Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015

Lord West of Spithead Excerpts

Monday 23rd March 2015 Lords Chamber

[Lord Bates]

To the extent that social media are messages communicated machine to machine, it does. As to whether the specific examples that the noble Lord, Lord Rosser, talked about, such as tagging on a Facebook page or a tweet, I am going to have to get some further clarification on that and will write to him. But certainly messaging over those platforms would of course be covered.

[Lord West of Spithead (Lab)]

Surely those aspects that the Minister has just touched on, and about which he says he will write to the noble Lord, Lord Rosser, have to be covered otherwise we have not got the coverage that we require.

[Lord Bates]

I do not want to be drawn too much, at this stage, into the content of it. I have said that I will write to the noble Lord, Lord Rosser, and clarify that point. The noble Lord, Lord West, is absolutely right. Here, I tread very carefully, with my noble friend Lord King of Bridgwater waiting in the wings, but the communications data Bill, which David Anderson is undertaking a review on—he will report on 1 May—will need to be considered urgently. The types of deep web communications within the communications data Bill were felt to be an important part of providing our security services with the ability that they need to tackle the growing terrorist threat against us. That will be returned to as a matter of urgency in the new Parliament.

Counter-Terrorism and Security Bill

Lord West of Spithead Excerpts

Monday 2nd February 2015 Lords Chamber

[Lord Hylton]

The noble Lord might recall that this Bill is being dealt with under fast-track provision. I support Amendment 11, which was spoken to by my noble and learned friend. Before 2011, banishment or internal exile—sending someone to Siberia—was unknown as a penalty or punishment in this country. I believe that most of the general public trust judges rather more than they do Secretaries of State.

[Lord West of Spithead (Lab)]

Perhaps the noble Lord will give way. I just feel that phrases like “sending to Siberia” do not help very much. When I was a Minister, I used to send people occasionally to Gloucester from London, but it is hardly in the same category, I would suggest.

[Lord Hylton]

Gloucester is rather nearer to London than 200 miles, which is a possible distance. Having said that, I reaffirm my support for the amendment.

--- Later in debate ---

[Lord Blair of Boughton (CB)]

My Lords, I was brought up to believe that politics was the art of the possible. As a supporter of this amendment, it seems to me that we have reached a position whereby politics is the art of the preposterous. I exempt from that charge those noble Lords who object to this amendment on principle; they will mainly be Liberal Democrats and Cross-Benchers, but there will be other objections on principle. They and I disagree, but I suggest that both positions are perfectly respectable. It is not the same position as what I understand to have been happening in the case of the Conservative and Labour Front Benches.

Let us consider what we are all agreed on. I am not going to rehearse the arguments in detail. We are all agreed that jihadist terrorism is a real and present danger and that it is an increasing danger, indicated by a threat level of severe. We are all agreed that we have a degrading technological ability to monitor and intercept communications data, vital to the disruption of terrorist attacks. There is a gap, as the noble Lord, Lord King, has said.

What do I mean by preposterous? The provisions of this amendment, previously the stalled communications data Bill, go back in principle to the concerns of a Labour-controlled Home Office in 2007-08 about the degradation of our technological capability. So this had a Labour birth. The provisions were then adopted by a Conservative-led but not entirely controlled Home Office. In either 2010 or 2011, I was personally briefed in the most positive of terms about the communications data Bill by one of the Conservative noble Lords, who carried the Home Office ministerial brief in your Lordships’ House. I will not name him because he is not in his place. So it had a Labour birth and was a Conservative-supported Bill before the Paris attacks. Then, as we have heard, the current Conservative Home Secretary lamented the lack of progress on the Bill in a Statement to the House of Commons. And then in your Lordships’ House we discovered, in Committee, the existence of the Bill in the Home Office.

The noble Lord, Lord King, has made it clear to the House that we would table the amendment only once, and if it was sent to the other place we would not indulge in ping-pong. We just want the Commons to have the opportunity to consider this matter again. Despite this, the Conservative and Labour Parties are prepared to do precisely nothing at this stage about this gap. I do not understand fully the nature of the usual channels, but the next Government will be principally led by either the Labour Party or the Conservative Party —so they do not need to worry any more about letting each other down over a fast-track procedure. One of them will be responsible for doing that, and the other one would be agreed anyway. So why do we not put it forward?

In closing, I remind this House that elections and changes of Government are of great interest to jihadi terrorists. In 2004, they killed more than 190 people and injured a further 2,000 in bombs on trains in Madrid. They changed the course of the Spanish general election as a result. In 2007, they planted major car bombs in the Haymarket and bombed Glasgow airport to mark the day when Gordon Brown became Prime Minister. Had the London bombs exploded, hundreds of young people would have died in a night club. We face an election now and, who knows, we may have another one shortly afterwards; we may have a multi-party coalition assembling with a whole range of views on the subject of this amendment. I am acutely disappointed by the decisions of both Front Benches to refuse to accept this amendment or, better still, propose a better one, on a matter of such national interest. I urge both Front Benches tonight publicly to commit to bringing forward legislation about communication data monitoring as an urgent priority for the next Government and, particularly, I assume, their L Committee.

Lastly, I hope with all my heart that today’s decision does not result in some utterly preventable disaster somewhere on the streets or in the skies above Britain. I was not present to hear what the noble Lord, Lord Tebbit, said about the Brighton bombing, but what one has to remember about it was that afterwards a spokesman for the provisional IRA said,

“we only have to be lucky once. You will have to be lucky always”.

The Minister said that this is about real threats to real lives, and it really is.

[Lord West of Spithead]

My Lords, I support the amendment and make no apologies for reiterating some of the things that have been said. Why do I support the amendment? I do so because there is a clear and present danger to our people in this country. The threat level is severe, as has been said, and there is no doubt whatever that there will be more attempted plots and, I am afraid to say, there may well be a successful plot, so people will die. We have lost data. We knew that we would lose data and the ability to get intercepts on these people as far back as six or seven years ago. Intercept is absolutely crucial in these terrorist crimes. When I was a Minister, every single one of the plots that we unravelled was done initially through intercept information. I think I am correct in saying that has been the case with every major plot that we have unravelled.

As the noble Lord, Lord King, said, the Prime Minister, the Home Secretary, the head of GCHQ and the head of the Security Service have all said that this Bill is urgent, and I do not think that one should take what they say on security lightly. The traitor Snowden has made us all less safe. Terrorists are now much cuter about using data in ways which mean that our law enforcement people cannot get hold of them. As an aside, it is rather amusing or ironic that Snowden is living in a country which is such a paragon in terms of ensuring that its people are not snooped at and looked at, but that is a different issue.

The fact that the fast-track Bill is very important does not mean that we should miss this opportunity to tackle this issue. The noble Lord, Lord Carlile, put it very neatly when talking about the amendments drawn up for the Joint Committee. It is absolutely extraordinary that we have not been allowed to see those. We understand that there will be more amendments given that we had emergency legislation last summer. Why did we have that? It was because we did not have a communications data Bill. We have a fast-track Bill now which includes data provision. Why is that? It is because we do not have a communications data Bill. How much better the situation would be if we had had a proper communications data Bill.

