Counter-Terrorism and Security Bill

Lord Rosser Excerpts

Monday 26th January 2015 Lords Chamber

[Baroness Hamwee]

My Lords, in moving this amendment I will speak also to Amendment 74. The noble Baroness, Lady Smith, also has an amendment in this group.

Clause 15 deals with appointments which an individual can be required to keep. Following comment from the current Independent Reviewer of Terrorism Legislation, this takes advantage of the legislation in order to require individuals to attend appointments, for instance, in connection with deradicalisation. I really do not like that term: perhaps I might say appointments that would help the individual return to or lead a more comfortable and normal life. Amendment 72 would add that the individual could request somebody other than the specified person.

Different individuals respond in different ways to different counsellors, if I can use that term in a very wide sense. This work has to be dealt with case by case, and it would be a pity if it were to fail because of the individual and his counsellor simply not getting on and there not being a sensible opportunity to change the personnel. We all know of people who we simply cannot rub along with for reasons that sometimes we cannot even quite identify.

Amendment 74 would provide, in connection with such appointments, that the Secretary of State would be deemed to have given permissions for travel to enable the individual to attend appointments and, crucially, will not unreasonably withhold permissions to attend appointments relating to deterring other people from involvement in terrorist-related activity. We are all aware—it is a matter of common sense—that returning fighters may have a positive role in deterring other people. In the debate on Thursday on the latest proscription order that has been introduced, the noble Baroness gave an example of a woman trying to return to this country who was disillusioned with what she had found—I think—in Syria. That sort of disillusionment should be harnessed, and I would like to find every way of making this legislation positive as well as inevitably negative. I hope that my noble friend can assure the Committee in that connection.

I gave the Bill team notice of this matter this morning—if it has not yet reached the Minister, I will understand if he cannot answer—and will pick up an issue that the independent reviewer raised. This matter was also taken up by the JCHR: the question of privilege against self-incrimination. The Government’s response to the independent reviewer’s report was to say that this would not be appropriate. The Government referred to a “blanket approach”. Can the Minister unpack that a little today? I beg to move.

[Lord Rosser (Lab)]

My Lords, our Amendment 73 is in this group. As has been said, Clause 15, on appointments for people on terrorism prevention and investigation measures, allows the Secretary of State to require an individual to attend meetings with such persons as the Secretary of State may specify, at such locations and at such times as the Secretary of State may by notice require. The specified persons may choose the time and place of the meeting. The clause is expressed in general terms and the purpose of the amendment, which is a probing amendment, is to give the Government the opportunity to say more about what kind of meetings an individual would be required to attend, for what purposes or objectives and over what period of time. It would also be helpful if the Minister could say if assessments will be made of the outcome of these meetings and to whom the assessments, if they are made, will be given.

Our probing amendment provides for the Secretary of State to be able to instruct an individual on a TPIM to attend deradicalisation programmes, since we think it is important that the Secretary of State should be able to require people to attend Channel meetings and appointments and possibly those relating to other parts of the Prevent programme. However, I hope that in his response the Minister will not only address the specific point covered in this probing amendment but talk in more depth about how the Government envisage using powers under Clause 15.

[Lord Bates]

My Lords, I am grateful to noble Lords who have spoken in this debate. I will put some remarks on record that I hope will answer some of the points made by the noble Lord, Lord Rosser, and then deal with some of the points made by my noble friend Lady Hamwee. I am grateful to noble Lords for raising these matters.

Amendment 72 seeks to amend the appointments measure by overtly stating that a TPIM subject may request an alternative person to the individual specified by the Secretary of State. The Secretary of State will consider whether an appointments measure is necessary for a TPIM subject for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. If a TPIM subject wants to meet a particular person, such as a counsellor, there is nothing to prevent them from making their own arrangements to do so, as long as the measures in their TPIM notice are not breached. In addition, the TPIM Act 2011 already provides the ability—under Section 12—to vary the measures in the individual’s TPIM notice, or for the Home Office to grant permission for the subject to do something they would otherwise be prohibited from doing.

The choice of people or organisations—a point touched on by the noble Lord, Lord Rosser—that a TPIM subject is required to meet will be decided on a case-by-case basis. To develop that a bit further, the types of people who it might be appropriate to recommend particular meetings with include probation officers, somebody from a job centre, if, for example, they are looking for work, or another of the individual’s mentors. As my noble friend said, the point is that we want people who return to the UK to be reintegrated into mainstream society because we believe that they can be very important elements in the prevention strategy aimed at those who might follow in their footsteps. This consideration would include whether such requests might lead to more genuine engagement or were aimed at undermining the effectiveness of this measure, or whether any national security concerns were raised.

Amendment 73, in the name of the noble Lord and the noble Baroness opposite, would amend the appointments measure in Clause 15 that allows the Secretary of State to require an individual to attend meetings as specified by the Secretary of State. The appointments measure is a broad power that allows the Secretary of State to require a TPIM subject to meet relevant organisations or people who can contribute to their ongoing management and integration. The measure includes the ability to require TPIM subjects to meet specified people to assist with their deradicalisation, including, but not limited to, providers of the Channel programme, for example. It is therefore unnecessary to specify explicitly that this is available via the appointments measure.

