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Lord Tebbit: My Lords, I have a simple question. Do these provisions for the MoD Police apply to Northern Ireland?
Lord Rooker: Yes, my Lords. My noble friend Lord Bach says, Xyes". He is in the Ministry of Defence. If there is any problem about that I shall come back to the noble Lord. As far as I know, the Ministry of Defence is a UK organisation. We are here dealing with terrorism. Terrorism in the UK is a reserved matter for the Westminster Parliament. That should be a concrete answer.
However, I want to finish by giving a further example of why the clause is needed. At the present time, the Ministry of Defence Police cannot be requested by another police force to help protect injured service personnel in civilian hospitals. Because of changes with regard to military hospitals in recent years it is now more likely that our service personnel—perhaps injured abroad—will be treated and looked after in civilian hospitals. There is no power for the local police constable to ask the MoD Police to guard those personnel who, for obvious reasons, are in the terrorists' sights. Those hospitals are not on defence land. They are not Xin the vicinity of" defence land. I do not need to spell out the issue any more in order to make a case to noble Lords why Clause 99 should stand unamended as part of the Bill.
Lord Phillips of Sudbury: My Lords, we are grateful to the Minister for endeavouring to defend the Government's position in relation to the amendments. When he started he made a lively analogy with a
jigsaw. A jigsaw has a big picture. It can be pieced together by reference to a clear picture. Clause 17, and the other clauses to which the group of amendments relate, has no picture. It has no limits. It does not even mention national security or terrorism.So while the Minister made a strong case for Clause 17 with such a limitation, he made no case whatever for Clause 17 unamended. I put to your Lordships that it was perfectly legitimate, but wholly unrealistic, for the Minister to spend the past hour talking purely about terrorism and about the things with which we are all concerned. The clause goes to any criminal offence, however petty, wherever, whenever and by whomsoever. It is not confined to the police and security authorities. Any public authority, here or abroad, whether hybrid or not, can make any request for disclosure under this hugely wide Clause 17. And the good Minister cannot stop them.
Once this is through the net he cannot stop them. It will be no good him then saying, XOh my goodness, I did not intend it to relate to some appalling regime abroad trying to use these powers to force disclosure from some public authority here under this Act". It will be no use at all. It will be no use either the noble Lord saying, XBut this is only a discretionary power on the part of public authorities". The noble Lord, Lord McIntosh, repeatedly said that. It is not so. The fact is that anyone with an entitlement to request disclosure under the Bill will be able to seek judicial review for good Wednesbury reasons against any public authority that declines to give it. That is the legal fact.
To that extent, it creates a right to information. Repeatedly what has been said is, XBut don't worry, we've got the Human Rights Act". When will the Minister understand? I forgive him and the noble Lord, Lord McIntosh, a lack of understanding because they are not lawyers and have not seen this in practice. But if one deals with clients seeking a remedy where the only resort is under the Human Rights Act at large then the noble Lords would understand why on this side of the House—indeed on all sides of the House, because no one ever seems to speak for the Government on these measures—we feel so strongly that the remedies for the citizen are totally inadequate.
I turn to the scope of the power if the clause is amended in accordance with the group. I shall speak to Clause 17 because one cannot speak for all of them. If the amendments are agreed to, what will Clause 17 say? Where will it leave the hard-pressed police and security authorities? The noble Lord, Lord Rooker, said that this would allow the Xtwitcher-terrorist"—I think he described him—to get away. It was a bird watcher but also a terrorist under the noble Lord's scenario. He said that it would prevent the police from doing anything about the person who was at the boundary or whatever place it might be with his binoculars and all the rest of it. He said that there would be no immediate threat of violence. But that is not what Clause 17 says. It is not what our amendments do anything about. One does not need
a threat of violence under Clause 17 for the powers to be exercised, even with our amendments. Our amendments give an enormously wide scope to the police and security authorities, because they allow them to take action under Clause 17 if there is merely a suspicion that there may be an indirect relationship with a risk to national security or of terrorism.That must be the widest allowance in the history of British law. For the Government to say that that would tie the hands of the security authorities because it would not allow them to do anything unless there was an immediate threat of violence simply shows that the Minister has not endeavoured to understand what the amendments are about.
Lord Marsh: My Lords, is the noble Lord saying that if the person concerned believes that there may be a threat of serious violence, he should not have power to investigate it?
Lord Phillips of Sudbury: My Lords, I am saying precisely the reverse. The clause as amended would allow anyone who believed or had a suspicion that there might be an indirect relationship with a risk to national security to request or impart information.
The Minister spoke as if we were seeking to knock back the wide provisions of Clause 17(2)(a), (b), (c) and (d). I endeavoured earlier to explain how extraordinarily wide are the gateways that paragraphs (c) and (d), in particular, open up. But we do not intend to touch those. We will allow those wide gateways; we understand the difficulties of the security community; but we want those powers to be used in relation to threats to national security or to terrorism. That is all.
I shall not take the debate further, except to say that I cannot resist referring to the fact that, at various points during this hurried debate during the past few days, Ministers have expressed indignation at references from this side of the House to the powers of the Bill, taken collectively, to allow trawling and, as I put it in one debate, mass surveillance. Without the restrictions to matters of national security and terrorism, they are precisely that.
One has only to consider the provisions of Clause 103, to which one of the amendments relates, which, with Clause 104, will allow the Secretary of State to direct the entire industry of internet service providers to keep information for years on end—to warehouse it, as it is called. The Minister shakes his head, but that is the fact. Let us look at Clause 104: the Secretary of State can make a general direction; he is not subject to any say-so. The communications providers concerned will then have to keep communications data warehoused for years. Access to that data will be enabled under the existing provisions of the Regulation of Investigatory Powers Act 2000. We seek to confine that powerful tool in the Secretary of State's hands to national security and terrorist matters, and to ensure that that warehoused communications data should be accessed only for the same purposes.
