Then there are issues such as temporary support. What happens if the Home Secretary decides not to offer support for someone, which could make them destitute in breach of Article 3 of the ECHR? Under TEOs, I do not have time to go into detail here, but I would want to flag up issues such as “reasonable” in time limits, “notice is deemed to have been given”, and whether an excuse for lack of knowledge is reasonable. We will need to probe some of this. The memorandum on human rights compliance from the Home Secretary says that the Home Secretary intends to follow the practice of not applying a TEO if it would expose a person to treatment contrary to Article 2 or 3. Perhaps we need to put that in the Bill.

As Schedule 7 is mentioned in a schedule to this Bill, I would like to flag up the possibility, perhaps not now but in the future, to look further at Schedule 7

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which is, of course, subject to action in the courts. I think we need to pursue the recommendations from the independent reviewer on Schedule 7 to the Terrorism Act.

The standard of proof has been mentioned in regard to TPIMs. It was interesting to listen to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who suggested that perhaps the balance of probabilities test is not really much different from reasonable belief but in any case it applies only to the Home Secretary and there is no power for the courts to apply this test.

With the definition of “terrorism”, this Bill is to be welcomed in reducing the breadth of the definition of,

“involvement in terrorism-related activity”,

to perhaps two removes rather than three removes—in the terminology of David Anderson—from the actual commission of terrorist acts but I think this is something we are going to have to come back to.

On the question of data collection, the issue for Liberal Democrats—it is why we refused to accept the Draft Communications Data Bill, which apparently I am not allowed to call the “snoopers’ charter”—is the need to distinguish between limited and blanket surveillance. I am afraid that the Mayor of London, on the radio this morning, seemed not to grasp this key distinction. There is a need to ensure that our privacy is not thrown overboard by disproportionate intrusion. I am glad that various reviews are taking place. We need to be sure that our legal framework is compliant with civil liberties and human rights standards before we decide whether to extend the scope of the powers. There is also the needle in the haystack problem, which I do not have time to follow up on. Let us recall that the cross-party Joint Committee of both Houses on the Draft Communications Data Bill said two years ago:

“Part of the gap is down to a lack of ability on behalf of law enforcement agencies to make effective use of the data”,

that they already possess.

Liberal Democrats accept in principle the Bill’s provisions on IP addresses and welcome the sunset provision of December 2016. However, we will want to probe exactly what data this covers and the practicality and cost of collection, as well as perhaps discovering in the course of our work which professionals outside government have been consulted in drawing this up. I am afraid that materials from government—the factsheet and even the Minister’s letter today—still seem to imply that you can identify a person, as opposed to a device, by knowing the IP address. However, if the address is allocated on a dynamic basis, I do not think that the telcos or the internet service providers, unless they have a video camera in the room, will be able to tell us which individual was using the device and at what time. There are various issues here which I do not have time to cover now.

I know that my colleagues will follow up on the Privacy and Civil Liberties Board, so I will not do so because of the limited time available, but I absolutely agree with those who said that it must support and not replace the independent reviewer and that it must have independence and so on. In addition, the scope of the scrutiny powers needs to be wider and allow flexibility in the work schedule of the independent reviewer.

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Perhaps the Minister could clarify something for me in relation to passenger information. The Bill allows the Home Secretary to make regulations to require the supply of passenger information. Does that mean what is normally known as advanced passenger information, limited to date of birth, name and passport number, and that we are not going into the territory of passenger name record, which is what the airlines hold? Those are much more extensive and intrusive data, and it is not clear to me what passenger information means.

My conclusion is that, as well as the review of data collection powers that we will be having early in the next Parliament once the product of various reviews is in, we need a broad review of counterterrorism powers—especially a rigorous audit of executive powers—and to see whether there are more opportunities to prosecute, perhaps using intercept evidence, instead of relying on those executive powers.

