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Viscount Goschen: My Lords, the noble Lord mentioned the point that I made and referred directly to the clause. I welcome his announcement that the affirmative procedure will be applied, but that does not go any way towards assuaging our concerns, although it is a welcome development.
Can the noble Lord explain in very clear terms what he believes would be the effect of accepting Amendment No. 11 of the noble Lord, Lord Phillips of Sudbury, to Clause 103? That would allow the Government to put into the code of practice any provision which they required after consultation, dedicated towards addressing national security and for
the purposes of the prevention or detection of crime or the prosecution of offenders which might relate directly or indirectly to national security?The noble Lord, Lord Phillips, could not have been more helpful in drafting the amendment and casting it as broadly as he possibly could. What will the Government be unable to do if they accept the amendment?
Lord Rooker: I shall come to that. Amendment No. 5 parallels Amendments Nos. 1 and 2 and to repeat myself possibly would not be fruitful. It means that disclosure may be to anyone and not just to those falling within the Regulation of Investigatory Powers Act, the FSA and the DPP. The request remains solely from within RIPA, plus the FSA and the DPP. I have already outlined the key aspects of the amendment which parallels what arose in relation to Clause 17 and my responses to Amendments Nos. 1 and 2. It does not make sense to revisit that issue.
I shall therefore confine my comments to the question of limiting disclosure, terrorism and the threats to national security. In many ways this is also repetition, so I shall be brief. The amendment would severely limit disclosure. Clause 19 allows Customs and the Inland Revenue to disclose information to law enforcement and intelligence agencies for the investigation of crime. Reducing that gateway simply to cases of terrorism or threats to national security would be counter-productive and reduce the effectiveness of fighting terrorism.
Perhaps I may give an example. There is a proven link between terrorist groups and criminal activities for which Customs are responsible. We know that some terrorist groups have been engaged for some time in large-scale drug smuggling and in the massive evasion of excise duties on cigarettes and alcohol. At the time Customs become aware of that, they may not have appreciated the significance of what is involved in terms of terrorist investigation and may not immediately recognise the connection with a terrorist group. They may simply believe that the Inland Revenue has been ripped off, the Chancellor is charging too much in tax and the criminals are trying to make a buck on the side with bucket shops around the country.
Under the gateway, as drafted, if the safeguards are satisfied, the information could be passed to the police. Under the amendment the information would remain with Customs and a potentially vital piece of the jigsaw of intelligence would be denied and never reach the police. The same applies to Customs as regards the money laundering regulations.
We also know, as regards the work of the Inland Revenue, that terrorist groups are relying on the work of the informal economy, the hidden economy, which is massive in some countries. It cannot be measured, but it is worth billions of pounds. It is estimated that 600,000 people enter Europe each year to work illegally. They pay to get there. Many of them are part of trafficking networks, providing more money to international traffickers in people than is earned in
drug trafficking. Trafficking in people is big business. It may be that some of that money is used to fund terrorism, but the Revenue does not have the expertise to recognise terrorist activity in every case. Therefore, there is a need for it to be able to assist the police with its part of the jigsaw.I turn briefly to the amendments mentioned by the noble Viscount. Amendments Nos. 10, 11 and 12 would restrict the second purpose for which data may be retained by communications service providers to either national security alone or to national security and the prevention and detection of crime which relate to it. All the provisions of this Bill are intended to counter terrorism. But for 11th September we would not be here today debating this Bill. That is the reality. We would not have had this Bill. The Bill and its content were not planned. I know that the bribery and corruption clauses are a separate matter, but I do not think there is an issue about them in this House. It is important that, in bringing forward this legislation, we are able to do so in such a way that it helps in the fight against terrorism internationally in co-operation with our partners or on our own and is recognised as the precautionary response that we need to make on behalf of the public who would never forgive us if something happened and we had decided that the appropriate legislation was not worth it because we did not want to bother Parliament and we could not guarantee that a particular clause was directly related to the act that had taken place. We do not want to take a narrow view of the purposes of the legislation because it would hamper our effectiveness in combating crime.
