or is frustrated, it is life, liberty and the pursuit of happiness that pay the price.
Lord Strasburger (LD)
My Lords, I confess that I do not really know where to start. I think it is true that all the previous speakers are former members of what I would call the security establishment: they are former policemen, former Home Office Ministers or former spies—I am not sure in which category I would put the noble Lord, Lord Armstrong. I think I am the first to speak more as an individual and a non-politician; my history before I came to this House was quite outside of politics, in business.
As we have heard, these amendments regurgitate large parts of the utterly discredited draft communications data Bill. They seek to slip into the Bill large parts of the highly controversial snoopers’ charter, word for word. With just one exception, the amendments fail to correct any of the many significant, fundamental and deal-stopping flaws identified by the Joint Select Committee on the draft Bill that reported at the end of 2012. I had the honour of being a member of that Select Committee under the very able chairmanship of my noble friend Lord Blencathra. The committee sat for five months; it met 20 times, including three times in the Recess; it interviewed 54 witnesses and received 19,000 e-mails from members of the public. As we have heard, its members included two former Cabinet members, Lady Thatcher’s Cabinet Secretary, one noble Lord who has since become a government Minister, an ultra-loyal Conservative MP and a former Conservative Home Office Minister. That was hardly a hotbed of lefty liberals. The committee reached a unanimous verdict that the draft Bill was badly written, far too broad in scope and badly costed, and noted that the security agencies would do better to make better use of the information they already had.
That last observation is made particularly pertinent by the revelations following the atrocities in Woolwich and Paris, in which all the terrorists were well known to the security agencies long before the events. In all, there were about 100 criticisms of the draft Bill in the Select Committee’s report and many of them were serious and fundamental. As far as I can see, these amendments deal with just one of those criticisms, which means that they are still infested with the remaining 99 flaws. I will not detain the House by going through each of them, but noble Lords may read about them at their leisure in the report, which I commend to the House.
When Edward Snowden released his revelations, about six months after the Select Committee reported, we learnt that GCHQ’s Project Tempora is the world’s first “full-take” data interception system, collecting 100% of internet traffic—content as well as metadata. Former committee members were surprised, and some were angered, by that revelation because during the committee’s proceedings Home Office officials had three times claimed that there was a 25% capability gap in what the agencies could collect—although those same officials were not able to justify that figure of 25%, even in private sessions. Snowden showed that the 25% so-called gap probably does not exist at all and that in fact the agencies are already, and have been for some time, acquiring far more data than the draft Bill would have delivered—and without the knowledge or consent of Parliament and the people.
Counter-Terrorism and Security Bill
Lord Armstrong of Ilminster Excerpts(11 years, 1 month ago)
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Lord Armstrong of Ilminster (CB)
My Lords, we have had a long debate with very many thoughtful contributions. I certainly do not propose to try to sum them all up. I would like particularly to thank the two noble Lords who made their maiden speeches; theirs were notable contributions to the debate and we look forward to hearing from them both. If I pick particularly on the speech from the noble Lord, Lord Evans of Weardale, it is because I come from a generation of public servants for whom the Security Service was not allowed to exist. It was like the girl in the song:
“Oh! no! we never mention her,
Her name is never heard”.
The director-general’s identity and name were the most profound state secrets, and the director-general’s voice was never heard in public. Things have changed, and they have changed to our advantage: we had the present director-general making a speech that we read last Thursday and we had two noble Lords who are former directors-general of the Security Service contributing to our debate this evening with all the authority of their experience.
The people of this country have a right to be able to go about their lawful business freely and in freedom, and in private if they so wish. They also have a right to be able to go about their business in safety and without fear. Parliament and the Government have to try to resolve the conflict between these duties, since measures to provide safety and security almost invariably and inevitably limit freedom and erode privacy. How the balance should be struck at any given time has to be decided by Parliament, and should be decided by Parliament. The Government can and must propose, but people will expect Parliament to decide. It is a serious and heavy responsibility.
The rights to freedom and privacy, although they might have to be qualified, are none the less absolute. They should be qualified or limited only to the extent necessary for the purpose of maintaining or improving safety and security. We must therefore be ready to accept limitations on freedom and privacy where they can be shown to be essential for maintaining—or preventing a deterioration in—safety and security. If and when we are satisfied that the nature of the threat has changed, so as to make it unnecessary to retain measures that were hitherto regarded as indispensible, we need to be ready to dispense with those measures.
