Counter-Terrorism and Security Bill

Lord Blair of Boughton Excerpts

Monday 26th January 2015 Lords Chamber

I hope that people realise that this is an all-party amendment. I do not regard this as a party-political issue, I regard it as an issue of national security. I hope very much that your Lordships’ House will recognise the responsibility of us all as Members of these Houses of Parliament and take urgently needed action while we have the opportunity—because of the Counter-Terrorism and Security Bill, for which these amendments are fully in scope—to carry this through. So I will listen carefully to the debate. In the light of the contribution by my noble friend Lord Blencathra, I very much hope that we can carry this forward along the lines that he proposed so well and that we take the necessary action. I beg to move

[Lord Blair of Boughton (CB)]

My Lords, I placed my name in support of Amendment 79 with those of the noble Lords, Lord King of Bridgwater, Lord Carlile of Berriew, and Lord West of Spithead. I echo what the noble Lord, Lord King, has said. I am not a party politician but this issue is far beyond politics. I put my name down in order to place in the records of the House the significance of communications data to the police and security services, which are now specifically mentioned in subsection (6) of the new clause proposed in Amendment 87. Those three agencies and the police are the agencies—the only ones—to which this communications data section will now apply.

Those agencies’ needs must be understood. They have been subject to a great deal of obfuscation, both witting and unwitting. The police and the security services are not asking for new powers. Rather, they are asking for the retention of what they already have but are now losing. They need the ability to determine, in specified circumstances, which telephone or other device has been used where, when, and to communicate with whom. This is an investigative tool of equal significance to DNA and fingerprinting, but changing technology is eroding that ability.

This is not the first time we have faced such a threat. I first met the noble Baroness, Lady Manningham-Buller, in the early 1990s, and we were then discussing the fact that mobile telephones were appearing and were destroying the ability of the police and the security services to carry out lawful interception. Fortunately, that technology was overcome and new measures were brought in—and that is what people in these services are asking for now. The situation is that mobile telephones and the internet are merging. All the different apps for phones mentioned by the noble Lord, Lord King, along with all the other services, are increasingly being used across the internet via something I now know more about than I ever wanted to—a system known as VoIP, the Voice over Internet Protocol. This makes all those transmissions untraceable. I will not specify them, but they are being used in methodologies that Members of this House will be using most days. They are already changing things and we are losing our technological edge on terrorists and criminals.

We are not asking, as I heard a senior politician say on the radio recently, to listen to or to read every message, phone call and visit to an internet site by every person in Britain. A moment’s thought would show that that is completely and utterly impossible. We want to retain for one year data about where and when a particular device has been used, and to communicate with what. If suspicion emerges about a device or its user, that data can be interrogated.

I want to point out the reason for our insertion of the words “serious crime”, because this is not just a terrorist matter. Let me give two examples of capabilities that are now disappearing. A teenager goes missing in Sussex. She has had episodes of self-harm and she was last seen heading towards Beachy Head. All teenagers, whether or not they are capable of self-harm, are likely to have their phone with them. That phone will locate the child—but in a few years’ time, it will not. I cite the example of a dead body found in a field with signs of violence. One of the first things that the senior investigating officer will say is, “Get me the phone data”. What he or she wants to know is which phone has been carried across that field in the past few days. Which phone has been within a few hundred yards of the site of where the body was found? That information is what the police need in order to be able to identify the murderers by the technology that betrays them. At the moment, we can do it in most cases, but we are gradually losing that capability.

I turn to an actual case. Noble Lords will remember the terrorist attack on Glasgow airport. It had been preceded two days before by an attempted atrocity in central London, at the Tiger Tiger nightclub. The Metropolitan Police were 20 minutes behind the bomber when he reached Glasgow airport—and the way they did that was through tracing the phones.

The noble Lord, Lord West, recently mentioned the phrase “snoopers’ charter”, and referred to it as sanctimonious claptrap; I agree with him. In this amendment we have limited those who could exercise this kind of power to the security services and the police when investigating or preventing serious crime. They are not snoopers but lifesavers. Perhaps I may add to what the noble Lord, Lord King, said. I could usefully put before noble Lords how the Home Secretary finished her Statement to the House of Commons:

“It is too soon to say for certain, but it is highly probable that communications data were used in the Paris attacks to locate the suspects and establish the links between the two attacks”.