There is a two-month period now. In two months we formed a task force, sailed to the Falklands, recaptured them and said that we had won. We have two months in which the other place is doing almost nothing at all. Perhaps it could stop working a two-day week, take this Bill seriously with all the amendments, do all the necessary amending, and give itself enough time to provide the necessary safeguards for our people—it is right that they should have privacy safeguards—but also make them safer. I doubt very much that there will be another two months in which to do this in the other place after the election, as has already been touched on by a number of speakers, as things will start to happen then and we have to have new legislation by December 2016. That sounds very far away but it is not; it is very close. Therefore, it is highly likely that there will be more fast-track and emergency legislation, as my noble friend Lord Harris said, because we are missing a trick in getting this done.

I hope that the Conservative Party and the Labour Party will put this issue in their manifestos and make it a manifesto commitment. If the Liberal Democrats did so I would be absolutely delighted, but I fear that at the moment they do not seem to know which way is up on this issue. Will the Minister give that commitment?

[Lord Blencathra (Con)]

My Lords, I am the first Peer to speak against the amendments. I am very sorry that I have to disagree with my noble friends Lord King of Bridgwater and Lord Carlile of Berriew and the noble Lords, Lord West of Spithead and Lord Blair of Boughton. They have tremendous operational and political experience of dealing with terrorism and of working the legislation. I deeply respect their motives and their integrity but I respectfully suggest that they are wrong.

I and five other noble Lords and six MPs spent six months going through these amendments before us today with a fine toothcomb, but, in those days, they were in the draft communications data Bill. I say to my noble friend Lord Carlile of Berriew that they are largely the same amendments. There are some tiny changes, but they are largely, almost word for word, the same. When we started on the Joint Committee, we all had widely differing views. We had views at different ends of the spectrum, ranging from those who were totally committed to privacy at all costs to those who were committed to security at all costs. However, after six months of scrutiny, we produced a unanimous report.

I give noble Lords some examples of what we said about these clauses as they appeared in the draft communications data Bill and which are before us today as Amendment 11A and the other amendments in this group. We said that the 25% gap was misleading and unhelpful, part of the gap was due to a lack of ability of law enforcement agencies to use the data properly, and that there had been a failure to consult all the CSPs. We also said that there can be meaningful consultation only when there is clarity about the aims of the legislation and that no aims were specifically stated. We further said that Clause 1, or Amendment11A before us today, should be redrafted with a much narrower scope and that amendments to Clause 1 should be dealt with only by the super-affirmative procedure. We added that the Bill should be redrafted to enable Parliament to address web logs which are at the heart of this legislation, and they still are today. We suggested that the Home Office commitment that third party provisions would be invoked only after the original data holder has been approached should be given statutory force and that the operation of the request filter should be transferred to the National Crime Agency. We added that new safeguards should be introduced to guard against the request filter being used for fishing expeditions, and that—although I agree entirely with my noble friend—any public authorities which make a convincing case to get communications data should be listed in the Bill—that is, the important deserving ones such as the police, the security agencies, the FSA, the United Kingdom Border Agency, the NCA and HMRC. We said that any changes to this list should be made by super-affirmative procedure. We recommended that the Government should consult on all the permitted purposes for access to communications data and that the Bill must be redrafted with new definitions of communications data, especially subscriber data, which is a catch-all for everything and helped to give it the name the “snoopers’ charter”. We said that a new hierarchy of data types needed to be developed and that data needed to be divided into categories which reflect how intrusive each type of data is, and therefore the different agencies which could have access to different levels of it. We said that content was not even defined in the draft Bill and that it should be expressly excluded from all categories of communications data.

I will stop there. That is enough to be going on with, although we had another 20 criticisms of the Bill. However, we did not just criticise; we also made suggestions on how to make a better Bill.

[Lord West of Spithead]

Does the noble Lord agree that, in two months of working on this issue and on the amendment, one could come up with something that covers and makes up for those errors and get something that makes us safe and puts those things right?

[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 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.

[Lord West of Spithead]

Having shared that with only 11 million people, I am shocked that the noble Lord should do so in here.

--- Later in debate ---

[Lord Bates]

My Lords, this has been an excellent debate. The points which have been raised have in effect focused on six main areas: the threat, the power, the amendments themselves, the draft Bill, the technology and the procedure. With the leave of the House, I will use those as the outline for my remarks.

I shall first say something about the nature of the threat because context is all in the legislation we are bringing forward. The noble and learned Lord, Lord Lloyd of Berwick, expressed his concerns about the nature of the threat. It is important to remind ourselves that since April 2010, more than 750 people have been arrested for terrorism-related offences. More than 210 have been charged and over 140 have been successfully prosecuted. In Committee, the former Director of Public Prosecutions, Lord Macdonald of River Glaven, outlined some of the content of those cases and the intended acts of terrorism which those who were prosecuted had intended to carry out. We were horrified at the list he presented. Let us be clear: we are seeking to address a very real threat.

Other noble Lords, including my noble friend Lord Paddick, have made reference to the use of technology. Perhaps I may put this into context for the benefit of the noble Baroness, Lady Smith. Certain caricatures are not helpful here. Clearly she dealt with one, but let me deal with another one, which is that this legislation has somehow been left on the shelf to gather dust. That is not the case because of the Data Retention and Investigatory Powers Act 2014—legislation that came directly out of the draft communications data Bill. That legislation was taken through this House on a fast-track basis last July. The IP and the technology elements contained in this Bill are also drawn from the communications data Bill. Moreover, since the start of this Government, the Counter Terrorism Internet Referral Unit has secured the removal of 65,000 items from the internet that were encouraging or glorifying acts of terrorism. More than 46,000 of those items have been removed since December last year. At present, content relating to ISIL, Syria and Iraq represents around 70% of the unit’s caseload. I do not want the House to be under any misapprehension as to the seriousness of the threat or that the police and the security services are not making daily efforts using the powers they have to keep us safe, and we should express our gratitude to them.

It is worth making another important point here. To say that taking forward measures of this nature to attack terrorism might somehow be seen as alienating the Muslim community—which was the example that was given—could not be further from the truth. Bombs and bullets do not discriminate between religions and faiths, as we saw in Paris where the personal protection officer for one of the journalists who was also murdered was a Muslim. We need to remember that as we move forward, and we also need to remember that we might not just be looking at terrorism by jihadists. Mohammed Saleem, an 82 year-old Muslim from Birmingham, was stabbed to death by a far right extremist who then went on to try to bomb mosques in Walsall, Wolverhampton and Tipton. These threats cross cultures and religions. We have talked about republican terrorist threats in Northern Ireland, but those are different. What we are talking about here are the specific acts of people who seek to subvert the democratic process and curb people’s freedom and liberty by undertaking violence in order to advance their cause.

Those are the points I wanted to make in relation to the threat, because it is real. Is there a gap? Yes, we believe that there is a gap, and that has been repeated on many occasions. The security services believe that these additional powers are absolutely necessary as a matter of urgency in order for them to work on closing the gap. We must recognise that the nature of the threat is mutating, if I may use that term, on almost a daily basis, such are the advances in the technologies and in the capricious use of them by those who seek to do us harm.

