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Lord Rooker: My Lords, the noble Lord makes a fair point because every provision is not duplicated. In opening the debate, I made it clear that the powers which will be used for disclosure will conform fully to the Regulation of Investigatory Powers Act and the European Convention on Human Rights. That is how the powers are monitored. Therefore, the Technical Advisory Board—the noble Lord is right: it was set up recently—will play its role. The procedures on disclosure of information will follow the RIPA rules, and will be ECHR compliant.
Lord Phillips of Sudbury: My Lords, I am grateful to the Minister. When he refers to the RIPA rules, many will think of XJack the Ripper rules", so vicious are these provisions. However, I am sure that we can insert a reference to the Technical Advisory Board as we proceed.
Some will say that the innocent have nothing to fear by disclosure. It is only the wicked and villains who should worry. But that is not true. The right to privacy long predates any human rights legislation. It is not a right in the formal sense but one that citizens of these lands have enjoyed since time immemorial. The Government would misjudge public opinion and anxiety if they were to proceed on an extraordinarily broad front with extraordinarily broad powers.
It is common sense and reality that there are rotten apples even in a well-run police force or security organisation—and rotten applies will use powers given by the Bill perniciously. The more intrusive and secretive the powers, the more pernicious the abuse. It is not paranoid to worry about such matters. Only last summer we discovered that the national databank that is supposed to destroy fingerprints and genetic materials taken from suspects had failed to discharge no fewer than 50,000 sets, which were languishing on the databank long after they were legally there. We should not tempt persons who are corruptible or who are likely to take short cuts by littering the statute book. Even if one only subscribes to the cock-up theory of life, the proposed powers are far too wide. I hope that the Government will listen to all parts of the House as the Bill progresses.
We live in an acquisitive state. There have been 11 criminal statutes since 1997 and those powers are too great for the liking of many in this Chamber. We will need a great deal of reassurance that the Bill is fair and proper.
The noble and learned Lord, Lord Mayhew, and my noble friend Lord Jenkins contributed remarkable speeches by men who have deep and long experience of the issues that we are grappling with tonight. I was struck too by the difference of emphasis between them, although both were sympathetic to the notion that the Bill is too broad and piggybacks clauses on to the terrorist emergency in an unacceptable way.
Both speakers felt that the need for judicial review in respect of SIAC was imperative. The noble and learned Lord, Lord Mayhew, spoke about not being
caught up in the nicety of his admirable principles—not to be too refined in protection for suspected terrorists. He asked what would the public think if a further terrorist atrocity occurred in this country and all necessary steps had not been taken to prevent it. That is a fair question and the Minister dealt with it fairly when opening the debate.My noble friend Lord Jenkins referred to the Prevention of Terrorism Act 1974, which came in the wake of the Guildford and Birmingham atrocities—when far greater alarm was caused to the British public than now prevails. My noble friend doubted whether that legislation had frustrated any determined terrorist but made the reasonable point that perhaps the 1974 Act steadied the febrile state of public opinion. He went on to point out that some of the grossest miscarriages of justice in modern history were subsequently perpetrated. The noble Baroness, Lady Kennedy, and others also referred to those miscarriages.
In urging the greatest care in passing the Bill, my noble friend concluded that we cannot defend our values by suspending them. I draw the further conclusion that fair-weather values are like fair-weather principles—nigh-on worthless, hypocritical and counterproductive.
We are dealing not with a war in the normal sense of the word, but with a crisis that we are all greatly concerned about and intend to try to address properly in the legislation. In responding judiciously to natural public outrage and anxiety, we must not feed public passions and fears by the measures that we adopt. Above all, in our debates and in discourse with the public, we must emphasise that we are not necessarily dealing with terrorists—only with suspected terrorists. It is easy to slip into the language of certainty when we are dealing with suspicion and the means of properly contending with it.
The trial process is fragile enough, even when carried out in the full public gaze and with the protection of jury trial. As we know well enough, in the aftermath of atrocities, wrongful convictions can occur. I note in passing that we have no definition of terrorism in the Bill. I was struck by the remarks of my noble friend Lord Russell on the ANC and freedom fighters.