We have once again reached a stage when the balance needs to be reconsidered and restruck in the light of new threats to safety and security. I believe that the Government had established a case for the new measures proposed in this Bill before the shocking events in Paris last week. Those events have served to strengthen that case.
No doubt we shall go through the Bill in detail and consider the relevance and effectiveness of each of the measures but, subject to that examination, I hope that the House will give the Bill a Second Reading today and eventually pass it. We owe it to the law enforcement and intelligence and security agencies on whose vigilance and effectiveness we depend to provide them with the powers, authorities and resources that they need for the purpose of providing us with the best possible protection from threats to safety and security, as we now perceive them.
As for the detail of the Bill, I shall only briefly mention that I await to see what is said about the temporary exclusion orders and the role of judicial review. I also await to hear what is said about the Privacy and Civil Liberties Board. On that matter, my respect and admiration for the Independent Reviewer of Terrorism Legislation, Mr David Anderson, is possibly slightly less—but hardly less—than that of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Carlile of Berriew. It is very great. We shall need to ensure that nothing in the Bill dilutes or diminishes his responsibilities. We shall need to ensure that he has the range of duties that he thinks he needs and the resources to fulfil them. We shall need to watch that very carefully as the Bill proceeds.
I comment briefly on Part 3. It will allow the Government to require communication service providers to retain data that will allow the authorities to link the unique attributes of a public internet protected address to the person or device using it at any given time. It will not enable the authorities to obtain access to the content of such communications; that will continue to require the authority of the Secretary of State.
The power to be able to access such data and, often, to be able to do so as a matter of urgency, is, as we have heard this evening, an indispensable and vital tool in the investigation and detection of terrorist threats and crimes—and of other serious crime. It was one of the provisions contained in the Government’s draft Communications Data Bill, which was given pre-legislative scrutiny two or three years ago by a Joint Committee of both Houses under the chairmanship of the noble Lord, Lord Blencathra, of which I was a member. The Joint Committee recommended a number of changes to the draft Bill, but accepted this provision.
For my part, I regret that the current Government were unable to reintroduce a communications data Bill that incorporated the Joint Committee’s recommendations. Such a Bill is needed to reflect fast-moving changes in communications—particularly internet—technology since the Regulation of Investigatory Powers Act 2000, 15 years ago. Parliament should be asked to return to the subject very early in the new Parliament. I am glad to learn that the Prime Minister has said that if he is still Prime Minister after the election, he intends to introduce such a measure. A similar commitment from the leader of the Opposition and other party leaders would no doubt be welcome.
Indeed, I believe that the new Parliament will have to give early consideration to these issues, as Part 3 includes a sunset clause which provides for its repeal at the end of 2016, at the same time as the repeal of the Data Retention and Investigatory Powers Act 2014. In the mean time, thankful for small mercies, I welcome and commend Part 3 to the House.
Data Retention and Investigatory Powers Bill
Lord Armstrong of Ilminster Excerpts(11 years, 7 months ago)
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Lord Butler of Brockwell
My Lords, having supported the Minister on the point made by the noble Lord, Lord Davies, may I now say to him that he is being unnecessarily negative about this? He has explained why he thinks the amendment is unnecessary, but he has not explained what the positive arguments are against it. It seems to me that it can only be helpful. Unless there is some positive reason for rejecting the amendment, I would urge him to consider again before Report. The problem is that we cannot repeat this amendment exactly on Report, and it would be difficult to improve on the wording already suggested by the noble and learned Lord, Lord Hope. I ask the Minister whether he could consider again the idea that this amendment is designed to be very helpful to the Government. The fact that it may not, in the Government’s view, be strictly necessary, does not seem to me a convincing argument as to why it should be rejected.
Lord Armstrong of Ilminster (CB)
My Lords, we are talking about what the Secretary of State considers. I wonder whether the difficulty could be resolved if the Minister were to state formally, on the record in Hansard, that the Secretary of State must consider that,
“for objective reasons the requirement is strictly”
necessary.
Lord Howard of Lympne (Con)
My Lords, I rise with some temerity to disagree with the views expressed from the Benches opposite, but it seems to me, as a matter of principle, that when the Government and the Parliament of the United Kingdom consider how to introduce legislation consistent with a decision of the European Court of Justice, it is the substance of what the Government and the Parliament of the United Kingdom are providing which is important. It should not be necessary, and it would not be a healthy precedent, if Parliament took the view that every time we had to amend our legislation in order to comply with a judgment of the European Court of Justice, it was incumbent upon us to adopt language identical to that found in the judgment. So there is at least the vestige of a point of principle here, and that point of principle leads me to support the view expressed by the Minister.