Perhaps I may turn now to the draft Bill which was under consideration. My noble friend Lord Carlile dwelt heavily upon this. We did have a debate in Committee and during that debate I did say that I would look again at what we could actually share with the House at that point. I have to say that we tried—again, I do not want to be caricatured by the notion that the Government took away a request that was made by a highly respected source, the noble Lord, Lord Carlile, and then somehow forgot about it. We worked on that very seriously. When we looked at it carefully, there was a view that the amendments which had been shared with the noble Lords, Lord Blencathra and Lord Armstrong, were draft clauses and in many cases had been superseded by legislation which was contained in the Data Retention and Investigatory Powers Act and in this Bill. It was therefore felt that it would be unsafe to do anything at that stage. Moreover, those particular clauses were under the active consultation and review of the Independent Reviewer of Terrorism Legislation, as well as that of the police and the security services. For a whole host of reasons, it was felt that they would not be advisable. We did try to secure the review for noble Lords, but we were not able to do so at that time.

I turn now to the amendments which are before us. The amendments are significant, and I pay tribute to my noble friend Lord King, who has been tenacious in the way he has advanced his cause and pressed us on this issue over the past week. When a phone went off and the noble Baroness, Lady Smith, commented that it could be the Home Secretary for my noble friend, that might in fact have been the first hour that has gone by over the past week when there has not been a telephone conversation—not that the content of them could ever be disclosed, under any circumstances, under present legislation. There has been regular contact.

My right honourable friend the Prime Minister has said very clearly that he regards this as a priority and as a pressing need. The Home Secretary has said it is a priority and a pressing need. The important thing to say is that we do regard it as a priority, but not the amendments before us at this stage. This is a principal part of what we say to the sponsors of these particular amendments. It is perhaps made more difficult because of the legislative stage we are at with the Bill. We would be faced with sending the 14 pages and 18 or 19 clauses down to the other end, not for them to consider at Second Reading or to discuss and run through in Committee, but for them to vote on in a fairly truncated parliamentary procedure. That might be something which would cause concern. I am simply placing pieces of a jigsaw here to try to explain to my noble friend why, reluctantly, the Government feel that they are not able to support these amendments in their present form.

Then, of course, there is the procedure that we move on to from here, which has been settled. Section 7 of the Data Retention and Investigatory Powers Act says:

“The Secretary of State must appoint the independent reviewer of terrorism legislation to review the operation and regulation of investigatory powers … The independent reviewer must, in particular, consider … current and future threats to the United Kingdom … the capabilities needed to combat those threats … safeguards to protect privacy … the challenges of changing technologies … issues relating to transparency and oversight … the effectiveness of existing legislation (including its proportionality) and the case for new or amending legislation”.

That commitment was made in legislation and has to be delivered by 1 May. Further consideration is under way by the Royal United Services Institute, in addition to further consideration undertaken at the present time by the Intelligence and Security Committee, of which my noble friend is a distinguished former chairman. That work will be extremely important in informing us all in Parliament what the scope and content of that Bill should be.

Finally, I want to come to the point about timing. This is probably the strongest argument which my noble friend Lord King has put forward. The threat is real, and the need is now. We cannot see this as something which can be kicked into the long grass; it has to be a priority for the new Government. I believe that there is just reason to claim that that might be the case and that it may not be subject to the kind of experiences that I acknowledge he may have had with previous legislative arrangements. The Data Retention and Investigatory Powers Act is sunsetted to the end of December 2016. If we work back from that, as we have done, we realise that we need legislation to replace that well in advance of that date, as there certainly cannot be any gap in the coverage of that very important power. If it needs to be in place before that, it necessarily needs to be introduced very early on in the next Session, to allow it to follow its appropriate course through Parliament.

[Lord West of Spithead]

I thank the Minister for giving way. Is he saying then that this will be a manifesto commitment?

Counter-Terrorism and Security Bill

Lord West of Spithead Excerpts

Monday 26th January 2015 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, the noble and learned Lord, Lord Brown, has moved his amendment with his customary cogency and clarity, and I agree with him and with the remarks that have just been made by the noble Baroness, Lady Kennedy. Over the years I have had the opportunity to visit people who were subject to relocation orders under the control orders regime. I have seen that, in some cases, the relocation was accepted with good grace; in other cases, however, particularly those where children were involved, it caused great disturbance and much resentment. I have also taken the trouble to read all the judgments in the relocation cases that went before the courts under the control orders regime. My instinct is the same as that of the judges who heard those cases. If you read the judgments, although the judges were not required to do so, I think in every single case—from memory at least—they applied the standard that is set out in this amendment for completeness and in order to make it clear that they approved of the relocation in the circumstances of the case.

I agree with the comments that have been made, that we should be extremely reluctant to order people to relocate, because of the disturbance that it causes to their family and because they are very dislocated as a consequence of that relocation. As a general proposition, all restrictive measures under counterterrorism legislation should be exercised only when there is a clear necessity to do so, and the balance of probabilities is a good test. With those comments in mind, I hope that the Minister will at least accept the principles behind the noble and learned Lord’s amendment, whether it be probing or otherwise—it is the principle that counts.

[Lord West of Spithead (Lab)]

My Lords, I would like to strongly support the amendment by the noble and learned Lord, Lord Brown. These measures are things that you only do in very, very special circumstances and under very controlled conditions, but the removal of them from the old control orders regime—we realise now—was a mistake and an error. I absolutely think that we have to put these measures in place to ensure that people are protected in these circumstances.

[Lord Hope of Craighead (CB)]

My Lords, I wish to add just a small point in support of what my noble and learned friend Lord Brown of Eaton-under-Heywood has said, and that is to stress the word “legitimacy” which he used in the course of his address. It is crucial that this particular system should not be open to challenges in the court to any extent; one must try to the maximum to minimise the risk of challenges. This is a very difficult area, as shown by these cases to which the noble Lord, Lord Carlile, just referred. It is the interaction between Article 3 of the Convention on Human Rights, which deals with detention, and Article 8, which deals with respect for the family life of everyone. Where you get these human rights in play, it opens up the possibility of arguments being raised by way of challenge to orders of this kind.

The strength of the amendment which is being suggested is that it cuts back the open door—if I might put it this way—to challenges, and limits them in the most sensitive of all areas, which is the kind of relocation to which the noble and learned Lord has drawn attention. It is right that this is not a probing amendment. It is actually a very important point to try to secure these TPIMs in a way that makes them robust enough to stand up against possible challenges which, if the amendment was not made, would be very likely to come.

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[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.

--- Later in debate ---

[Lord West of Spithead]

I am interested in why the noble Lord believes there is no opportunity for us now, within this two-month period, to actually utilise the work that the committee has already so admirably done, and the work that has been done in the Home Office, so that it can be incorporated into a sensible new Bill that covers all these worries?

[Lord Blencathra]

If the Home Office were to come along with a whole range of those clauses as proposed in our Select Committee report, I would be the first to commend them and to propose them. In the political climate coming up to the election, it may not be possible to produce those clauses and get the consent of both Houses of Parliament. There may be time, but there is severe political difficulty in trying to bounce those new clauses on an unsuspecting public or legislature at this stage.