I shall say no more about the inadequacies of SIAC, except to endorse the need for judicial review and for much greater protection by the means of trial. False Xconvictions" will sow dragon's teeth among the terrorist community. It is an unfair paradox that nothing so inflames and exacerbates the violent passions of the terrorist-with-a-cause than to suffer injustice at the hands of the state that harbours him and to which he may or may not be actively opposed. It becomes an extra casus belli and immediate provocation that can, and often does, lead to a commencement or intensification of terrorism by his fellow travellers against that state.
I draw your Lordships' attention to the remarks of the Bar Council, which referred to the nature of the SIAC process being inflammatory to segments of public opinion here and elsewhere.
Criminal laws have to strike a difficult balance between the rights of the accused, who may be a repeat murderer or repeat rapist, and the rights of society and of victims. The same dilemmas afflict us here, with the added complication that terrorism always involves group hatreds, which can be more activated to violence by oppressive laws and arbitrary trials than by an apparently liberal regime.
In closing, it is worth reflecting on our experience in the Second World War in respect of the Defence of the Realm Act and the infamous Regulation 18B, which allowed detention without due process. Some of your Lordships may know of the very important and interesting book on the subject published by Professor Simpson, in which he quotes the statement by Herbert Morrison, as Home Secretary, in a debate in 1942. Morrison said:
- XWhat the House must do is to keep watch on the Home Secretary . . . to look out for cases where in their judgement he has gone wrong and they can get evidence that he has . . . I agree it is not cricket, but I cannot help it".
I close my remarks with a quotation from Winston Churchill—that extraordinary man who, in the midst of his war negotiations in Cairo in November 1943, had time to telegraph back to Herbert Morrison on the debate that he was about to lead in the House of Commons on whether the Mosleys should be released from Regulation 18B detention. It is interesting to note that Clementine had put pressure on him in Cairo to intervene. I remind the House that this was in the middle of a war which we were not certain of winning. In writing to Herbert Morrison, Winston Churchill said,
- XYou might however consider whether you should not unfold as a background the great privilege of habeas corpus and trial by jury, which are the supreme protection invented by the English people for ordinary individuals against the state. The power of the Executive to cast a man into prison without formulating any charge known to law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist . . . Extraordinary power assumed by the Executive should be yielded up when the emergency declines. Nothing is more abhorrent than to imprison a person or keep him in prison because he is unpopular. This is really the test of civilisation".
10.31 p.m.
The Earl of Northesk: My Lords, given that I follow the noble Lord, Lord Phillips of Sudbury, it is perhaps fortuitous that my especial interest is in the Bill's elements that have an IT flavour, particularly Part 11. Noble Lords will be aware that these are matters which have exercised the attention of some of us in
Parliament a great deal in recent years, specifically the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000.What matters here is that Parliament had arrived at a settled view as to how the issue of data retention should be dealt with. The Government's case, presumably, is that the events of September 11th demand that we revisit the matter. So be it. However, to my untutored eye, Part 11, drafted as broadly as it is, betrays a certain indecision on the part of the Government. Equally, with no hint of criticism, there may perhaps even be a certain lack of full understanding of what can be realistically achieved. With that in mind, and in the time I have available, I propose to subject the provisions of Part 11 to the four tests of effectiveness, of necessity, of proportionality and of consequence.
I start with effectiveness. The attractions of facilitating intelligence gathering and law enforcement by reference to communications data seem self-evident. Indeed, the Minister stated in his introduction that this had been Xcentral to investigation" of the atrocities of September 11th. I do not dispute that, but there are complications.
The retention of data is the stockpiling of Internet and telephone traffic which has already taken place. It is not a predictive tool. Its purpose has much more to do with the investigation and prosecution of crimes already committed. As I say, I do not question or dispute the importance of that. But the purpose of this Bill is to address a current and ongoing emergency. It is that which justifies its tag of emergency legislation.
Moreover, the fight against terrorism demands rapid access to focused intelligence. But, as they stand, the Bill's proposals will produce such vast amounts of data that law enforcement and intelligence services could well be stymied by Xinformation overload", the reverse of the Government's intentions.