Data Retention and Investigatory Powers Bill
Lord Armstrong of Ilminster Excerpts(11 years, 7 months ago)
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Lord Armstrong of Ilminster (CB)
My Lords, I do not propose—indeed I am not qualified—to comment on the ruling of the European Court of Justice which has made it necessary to introduce the legislation that we are considering. But as a consequence of what I learnt as a member of the Joint Committee for pre-legislative scrutiny of the Government’s draft communications data Bill, chaired by my noble friend Lord Blencathra, I am sure that it is important—indeed necessary—that there be no doubt about the legality of requirements placed on communications service providers to make communications data other than the content of communications available, mainly for the detection and prevention of serious crime and of terrorist outrages, but also for other purposes, particularly child protection, and to retain those data for longer than they would need for their own commercial purposes.
Yesterday, the Minister described the Bill as a puncture repair to keep the car on the road, not a new tyre. I accept that the Bill does no more than restore the legal cover to the state in which it was, or was believed to be, before the European court’s judgment, and as such I believe that noble Lords can and should approve it. I also believe that the case has been made for extraterritoriality, as was said by my noble and learned friend Lord Lloyd of Berwick. But I remember an occasion in 1993 when the late Lady Thatcher, in a visit to the United States, took the US Secretary to the Treasury robustly to task for the US Government’s attempt to impose their powers extraterritorially. It was so robust that when she had finished the Secretary to the Treasury said, “Margaret, you need to watch your blood pressure”, to which she answered, “I should like you to know that my blood pressure is extremely low”.
The inquiries made by the Joint Committee chaired by my noble friend Lord Blencathra persuaded me, and I believe other members of the committee, that a strong and effective system is in place for ensuring that only communications data essential for a specific and justifiable investigation are required from the communications service providers. As another noble Lord has pointed out, this is a real safeguard to protect the privacy of the ordinary citizen going about his or her ordinary business.
In this business, there is constant tension between the need to respect and so far as possible to protect the right of the citizen to privacy in the conduct of his or her life and business, and the duty of the Government to protect the safety and security of the citizen as he or she goes about that life and business. In this tension, there are no absolutes as to how the balance between them should be struck. That balance changes as circumstances change, as the technology of communications changes and develops, which it does with great rapidity, and as new threats to safety and security emerge.
The state of legislation on communications data needs to be constantly reviewed as those changes progress. But, in the end, it is Parliament that must strike the balance. Parliament last reviewed the balance during the passage of the Regulation of Investigatory Powers Act 2000. To save myself stumbling over that in future, I will call it RIPA. The world of communications has changed—as the noble Lord, Lord Macdonald, pointed out—almost beyond recognition in the 14 years since 2000. The determination and ingenuity of those who commit serious and organised crime have not diminished. New threats, or potential threats, of terrorism have appeared in this country. It is high time to look again at the balance and to introduce new legislation to take account of those changes. We are asked today to approve a puncture repair. We should be looking at a new set of tyres.
The Government produced a draft communications data Bill earlier in this Parliament. The committee of the noble Lord, Lord Blencathra, thought that the draft Bill had not got the balance right, and made recommendations for changing it to rectify the balance. The Home Office then revised the draft Bill in the light of those recommendations and made improvements which, in the judgment of many of us, went a very long way towards meeting those recommendations and striking a proper contemporary balance between the right to privacy and the need to protect safety and security. Unfortunately Parliament was denied an opportunity to consider that revised draft Bill.
There will now be no opportunity, this side of the forthcoming general election, for Parliament to consider a full-scale and up-to-date new Bill, finding and striking a new balance between the right to privacy and the requirements of safety and security in this area of communications data. However, there will be a pressing need to do so early in the life of the new Parliament, because of both the lapse of time and the pace of technological change since RIPA was passed in 2000, and now because of the sunset clause in this emergency Bill.
I welcome the proposal, as provided for in Clause 7, to set up a review by the independent reviewer of terrorism legislation. I have one query about that. The independent reviewer is the reviewer of terrorism. It is not clear from the Bill whether his remit would extend to the use of the communications data regulations for purposes other than countering the terrorism threat, including the detection of serious crime and the other purposes set out in Section 22 of RIPA 2000. I hope that the independent reviewer will have the remit to go that far—he is well equipped and qualified to do so. However, the point should be made absolutely clear.