I said in Committee that we cannot meaningfully distinguish between terrorism and other forms of crime for a couple of reasons. Terrorists are criminals anyway and other criminal acts foster and resource terrorism. One example that I have given, which I do not need to repeat, is the importation of cigarettes. Some 40 million cigarettes were seized from a ship and it was known that a large proportion of that consignment was destined to criminals linked to paramilitary organisations. The idea that criminals are not connected to terrorism is wrong. We need to be able to consider all the pieces of the jigsaw.
Lord Peston: My Lords, my noble friend knows that I intensely dislike parts of this Bill. That will be made clear on Monday. However, I found his argument about the pieces of the jigsaw totally compelling. That appears to me to make good sense. I do not find the wording of Clause 17(2)—
- Xthe purposes of any criminal investigation",
I believe that noble Lords are worried about what one may call a Xrandom walk" through everyone's tax returns to see what may turn up. As I understand my noble friend, that activity would not be possible; for example, the authorities could not look at my tax
return or that of my noble friend just because they thought that we might be engaged in criminal or terrorist activities as they would have no reason to believe that. Can the Minister reassure the House that that kind of random trawl is not suddenly to be permitted under this legislation?4.45 p.m.
Lord Rooker: My Lords, absolutely. That is one of the problems. We need to take appropriate action because criminal acts are widespread and the funding of terrorism is not always known. It is possible that Joe Public will believe that the Government will have a way into his bank account, into his finances and into his personal life. That is not the case. The authorities must have good reason to ask questions. The public will be covered by the data protection and the human rights legislation.
There are no powers that allow for widespread trawls through people's tax affairs and bank accounts. That is not what we are about. The powers in this legislation will not cover that. My noble friend can rest assured. The powers have to be precautionary and proportional; otherwise we shall fall foul of the human rights legislation to which we have signed up. There is no derogation from the Human Rights Act in this part of the Bill. To have that kind of intrusive activity would not be proportional. We would certainly be brought to book if that ever occurred. That is an issue on which I may not be able to satisfy many noble Lords.
Amendment No. 15 specifies that an order under Clause 104 can be made only for the purposes prescribed in the previous clause, which forms part of this discussion. I can assure noble Lords that the order under Clause 104 would have to be restricted to those purposes, as we are constrained by EU Directive 97/66/EC on data protection in the telecommunications sector. We seek to work within the legal constraints that are already in place. The directive to which I have referred allows data to be retained beyond the period for which it is required for business purposes only for restricted law enforcement purposes. We cannot act in contravention of EC law so the amendment is unnecessary.
The MoD amendments, Amendments Nos. 6, 7 and 8, relate to Clause 99. Several noble Lords referred to them. I shall seek to conclude my remarks by responding to those amendments, although there is a point about agricultural disclosure which relates to what I said earlier. The legislation is such that the police can acquire the information pursuant to criminal proceedings, but they have to carry out an investigation to discover whether the criminal proceedings are warranted. It is an extension of police powers; it is not a new police power. It is a pre-proceedings power that does not exist at the moment in our legislation.
I ask your Lordships to reject Amendments Nos. 6 and 7. I shall give the House some examples to explain why these amendments would severely restrict the ability of the Ministry of Defence Police
to counter terrorism. Often the suspicious behaviour of ordinary criminals is no different from that of terrorists preparing to make an attack. A Ministry of Defence police officer may be on patrol outside a defence establishment when he passes a stationary car. He sees the driver and the passenger duck down as he drives past and then the suspicious car starts to drive off. Immediate action is required. But how is the officer able to assess whether the individuals are criminals planning a burglary or terrorists planning an attack?If these amendments were accepted the officer would not be able to act without seeking the permission of the local police, so he would not be able to take urgent, but necessary, action. In that kind of situation the MoD police officer needs to be able to act. Let us suppose that those in the car had a primed bomb or a mortar in the boot and the officer had been able to discover that. Will noble Lords vote for an amendment that would prevent a MoD police officer from acting in those circumstances?