A point constantly alluded to in our debates on the Regulation of Investigatory Powers Bill—it has just as much, if not more, resonance now—was that the technological skill and sophistication of terrorist and criminal organisations is such that they can readily avoid our attempts to legislate against them in this area. I do not say that that should stop us trying. Nonetheless, it is a fact that even those with limited understanding of the way in which the technology works can evade traceability and investigation by, for example, using pre-paid mobile telephones or web-based e-mail from public terminals.
Additionally, all of this presupposes that terrorist and criminal organisations communicate habitually and exclusively by means of modern technology. We know this not to be the case. For example, it is well known that a favoured method of transfer of funds for Al'Qaeda has been, and is, the brokerage system of hawala.
Moving on, I turn to the test of necessity and draw your Lordships' attention to paragraph 259 of the Bill's Explanatory Notes. This states:
- XCommunications data can be a useful tool for law enforcement agencies"—
- Xand if held by a communications service provider will be accessible by a public authority under Chapter II of Part I of the Regulation of Investigatory Powers Act 2000 which is shortly to come into force".
- Xwhilst the Regulations permit the retention of communications data on national security and crime prevention grounds there is currently no general guidance given as to when these might apply".
To my mind, that is an inadequate fig leaf to justify the broad and imprecise scope of the data retention measures before us today. What cannot be disputed is that the power already exists. Proof of that is to be adduced from the fact that the United Kingdom National Hi-Tech Crime Unit submitted a request to ISPs and telcos that logs of communications for September 11th should be retained. On advice from the Information Commissioner that,
- Xthe request from the NHTCU is lawful and proportionate in the circumstances",
As I say, the Minister confirmed that in his introduction. But perhaps I can have clarification as to how long authority has been given for the retention of that data? Does it in fact relate only to the single date of September 11th or stretch over a wider period? That is an important point. Moreover, perhaps the Attorney-General can confirm that, once RIP comes into full force, senior police officers will be empowered to authorise their own orders requiring the retention of data for the purposes specified on the face of that Act.
That lends credibility to the view expressed by Jonathan Bamford, Assistant Commissioner to the Information Commissioner, in his observation that,
- XPart 11 isn't necessary, and if it is necessary it should be made clear why".
I move on to proportionality. Despite apparent assurances from the Home Secretary to the contrary, Part 11 of the Bill is not limited to providing data retention in respect of the current terrorist threat. Your Lordships will be aware that in an article published in Tribune on 26th October, the Home Secretary indicated that the voluntary regime would apply,
- Xstrictly in the case of a criminal investigation against suspected terrorists".
I may have misheard the Minister—I know now that I did not because of the intervention of the noble Lord, Lord Phillips—but I seem to recall that he said Part 11 powers are in line with the ECHR. In fact, both the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee expressed doubts about that. The Information Commissioner is just as unconvinced, as shown by the text of her recent memorandum on the Bill. Referring to Article 8 she states:
- XThere must be a concern that the proposed legislation would be incompatible with Convention rights as it fails to satisfy this basic requirement for precision and foreseeability in the delineation of the Secretary of State's powers".
- XContinued retention of communications data by a communications provider beyond the completion of its own processing, in order to satisfy the needs of others, is likely to contravene the 1998 Act's requirements".
I come to my fourth test; that of consequence. Here I follow the argument of the noble Lord, Lord Phillips of Sudbury. The Performance and Innovation Unit report, Privacy and Data, states:
- XPrivacy is a fundamental right. It is hard to quantify, which may have the effect that it is accorded less weight than other factors . . . but it is no less real. Furthermore, it is not simply relevant at the level of the individual . . . but it is also a common good for society as a whole".
- X'Traffic data' constitutes a near complete map of private life: who everyone talks to (by e-mail and phone), where everyone goes (mobile phone location co-ordinates), and what everyone reads online (websites browsed)."
- XCollecting the streams of thought of the population and processing them by computer is a good definition of a police state".
In so far as the measure provokes that degree of concern, it is all the more important that we scrutinise it as carefully as we can.