To change the metaphor, today's Bill, though urgently necessary, does no more than patch the sleeves of the existing and old-fashioned jacket. What is required by the end of 2016 is a brand new jacket cut in the latest fashion.
Communications Data and Interception
Lord Armstrong of Ilminster Excerpts(11 years, 7 months ago)
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Lord Taylor of Holbeach
Well, we are now coming forward with primary legislation; I hope that it meets with the noble Lord’s approval. I understand his point exactly, but we are dealing with that problem now. It has been the practice of successive Governments to deal with European directives in this fashion. Perhaps in some areas it may pay us to make exceptions to that, particularly if we think that there are matters that really ought to be brought to the attention of the House through primary legislation.
Lord Armstrong of Ilminster (CB)
My Lords, I was a member of the Joint Committee which scrutinised the draft communications data Bill. I am sure that all members of that committee would attach great importance to restoring the position that we thought we were in before this. For that reason, I, and I think many colleagues on the Cross Benches, will support the Bill. The sunset clause which has been described will make it necessary to review communications data legislation very early in the new Parliament. I hope that the scrutiny given to it will then bear fruit because I think the result was a good Bill which balanced the essential needs of civil liberty and privacy against the Government’s first duty to protect the security and safety of the citizen.
Lord Taylor of Holbeach
My Lords, the noble Lord, Lord Armstrong, speaks from a great deal of experience in this area. I welcome his support. I agree that this is a matter which will have to be addressed very quickly by an incoming Government. This is a live issue, as is properly demonstrated by the debate we are having now.
Protection of Freedoms Bill
Lord Armstrong of Ilminster Excerpts(14 years ago)
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(iii) at any time when Parliament is sitting or is in recess the Secretary of State, with the concurrence of the Attorney General, considers that it would be inexpedient to introduce primary legislation to authorise a temporary extension of detention either because of time constraints or because of the risk of prejudicing the possibility of a fair trial of a person suspected of or charged with a terrorist offence or because of unacceptable risk to public safety or to security, and”
Lord Armstrong of Ilminster
My Lords, I beg to move the amendment standing in my name and in the names of the noble Baroness, Lady Royall of Blaisdon, the noble Lord, Lord Rosser, and the noble Baroness, Lady Liddell of Coatdyke.
Clause 57 establishes clearly the principle that a terrorist suspect should not be detained without being charged for longer than 14 days. Over the years, there has been much debate about how long that period should be. I have no wish to reopen that debate; the only question is whether there are any circumstances in which a terrorist suspect should be able to be detained for longer than 14 days. It has not been necessary to extend the period of detention without charge beyond 14 days at any time in the last five years. Nevertheless, it is the view of the Home Secretary, as well as of the police and of the Director of Public Prosecutions, that it might one day become compellingly necessary to do so.
The Government took the view that, in order to buttress the principle of the 14-day limit and to make sure that the period of detention without charge could be extended only in the most exceptional circumstances and only for the most compelling reasons, there should be no standing power to extend the period by order, and that it should be extendable only by the introduction of emergency primary legislation if and when the need arises.
Draft Bills were prepared, and a Joint Committee of Members of both Houses of Parliament was set up last year to give the draft Bills pre-legislative scrutiny. That committee, which I had the privilege of chairing, concluded that the Government were right to wish to create a contingency power to extend the maximum period beyond 14 days up to not more than 28 days in truly exceptional circumstances. The committee understood and respected the reasons for proposing that this power should be provided by emergency primary legislation, to be enacted when need arises, so as to ensure that temporary extensions of the period of detention would happen only in very exceptional circumstances and be subject to parliamentary scrutiny and approval.
The committee concluded, however, that parliamentary scrutiny of such emergency legislation would in practice be very seriously circumscribed. The legislation might have to be introduced and debated in a period of high tension and against a background of intense media interest and speculation. It might be very difficult to explain to Parliament, and to Members with a direct constituency interest, the reasons for introducing the legislation without disclosing information which would endanger security or public safety or information which could prejudice the right of a suspect or suspects to a fair trial. This could make the process of justifying the legislation almost impossible for the Secretary of State, and totally unsatisfactory and frustrating for Members of both Houses of Parliament.