There is reason to be gloomy and anxious about the threat that we face but also to be a tad optimistic following Sunday’s expressions of determination to uphold universal values and not to allow the fascist terrorist fundamentalists to win by making us undermine our own civil liberties. I am hopeful of a better context for transatlantic co-operation and I am very glad that this House backed the opting back in on various European justice and home affairs co-operation matters.

Nothing excuses violence and murder by a fanatical cult such as ISIS, but that does not exclude the need to do more to integrate minorities, especially Muslims, as well as to protect them from discrimination, persecution and threats.

Finally but crucially, and speaking as vice-president of the All-Party Parliamentary Group on British Jews, although not on its behalf, we have to be much more proactive in challenging and eradicating anti-Semitism wherever we find it.

6.04 pm

Lord Green of Deddington (CB) (Maiden Speech): My Lords, first, I want to say how honoured I am to have been supported by the noble Baroness, Lady Cox, and the noble and right reverend Lord, Lord Carey, both of whom are of the highest standing in your Lordships’ House. I am grateful also for the courtesy and patience of the staff of the House in guiding me through my first weeks here.

I join the noble Lord, Lord Evans of Weardale, in saying that my appointment to this House was a considerable surprise, not just to me but, I think, to many others. It is also a considerable honour and one for which I am most grateful.

As your Lordships may know, my appointment has evoked some strong reactions in some parts of the press—both strongly positive and strongly negative. All that can wait for another day, except to say that, after chairing Migration Watch on a voluntary basis for 14 years, I hope that I can add a useful voice to the calm and measured debates which are the hallmark of this House.

Turning to the subject of today’s debate, I have had some experience of counterterrorism, as the noble Lord, Lord Bates, indicated. I was for several years the

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representative in Washington of the Joint Intelligence Committee. I then came back to London as head of the counterterrorism department in the Foreign Office before being posted to Syria as ambassador. I have also, as it happens, been a target for Arab terrorism and a potential victim of Irish terrorism—matters which concentrate the mind. It is in the light of that experience that I should like to focus on Part 3 of the Bill, which concerns the retention of relevant internet data.

As other noble Lords have said, the issue over interception is of course one of balance—the balance between civil liberties and the need to protect our citizens. Some would say that terrorism has been with us for a very long time and that we should calm down and carry on. I think that we need to be clear that the present threat is of a completely different order of magnitude—completely different in scale and nature—from that posed in the past by state-sponsored terrorism or by Irish terrorism, as the noble Lord, Lord Paddick, indicated.

There are at least three reasons for that. The first is the scale. The present director-general of the Security Service spoke only last week of “several thousand” individuals in this country who support violent extremism or, indeed, are engaged in it. That is an absolutely massive problem for any counterterrorist organisation. Secondly, we now face the risk of suicide bombers, which the Irish never were. That obviously raises the stakes considerably but it can also oblige the Security Service to intervene well before it would otherwise wish.

Thirdly, there is the situation in the Middle East, which is fuelling the jihadist movement. In the nearly 50 years that I have been involved in the Middle East, I cannot recall such grave problems as we now face. The sudden emergence of ISIL and its extraordinary initial success threatens the whole state structure of the region, and it is drawing regional and world powers into a situation which itself, frankly, is descending into chaos.

Some will say that to constrain civil liberties any further would be “a victory for terrorism”. I understand that view but, in my judgment, events are now entering a new phase to which we must respond with determination and alacrity, while of course keeping all the communities concerned on side, as, again, the noble Lord, Lord Paddick, mentioned.

Part 3 of the Bill is carefully limited to information needed to identify the sender and recipient. It does not require retention or disclosure of the content of each communication. As your Lordships will appreciate, the pattern of communications is absolutely essential for counterterrorist purposes. It is not in this Bill, but we may yet have to widen the coverage to include social media to achieve this objective.