Inevitably, the provisions will also have consequences for industry, not only telcos and ISPs but also more generally. In passing, will the noble and learned Lord the Attorney-General undertake to
publish the Horrocks report? There will be a not inconsiderable financial cost to ISPs and telcos, albeit that the Bill makes allowance for appropriate moneys to be paid out of public funds. None the less there is a real risk that,
- XExtra costs arising from retention could increase overheads to the point where cheap transatlantic bandwidth makes it attractive to locate servers in offshore subsidiaries where requirements are less onerous".
The Government may seek to defuse this by highlighting the voluntary nature of the scheme—ISPs will not be obliged to retain data. But, in so far as it is argued that this is a key component of the efforts to counter terrorism, it suggests that the scheme is redundant even before its implementation. The consequence is that, in very short order, the Home Secretary is likely to use the reserve powers granted to him under the Bill to introduce a mandatory scheme that will be subject to a dearth of parliamentary scrutiny or accountability.
That said, my impression is that the industry is less concerned about financial aspects than technical ones. As I said, the volumes of data that will be subject to retention are vast. The consequence for most telcos and ISPs will be that management of compliance with the data retention regime will become so time consuming and routine that it impacts seriously on the successful running of their businesses. Inevitably, those various factors will compromise the competitiveness of the IT industry. As recognised by the CBI, the proposed data retention regime could damage consumer confidence in e-commerce and commercial exploitation of IT in the UK. I merely speculate how those consequences can reasonably be squared with the Government's stated policy of making the UK the best place in the world for e-commerce.
I hope that your Lordships will forgive me if I also say a few words about Part 3. As the noble Lord, Lord Phillips, pointed out, the genesis of this was Part 2 of the Criminal Justice and Police Bill of the previous parliamentary Session. The clauses before us are almost a carbon copy. Those proposals fell at the time of the general election for lack of scrutiny.
I have a particular concern here; namely, the technique of data matching or data sharing, whichever term you prefer. In that context I draw your Lordships' attention to an observation from the noble and learned Lord, Lord Falconer, during the passage of the Data Protection Bill:
- XI emphasise that the first data protection principle provided in the Bill is that data should be used fairly and lawfully. We believe that that will deal with data matching to a large extent. Moreover, whenever data matching has been permitted it has been explicitly by statute".
- XThe Data Sharing and Privacy Bill will be introduced as early as possible. Ministers are aware of the importance of winning over public opinion".
I have detained your Lordships for longer than I might have wished, albeit that I have barely scratched the surface of the complexities of these parts of the Bill. I apologise on both counts. In my defence, these are very serious issues that merit proper examination and explanation. Because public opinion and the attention of parliamentarians are so unsighted on the substance of these issues, it could be argued that Part 11 is one of the more insidious elements of the Bill.
That said, I stand four-square behind the Government's determination to produce—I quote the Minister's words back at him—a Xmeasured and proportionate" response to the events of September 11th. The crucial words in that task are Xmeasured and proportionate". To that end, and to assist the Government, I shall be tabling a number of amendments on Part 11 for debate in Committee.
10.46 p.m.
Lord Harris of Haringey: My Lords, I have always been told that brevity is a prized virtue in this House. At this time of night, it is certainly a virtue that I shall hope to achieve, although I have a tendency to stray. Having listened to so many interesting points made by your Lordships, there is a temptation to respond and to expand on each one.
I declare two interests. First, I am the chair of the Metropolitan Police Authority. The Metropolitan Police service will clearly be much affected by many of the provisions of the Bill and by the consequences that may arise from it. My second interest is that I was in New York on September 11th. Therefore, I was much closer than I found comfortable to the events of that day. Indeed, on the previous night I had visited the all-night court, located at the base of the World Trade Centre. When I came out, I looked up at those magnificent buildings. On the morning when the atrocities took place, I was about to go back into the same area for various meetings.
It may well be that that experience and proximity have done something to colour my judgment in terms of this Bill. Certainly, I believe that being too close for comfort makes it very apparent to one how the nature and experience of terrorism has changed in scale as a result of what happened that day.