The committee also thought that there would be an unacceptable degree of risk that it would be almost impossible to introduce and pass the legislation within a sufficiently short time, particularly when Parliament was in recess and would have to be specially recalled. We pointed out that it would be absolutely impossible during the period between the Dissolution of one Parliament and the opening of a new Parliament, because there would be no Parliament. The Joint Committee therefore concluded that emergency primary legislation, as exemplified in the Government’s draft Bills, did not offer a satisfactory solution, and recommended a new order-making arrangement, under which the Secretary of State would be authorised to make an executive order of limited duration, if need arose, to extend the period of detention of suspects without charge to not more than 28 days, if exceptional circumstances applied, subject to strict safeguards and subject also to the agreement of the Attorney-General.
In Clause 58 of the Protection of Freedoms Bill, the Government have accepted the committee’s recommendation in part, and have made provision for temporary extensions of detention by order in the period between the Dissolution of one Parliament and the first Queen’s Speech in the next. But they are still proposing to rely exclusively on the introduction of emergency legislation at any other time when there is a Parliament in being, whether it is in session or not.
I understand and respect the Secretary of State’s wish to make it as difficult as possible to extend the period of detention beyond 14 days. But she has accepted that there will be times when it is impossible to introduce primary legislation because there is no Parliament in being, so the principle is breached. The question is whether there should be any other circumstances in which an order-making power should be available to the Secretary of State.
This amendment would define and limit other circumstances in which the Secretary of State could proceed by order, even when Parliament was in being, if there were compelling reasons why it would be impracticable or injudicious to proceed by emergency primary legislation. She would still be able to proceed by emergency primary legislation if she thought that it was consistent with security, public safety and the interests of justice to do so. But she would have an escape hatch, by means of which she could, with the agreement of the Attorney-General, and subject to strict safeguards, proceed by order if she judged that pressures of time, or the interests of security, public safety or justice, required her to do so. The safeguards would be the same as those applying to an executive order made at a time when Parliament was dissolved.
The principle that there should be an alternative to emergency primary legislation is already established by Clause 58. The amendment I am proposing is an extension of that principle, not a breach of it. It does not seek to establish a new principle. It is of course possible that there will never be any need to extend the period of detention of terrorist suspects beyond 14 days. I hope that it may be so. But the Secretary of State, the police and the Director of Public Prosecutions all think that it is advisable to provide for the possibility that one day there will be a need to do so. If there is, it may be that it will be possible to proceed by emergency primary legislation. If that is so, fine. But I believe, as did the Joint Committee, that there will be circumstances where that is not possible, but where the period of detention ought to be extended.
To take just one example, suppose that the need to extend the period of detention arose during the Parliamentary Summer Recess. Parliament can be, and of course has been, recalled during a Summer Recess during a time of grave national emergency. But in the Summer Recess, Members of both Houses are scattered to the four corners of the world, and the Palace of Westminster is usually undergoing major works of reconstruction and refurbishment. Is it realistic to suppose that Parliament could be recalled in the Summer Recess just to authorise the extended detention of a terrorist suspect?
Four years of service in the Home Office left me with the conviction that, if anything can go wrong, it usually will—at any rate, in that department of banana skins. The annals of the Home Office are littered with overlooked banana skins and Secretaries of State with red faces. In this matter there are just too many foreseeable risks, and too many reasons why it might be too difficult to introduce primary legislation, to justify a decision not to take a sensible precaution.
This amendment is permissive, not mandatory. If it is passed this evening, the Secretary of State need never take advantage of it if she prefers not to do so. But if this amendment is not accepted she will run the risk of finding herself in a situation where she would like, and she ought, to extend the period of detention of a terrorist suspect or suspects, but feels herself to be prevented from introducing emergency primary legislation to do so, by reasons of pressures of time, or by considerations of security, public safety or justice.
In that situation, if a suspect or suspects could not be further detained but had to be released, and then went on to commit some outrage as a result of which innocent people were killed and injured, and which might not have happened had the suspect or suspects been kept in detention, how would the Secretary of State feel? How would she explain to Parliament, to the country and to the relatives of the victims why she had not felt able to take the action which might have prevented the outrage? The Secretary of State may be made of sterner stuff, but if I were the Secretary of State, I do not think that I could live with that thought.
Lord Armstrong of Ilminster
My Lords, I would like to express my gratitude to the noble Lord for taking the time to talk about this matter at a meeting last week. That was useful—I hope to both of us.