I congratulate my noble friend on some other key issues in his proposed new clause. He is right to dump all those extraneous public bodies which our committee was very concerned about. The Home Secretary repeatedly says, and rightly so, that she needs the data Bill to tackle terrorism, paedophilia and serious crime. That is the mantra. The committee agreed, but there should not be 600-odd public authorities in the Bill which are allowed to use some of the powers. They do not have the full powers of MI5 and M16—of course not—but it tarnishes the importance of the big players getting access to data if local councils are in there. Of course local councils say that serious crime is involved. They say that fly-tipping is not just someone chucking an old mattress over the hedge of a farmer’s field because gangs are making millions from it, so it is serious crime and local councils want to be in there. I say that they should use other measures rather than a Bill which has constantly been touted as dealing with paedophiles, terrorists and serious crime. In that case, the organisation which is responsible for putting the little lion on British eggs should not be included either. It is: it made a case to be included because apparently, if it is done improperly or wrongly, the EU may cut off £20 million of our funds, and therefore it is serious crime. A distinction has to be made between serious crime related to gun running, people trafficking and big money and the rest of crime.

My noble friend has included the police and the two security services. My committee recommended that we should include the National Crime Agency, HMRC, which also does a lot of work on this, the United Kingdom Border Agency—or whatever we call it now—and the FSA, whatever that is called now too. Those big bodies make up 99% of all requests for data. The other 1% are all the extraneous other bodies.

The committee also made some other very important recommendations which touched on many other aspects of my noble friend’s proposed new clauses. The committee believed that the SPOC—single point of contact—system is far better than anyone ever expected. Nearly all of us on the Joint Committee felt that we could not have the SPOC system as it would be one policeman going up to another and saying, “Hey, Sarge, sign this on the nod and we’ll get access to data”. When the committee visited the Metropolitan Police, we were delighted—perhaps I should have said amazed first—to find that the system was exceptionally good and exceptionally well run and should be no cause for concern. The police, being the police, of course invented a computer program. No one officer can move on to the next stage to authorise the collection of data until all the boxes have been filled in—not ticked, but filled in. Then another policeman has to review it. In some ways, we should have guessed that the inevitable bureaucracy of the police would come up with a system which was pretty fool-proof and pretty safe. In fact, the committee recommended that the police system was so good that the other extraneous organisations should go through the police and the system should go out to tender. I hope the Met would get it. If the Met got that tender, it would be running a rather good SPOC system in the rest of the country. I hope that placates the noble Lords, Lord Blair and Lord Condon, because I am opposed to some of the rest of the proposed new clauses.

If we go ahead with my noble friend’s proposed new clauses, I am very concerned that we will hit a huge storm of criticism that we are introducing the snoopers’ charter by the back door.

--- Later in debate ---

Nevertheless, I have some caution about the amendments and I shall explain why. My first note of caution is that we should not imagine that this solves the problem. This is a very specific, small part of the technical challenge that we face in the new digital era in which we are living. This provides one part, but the most important element, as has been reflected in some of the public statements by members of the intelligence services in recent months, is to do with internet services which are not provided through traditional telecommunications, but are provided in other ways; the data and the legal jurisdiction are held not in this country but overseas. It is over the interception of those that many of the problems arise. Even if we were to accept these proposals, it would plug one particular gap among a very significant number of gaps.

[Lord West of Spithead]

It is important to note that it does fill part of the gap. I know, having been a Minister for three years, that in the security world the agencies always say we need so-and-so and then they say, actually we need this and we need that. Yes, we do need to do these things with the various servers and providers abroad, but this is also an important part.

[Lord Evans of Weardale]

I accept that this is a very important element, but it is not the answer to everything.

My second note of caution is that we need to maintain public confidence as we go down this route. That is as important for law enforcement as it is for counterterrorism. The noble Lord, Lord Blencathra, referred to the masses who are concerned about the snoopers’ charter. I have to say that the polling evidence I have seen does not necessarily demonstrate that the masses are enormously concerned about this issue. On the whole, the masses seem to be more concerned about their security than about the human rights issues that some people focus on. Nevertheless, there is an issue of public confidence and I do not wish to diminish that.

Despite those notes of caution, I support the amendment. I support it because it is, as the noble Lord, Lord Carlile, said, a restricted measure, not a blanket measure. I support it because it is drafted with a sunset clause, so that we are filling, as it were, a legislative gap until the totality of the issues can be properly considered in the light of the subsequent publication of various reviews that are under way. I think that it will fill a gap for that period. It seems to me to be a useful, rather than a hugely expansive measure, and one which has appropriate safeguards, so I support it.

[Lord Paddick (LD)]

My Lords, I am not speaking here on a party-political, but on a personal basis. I want to tell noble Lords, first, about my personal experience of terrorism. It is not first-hand, either in terms of being a member of Special Branch or the security services, or having seen the aftermath of what took place directly. However, part of my role in the Metropolitan Police following the 7 July bombings was to talk to officers who had had to go down on to the tracks where terrorists had exploded these bombs and bring out the victims of those terrible atrocities. I know what we are talking about here in terms of terrorism and I use the Underground system every day.

In our earlier discussion on Amendment 75 and internal exile, as some put it, noble and learned Lords, in particular, as well as other noble Lords, emphasised the need for legitimacy. The noble and learned Lord, Lord Hope of Craighead, talked about the European Convention on Human Rights and the right to a private and family life. My concern is that the introduction of these amendments in this way may not be seen as legitimate by many people outside this place. A process has been set in motion. There is a process for reviewing RIPA, for example, and the whole landscape of the intelligence services. That process is in place.

The other issue that noble Lords—and, indeed, two who tabled this amendment—talked about in relation to internal exile is the danger of alienation and resentment. This follows the comments by my noble friend Lady Warsi in yesterday’s Observer about how engagement is essential. We need to engage with communities, not create alienation and resentment. My fear is that the way in which these amendments are drafted is likely to cause exactly that negative effect. My noble friend Lord King, in his opening remarks, said that we are facing a very serious situation. That is common ground. As I have said, I know from personal experience the sorts of dangers that we are facing. However, there is no common ground, I suggest, about the best way to deal with that serious issue.

There has been a lot of talk this afternoon about events in Paris. My understanding is that the information and intelligence that security services got was through mobile telephone communication between the two groups of terrorists which co-ordinated their attacks by that means. There is nothing in these amendments that would give the security services or the police the powers to identify that sort of communication. It exists already. Every day, not only the police and the security services, but other agencies specified in the amendments also have the power, as we speak, to identify who called who on a mobile phone, where and when. So despite all this talk about Paris and how the attacks could have been prevented, these amendments would not appear, on the facts as I know them, to make any difference to the situation.

Terrorists may be adept at using technology, as my noble friend Lord King said, but my understanding is that a lot of terrorists, particular the sort responsible for recent attacks—whether we are talking about the tragic death of Lee Rigby or about Paris—are using very old technology. The problem, as my noble friend Lord King rightly said, is getting good intelligence. That is about developing links with the Muslim community and with communities where the extreme right wing operates, and gaining their trust and confidence in order to get that intelligence.

