Counter-Terrorism and Security Bill

Lord Howard of Lympne Excerpts

Monday 2nd February 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

In moving Amendment 10 and speaking to Amendment 11, I am returning to an unimplemented recommendation made in his March 2014 report by the independent reviewer about which I spoke at Second Reading and in Committee. These are the only amendments which relate to Part 2 on TPIMs. I want to make just five points.

First, the main and certainly the most contentious change in the TPIM regime brought about by Part 2 is the provision for internal relocation orders—internal exile, as it is being called. In short, it gives the Secretary of State power to require someone who is suspected of involvement in terrorism to move as far as 200 miles away from their present home. Not surprisingly, these highly disruptive kinds of order—which, in years past, used occasionally and contentiously to be made in control order cases—are deeply resented. Occasionally, however, I accept that they are a regrettable necessity.

Secondly, one of the conditions to be satisfied before any TPIM order can be made is that the individual in question is or has been involved in terrorism-related activity, which is known as condition A. Under the present legislation, the 2011 Act, that condition is met if the Secretary of State “reasonably believes” that that is the situation. Clause 20(1) of the Bill would substitute for the requirement of reasonable belief on the part of the Secretary of State the requirement that he be satisfied on the balance of probabilities that the person is involved in terrorism.

Thirdly, to my mind there is no practical difference between those two tests, hence the effect of Amendment 10 would simply be to leave out Clause 20(1), which substitutes one for the other. But far, far more important than Amendment 10 is Amendment 11, which is directed to the court’s oversight powers with regard to TPIM orders. Under the 2011 Act as it stands there is provision for initial review hearings of these orders and later for appeals by the High Court in each case. However, for reviews and appeals, the 2011 Act expressly provides that:

“The court must apply the principles applicable on an application for judicial review”.

Amendment 11 would widen the court’s jurisdiction so that it would be for the court to decide for itself whether the person in question was probably involved in terrorism and not merely for the court, as now, to ask itself whether the Secretary of State’s conclusion about that was one that he could reasonably arrive at or whether it was, on the contrary, perverse.

Fourthly, this strengthening of the court’s oversight powers was specifically recommended by Mr David Anderson, the independent reviewer, in his report of last year. In his recent oral evidence that he gave in November and December respectively to the Joint Committee on Human Rights and the Home Affairs Committee of the House of Commons, he expressly regretted that his recommendation had not been implemented. In fact, Amendment 11 is more limited than Mr Anderson recommended. He recommended that in all TPIM cases the final decision on whether the person is or has been involved in terrorism-related activity should be one for the court rather than for the Secretary of State, subject only to judicial review. My amendment would secure that this is so only in those most troubling of cases that I have already mentioned where the suspect is to be relocated far away from his own home.

Fifthly and finally, I should note with gratitude that last Thursday, after the debate in Committee at which widespread support was shown for my amendment, the Minister was kind enough to see me to discuss this question. Essentially, as I understand it—he will correct me if I am wrong—the Government’s position is that this amendment is not necessary because case law shows that the court interprets and applies its review powers in such a way as to suggest that in effect the court already takes the final decision itself. If that remains the Government’s view, I would challenge it for these reasons.

First, it postulates, necessarily, that the court is disobeying the express statutory prohibition placed on it by the 2011 Act against exercising any fuller or wider jurisdiction than that of judicial review. Secondly, I must ask rhetorically why the independent reviewer would make this recommendation and, indeed, regret its rejection if in truth it is quite unnecessary. Thirdly, given that the Government accept that what they suggest is the court’s actual present approach to these cases—namely, that of deciding the question for itself— why on earth not write that into the statute and thereby, as Mr Anderson himself put it in his report,

“help reinforce the legitimacy of TPIMs”,

and reassure a sceptical public and a worried minority community that the court is indeed playing its full part in safeguarding those at risk of these orders against the inappropriate use of this draconian power?

Amendment 11 is the important one. Amendment 10, as I indicated in Committee, is really an optional extra. I beg to move.