I say to the noble Baroness, Lady Hamwee, that the time constraint I had in mind is that which would arise if the need to extend a period of detention became clear after somebody had already been in detention for 10 days and perhaps a weekend intervened and there simply would not be time to carry through emergency primary legislation, even on a fast track through both Houses of Parliament. It would be very difficult to define extensively in legislation what considerations of security and safety might apply but they are clearly considerations of prejudice to national security and public safety considerations relating to the possibility of a terrorist incident or outrage being planned which might be avoided, and information about which had better not be disclosed in a debate.
I am less confident than the noble Lord, Lord Henley, that it would always be possible to avoid the debate in either House straying from general principle into the particular circumstances of an incident if a terrorist incident had occurred, or if there were extensive media speculation about the possibility of such an incident. I believe that there could well be circumstances in which a Member of Parliament might have a constituency interest which would justify him or her raising more detail, or asking for more detail, about particular cases or particular people than would be appropriate or safe to do. Therefore, I remain of the view that the Secretary of State may live to regret not taking advantage of this amendment. However, in the circumstances of this being a straight issue of disagreement, with apprehension I beg leave to withdraw the amendment.
Protection of Freedoms Bill
Lord Armstrong of Ilminster Excerpts(14 years, 2 months ago)
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“(iii) at any time when Parliament is sitting or is in recess the Secretary of State, with the concurrence of the Attorney General, considers it would be inexpedient to introduce primary legislation to authorise a temporary extension of detention because of—(a) time constraints,(b) the risk of prejudicing the possibility of a fair trial of a person suspected of or charged with a terrorist offence, or(c) unacceptable risk to public safety or to security,”
Lord Armstrong of Ilminster
My Lords, Amendment 143 is in my name and those of the noble Baroness, Lady Liddell of Coatdyke, and the noble Lord, Lord Faulks. Clause 57 establishes on a firm and clear basis the principle that a terrorist suspect should not be detained without being charged for longer than 14 days. Fourteen days is already a very long period to detain someone without charge. For any other offence, the maximum would be no more than four days. The case for a longer period in respect of terrorist suspects is justified only by the especial nature and problems of terrorism.
Over the years, there has been much debate about how long the period should be. At one time under a previous Administration, a maximum of 90 days was suggested. This Bill now sets the maximum period at 14 days, to be extended only in the most exceptional circumstances. It has not been necessary to extend the period of detention without charge beyond 14 days at any time in the past five years. Nevertheless, it remains the view of the Home Secretary, as well as of the police and the Director of Public Prosecutions, that the possibility that it might one day become necessary to do so cannot be excluded and should be provided for.
The Government took the view that, in order to make sure that the period of detention would be extended only in the most exceptional circumstances and only when really necessary, there should be no standing power to extend the period by order, and that it should be extended only by the introduction of emergency primary legislation if and when the need arose. They prepared draft Bills to have ready for introduction when required; and they invited a Joint Committee of both Houses of Parliament to give the draft Bills pre-legislative scrutiny. That committee, of which I had the privilege of being the chairman, believed that the Government were right to wish to create a contingency power to extend the maximum period for pre-charge detention of a terrorist suspect beyond 14 days up to not more than 28 days in truly exceptional circumstances.
The committee understood and respected the Government’s reasons for proposing that this power should be provided by emergency primary legislation, to be enacted only when the need arose, so that temporary extensions of the period of detention would happen only in very exceptional circumstances, and so that the need for and the provision of the power could be subject to parliamentary scrutiny. We believed, however, that the parliamentary scrutiny of such emergency primary legislation to this effect would in practice be very seriously circumscribed. We thought that it might prove in practice to be very difficult to explain to Parliament the reasons for introducing it without either disclosing information that would endanger security or public safety, or information that would prejudice the right of a suspect or suspects to a fair trial. This could make the process of justifying the legislation almost impossible for the Secretary of State and totally unsatisfactory and frustrating for Members of both Houses of Parliament. We also thought that there would be an unacceptable degree of risk that it would sometimes be almost impossible to introduce and pass the legislation required within a sufficiently short period of time when Parliament was in recess and would have to be recalled. It would, of course, be absolutely impossible to introduce primary legislation during the period between the Dissolution of one Parliament and the opening of a new Parliament.
We therefore concluded that emergency primary legislation, as exemplified in the Government’s draft Bills, did not offer a satisfactory solution, and we recommended a new order-making arrangement, under which the Secretary of State would be authorised to make an executive order if need arose to extend the period of detention of terrorist suspects without charge to not more than 28 days for a three-month period, if exceptional circumstances applied, subject to strict safeguards and subject also to the agreement of the Attorney-General.