In conclusion, the intelligence and security services have had the most remarkable success and I pay warm tribute to them. Indeed I share the high opinion expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. They have, of course, had some good fortune. However, that cannot last for ever. Not for nothing did the Intelligence and Security

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Committee describe the problem as “acute” and call for it to be prioritised. It is surely no less than our duty to make certain that our intelligence and security services have access to the vital information that they need to keep us safe. For these reasons, I strongly support the Motion that the Bill be read a second time.

6.11 pm

Lord Wasserman (Con): My Lords, it gives me great pleasure to follow the noble Lord, Lord Green of Deddington, and to congratulate him on a maiden speech that was every bit as insightful and thought-provoking as one would expect from someone with his extraordinary background of experience and achievement. The noble Lord is, as he reminded us, a former British diplomat who served with great distinction in a number of key posts around the world, including as our ambassador in Syria and in Saudi Arabia. Between those postings abroad, the noble Lord was the director for the Middle East at the Foreign Office. He is probably best known to the general public as the founding chairman of Migration Watch UK, an organisation concerned with immigration to the United Kingdom. As an immigrant to this country myself I was delighted to read, on the organisation’s website, that it believes that,

“sustainable levels of properly managed immigration are of distinct benefit to our society”.

The website then states:

“Many migrants make a valuable contribution to our society in terms of both their skills and experience”.

I was grateful to see that.

The noble Lord, Lord Green, was created a life Peer in October, on the Prime Minister’s personal recommendation to Her Majesty the Queen, for his proven record of public service. This is a very rare honour and one which mere political appointees like me look upon with awe and admiration. As I am sure noble Lords will agree, the noble Lords, Lord Green of Deddington and Lord Evans of Weardale, have set a very high standard with their contributions this afternoon, and I for one look forward very much to hearing much more from them both in the coming months and years.

I welcome this Bill because it will make us safer. I have no illusions about the extent to which it will improve the safety of our country because there are no easy answers in this area of human activity—whether we are thinking about the kind of murderous outrages we saw in Paris last week, or the many other forms of serious crime that our local police forces, our National Crime Agency and our intelligence and security organisations are having to fight every day of the year. Keeping a large, multicultural and free society safe is an expensive and very complex business. It is, however, doable provided that those in charge do not rely on spectacular public gestures like the marches in Paris last Sunday but concentrate on making slow but steady progress, one step at a time. The Bill represents this step-by-step approach, particularly in Parts 1 to 4, and that is why I commend it to the House. Of course, the Bill is by no means the end of the story. There is still much more that can and needs to be done to make it more difficult for would-be terrorists to operate in this

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country and easier for our law enforcement and security services to keep us safe. I have no doubt, however, that the Bill will make a difference, which is why we need to get it on to the statute book as quickly as possible.

Terrorist outrages of the kind that we saw in Paris last week attract worldwide attention, and the images of police activity transmitted from such crime scenes make it appear that fighting terrorism requires a completely different kind of policing from that required to fight the serious and organised criminality with which we are much more familiar. The truth is that what the media choose to call terrorist acts are for the most part simply another form of serious criminality, and preventing them requires the very same tools and methods that our law enforcement agencies use to tackle the wide range of other serious crimes with which they have to deal every day.

I am talking here of collecting information about what is going on in our communities, a task for which we must rely mainly on the instincts and observational powers of the bobby on the beat. It involves: the careful analysis of this raw information and its conversion into useful intelligence; the deployment of effective tactics based on this intelligence; the rapid deployment of adequate human and other resources; and, finally, the relentless follow-up to ensure that the job is really done and all the lessons that can be learnt are learnt. Parts 1 to 3 will strengthen the capabilities of our law enforcement agencies in each of these areas, particularly in the key area of information and intelligence collection—which, at the end of the day, is what effective crime prevention is all about.