[Lord Howard of Lympne (Con)]

My Lords, I oppose Amendment 11. I shall be brief, but I appreciate that what I am about to say runs the risk of disturbing the relative tranquillity of this afternoon’s proceedings. Amendment 11 seeks to transfer the responsibility for the making of a crucial decision in this process from the Secretary of State to the courts. It is but another skirmish in the turf war between some judges on the one hand and Ministers and Parliament on the other hand which has featured so extensively in recent debates in your Lordships’ House, not least in the context of judicial review. It is my contention that decisions as important as the one we are currently contemplating should be made by the Secretary of State and not by the courts, so I hope that the view which was ascribed by the noble and learned Lord to the Minister about who is to take the final decision is based on a misapprehension. That is because I am firmly of the view that it is the Secretary of State who should take the decision.

My reason is very simple. It is the Secretary of State who has the responsibility of protecting the people of our country from terrorism and terrorism-related activities, and it is the Secretary of State who is accountable to the people of our country for the exercise of that responsibility: accountable to the electorate both in their capacity as an individual Member of Parliament and in their capacity as a member of the Government of the day.

It is right, as the noble and learned Lord has acknowledged, that the decision of the Secretary of State should be subject to the normal processes of judicial review. That is a feature of the current proposals. But it is the Secretary of State whose decision it should be, not a decision of the courts.

--- Later in debate ---

[Lord Blencathra]

I take the noble Lord’s point but I want to make it clear to the House—I apologise if I gave a misleading impression earlier—that I did not see an all singing, all dancing final draft of a revised Bill. However, I saw some very important revised clauses which went to the heart of the matter we are discussing. I do not believe that the Home Office can legitimately hand over those clauses now because the Government and their coalition partner do not have full agreement on everything that needs to be in the Bill and we have not seen David Anderson’s report. David Anderson may have some key points to make which will require the Home Office to rewrite the measure again. Therefore, I do not think that we can take forward some new clauses, bash them into this Bill with two months to go and bounce them into the Commons.

About half the criticisms that I have just listed apply to the proposed new clauses before us today. Nothing has changed. Indeed, the Home Secretary has confirmed that we got it about right in our Joint Committee report and she wants to bring forward a new data Bill incorporating our recommendations. I say to my noble friend Lord Carlile that the Home Secretary did not say that she wanted the old draft data communications Bill with all its flaws, warts and all; she has made it constantly clear in her statements that she wants a new data communications Bill, but incorporating many of the amendments suggested in our report.

In those circumstances, I think that this House would be committing a grave error of judgment if it accepted these 18 proposed new clauses, which everyone agrees are thoroughly flawed. Of course, there is an imperative for new legislation in this area, but it has to be the best legislation which government and Parliament can invent. The risk of a terrorist attack is severe, but that is no justification for bad law, even if we had a sunset clause of just six months, or one month for that matter.

I am glad that my noble friend is not going to push this to a vote. I hope that other noble Lords will accept that. When we return to this matter in the new Parliament we will need a fully redrafted Bill that takes onboard Mr Anderson’s recommendations, which has had full consultation with the communication service providers that will have to implement it, and which has had a detailed Second Reading debate in the other place and in your Lordships’ House. The Home Secretary has made it clear that she wants new legislation but better than the clauses we have before us today. If we try to take any other shortcut, rather than new, properly worked out legislation, we will be seen to be acting in bad faith. That will make it infinitely more politically difficult for a new Government to bring in balanced measures that give the police and the security services the additional powers they need while protecting the fundamental privacy of the 60 million UK citizens who are not a terrorist threat. If it comes to a vote I reluctantly urge the House to vote against the amendments.

[Lord Howard of Lympne]

My Lords, it is always a pleasure to follow my noble friend Lord Blencathra, with whom I worked so closely and for so long in government. I am afraid that on this occasion I have to disagree with the contents of his speech. It seems to me that the answer to the points that he made was given by the noble Lord, Lord West, during his intervention. These amendments are not meant to be the last word on the provisions that the final Bill should contain; they are meant to give the other place an opportunity to reconsider these matters.

I am afraid that I was unable to be present at the debate in Committee, but I was able to listen to an exchange on the radio a few mornings ago between the noble Lord, Lord West, and the noble Lord, Lord Paddick. I found the arguments put forward during that exchange by the noble Lord, Lord West, wholly persuasive. That is why I came along this afternoon ready to support the amendment in his name and in the names of his co-sponsors. I have to confess to your Lordships that my determination to do so was reinforced in some measure by the belief—it is still not clear to me to what extent it was well founded—that the Conservative limb of the coalition was anxious to proceed with these proposals but were being prevented from doing so only by the pesky Lib Dems—I am so sorry, by my noble friends who sit on the Liberal Democrat Benches. That remains not entirely clear.