Given my professional background, I, along with my colleague and noble friend Lord Condon, can say, “Almost certainly”. The Home Secretary went on to say:

“Quite simply, if we want the police and the security services to protect the public and save lives, they need this capability”—[Official Report, Commons, 14/1/15; col. 871.]

I agree.

[Lord West of Spithead]

My Lords, my name is also on this amendment in support of the noble Lord, Lord King, along with those of the noble Lords, Lord Carlile and Lord Blair. I will mention some history as well, which is important because of the time lags and time. In 2009, when I was Minister for Security and Counter-Terrorism, I was made aware that changes to communications technology meant that a record of communications information would no longer be held by the communications service providers and that technology was changing the type of data that were available. This information was held purely as it was needed for the companies’ billing procedures—that is why they kept it—and, as such, was available for use by properly authorised state officials, in particular for prosecution of serious crimes and in terrorism cases. New technologies and methods of communication meant that firms were beginning to, and going to, charge differently.

Over time, communications material, which, as has already been said, was used to help to gain convictions in over 95% of serious criminal cases, was going to be lost—a very serious and irrevocable loss that would impact on the security and safety of our nation and our people. To try to ensure such information would be kept, and to access these new technologies, we started to draft a new communications data Bill. There was then an election, the coalition came into power, and the coalition drafted a new Communications Data Bill which was passed to Parliament for pre-scrutiny, as has been mentioned by the noble Lord, Lord King. It had many flaws and underwent considerable redrafting —the noble Lord, Lord Blencathra, will, I am sure, talk about this later—to ensure that there were sufficient safeguards and so on. Indeed, the Home Office, as the noble Lord, Lord King, has mentioned, did a considerable amount of work to rectify all the faults with that Bill. Subsequently, for political reasons, it was kicked into touch. We find ourselves today, some six years—not two and a half years—after we started to try to draft legislation that would ensure no loss of what we already had, having done nothing but expend a great deal of hot air. Week by week we are losing the ability we once had; for example, to place a criminal close to the scene of a crime on a certain day, as has just been mentioned by the noble Lord, Lord Blair.

The Prime Minister and the Home Secretary have both said in the past few weeks that this legislation is needed urgently—and they are right. So why is nothing happening? Well, yes, there are reviews going on, not least by the Government’s Independent Reviewer of Terrorism Legislation, Mr Anderson, and that is very sensible. But perhaps as a nation we should move more expeditiously on such a crucial matter.

One of the great strengths of this House is that it contains globally admired experts on almost every issue under the sun, and it can also act as a conscience for the elected Chamber in the other place. The noble Lords, Lord King, Lord Carlile and Lord Blair, are acknowledged experts in this field and clearly their advice has to be taken very seriously. They have identified this window of opportunity to rectify the growing shortfall in our ability to prosecute crime, whether criminal or terrorist. Do we really want murderers, people traffickers, serious organised crime and terrorists to be able to communicate and plot out of the reach of our law enforcement agencies? Do we want them to be able to avoid detection and prosecution in a way that they have not been able to in the past? The answer, surely, has to be no.

That does not mean that there do not have to be sufficient safeguards; for example, to ensure data that are properly looked after, as the communications providers have indeed always had to do, and to decide how long such data need to be held for. In addition, we need to investigate the costs because companies will be keeping data they no longer require for themselves so will want to charge us—they will probably want to overcharge us—for the privilege. The Government should be very hard-nosed on this point.

Much has been, and will be, said about individual privacy but, as the European human rights legislation points out, privacy is not an absolute right. There is much emotive claptrap using words such as “snooper”. It is, in that context, interesting to note that the judges at the tribunal looking into the allegation that GCHQ is involved in mass surveillance have just reported and were all absolutely clear in their judgment that there is no “mass” but rather only highly “targeted” surveillance properly authorised. Indeed, as the noble Lord, Lord King, mentioned, the data we are looking at here are not the contents of the letter, but what I would call the outside of the envelope. To be quite honest, the people we should be really worried about looking inside the envelope are various private companies, firms and ne’er-do-wells—not the Government.