Investigatory Powers Bill

Lord Swinfen Excerpts

Monday 12th September 2016 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

My Lords, I very strongly support what has just been said by the noble Lord, Lord Lester. I respectfully suggest that this is not, as the noble Baroness suggested when she moved the amendment, a government oversight. This is a well-recognised term which, as the noble Lord has pointed out, is enshrined in the European convention. It was the term used, undefined and unrestricted by definition, in RIPA, which this law will effectively replace. It has a necessarily somewhat flexible meaning to cater for a great many situations. The proposal embodied within the amendment as to how it should be defined took me straight back to the celebrated case of A v the Secretary of State 10 years ago. That spelled the end of the Belmarsh internment system, which was then replaced by the control order regime. There were nine judges sitting in the appeal committee of this House. The noble and learned Lord, Lord Hoffmann, was the only one who questioned whether it was permissible, under the convention, to do what was done there. The internment was actually struck down by the great majority of the court—eight members—on grounds of irrationality and discrimination. However, the noble and learned Lord pointed out that what was under consideration was a really draconian power to detain people indefinitely without charge or trial. The great question, as he saw it, was whether, within Article 15 of the European convention, there existed a war or other public emergency threatening the life of the nation. He asked what was meant by threatening the life of the nation, and he suggested it was things like the Armada or, indeed, Nazi Germany in the Second World War; but the existence even of a threat of serious terrorist outrages did not, in his view, constitute such a threat.

The very narrow and restricted definition proposed in this amendment is reminiscent of that. As I say, only the noble and learned Lord, Lord Hoffmann, went down that road to say that the life of the nation was not in fact put at peril even by terrorism. However, that was a draconian power. Of course, I do not seek to devalue the right to privacy, but a right to privacy is not, I respectfully suggest, equivalent to a right not to be, as there, detained indefinitely without charge. An altogether wider view of national security is, I suggest, not merely permissible but imperative within this area of legislation. I oppose this amendment.

[Lord Swinfen (Con)]

My Lords, what if we were to leave out the last part of the amendment,

“against force or the threat of force”?

I wonder about cybersecurity—which is new to most of us. You do not need weapons to threaten a nation today: it can all be done in the ether. I think that this amendment might be a lot better if those last few words were deleted.

[Baroness Butler-Sloss (CB)]

My Lords, I have not spoken often on this Bill but felt impelled to say that what the noble Lord, Lord Lester, and the noble and learned Lord, Lord Brown, have said is extremely good sense and the Government should follow it.