I shall end by quoting from an article in The Times on Tuesday. We like to think that we in this country are the exemplars—the great preservers—of human rights and civil liberties. On the whole, I should like to think that and believe it. Walter Schwimmer is Secretary-General of the Council of Europe—which was, of course, the source of the European Convention on Human Rights that has found lodgement in our legislation in the Human Rights Act 1998. He said:
- Xno one can deny that a derogation"—
- Xis a very serious step. It is one that could set an unfortunate precedent for other countries where the rule of law tradition is not as strong. After September 11 no other European country has taken similar measures ... The fight ahead of us is not only against terrorism but also to protect democratic values and fundamental rights and freedoms so that they remain deeply entrenched in our society".
We are not saying that we should not seek a derogation; we all agree that we should. But, in relation to these measures, we say that that derogation must be sought only on the basis that the extremely wide—nay, unprecedented—powers should be confined to the purposes for which they were advanced. I wish to test the opinion of the House.
5.5 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 227; Not-Contents, 145.
Aberdare, L.
Ackner, L.
Addington, L.
Alderdice, L.
Ampthill, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Bell, L.
Belstead, L.
Black of Crossharbour, L.
Blackwell, L.
Blaker, L.
Blatch, B.
Boardman, L.
Brabazon of Tara, L.
Bradshaw, L.
Bridgeman, V.
Bridges, L.
Brigstocke, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Campbell of Croy, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Carr of Hadley, L.
Chorley, L.
Clark of Kempston, L.
Clement-Jones, L.
Cockfield, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Cox, B.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
Cuckney, L.
Cumberlege, B.
Dacre of Glanton, L.
Dahrendorf, L.
Deedes, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Ezra, L.
Falkland, V.
Fearn, L.
Feldman, L.
Ferrers, E.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Freyberg, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Geraint, L.
Gibson, L.
Gilmour of Craigmillar, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Greaves, L.
Greenfield, B.
Greenway, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Haslam, L.
Hayhoe, L.
Henley, L.
Hereford, Bp.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Home, E.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hussey of North Bradley, L.
Hutchinson of Lullington, L.
Hylton, L.
Inglewood, L.
Jacobs, L.
Jenkin of Roding, L.
Jenkins of Hillhead, L.
Jopling, L.
Kelvedon, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Knight of Collingtree, B.
Laing of Dunphail, L.
Lane, L.
Lane of Horsell, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lucas, L.
Ludford, B.
Luke, L.
Lyell, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monro of Langholm, L.
Monson, L.
Montagu of Beaulieu, L.
Montrose, D.
Moore of Lower Marsh, L.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Naseby, L.
Neill of Bladen, L.
Newby, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
O'Cathain, B.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Oppenheim-Barnes, B.
Ouseley, L.
Oxfuird, V.
Palmer, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peel, E.
Peyton of Yeovil, L.
Phillips of Sudbury, L.
Platt of Writtle, B.
Plumb, L.
Plummer of St. Marylebone, L.
Portsmouth, Bp.
Rawlinson of Ewell, L.
Razzall, L.
Reay, L.
Redesdale, L.
Rees, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton, L.
Richardson of Duntisbourne, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L. [Teller]
Rotherwick, L.
Russell, E.
Russell-Johnston, L.
Saatchi, L.
St John of Fawsley, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharman, L.
Sharples, B.
Shaw of Northstead, L.
Shrewsbury, E.
Shutt of Greetland, L.
Simon of Glaisdale, L.
Smith of Clifton, L.
Stern, B.
Stevens of Ludgate, L.
Stoddart of Swindon, L.
Strange, B.
Strathclyde, L.
Taverne, L.
Tebbit, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Trefgarne, L.
Trumpington, B.
Vivian, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walker of Worcester, L.
Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Watson of Richmond, L.
Wigoder, L.
Wilcox, B.
Williams of Crosby, B.
Willoughby de Broke, L.
Windlesham, L.
Wolfson, L.
Wolfson of Sunningdale, L.
Wright of Richmond, L.
Acton, L.
Alli, L.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Attenborough, L.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Blackstone, B.
Bledisloe, V.
Borrie, L.
Boston of Faversham, L.
Bragg, L.
Brett, L.
Brightman, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L. [Teller]
Castle of Blackburn, B.
Chalfont, L.
Chan, L.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Condon, L.
Corbett of Castle Vale, L.
Crawley, B.
Darcy de Knayth, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Dearing, L.
Desai, L.
Donaldson of Lymington, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gladwin of Clee, L.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L.
Hannay of Chiswick, L.
Hardy of Wath, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Janner of Braunstone, L.
Jay of Paddington, B.
Jeger, B.
Jones, L.
King of West Bromwich, L.
Kirkhill, L.
Laird, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mallalieu, B.
Marsh, L.
Massey of Darwen, B.
Milner of Leeds, L.
Mishcon, L.
Mitchell, L.
Morgan, L.
Morgan of Huyton, B.
Morris of Manchester, L.
Murray of Epping Forest, L.
Nicol, B.
Parekh, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Sainsbury of Turville, L.
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Simon of Highbury, L.
Slim, V.
Smith of Leigh, L.
Stone of Blackheath, L.
Strabolgi, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Tenby, V.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Varley, L.
Walker of Doncaster, L.
Warwick of Undercliffe, B.
Weatherill, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Williamson of Horton, L.
Woolmer of Leeds, L.
Resolved in the affirmative, and amendment agreed to accordingly.
5.19 p.m.
Lord Phillips of Sudbury moved Amendment No. 2:
- Page 7, line 17, at end insert—
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