Many will argue that the measures I have highlighted deal only with the symptoms of terrorism: that we need to be paying more attention to its underlying causes. For such people Part 5 is what really matters, because it is aimed at reducing the risk of individuals being drawn into terrorism in the first place. I appreciate the strength of these arguments. I do not for a moment underestimate the need to devote resources to combating the odious ideology that underlies the murderous events of last week. However, these arguments remind me too much of those that we heard in the late 1980s and early 1990s in America, when crime in American cities was going through the roof. New York City alone suffered more than 2,000 homicides in a single year. The argument we heard then was that what was required was not more and better policing but social policies directed at the underlying causes of these crimes, such as dysfunctional families, poor education, bad housing, racial discrimination, unemployment and low incomes.

All these good things were tried in New York and elsewhere, and can all be justified in the name of producing a fair society. They could not, however, be justified on the grounds that they made the communities safe. What drove down the crime rates in New York and elsewhere so dramatically was not higher incomes, better houses or less discrimination: it was much more effective policing, which incorporated the collection and analysis of timely and accurate information, effective tactics, rapid deployment and relentless follow-up. So, while I welcome the Government’s proposals to devote more effort and resources to reducing the risk of

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people being drawn into terrorism, I hope that these resources will not be at the expense of more conventional policing.

Talking of resources, I do not think that only government resources are needed if we are to strengthen our guard against terrorist attacks. Each of us can play a part in increasing our collective security. In the same way that target-hardening activities such as better household security equipment and more effective vehicle-locking systems have reduced burglaries and car thefts, so they can protect us from terrorist attacks. For example, had the entrance to the Charlie Hebdo office in Paris been controlled by a lock mechanism that could be operated only by someone inside the office seeing on video the person requesting entry, rather than a keypad operated by someone on the street, the events of last week might never have occurred.

In the Second Reading debate in another place, my right honourable friend the Home Secretary and her shadow agreed that the first and most important duty of government is the protection and security of its citizens. I very much hope this means that no matter what happens on 7 May, the Government of the day will not decide to fund the fight against terrorism from resources that would otherwise be devoted to more conventional policing. As I said, terrorism is simply another form of serious criminality and protecting our communities against it is simply another responsibility of our law enforcement and security agencies. A safer Britain is a Britain safe against all forms of criminality, from one-off attacks by deranged individuals who see themselves as part of an international terrorist army to cybercrime, burglaries, thefts and anti-social behaviour that make up the everyday work of our local police forces. We cannot pick and choose. Public safety requires us to address all those threats and to treat each of them with equal determination and concern.

6.22 pm

Lord Rooker (Lab): My Lords, like everybody else, I welcome our two maiden speakers today, who will give real added value to your Lordships’ House. In particular, the noble Lord, Lord Evans of Weardale, may not realise that he also brought something else. That was a greater knowledge of the geography of England to some of my noble friends, who discovered that there was more than one Weardale. That was the source of much asking at the time. Nevertheless, they were two very good maiden speeches.

When looking at emergency planning at the time I was in one or two government departments, not being expert I used to ask, “If we get an emergency, whatever it might be, and then in the middle of it we get another one, can we cope?”. One of the lessons we can take from Paris last week is the way in which people did cope. Although they were linked, there were two distinct emergencies and nobody knew they were linked to start with. We obviously assisted the French but we can learn from them how they dealt with the outrageous actions and the deaths, and we have to be ready to deal with more than one emergency at the same time.

There are some simple things we can do. The noble Lord, Lord Wasserman, mentioned keypads. During one of my tenures as a Minister, the access to my

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government department was via a keypad. I was also given something that I could do on that keypad when I gained entry to the premises if I was under duress. It warned those inside. It is simple but that technology is in Whitehall now. There are things that people can do above and beyond existing efforts to help them. I was reminded that, in 2001, I was in the position of the noble Lord, Lord Bates, as Home Office Minister in your Lordships’ House, having just arrived. I certainly have evidence of the trawl round Whitehall for that emergency legislation. The call went out, “Have you got anything you’ve not been able to put in a Bill, because the ground is fertile?”. That is putting it crudely but the Civil Service was doing its job. It was looking for a legislative opportunity to deal with terrorism following 9/11. We spent many hours on what is now the Anti-terrorism, Crime and Security Act. That was before Iraq and before the different kinds of accountability and oversight that we have now.