The terrorism of September 11th was of a magnitude very different from what we have experienced in the past—certainly in this country. It was not about persuading people of a particular political point of view; it was not about persuasion at all. It was not concerned about the consequences or the number of people who might be affected; and it made
it clear that in the future there will perhaps be no limits to what may or may not happen in a terrorist attack. A number of your Lordships have referred to the possibility of terrorism involving nuclear, biological and chemical weapons, and so on. Having seen what happened on September 11th, such matters which, in the past, we dismissed as being unlikely have now become much more likely.Therefore, it is appropriate that we have before us today a Bill which looks at the new measures that may be required by that new situation and by the new magnitude of what we may face in terms of terrorism. It is appropriate that we review the balance that must be struck in terms of measures which perhaps infringe our freedoms and those which are necessary to protect us, or necessary to assist in protecting us, from terrorism. It is entirely proper that we review what is or is not a proportional response to a terrorist threat. That means accepting that there has to be a different balance in our individual relations with the state. It also means accepting that, as citizens, our rights will be affected by what has happened and by what now needs to be done. We must also recognise that the rights of people who are not citizens of this country will also be affected.
I was much struck by the opening remark of one noble Lord who, although his argument then went off in a different direction, said that no right-thinking person will accept that it is right that because a suspected terrorist cannot be deported to his or her country of origin, we should allow him or her to roam free in this country, particularly if there is some suspicion that he or she may be planning a terrorist act here.
I believe that the Bill provides due process. There has been much discussion of the alleged shortcomings of the SIAC process. However, these provisions avoid unnecessary abuse of the system. I sometimes feel that our many expressions in the House of the desirability and importance of judicial review are more about a job-creation programme for QCs or about creating a playground for lawyers. I make those comments knowing that my noble and learned friend the Attorney-General will be deeply affronted. However, I am trying to help with the arguments that he will have to deploy in a few minutes. I sometimes wonder whether the belief that judicial review is the solution to all ills reflects any sort of reality or the way in which life is lived.
I come back to what any right-thinking person might feel when there is a real belief that people are suspected terrorists and that they may be trying to commit a terrorist atrocity in this country. Would we allow them to roam free because of the belief that a judicial review process is necessary?
I want to spent a few minutes discussing Part 5, which is about incitement to religious hatred. Such provisions are long overdue. I have already spoken in your Lordships' House on that subject. I recall debates about Islamophobia, involving my noble friend Lord Ahmed, in which that issue was discussed at length.
There are tremendous anomalies in our current legislation. Sikhs and Jews are recognised not because of their religion but because they are treated as an ethnic group; and because their ethnic identity is so inextricably linked with their religion, the courts accept that incitement to hatred of Jews or Sikhs is covered by existing legislation. Such provisions do not extend to Muslims, because they may be from different ethnic groups.
Noble Lords have deployed against those provisions the argument that somehow they do not fit into the Bill. It may be that the Bill has so many different parts that it is difficult to say that anything falls outside its terms of reference. However, that is not the argument that I want to advance. It is undeniable that since September 11th there have been a substantial number of incidents in which religious hatred seems to have been the motive or when religious abuse has been hurled. For that reason, it is timely and appropriate to include this measure in the Bill. If there were further major terrorist incidents of the nature of those that we saw on September 11th, the tensions that could be created in our communities—perhaps because of events overseas—could be much more critical and the Bill's provisions would become that much more important.
Of course, there are several problems with the existing laws on racial hatred. Those points were elucidated by several noble Lords, including the noble Lord, Lord Dholakia. It can be said that the existing law on the incitement to racial hatred had not significantly affected the production and circulation of racist material. There is rarely more than a handful of prosecutions each year under the Public Order Act 1986, which created a range of offences involving incitement to racial hatred. I am told that since 1988, there have been only 61 prosecutions.
Clearly, there is a major evidential test to be passed. Words or other material must be shown to be threatening, abusive or insulting and it must be shown that the perpetrator intended by such material to stir up racial hatred, or that in all the circumstances racial hatred is likely to be stirred up. It is not as though the new provision will be something which all sorts of people will rush to use or which will be applied in all sorts of circumstances where one would not expect it to be so applied.