A further example is that terrorists invariably carry out preliminary assessment surveys and make dummy runs of their plans. They must have done that before they mortar-bombed the Cabinet a few years ago. They must have practised and they must have made dummy runs. If the Ministry of Defence Police receive intelligence that a stolen car has been driven round or near a military base, they need to act urgently. The intelligence may give the officers a strong suspicion that a driver is a terrorist on a scouting exercise or a dummy run, but he may also be a car thief, stealing cars to order to take them to the docks or elsewhere for respraying.
If these amendments were accepted the MoD Police would not be able to act without the permission of the local police because of the absence of an imminent threat of violence, but the delay might mean that the opportunity to apprehend the suspect was lost. I am sure that noble Lords would not want to vote for that.
A third example is a suspect found near a sensitive defence property who fits the intelligence profile of a terrorist. He is seen using binoculars and cameras and attempting to conceal himself. He could be a twitcher or he might be a terrorist. The only way to find out is to stop him and question him and if reasonable suspicion is aroused, to search and, if necessary, to detain him. The search may reveal incriminating evidence such as notes, plans or weapons, but under these amendments the search could not be carried out no matter how strong are the suspicions of the officer because there is no immediate threat of violence. I am sure that noble Lords will not want to vote for an amendment of that kind.
I want to reassure the House that we are considering a power that is strictly limited to emergencies in terms of MoD Police operating outside the perimeter fences of MoD establishments. If the MoD police officer can contact the local police force without prejudicing the need to act, he must do so.
It is clear that your Lordships' concern has centred on the safeguards that are in place. In Committee the noble Lord, Lord Wallace, cited the report of the Joint Committee on Human Rights. To deal with the concerns of the Joint Committee, let me reassure your Lordships that the application of safeguards to the MoD Police is not unclear. The MoD Police receive the same training as members of other police forces. Indeed, Essex police force, which has recruited some MoD police officers, has been happy to deploy those officers on the streets without further training. MoD police officers who have been deployed in Kosovo to police communities there have received widespread praise for the job that they have carried out.
The MoD Police Force is subject to the Police Complaints Authority by virtue of an agreement made under Section 96 of the Police and Criminal Evidence Act 1985. The PACE codes of practice apply to the MoD Police, just as they apply to other police forces. The same goes for the reporting requirements. For example, if MoD Police officers exercise the power to search in Section 1 of PACE, they are required to make records under Section 3 like any other police officer. As for the police committee of the MoD police, the Secretary of State is in favour of openness wherever possible and is minded to have meetings of the committee held in public.
We propose to make further changes to the MoD Police disciplinary arrangements to bring them fully into line with those in other police forces. Furthermore, we propose to put inspection by Her Majesty's Inspector of Constabulary on a statutory basis in the police Bill. I remind noble Lords that those changes were part of the Armed Forces Bill.
Amendment No. 8 seeks to wipe out Clause 99. That clause is an important weapon in the fight against terrorism. The terrorist threat has existed for a considerable time. For that reason, similar provisions were introduced into the Armed Forces Bill. I have looked at some of the debates. I understand that, prior to the general election, because of the speed and the time necessary, the amendments were accepted by the Committee considering the Armed Forces Bill in the other place, which is a rather different procedure to the normal Bill procedure in another place, as noble Lords understand. The Committee said:
- XWe believe there is a case for giving MDP officers greater powers than that of a citizen when they are attempting to deal with emergency situations which they come across in fulfilling their normal duties."
The Defence Select Committee in another place has unanimously agreed. In a report published today, it stated:
- XWe have examined the proposals relating to the Ministry of Defence Police contained in the Anti-terrorism, Crime and Security Bill. We conclude that they are appropriate and sensible. There was a strong case for an extension of the MDP's powers before 11 September but this has been reinforced in the light of the change in the perceived threat from terrorism.
- XWe acknowledge the concerns which have been expressed about the possible adverse effects of extending the MDP's jurisdiction but we are not persuaded that they call into question the case for the proposed measures".
Similarly, there has been no criticism of the proposal to extend the jurisdiction of the MoD Police to act where they are requested by another police force; nor of the proposal that the MoD Police should be able to lend officers to other forces. Indeed, for a considerable time there has been a power to act on a request from local police forces in the vicinity of MoD land.
I conclude by giving noble Lords one further example why Clause 99—
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