This is not a knee-jerk Bill, and I do not consider it to be fast-track. We are having a day on it today; there is a day in Committee next week and two days the following week before we get to Report. It will be before your Lordships’ House for four weeks. Nobody can claim that we are not doing it carefully. It is true that there is no gap between the first and second stages which we would normally have. Is that a problem? I do not really think so. By any definition we are a liberal democracy. The question is how far we will go to defend it. My answer is all the way. If, as in the past, it is against the massed ranks of troops from another country, as in World War II, it is easy, but what if the people seeking to undermine and destroy our liberal democracy use and misuse the elements of that liberal democracy in the first place—our tolerance, our “live and let live” attitude, our attitude to privacy, our openness, all of which we cherish and all of which are used against us by those who seek to undermine that? How far do we go when the attackers make use of these aspects to try to destroy our liberal democracy? It is no good saying later, “How did all this happen?”. If we do nothing and fail, we would probably not be in a position to stand up and ask how it happened. It will be too late.

Do we close down our democratic aspects? Of course we do not, otherwise the enemy will have won. That is self-evident. By the way, they are the enemy. They are seeking to destroy our way of life. I happen to think that our way of life in the UK is superior to most and it is shared by some other countries around the world. That is my personal view, but I do not equate way of life with religion because I do not think that one religion is superior to another, and that is the end of the matter. But it must be live and let live and to be prepared to die to protect live and let live. In other words, use force to protect live and let live at the end of the day.

Do we do nothing in our defence? No, we use our brains. We put our society—our families, friends, neighbours, even the ones we do not get on with—first. It is as silly to say, “If you have nothing to hide, you have nothing to fear”, as it is to say, “We have mass surveillance of the population” just because the security services want to target the trouble-makers who plan to

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do us harm, out of the huge mass of information in which they have no interest and, what is more, have no resources to check anyway. It is crucial that we take society with us on measured actions, using the rule of law, parliamentary accountability and, yes, sometimes secrecy—secrecy with oversight, by which I do not mean oversight by the media or NGOs.

It is sad in some ways. I have been a Guardian reader since I discovered it in 1960, so I am a fan; it occasionally publishes the odd letter. But it spent longer in a leader on Saturday last week criticising the head of MI5 than actually reporting what he said. This is the Daily Mail technique. It regularly attacks someone in its leader for something that it has never even reported anyway. It gets it in without giving the person the choice. I think that readers should be able to make up their own minds on the evidence presented by the speech. I have read it. It is available and I think the Guardian should print it in one of its long, wordy pages that it has today. It would fit. The readers could then judge the measured tone of the director-general, Mr Parker, whom I have not met. I have no connection with him at all, but I have read his speech and it does not fit with the kind of stuff and abuse in the leader on Saturday morning. The media are qualified as the media, but they are not qualified other than that.

Neither are the judges, I have to say. Legal and parliamentary accountability are crucial and more of this Bill should be subject to parliamentary approval by the affirmative resolution. I shall just pick out Clause 24(5), which is the power to issue guidance. There is an open and shut case for more parliamentary accountability in that area. I do not think that Ministers should have to go to judges before they can take action. It is as simple as that. I might be doubtful about the practicality of some of the issues in the Bill, particularly the measures in Part 1, Chapter 2. However, if Ministers genuinely believe—and are advised, because they will always be acting on advice—that it is helpful, then they should be given the power. I do not agree with the Joint Committee on Human Rights about Schedule 1 because it almost looks as if they want judges to be given powers over Ministers in a very detailed way for the renewal of retention. I think it should be left at 14 days and not reduced to seven anyway.

Most members of the public think that they have a legal right to a passport. I used to think that until I became the Minister responsible for immigration and citizenship in 2001 for a short spell of a year before the Prime Minister moved me on. The fact is that they do not, and that is probably the reality in most countries of the world. It is not a matter of the political structure of the country.