There is an anomaly and a gap in our legislation. Since September 11th we have clearly seen religious abuse build up and being used in some of the incidents that have taken place. It seems to me that there is a serious gap. It is appropriate for that to be filled at this time. However, given that there are clear concerns about how all these laws operate at present, it would be appropriate at the same time for the Government to give a commitment that they intend to review such laws in respect of racial hatred—and now, I hope, religious hatred—and how they can be made more effective in future.
A few moments ago I mentioned the fact that the courts have acknowledged the existence of Sikhs and Jews but do not do so in respect of Muslims. The idea
of extending the principle of racially aggravated offences to ones which cover crimes of violence involving religion is therefore important. Racially aggravated offences apply to crimes against Sikhs and Jews but not to those against Muslims. Let us imagine a violent confrontation in one of our towns between groups of Sikhs and Muslims. If, as he was assaulting someone, a Muslim made clear his hostility towards his victim on the grounds of his being a Sikh, that might constitute a racially aggravated assault and he would face a heavier sentence than would a Sikh committing the same type of assault against a Muslim and using identical words of hostility. That is not logical and should be addressed.Finally, I want to talk briefly about the police powers under Part 10 of the Bill on the identification and removal of facial covering and gloves. These provisions are to assist the police in the process of identification, including the powers to search people being detained and so forth. The proposal is linked to amendment of Section 60 of the Criminal Justice and Public Order Act, which gives power to the police to stop, search and demand the removal of any clothing that conceals identification in situations where a senior officer reasonably believes incidents involving serious violence may take place.
Identifying international terrorists—the principal purpose of the new powers—means that police and customs officers will inevitably target people from visible minorities. I accept that many people in such communities already feel especially vulnerable after September 11th, and certainly after the disturbances we have seen in northern towns and some of the problems that have existed in the past in terms of the fragile nature of police community relations. Given that the new powers, which I believe are necessary, could impact directly on police relations with ethnic minority communities, they need to be properly explained.
Police officers need to be properly trained in the use of the powers in line with an agreed protocol. The use of that protocol should be rigorously monitored and recorded. I believe this matter to be important. Therefore, I welcome the statement made by one of my colleagues in another place to the Home Affairs Committee that the Association of Chief Police Officers is drawing up a protocol to ensure cultural sensitivity and decent and respectful treatment of people under these circumstances. That work is important. I hope that ACPO will consult widely in drawing up guidelines.
I believe that the Bill is important, timely and, by and large, a proportionate response to the events of September 11th. In this House we shall subject it to considerable scrutiny—to scrutiny which perhaps it did not receive in another place. We have set aside many days and hours to debate the points before us. I hope that, as a result, we shall have a good piece of legislation and one which will help us in dealing with the situation we all face following September 11th.
10.59 p.m.
The Earl of Listowel: My Lords, what adverse consequences does the Minister foresee for the dependants of those detained under the proposed legislation? What plans does he have to address such consequences? In his role as Minister for asylum seekers, he will know, far better than I, that asylum seekers are obliged to live in temporary accommodation. Often that can be unsatisfactory. There is overcrowding. Occasionally the accommodation is unsanitary. The areas in which they are accommodated are often the most deprived areas of our country. They may also be isolated from their friends, from their extended families and from the community of their ethnic group. The families live on 70 per cent of the income support that is provided to other families in such situations who are not asylum seekers. Because they live in temporary accommodation, they often do not have facilities for preparing food and therefore are obliged to have takeaway food. That is far more expensive than food prepared at home.
The OECD report published the day before yesterday stated that our country is one of the most expensive countries, if not the most expensive country, in the developed world in terms of public transport. Families often suffer intimidation. They are sometimes harassed. Occasionally violence is used towards them.
The Government have a target of six months for processing asylum applications. Often that processing extends over years. Therefore, in that context, can the Minister assure me that the dependants of detainees will be able to have regular access and perhaps weekly visits to their detained family member? Will the Government, if necessary, pay towards the travel expenses of the family or provide them with a travel pass? Will the detainee be kept near his family, or, if that is not possible, will accommodation be offered to the family near to where the detainee is held? Will families occasionally be held in detention as a group under the new legislation? If so, how will the Government ensure that the needs of the child, in terms of development and education, are met? If as a result of detention—
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