[Lord West of Spithead]

Does the noble Lord not agree that in, I think I am right in saying, 100% of all the cases where we have stopped a terrorist plot in this country, it has been intelligence via the web or by some SIGINT means that has enabled us to identify the group in order to then carry out action?

[Lord Paddick]

My understanding is that that is absolutely not the case. There were numerous cases—though it may be going back some years to Irish republican terrorism—where most of the plots were foiled because of intelligence from communities, not because of anything that was intercepted. I understand that the situation is changing, but the noble Lord was not correct when he said that in 100% of cases of terrorism that were thwarted in this country it was as a result of intelligence interception of that kind.

[Lord West of Spithead]

If I may say so, it was the case during my three years as a Minister. It was very different, of course, from the time of the IRA, which we had completely and thoroughly penetrated.

[Baroness Neville-Jones (Con)]

My Lords—

--- Later in debate ---

[Baroness Ludford]

My Lords, there are objections of both process and substance to these amendments which make it inopportune and injudicious to cut and paste this amendment into the Bill—to “bounce” it into the Bill, in the words of my noble friend Lord Blencathra, whose speech I thoroughly commend. As the noble Baroness, Lady Lane-Fox, has just mentioned, there is an issue of trust. We all know—it is commented on with great regularity—that there is very little trust in politicians and parliamentarians. The noble Baroness, Lady Neville-Jones, even though she would like an updated communications data Bill, referred to the poor reputation of the existing model. However, it is the existing model, shorn of the safeguard of judicial authorisation and scrutiny and the safeguard of restrictions on the exercise of powers, that it is proposed should be inserted in the form of these amendments.

I have counted five current reviews of investigatory powers, which make it bad timing to proceed with the substance of these amendments. As I understand it, there is one by the Independent Reviewer of Terrorism Legislation, David Anderson, another by the Intelligence and Security Committee, another at the request of the Deputy Prime Minister by the Royal United Services Institute, another by Sir Nigel Sheinwald on the international aspects, and one by the Interception of Communications Commissioner, Sir Paul Kennedy, into the use of RIPA to identify journalists’ sources. With all those reviews going on, I think it is rather disrespectful to them to say, “Well, we won’t wait for those conclusions but we’ll stick into this Bill all this new capacity to collect communications data”.

Mention has been made of the capability gap. The 2012 committee report said that the Government failed to share with the committee the research findings behind their assertion of a then 25%, going on 35%, capability gap, and that such a figure was “unhelpful and potentially misleading”. Therefore, we simply do not know what the capability is. My noble friend Lord Strasburger mentioned the revelations of the Tempora programme. I am not sure why we bother to legislate half the time, as GCHQ seems to go a great deal beyond the scope of any Bill.

The report also said:

“Part of the gap is the lack of ability of law enforcement agencies to make effective use of the data that is available”.

That is not my assertion but the assertion of a very thorough and wise Joint Committee report. I agree with it that addressing that ability should be a priority.

There was also mention of the failure to consult communication service providers and internet service providers, and there have been recent complaints, which I mentioned earlier, by the Internet Services Providers’ Association about the lack of consultation. Before any redrafted legislation is introduced, the Joint Committee recommended extensive and meaningful consultation,

“once there is clarity as to the real aims of the Home Office”,

which would be quite useful.

[Lord West of Spithead]

While I understand what the noble Baroness is saying about the various studies, does she agree that over six years, which is how long it has taken us to address this starting to lose data, is rather a long time? It is slightly longer than it took us to defeat Hitler, and it is a long time to keep on looking at other things. Do we not have to take some action if we are to achieve something?

[Baroness Ludford]

I thank the noble Lord for that remark, but I understand that the Independent Reviewer of Terrorism Legislation has a target date of May—four months away—to produce his report. I am sure that we can wait four months.

I would also mention the huge expense that these amendments would produce. One can also query the value of a sunset clause. If hundreds of millions of pounds had been spent on the project by December 2016, it is likely that Parliament would say, “We have spent so much already, so we might as well carry on”.

The noble Lord, Lord King, quoted me as preferring targeted to blanket surveillance. What I meant was not what he has put forward in his amendments. He has removed some of the organisations, but I understand that there is still no specification that it is the security services and the police; the reference is to “purposes”. Other agencies could be pursuing matters for the purpose of serious crime, so the provisions would not be limited to the police and security services. By targeting, I meant not limiting it to certain “purposes”; I meant it to limit the scope of Amendment 79, which replicates Clause 1 of the draft Bill.

As my noble friend Lord Blencathra said, it was the huge breadth of that Clause 1, which is now reflected in Amendment 79, which was so objectionable. The Joint Committee said:

“It is hardly surprising that a proposal for powers of this width has caused public anxiety”.

Even the Intelligence and Security Committee said that more detail was needed on the face of the Bill, but that detail is not in the amendments put forward today. The Joint Committee concluded:

“Clause 1 therefore should be re-drafted with a much narrower scope, so that the Secretary of State may make orders subject to Parliamentary approval enabling her to issue notices only to address specific data gaps as need arises … We do not think that Parliament should grant powers … on the precautionary principle”—

the idea was that new ways of communicating would come along. That was an extremely wise conclusion, yet the amendments consist of precisely the breadth of that Clause 1.

The Joint Committee was particularly exercised over the possible requirement to keep web logs and, as the noble Lord, Lord Blencathra, said, wanted,

“Parliament to address and determine this fundamental question”,

specifically. Amendment 79 does not allow us to address that specific and fundamental question. In the mean time we are legislating on IP addresses in this Bill. Neither I nor any of my colleagues have objected to that, although we wanted to tease out some of the detail.

The Joint Committee also said that there were huge technical and civil liberties concerns about the collection of third-party data and the lack of detail on that in the Bill. The report states:

“United Kingdom CSPs are rightly very nervous about these provisions”.

They simply could not understand the implications of having to collect data from third-party suppliers who happened to cross their networks.

Counter-Terrorism and Security Bill

Lord West of Spithead Excerpts

Tuesday 20th January 2015 Lords Chamber

[The Lord Bishop of Durham]

My Lords, it is worth reminding ourselves of the speed of change in the world that has led to this legislation. If these proposals had been before us even 18 months ago, I suspect that we would not even have entertained them. Therefore, the speed of change that has brought them about demands that we say that we do not wish to forgo our existing liberties, some of which would be restricted by this Act, without having recourse, in two or three years’ time, to a serious look at whether the measures are working. So I fully support the idea of a sunset clause. I am prepared to accept that two years may be rather too brief, given all the circumstances and the likelihood that we are going to live with this for some time. I would, however, encourage the House to support these amendments in some form, since I believe that the removal of our liberties that is encompassed in these clauses is so serious that we should not put them into permanent place.

[Lord West of Spithead (Lab)]

My Lords, I strongly support the inclusion of a sunset clause, for the very good reasons that have been given. The only debate is, really, how long. Two years is possibly too short. We need to think about how quickly we will be able to gain information about how it is working, what the full implications are and so on. Equally, however, we do not want it to be too long. So how long is a piece of string? I would think perhaps three or four years. However, I believe absolutely that we should have a sunset clause.