On Part 3, relating to data retention, I declare a registered interest as a member of the Royal United Services Institute independent surveillance review panel. We started with four Members of your Lordships’ House on this panel and we now have five, following the elevation of the noble Lord, Lord Evans. We have much work to do and our task is to report after the general election to the Deputy Prime Minister.

As the Library Note on this Bill explains, the operation of internet protocol addresses is an incredibly complex technical issue. It is not the same as what was in the

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DRIP Act in the summer. The addresses appear to be—and are—interchangeable. The same address can be used—and is used—on many computers each week. They are certainly not required for billing purposes; I fully accept that. That is why Parliament has to instruct them to be kept. The power is limited and does not include weblogs. Having read it all, I am not at all clear what the IP has got to do with my privacy, to be honest. The way it operates, the same address can be used 200 times in a day on different computers. It is a piece of a jigsaw which is crucial for the security services to be able to check information flowing across the net. Furthermore, the whole of Part 3—that is, Clause 17—is subject to the DRIP sunset clause, so we know we are going to come back to this at some considerable length after the general election, whoever the Government are. This is not blanket surveillance of the entire population, which is wholly emotive and downright misleading language. It is more about data retention, which might be of use in linking up those seeking to do us harm. It is difficult to see how this is communications data in the first place. It cannot be about checking everyone’s use of the internet. That is impossible and no one is seeking to do it. For that reason, I support the clause.

I want to say a few short words on oversight and Parliament. I know this is not in the Bill but it is all relevant. If we actually had some statesmen who were parliamentarians in the Government, we would by now have an acceptance that the chair of the Intelligence and Security Committee—as is the case with the chair of the Public Accounts Committee—should not come from the governing party. I do not mind whether they come from the Opposition or from one of the minor parties, but they should not come from the governing party. This is a must. It has already been recommended by other Select Committees. It sends the right signal as to the way in which we, as a Parliament, look at oversight and scrutiny. I am not criticising Malcolm Rifkind in any way, shape or form. I would like to see that commitment come even from my own Front Bench. I realise that some of the media and NGOs will not be satisfied until they call the shots but, in the court of public opinion, it is self-evident that this change would be a boost to oversight quality. Public confidence has to be earned by actions.

My final point relates to companies. The growing concern has to be that the internet companies and the rest of the private sector own much more data on us as citizens than the Government do. This is the reality, but nobody ever really discusses it. Some of these companies are now claiming to be such guardians of society by themselves that they are measuring the harm level and saying that they will not co-operate with the police. It cannot be right for private companies to set the criteria of harm by major drug smugglers, gun runners, fraudsters and paedophiles which they think are not high enough to pass on. That is indirectly helping the criminals. I do not think this is an issue that we can leave.

Likewise, and this will have to be dealt with at some point, the internet companies throwing away the encryption keys is seriously damaging to any checks we might want to make on those who seek to do us harm. I realise that it is a very sensitive issue. As a

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member of the surveillance panel, I do not wish to make a judgment one way or the other, but it is a factor that has to be taken into account. If they throw away the keys to the encryption, nobody gets anything. Who is the gainer? If they maintain the keys and it is done in a careful, measured way, with full democratic scrutiny and oversight, that can be of considerable assistance. This matter is going to have to be dealt with one way or the other, not by this legislation but by the legislation that follows the election. As such, I support the Bill.

6.36 pm

Lord Thomas of Gresford (LD): My Lords, in the year 1219, some four years after King John put his seal to Magna Carta at Runnymede, Ghengis Khan, through his armies, invaded Persia. Their tactics were to create terror. Prisoners were executed, or even used as body shields by Mongol warriors as they charged against their enemies. If a city refused to surrender, diseased bodies were thrown over the walls to spread plague and disease—an early example of biological warfare to which the noble Lords, Lord Judd and Lord Jopling, referred. On the fall of the city, women and children were raped and slaughtered and, through terror, the Persians capitulated and the country was held down with relatively few Mongol forces. It is thought that the population of the area was reduced from 2.5 million to 250,000.