In Clause 58 of the Protection of Freedoms Bill, the Government have accepted the committee’s recommendation in part and have made provision for temporary extensions of the period of detention by executive order in the period between the Dissolution of one Parliament and the first Queen’s Speech in the next. However, they are proposing to rely exclusively on the introduction of emergency primary legislation when Parliament is sitting. I and the noble Lords who were members of the Joint Committee and who have put their names to this amendment remain of the view that the difficulties of introducing emergency primary legislation might be insurmountable even when Parliament was sitting, and that there needs to be a fallback or fail-safe provision allowing the Secretary of State to make an executive order if in those circumstances it is really necessary to extend the period of detention of a terrorist suspect or suspects for longer than 14 days.
Our amendment is permissive, not mandatory. It would not prevent a Secretary of State introducing emergency primary legislation if he or she were satisfied that he or she could safely and effectively do so. It would allow the Secretary of State to proceed by means of an executive order even when Parliament was sitting, with the concurrence of the Attorney-General if time constraints, risks to security or public safety, or the risk of prejudicing a suspect’s right to a fair trial, made it impossible or impracticable to introduce primary legislation. The safeguards will be the same as those applying to an executive order made at a time when Parliament had been dissolved. The principle that there should be an alternative to the introduction of emergency primary legislation is already established by Clause 58 of the Bill as it stands. The amendment that we are proposing is a modest extension of that principle—permissive, not mandatory; it does not seek to establish a new principle.
I should not like to be the Secretary of State who had to explain to Parliament and to the country after a terrorist incident in which innocent people had been killed or injured that the incident could have been prevented if only the Protection of Freedoms Bill had been enacted as improved by the acceptance of this eminently reasonable cross-party amendment. I beg to move.
Baroness Royall of Blaisdon
My Lords, I support the amendment tabled by the noble Lord, Lord Armstrong, and other members of the Joint Committee. It is an eminently sensible amendment because the Government have rightly recognised the practical impossibility in certain circumstances of emergency legislation, hence the introduction of Clause 58. However, as the noble Lord, Lord Armstrong, said, there remain real concerns over the workability of the Government’s proposal.
We believe that there is a serious risk of jeopardising a fair trial if Parliament is to be provided with enough information to properly scrutinise the necessity of the use. It seems as though it would be practically unworkable because, as the noble Lord said in his introductory statement, there would be a need to introduce and pass legislation with too short a timeframe to enable proper scrutiny and accountability. The scrutiny of legislation within such a short deadline would appear to be a dangerous way to legislate because the time pressures and state of emergency would undermine proper and dispassionate scrutiny of the legislation. By prescribing the use of an emergency power too tightly, within the most serious situations, the sheer use of the power would indicate to any future jury the unusual gravity of the case and therefore prejudice its views. We support the amendment moved by the noble Lord, Lord Armstrong.
Lord Armstrong of Ilminster
My Lords, of course I entirely respect the Government’s preference for introducing primary legislation if time and other constraints permit. I am afraid that, having sat through the proceedings of the Joint Committee and having heard a great deal of evidence on the subject, it remains my belief that the Government’s view that emergency primary legislation when Parliament is sitting will always be able to provide what is needed is optimistic. Their determination to rely on emergency primary legislation is admirable. If this amendment were to be passed, they would still be able to exercise that power and resist the temptation to introduce an executive order. I am glad that the Secretary of State and the Minister are of the view that they would always be able to do so.
It is at that point that my view still, with respect, differs from that of the Minister. The risk of great difficulty in introducing emergency primary legislation for the reasons set out in the amendment remains. The consequences of not being able to extend the period of detention over terrorist suspect or suspects without charge could have literally fatal consequences. While I beg leave to withdraw the amendment at this stage, I wish to reserve the right to return to the matter on report.
Protection of Freedoms Bill
Lord Armstrong of Ilminster Excerpts(14 years, 3 months ago)
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Lord Armstrong of Ilminster
My Lords, this is a veritable bran-tub of a Bill, as is apparent from the Long Title. It might be more charitably described as a Christmas pie full of plums. I propose, like little Jack Horner, to put in my thumb and pull out a plum—like my noble friend Lady O'Neill, only one plum for consideration at this stage. That plum is Part 4, which deals with counterterrorism powers.
There is clearly around the House a general welcome for Clause 57, which states unambiguously that the maximum period of detention without charge for a terrorist suspect shall be 14 days. That is already a long period to hold anyone in detention without charging him or her—much longer than would be acceptable for any other criminal offence.