[Lord Butler of Brockwell (CB)]

My Lords, while I agree with noble Lords who have argued that two years would otherwise be too long, one merit of the proposal is that the Data Retention and Investigatory Powers Act 2014 has to be renewed, and there might be something to be said for considering these powers in the context of that, so that we get a comprehensive anti-terrorism Act at the same time. That might argue for a shorter sunset period.

[Lord West of Spithead]

I think that has to be done by the end of this year—which I believe is too short.

[Baroness Buscombe]

Can the Minister also tell us now, or at a later stage, whether sunset clauses were imposed by the then Labour Government in the anti-terrorism Acts of 2000 and 2001 and, if so, what the terms were?

Terrorist Attack in Paris

Lord West of Spithead Excerpts

Wednesday 14th January 2015 Lords Chamber

[Lord Bates]

The noble Baroness, who of course has immense experience in this area, will recall that the Home Secretary said that,

“every day that passes without the proposals in the draft Communications Data Bill, the capabilities of the people who keep us safe diminish; and as those capabilities diminish, more people find themselves in danger and—yes—crimes will go unpunished and innocent lives will be put at risk”.

That is a very sober message for all Members of this House to reflect upon.

[Lord West of Spithead (Lab)]

My Lords, just for complete clarity on the government position, will the Minister agree that the Snowden revelations have made us all much less safe and have enabled terrorists now to use methods of communication that we cannot penetrate, and that there will therefore be deaths as a result of what he has done?

[Lord Bates]

That is absolutely right. I also pay tribute to the interventions and remarks that the noble Lord made last night on people trying to present the communications data Bill as some kind of snoopers’ charter. That is absolutely ridiculous and offensive to people who are trying to do a serious job of trying to keep us safe in this country. They deserve our support and do not deserve to be trivialised in that way.

Counter-Terrorism and Security Bill

Lord West of Spithead Excerpts

Tuesday 13th January 2015 Lords Chamber

[Lord Paddick (LD)]

My Lords, I am very pleased to follow the noble and learned Lord, Lord Goldsmith, and I broadly agree with what he said. I was a police officer for more than 30 years, but I was not directly involved in counterterrorist operations so I have no specialist knowledge of the subject. However, I was the police spokesman following the 7 July 2005 bombings in London and I was responsible for community issues for the police in the immediate aftermath of the shooting of Jean Charles de Menezes on 22 July 2005.

I was a police officer during most of the IRA bombing campaign on the UK mainland and regularly attended briefings by the Anti-Terrorist Branch, as it was then. The IRA threat was very different in nature from that presented by Islamist extremists. The IRA was conventionally organised through an established hierarchical structure and, as such, it was capable of being infiltrated. Even so, the then head of the Anti-Terrorist Branch, John Grieve, said that the police and security services alone could not defeat terrorism; it was communities that would do this. I spoke to John Grieve this morning and he reiterated what he said in the 1990s: the role of communities is even more important in combating the sort of tragic and totally unjustifiable outrages that we saw in Paris last week.

Lone individuals or groups that come together to carry out acts of terrorism are very difficult to identify, intercept and thwart without intelligence from the communities they live among. What we understand from the Paris shootings is that, although the two brothers involved were known to the security services, they were among hundreds who had the potential to be a threat. It is those closest to those individuals who will notice changes in their behaviour that might highlight to the security services that these are the few from the many who may act on their perverted beliefs.

In an interview this weekend, the Commissioner of Police of the Metropolis, Sir Bernard Hogan-Howe, talked about how important it was, for example, for the parents of those preparing to leave to join the conflict in Syria and Iraq to tell the police and other agencies. We should consider how many parents would want the authorities to prevent their children travelling to Syria and Iraq to engage in terrorist activity. He went on to say that he recalled how the 7/7 bombers accidentally bleached their hair and the vegetation outside the flat where they prepared their explosive devices with one of the components from their home-made bombs. Their friends, family and local people would have noticed and could potentially have prevented the atrocity by telling the authorities. They did not, and 52 innocent people died.

That is why increased powers for the security services and the police must be balanced against winning the confidence of communities which fear that powers may be used against their innocent members. We cannot have, do not want and cannot afford to have a police officer on every street corner and an intelligence officer in every community. Whatever surveillance powers we might agree, if we have learnt one thing from the recent tragedies it is that there are too many people who could potentially pose a threat to be able to monitor all of them. Community intelligence is as important as any powers we give to the intelligence agencies.

There is also the wider civil liberties issue. This country has a liberal tradition that citizens should be allowed to do what they will, provided it does not harm others, free from interference from the state. This freedom is anathema to the Islamist extremists who carry out terrorist attacks against the West. They want a society where every aspect of people’s lives is controlled. If we curtail people’s liberties, we are taking society in exactly the direction the terrorists want us to go.

Of course the police and security services will always ask for more draconian powers in order to carry out surveillance of those suspected of criminality. The Liberal Democrats have been criticised for scuppering the Communications Data Bill—the so-called snoopers’ charter—but we must always seek to find the right balance between security and civil liberties.

[Lord West of Spithead (Lab)]

Does the noble Lord agree that the term “snoopers’ charter” is emotive claptrap? I have worked with GCHQ over a period of 30 years, on and off, and I am not aware of a single case where people working in that agency have “snooped”, which is the word used, on any ordinary member of our society in any way at all. Yes, it has used due and proper process and looked at and found people who wish to damage us. Indeed, in all the plots that we managed to stop during my time as a Minister and since, nearly everyone got their heads-up from that type of intercept information. Using the words “snoopers’ charter” is emotive and gives completely the wrong impression of what it is.

[Lord Paddick (LD)]

I acknowledge what the noble Lord has said and that there are differences of opinion on both sides of the argument. It is a pejorative, probably unhelpful, term that has come into popular use. I added that description for the benefit of those reading the proceedings of this House who may not be familiar with the Communications Data Bill. I agree with the noble Lord that it is not a particularly helpful term to use.

Noble Lords will understand that my main interests in the Bill concern the new powers it confers on the police and security services and, as far as those aspects are concerned, I substantially welcome its provisions. To that extent, and with some trepidation, I disagree with the noble and learned Lord, Lord Lloyd of Berwick. As my noble friend the Minister said, the nature of the threat has changed. There are many British citizens—mainly young and impressionable—who are being persuaded to travel abroad to participate in terrorist activity. If prevented and provided with the right intervention, they could be diverted from radicalisation. We need to examine in detail the powers given to the police to seize passports and travel documents. Sadly, we have seen well intentioned legislation being misused in practice in the past, and we must do all we can to minimise the potential for misuse of these new powers.

“Temporary exclusion orders” is an unfortunate term for what is intended to be a mechanism to ensure the managed return of those suspected of having been involved in terrorism-related activity and who pose a threat. It is clearly necessary to control the return of those who have either been trained in terrorist training camps or been engaged in acts of terrorism to ensure that they do not pose a threat to the safety not just of members of the public, as the legislation says, but of the police, the Armed Forces and the security services. Again, it is important that these individuals are properly assessed and that appropriate interventions are provided, including prosecution and imprisonment if necessary. As my noble friend Lady Hamwee has said, we must ensure that there is proper scrutiny of such decision-making above and beyond the very limited ability of a young man or woman abroad to challenge the decision of the Secretary of State by means of judicial review. Many of those young people will have been exposed to one of the most brutal regimes that we have seen. It is unlikely that they will not be changed by that experience and potentially pose a more serious threat as a result.