In the past year, we have seen such terror tactics used again across the same lands. Essentially, a war exists between two competing sects of the same religion of peace and it is a conflict that has lasted for more than a millennium. The army of Iraq, trained by the West and with far superior equipment, melted away rather than face the barbarity of ISIL forces. The United States and the United Kingdom have been dragged into the conflict by the barbaric execution of our citizens and by the fall of Mosul and the capture of the Haditha Dam. The polity that we sought to create in Iraq is in danger of collapse. We and other western countries—Canada, France, Australia and others—are now engaged in an asymmetric war in which we attack the enemy by the most technologically advanced means of drones and air strikes. Against them, the forces of terror have no defence. But the price we pay for warfare directed from secure and remote bunkers in our homelands is that we significantly increase the risk of a strike on our own civilian population. The war is brought home to us, as happened in Greenwich, in Canada, in Australia and, only last week, in France.

There is a further significant dynamic to which some noble Lords have referred: the volunteering or recruitment of radicalised young Muslims, born in this country, to fight on the terrorist side in Syria or Iraq. This is the context in which this counterterrorism Bill is brought forward. I believe that the citizens of this country are at greater risk now than when we had armies in the field in Iraq and Afghanistan. The point of balance between the safety of British people and civil liberties has shifted.

However, civil liberties are not abolished. Where there is sufficient evidence of a breach of the criminal law, all would agree that an individual should be investigated, arrested and tried in a judicial process

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where all the safeguards against injustice are in place. The problem we must examine is where there is not sufficient evidence for such processes and administrative powers are used as an alternative to prosecution. This Bill builds on a past of difficult legislations, as the noble and learned Lord, Lord Brown, mentioned.

Clause 1 proposes the seizure by police or other authorised persons of a passport where a person is suspected of intending to leave this country in connection with terrorism-related activity. The clause includes ancillary powers of searching and for the use of reasonable force. We have to ask ourselves whether this is a proportionate and necessary interference with an individual’s rights serving a legitimate aim.

First, there is already a power for a policeman to arrest without warrant a person he reasonably suspects to be concerned in the commission, preparation or instigation of acts of terrorism. What is the distinction between the exercise of that power and this new power to take away a passport? Is it possible to have a different evidential base for the suspicion necessary to trigger the existing power of arrest and the suspicion necessary for the new power to take away a passport? The draft code of practice says in terms that a reasonable suspicion cannot be formed on the basis of racial stereotypes. Obviously, there must be a stop list that causes someone at an airport or port to remove an individual’s passport. What is the basis of it? It surely cannot be the hunch of the policeman or the officer who happens to be on duty on the particular day, and yet, as the Bill is currently drafted, although someone is on a stop list, no reasons for the seizure have to be given. The noble and learned Lord, Lord Goldsmith, pointed out the difficulties of the limitations of judicial review. Without any reasons having to be given, the remedy of judicial review is further stultified.

Secondly, what happens to the individual whose passport has been removed? Is he simply sent back home or is he made subject to a TPIM order with a travel restriction? What happens to him?

Thirdly, as to the limited judicial oversight contained within the clause, the noble Lord, Lord Rooker, argued that judges should not be able to overrule Ministers. However, it is not the judges who overrule Ministers at their whim; it is the rule of law that controls the way in which a Minister behaves.

Why is there to be no judicial consideration of the officer’s decision unless an extension of the seizure beyond 14 days is contemplated? Why, even then, does the court have no power to examine the merits of the exercise of the power or to consider the evidential base of the original officer’s decision? The limited power of the court to examine whether the process has been carried out diligently and expeditiously is presumably modelled on the unsatisfactory power of a judge on an application to extend the custody time limits of a person held on remand in an ordinary criminal case. However, in applications in criminal cases the court has already considered the merits. Why cannot the court consider the merits of a decision under Clause 1?