It seems to me that the case made by the four noble Lords who have sponsored this amendment is very compelling. It is clear from what my noble friend Lord King has said that we cannot take the matter further today and that, sadly, this legislation will not be put on the statute book before the general election. However, I join with those who have urged the Government and both of the major parties that might form the Government after that election to proceed with these measures with all possible haste.

[Lord Paddick (LD)]

My Lords, to address the comments made by my noble friend Lord King of Bridgwater and other noble Lords, in my opinion there is no doubt that we all face a very serious threat of terrorism. There is also no doubt at all that, because of the way that technology has moved on, there is a gap that means that the police and the security services cannot now get the information on mobile phone communication that they used to, due to changes in the way that people communicate via the internet. The first issue is: where does the balance lie between measures that would close that gap and the freedoms and civil liberties that we all enjoy? The second is: how do we fill that gap technologically?

Noble Lords will be pleased to hear that I have done some homework over the weekend. Obviously, I am not a technology expert, but this is what I have been told by technology experts. I am very grateful to the noble Lord, Lord Blair, for saying that he has no issue with people who argue on the basis of principle. One of the effects of these amendments, as my noble friend Lord Blencathra alluded to, would be to require communications service providers to store 12 months of web logs—the history of every website visited by everyone who uses the internet in the UK. The Joint Committee that my noble friend Lord Blencathra chaired said that this has considerable implications for the privacy of everybody who lives in this country and who uses the internet. I am sure that that is immediately obvious to noble Lords across the House.

What has not been mentioned is what I have learnt since we were in Committee. When people use web-based means of communication such as WhatsApp—according to my noble friend Lord King of Bridgwater, ISIL is one of the groups that uses this means of communicating —Facebook Messenger or any others, all these communications are encrypted. The vital data that the police and the security services need are held on servers that are mainly in the United States of America. Even if these amendments were agreed to, and even if these web logs were kept, there are serious doubts as to whether the American companies would comply with the UK legislation.

Another aspect of these amendments, and of the draft data communications Bill, would require United Kingdom communications service providers to skim off the encrypted data transmitted to and from the secure servers in the United States, in case the Americans decided that they were not going to play ball. This would cost in excess of £1 billion, and it is unlikely that the UK-based communications service providers would do so. Because of the levels of encryption, and because companies such as Facebook are constantly reviewing their encryption and making it more and more difficult to decipher, even if that data were captured there is serious doubt that the UK communications service providers would be able to make head or tail of it. Plus, they would not be able to decide what part of that encrypted data was the content of messages or Facebook pages and how much was simply who sent the message to whom, from where and at what time—that is what these amendments and what the draft data communications Bill was about. The noble Lord, Lord West of Spithead, talked at length about intercept evidence. These amendments and the draft data communications Bill have nothing to do with interception. They are about only what is on the envelope of the message, if you like, not its contents.

So what do we do? Obviously, something has to be done to try to get that data. That is why the coalition Government have appointed Sir Nigel Sheinwald as special envoy on international data sharing to sit down with the US Government and US companies to identify ways to overcome legal jurisdictions so that we can tackle crime and terrorism without compromising the privacy of the law-abiding majority. This is not a situation where these servers in the United States are beyond our reach. In 2013, US companies processed around 30,000 requests for “envelope” data from UK authorities. There is already consultation and collaboration and it is producing results.

These amendments are disproportionate, are likely to cost billions of pounds and certainly cannot be implemented immediately. Almost all communications service providers in the UK do not currently keep this data and have no storage capacity and capability to store it. That would be a long-term project; nothing of use would come out of it in the six months that my noble friend Lord King of Bridgwater talked about as a stop-gap measure. These amendments are likely to jeopardise the collaboration that we already have with the Americans, which is serving the police and the security services reasonably well.

Mention has been made of a debate that the noble Lord, Lord West of Spithead, and I had on BBC Radio 4 at the weekend on “Week in Westminster”. During that programme, the noble Lord said that the amendments tabled last week were too broad and that, if it had come to a vote last week, he certainly would not have voted for them. As these amendments have been changed hardly at all since last week, I assume that the noble Lord, Lord West, will not vote for his own amendments.