The Bill purports to allow the security services to link a particular IP address with a particular device and therefore to make it easier to identify individuals who are communicating using the internet, in a way similar to what can be done at present with landline and cellular telephone communications. I seek reassurance from the Minister that the data that the Bill requires internet service providers to retain are only those that are necessary to link communications to devices and hence individuals, and that the Bill would not allow the trawling of data in a way that would be a considerable infringement of innocent people’s civil liberties. As for whether this provision needs to be fast-tracked, if it has been identified as a gap in the ability of the police or the security services to prove communication between individuals, surely it is best if that gap is filled as quickly as possible.

The noble and learned Lord, Lord Lloyd of Berwick, is also concerned about TPIMs. However, my understanding is that the changes to TPIMs in this legislation have been recommended by the Independent Reviewer of Terrorism Legislation—someone for whom the noble and learned Lord has the highest regard.

I have other concerns about other parts of the Bill that others will cover in more detail, particularly the banning of radical preachers, which could lead to their perverted messages of hate being preached in secret where they cannot be challenged by those who oppose their views.

We saw unintended consequences of the actions taken following 7/7 under the Prevent strand of the then Government’s counterterrorism plan, with councils forced to spend money where none was needed and some minority ethnic communities feeling that they were being penalised for not harbouring terrorists. Prevent deals with all types of terrorism and I have no issue with a statutory requirement for local authorities to carry out an assessment as to the nature and extent of the danger of local people being drawn into terrorism. I have no issue with a statutory requirement to address the dangers identified, but what action is taken should be a matter for the local authority concerned.

On Saturday, George Churchill-Coleman sadly died. He was head of the Metropolitan Police Anti-Terrorist Branch for seven years, from 1985 to 1992, longer than any other postholder. John Grieve worked closely with Mr Churchill-Coleman and the one message that Churchill-Coleman delivered over and over again during his time at the peak of the IRA bombing campaign was, “Don’t overreact”.

The Bill, properly amended, as I am sure it will be by this House, is a measured and appropriate response to the dangers that we face, and I believe that we should, in principle, support it.

Mediterranean: Refugees and Migrants

Lord West of Spithead Excerpts

Wednesday 5th November 2014 Lords Chamber

[Lord Bates]

It is certainly not the case to say that the Government have been passive on this. My right honourable friend the Home Secretary had meetings with her Italian counterparts last month, and will meet them again this month. We have extended our offers of support and of course we have looked at the countries from which most of these migrants are coming, namely Syria and Ethiopia. We are putting large sums of money—£700 million in the first instance, £360 million in the second—to try and help people to give themselves a proper life at home.

[Lord West of Spithead (Lab)]

My Lords, there is a long-standing commitment that mariners have always had to look after mariners in peril at sea, as the Minister says. It is very difficult to see how those in the vicinity can do anything other than help them, whether the ship happened to be British, Italian or whatever. For those who are actually based down there, surely—by UN law—they actually have to give assistance.

[Lord Bates]

Absolutely, and there is no change. The obligations are there for any military ships or vessels in the vicinity. They know what they have to do in terms of contacting the maritime rescue co-ordination centre and they will be directed to take those people to a safe port or to have those people passed into safe hands.

Parliament Square: Occupy Protests

Lord West of Spithead Excerpts

Tuesday 28th October 2014 Lords Chamber

[Lord Bates]

I am sure, of course, that the noble Baroness would be perfectly free as a parliamentarian to invite them into the House, but perhaps ensure that they do not stay too long.

[Lord West of Spithead (Lab)]

My Lords, does the Minister not think that the situation had become unbearable before this was done? For example, when I was being driven past in my car in my full uniform, they came and stood in front of the car and I managed to stop an incident because my Royal Marine driver said, “Shall I re-educate them, sir?” and I said, “Not today”.

[Lord Bates]

The noble Lord is absolutely right— I fully agree with him.

Children: Online Privacy

Lord West of Spithead Excerpts

Thursday 16th October 2014 Lords Chamber

[Lord Bates]

Yes, indeed, my noble friend is absolutely right. That is why the child exploitation unit command within the National Crime Agency is now able to tap into the National Cyber Crime Unit. There are officers in some 40 different countries around the world. It is also why the Prime Minister will host a conference in December with representatives and partners from more than 50 countries to see what more can be done.

[Lord West of Spithead (Lab)]

My Lords, has the National Cyber Crime Unit now developed tools through the high-tech crime units to enable this sort of hacking to be tracked down more rapidly, because at the moment it is very difficult to attribute it?

[Lord Bates]

The noble Lord is absolutely right. The child abuse image database seeks to convert images into a string of data, which can then be checked across the industry to identify the victims of these crimes to make sure that they are safeguarded. However, the need to develop new technology further is absolutely critical and the work is ongoing.

Data Retention and Investigatory Powers Bill

Lord West of Spithead Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, I support the amendment of the noble and learned Lord, Lord Hope. After what he said yesterday I did some swotting last night. It is important for the legislation to get this sort of wording right. It is quite divisive legislation because of the speed at which it has taken place. This is a sensible amendment.

[Lord Paddick (LD)]

My Lords, I also support the noble and learned Lord, Lord Hope of Craighead. At Second Reading, the noble and learned Lord made a compelling case for addressing the precise wording in the European Court judgment. With the greatest respect to my noble friend the Minister, his response to that assertion did not quite come up to the level of the case made by the noble and learned Lord. I also support the comments of the noble Lord, Lord Davies of Stamford, in that it would not only help lawyers to avoid court cases as a result of not addressing strictly the wording in the judgment but it would also be reassuring to the public to have the wording as suggested in the amendment.

--- Later in debate ---

[Lord Carlile of Berriew (LD)]

My Lords, I support what has just been said by my noble friend Lord Howard of Lympne. I speak not as a judge but as someone who has drafted many skeleton arguments to take before senior courts, and given a phrase such as “strictly necessary”, I would spend my time in preparing a case by looking for authorities decided by the courts in which there was a difference between the terms “necessary” and “strictly necessary”. I have spent some time doing so this morning, and I have failed to find such a case so far—although of course I will defer to the noble and learned Lord, Lord Hope, if he can find one for me. Judges are often so much better informed than those who appear before them, and I feel a little as if I am in that situation now.

However, speaking for those of us who are paid, sometimes a great deal of money, to create a difference where none exists between a phrase such as “strictly necessary” and the mere word “necessary”, I would say to the Minister: please avoid tautology. It is expensive, and not terribly helpful.

[Lord West of Spithead]

My Lords, the point made by the noble Lord, Lord Howard, is important, and I accept it. There is a danger of raising a precedent here. On a point of clarity for a simple sailor, may I ask: if an amendment is taken today, is there a mechanism within this urgent high-speed way in which we are doing things to get the change back to the Commons to get it sorted out, or are we talking in a vacuum, because nothing has been organised to achieve that?