However, there remains the persistent fear that there may well be circumstances in which there are compelling reasons for detaining someone suspected of having committed a terrorist offence without charge for longer than 14 days. The need to do so has not arisen during the past four or five years, but in this highly unpredictable area, we cannot exclude the possibility of an emergency in which it might be necessary to be able to do so—in which, indeed, the consequences of not being able to do so might be not just unacceptably serious, but literally fatal: some people might die who would otherwise not have died.
The Government have taken the view that an extension of detention without charge is so serious a restraint of freedom and so grave a breach of the rights of any citizen that it should be effected only by the introduction of emergency primary legislation when the need actually presents itself. They therefore prepared draft legislation, which could be introduced, if and when the need arose, to extend the period of detention of a terrorist suspect without charge for not more than 14 days, up to a maximum of 28 days.
A Joint Committee of Members of your Lordships' House and of the other place, of which I had the privilege of being the chairman, and the pleasure of having the noble Lords, Lord Freeman and Lord Goodhart, as fellow members, was set up to give the draft legislation the sort of pre-legislative scrutiny for which there would not be time if the legislation had to be introduced and passed as quickly as possible in an emergency.
My Lords, we understood and respected the Government's desire to make sure that a power to extend detention without charge should be exercised as rarely as possible, and that, ideally, it should be introduced only subject to the degree of parliamentary scrutiny and discussion which is appropriate to primary legislation. However, we identified certain problems about what was proposed.
First, it might be difficult to pass such legislation with the necessary urgency when Parliament was in recess, and it would be impossible to introduce it at all during the period between the dissolution of one Parliament and the first Queen's Speech in the next. Secondly, it might be very difficult for the Secretary of State to explain and justify to Parliament and for Members of both Houses of Parliament to be properly satisfied about the reasons why the legislation was required without incurring the risk of endangering the success of an ongoing counterterrorist operation or of prejudicing the possibility of a fair trial for someone charged with a terrorist offence.
We feared that those difficulties might be so great that a Secretary of State might be obliged to conclude that it was preferable to run the risk of not extending the period of detention without charge rather than to introduce legislation to provide the necessary powers, whatever the potential consequences of that choice might be. We therefore concluded that the Government's draft Bills did not offer a satisfactory solution to the problem, and recommended that this Bill should create a power for the Secretary of State to make an executive order at any time—not just during a period when one Parliament had been dissolved and the new Parliament had not yet started work—if there was real need to do so.
We recommended that the purpose of such an executive order should be to extend the maximum period for pre-charge detention to 28 days in exceptional circumstances, and that it should expire in three months. We made recommendations to suggest in detail: how to ensure that such an order would be made only in truly exceptional circumstances; how the exercise of the power should be made subject to mandatory review by the independent reviewer of terrorism legislation; how it should be subject to rigorous safeguards and to judicial review; and how it could be made subject, eventually, to parliamentary scrutiny.
The Government have, I am glad to say, accepted many of the Joint Committee's other recommendations, and will introduce amendments to that effect, but they have accepted the committee's main recommendation only in part. Clause 58 would provide the Secretary of State with power to make a temporary extension order when Parliament is dissolved or when Parliament has met after a dissolution but the first Queen's Speech has not taken place, but not at any other time.
I appreciate and respect the Government's wish to ensure that extensions of detention without charge beyond 14 days are as rare as possible. The committee asked the Secretary of State, when she came to give evidence to us, about the difficulties of presenting emergency legislation, to which I have already referred. We admired the confidence with which she assured us that she thought that she would be able to find a way to steer through or around those difficulties in presenting emergency legislation if necessary.
I remain of the view, however, that when the time came, she or a successor Secretary of State might find those difficulties to be insurmountable. She might, despite any advice to the contrary from the police or the Director of Public Prosecutions, decide that it was ineluctably necessary to take the risk of not introducing emergency legislation. No Secretary of State should be forced into a position where such a decision is forced on her.
If the Bill receives a Second Reading today, I hope at a later stage to put forward for your Lordships’ consideration an amendment to Clause 58 that would allow the Secretary of State to introduce emergency legislation for an extension of detention without charge when Parliament is sitting if she thinks that she can safely and properly do so, but would give her the option of making an executive order under Clause 58 if she thinks, even when Parliament is sitting, that the introduction of primary legislation would in the then prevailing circumstances be too difficult.
I hope for her sake and for all our sakes that she is never called upon to make that choice, but better safe than sorry.