Amendment 74 seeks to specify that the Secretary of State may not unreasonably withhold permission for a TPIM subject to attend appointments related to deterring other people from involvement in terrorism-related activity. The purpose of the TPIM notice is to protect the public from terrorism and to prevent the TPIM subject from engaging in terrorism-related activity. If the measures are no longer necessary, the TPIM notice must be revoked. Therefore, anyone on a TPIM notice remains an ongoing national security concern. This being the case, we do not consider TPIM subjects necessarily to be good people to mentor others. However, if a TPIM subject chose to speak at a meeting to deliver a deterrent message, he or she could do so as long as it did not breach any of the measures in his or her TPIM notice. If it did breach any of the measures, or he or she encouraged people to engage in terrorism, of course they could be prosecuted.

Turning to the specific point—I am grateful to my noble friend for sending the notice to the Bill team ahead of this debate—about David Anderson’s report on TPIMs, the new measure will be an important part of the management of TPIM subjects and will mean that they must meet organisations and other persons as required by the Home Secretary. Its primary purpose is not to gather evidence to prosecute TPIM subjects. Nevertheless, it would be undesirable to create a situation where a TPIM subject provided clear evidence of committing a crime—including terrorism—but where, due to a statutory bar, that evidence could not be relied on, in any circumstances, in criminal proceedings.

In addition, the criminal courts have the power to exclude evidence where to allow it would have an adverse effect on the fairness of proceedings. We consider this to be a sufficient safeguard to ensure that information obtained in these meetings cannot be unfairly used against the individual. However, we will consider on a case-by-case basis whether appropriate assurances can be provided about how information obtained through the appointments in these measures will be used.

I was asked whether the assessments would be reported back—and, if so, to whom. Where appropriate, assessments will be provided to the Home Office. The ongoing necessity for meetings to continue will be kept under review depending on the nature of the meetings. Some may be one-off while others may be regular over a prolonged period. I think that the overarching message of the response to these amendments is that each case will be different and therefore, in order to be effective, each TPIM will need to be tailored to the individual concerned. With that additional information and explanation, I hope that my noble friend will feel able to withdraw her amendment.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, the amendment stands in my name and those of my noble friends Lady Hamwee and Lord Paddick. I shall speak also to Amendment 77. In this grouping, there is also Amendment 78 of the noble Baroness, Lady Smith of Basildon.

The Explanatory Notes refer to data that are “necessary” to attribute internet protocol addresses to a person or device. However, that word does not appear in the Bill; I believe that something similar happened in the draft Communications Data Bill in 2012, which was picked up by the committee on the draft Bill. There is a tendency to put “necessary” in Explanatory Notes but not to transfer that to the Bill. Amendment 76, therefore, at least seeks to apply the test of “necessary” to communications data that could,

“assist in identifying, which internet protocol address … belongs to the sender or recipient of a communication (whether or not a person)”.

At least it tightens up, somewhat, the scope of communications data—relevant internet data—required.

I have seen an itemisation of possible data—I confess that I do not know what the origin was, but it refers to possible data which would be required to be retained. I state just for interest that it includes,

“account-to-IP address mappings for broadband … source IP address and port for NAT on mobile and cloud networks … MAC addresses on cloud WiFi networks … source port information in server logs”,

and:

“MAC addresses from end-user equipment”.

This is above my technical pay grade and I think we need some clarity about what sort of information is being required. Therefore, in Amendment 77 we are requesting that when the term “other identifier” is used, meaning an identifier used to facilitate the transmission of a communication, what qualifies as “other identifier” should be specified in regulations made by the Secretary of State.

I have seen it cited that there has been consultation with industry on these matters. Certainly, the Internet Services Providers’ Association has complained that it was not consulted on this section on the collection of IP addresses. It posted something on its website on 24 November, so something may have happened in the intervening two months, but it certainly felt at that time that it had not been consulted. Of course the association would be qualified, as the experts, which I am not, to know what is being talked about here and what is, indeed, necessary and essential to identify an IP address.

I mentioned at Second Reading that the Bill refers to,

“the sender or recipient of a communication (whether or not a person)”.

I still believe that it is somewhat misleading to suggest that a person can be identified from an IP address. Even with a static IP address allocated to a particular device or subscriber, you would at best know who the subscriber was, but you would not necessarily know who was using the device at a particular time. It may not have been the subscriber; it may have been a friend, a relative or a business associate. If it is a dynamic IP address I understand that there can be tens of thousands of people who could have used it. Even with this other information, even if you can identify the device that was using it at 4.12 pm on a Tuesday afternoon, it is still not clear that you can, of itself, then identify the person using it. You would need other investigations—police investigations—to ascertain who precisely was using the device.

I hope that I have conveyed the meaning of Amendments 76 and 77, which seek to put greater precision into the Bill as to what further communications data are being required to be kept.

[Lord Rosser]

My Lords, our Amendment 78 in this group seeks to make it explicit that the extra data retention provided for in Clause 17 does not extend beyond that which is necessary for the purpose of identifying a user from the internet protocol address. The amendment is not meant to impact on the rest of the Data Retention and Investigatory Powers Act.

Clause 17 amends the definition of “relevant communications data” in the Data Retention and Investigatory Powers Act 2014. The clause expands the definition of “relevant communications data” to include an extra category of data—described as “relevant internet data”—in Section 2 of the DRIP Act, to allow the Secretary of State to use powers under Section 1 of that Act to bring in regulations to ensure that this “relevant internet data” is retained by communications service providers. Essentially, the Government are using this fast-track primary legislation to amend emergency primary legislation from last July to enable the Secretary of State to bring in secondary legislation relating to a clause in this Bill, which extends the current provision on data retention.