[Lord Taylor of Holbeach]

I am sure the usual channels make arrangements for any such potentiality. I am very grateful to my noble friend Lord Howard of Lympne for the way in which he presented the important point that the British Parliament and British law lie at the bottom of all this. We have had a chance to consider this matter. I do not know whether beliefs have been changed by our consideration of the previous amendment, but at least that consideration has been valuable. However, I still urge the noble and learned Lord to withdraw his amendment.

--- Later in debate ---

[Baroness Kidron (CB)]

My Lords, my name is also on this amendment. The question of public trust has been raised, and this amendment is an attempt to restore public trust. The Minister referred yesterday to the overwhelming support in the other place for this emergency legislation. Of course if one looks at the vote in terms of numbers alone he is completely correct. However, the most cursory glance through the past two days of Hansard reveals that even those who support this Bill have grave reservations about a system of warrants that very experienced legal colleagues are suggesting may prove unenforceable, and about whether this Bill has answered all the findings of the ECJ reservations over whether Clause 4 represents an extension of powers. Very importantly, there are also reservations about the level of understanding of the technology itself, and exactly what gathering “who, what, when and where” can mean for the individual. These reservations have been expressed in other places, such as the Constitution Committee and the Law Society, and among senior legal experts as well.

Like others, I absolutely accept that the noble Lord has done his utmost to reassure the House on all points. Even if he is completely correct that this indeed represents business as usual, there remains the outstanding case that this Bill is a response to the ECJ ruling hurried through in fear of an impending judgment in the domestic courts, and that it is sitting on top of RIPA legislation that is generally accepted as inadequate. This Bill has gone through the House so rapidly that it is impossible for it to incorporate effectively all the expertise and views that have been given.

It is not overwhelming support for the legislation that has resulted in there being only four amendments this morning. It was the lack of time to articulate and design useful and necessary clarifications without undermining the needs of the security and intelligence services, which, I say again, nobody present would wish to do. A sunset clause two and half years hence gives no comfort to those who suspect that this Bill came to the House deliberately without time to challenge it. December 2015 is a reasonable time for review, parliamentary scrutiny, public debate and collective agreement. Three days certainly were not. I commend the amendment to the House.

[Lord West of Spithead]

My Lords, the noble Lord, Lord Phillips, spoke to me before the debate to ask if I would be supporting this amendment, so I have thought about it in some depth, and the answer is that I cannot. I am very supportive of my noble friend Lord Rooker’s comments. What he said about that toxic word “snooper” is exactly what I said in my speech yesterday at Second Reading. It is a very bad and emotive term, for the reasons that I gave then. I support a number of the other things that my noble friend said as well.

Both Houses are clearly in accord that the maintenance of these powers is critical for the safety and security of our people. Removing this provision before something has replaced it is an absolute nonsense. Having been involved over a number of years in this sort of legislation and this sort of work, it is clear to me that, in reviewing something like RIPA, if we are to do it properly, there is no way that we can achieve something in place of this provision in such a short time, because it will be removed. As the noble Lord, Lord Carlile, mentioned, it will have gone before we could do it. Actually, it will be tight to achieve it even by December 2016. We need to do a proper review. We will need something like a new communications data Bill. We so nearly got one before political shenanigans stopped it happening, but we need to look at this and go into great detail in reviewing RIPA. All this has to be done. It is extremely dangerous to try to shorten these timescales. It would be a dreadful mistake to make it any earlier than December 2016.

[Lord Butler of Brockwell]

My Lords, having supported the Minister in response to the noble Lord, Lord Davies, and having criticised him in response to the noble and learned Lord, Lord Hope, in this case I support the Government and agree with those who oppose this amendment.

If we pass this amendment we would find ourselves in exactly the same danger as we are with the provision of this Bill. We would be presented with a Bill in the latter part of 2016 that would be very urgent and the House would have inadequate time to consider. Although two and half years seems a long time, let us consider what is going to happen in the mean time. The independent reviewer of terrorism legislation has been asked to carry out a thorough review of the RIPA legislation. I understand that his timetable is to try to complete that by the time of the Dissolution of this Parliament, by May of next year.

The Intelligence and Security Committee is similarly carrying out a review. This autumn we plan to have public hearings where those who are critical of the legislation can have their say. I hope that that will generate a public debate and allow these issues to be widely discussed; that will be very valuable. We also hope to reach a conclusion by the end of the Parliament. Indeed, we had better, because there will be a new committee after that. The election will be in May of next year. The new Government will come in with quite a short time before the Summer Recess, when there will be other urgent things to do. It has been suggested that there should be a Joint Committee of the two Houses to look at the conclusions of the reviewer of terrorism legislation, and those of the Intelligence and Security Committee. It will want to have time to consider that. It really will not be practicable to reach a position where properly considered legislation can be introduced until we are well into 2016.

Two and a half years may seem a long time, but when one considers that those are the sensible and necessary steps before legislation is introduced and passed, it follows that the end of 2016 really is the earliest possible date when we can expect to have properly considered and satisfactory legislation in place of the Bill that we are passing today.

[The Earl of Erroll (CB)]

My Lords, I have not intervened earlier because I have been doing lots of other things, but I wanted to intervene on this amendment and say that I think that this is a sensible approach. I cannot believe that you can produce this Bill within a couple of weeks and then say that we cannot do something better in a year and a half. It seems that we are trying just to push the boundaries out, and the question is why. It tends to be the people who can see the challenges, who come from a senior executive background, who are trying to get this sorted out, and I can see their point.

We need to consider some of the principles behind the amendment, which is why I fully support it, and we need to discuss those principles very early on. The issue is not the technicalities in the Bill, the definitions of communication data and metadata; we know that we need to do this for the purposes of finding terrorists, enforcing the law and stuff like that. The real challenge is posed by that old bit of Latin—which I might as well use, as we are now using Latin—sed quis custodiet ipsos custodes? Who watches the watchers? Who guards the guardians? We should remember the line that is supposed to come after that, which I will say in English: they keep quiet about the girl’s secrets and get her as their payment. Everyone hushes things up. That is the trouble. If corruption runs high enough, you get the Cambridge set—was it four or five by the end of it all? You get J Edgar Hoover.

That sounds as if I am painting a hugely black picture, but there is danger there, even more so now that we have rolled together—for the purpose of catching terrorists and people in serious and organised crime, which we have had to do—what used to be our external forces, GCHQ and MI6, responsible to the Foreign Office, and our internal police, which was MI5 and is now basically the NCA. In America the CIA and the FBI were kept separate. We have started to bring our forces together because of things falling between the cracks. This means that we are potentially giving huge powers to internal police. Therefore, how those at the top are to be watched is of vital importance.

[Lord West of Spithead]

My Lords, I am sure that the noble Lord is not for a moment suggesting that corruption is involved in this. I understand why there needs to be proper oversight, but surely the noble Earl does not mean to mention words like corruption in connection with the way in which this matter is being approached.

[The Earl of Erroll]

I am sorry; I am not suggesting that there is any at the moment at all. There has been historically—the Cambridge set. There are problems with people at the top from time to time.