Clause 2 gives power to the Secretary of State, on reasonable suspicion of involvement in terrorism-related activity outside the United Kingdom, to cancel the

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passport of a British citizen administratively and, again, without any judicial process. It is said to be a temporary order but it may last for up to two years, and then it may be extended or renewed without any time limit. It is surely wrong for the Government to contend in their human rights memorandum that the Human Rights Act 1998, which is engaged, and the United Kingdom’s obligation under the European convention, do not apply to the removal of citizenship from a person simply because he is out of the jurisdiction. That was the previous Government’s mistake in connection with the activities of troops serving in Iraq and Afghanistan, and it took the Supreme Court to put it right.

I shall support amendments for which the Joint Committee on Human Rights has argued, which would substitute an exclusion order with a “notification of return” order. The questions raised by the noble Lord, Lord Harris of Haringey, as to the effect of the temporary exclusion order on foreign jurisdictions must be answered. I do not regard this as a weak self-notification, as suggested by the noble Baroness, Lady Neville-Jones; I think it is the way forward.

Relocation under a TPIM order re-emerges in Clause 12. The independent reviewer told the Joint Committee on Human Rights in November that relocation was more effective than the power merely to exclude TPIM subjects from particular locations. We are not told why. Undoubtedly relocation has a down side: it has the most damaging effects on family life. As the highly experienced solicitor Gareth Peirce put it:

“This may affect only a small group of people but in terms of its contribution to what one might call the folklore of injustice, it is colossal”.

The noble and learned Lord, Lord Lloyd, said that we must keep the Muslim community onside. He is right because that community is the source of co-operation and intelligence that will defeat terrorism.

In the other place, in answer to the right honourable Kenneth Clarke, the Minister sought to justify relocation by reason of,

“the changing nature of the threat picture”.—[

Official Report

, Commons, 9/12/14; col. 800.]

What does that mean? Can the Minister explain specifically how relocation lessens the threat posed to the security of this country by returnees from Syria and Iraq? Is not a programme of reintegration within the community to be preferred? What will we do, for example, with the Cardiff jihadis who appeared in that clip that we saw? Will we house them separately in a completely alien society in Carlisle or Newcastle? Will we put them in a hostel for returnees so that they can be subjected to programmes of reintegration in, for example, Welsh-speaking Bala in Merionethshire? I refer to Bala for a particular reason. The authorities deemed it right in 1916, after the Easter Rising in Dublin, to place 1,800 Irish republican prisoners in an internment camp at Frongoch just outside the town. It became known as the Sinn Fein university, where republican leaders such as Michael Collins and Arthur Griffith gave lectures to inmates in guerrilla warfare. If banishment to Wales did not lessen the tension in Ireland, how does relocation lessen the threat today?

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I want finally to refer to the proposed Privacy and Civil Liberties Board in Part 7. I support the broad concept that there should be a specific independent body that can act as a counterweight to the cadre within the Home Office, largely of ex-Security Service personnel, who have exerted such pressure on successive Home Secretaries and—dare I say it?—on the independent reviewer. I do not, of course, suggest that the noble Lord, Lord Carlile, or the current independent reviewer has given way to that pressure. The Bill, however, has only an outline of the membership, purpose and functions of the board. It might be right to leave the details to secondary legislation, but we are entitled to know now how its members are to be appointed and by whom; whether certain classes of people, such as human rights activists, will be excluded; and how it will relate to the work of the independent reviewer. Will the board have access to classified material and, if so, to what extent? It might well be of great assistance to the independent reviewer to have a body of experienced, independent people with whom he can discuss the issues that concern him and who will back him publicly; but a board that is designed to oversee or interfere with his powers, without knowledge of the material on which his conclusions are based, would be a total waste of resources.

This Bill is being put through this House under the fast-track procedure. We must be careful to ensure that these and many other issues are thoroughly discussed and ventilated before we give it our consent.

6.51 pm

Lord Hannay of Chiswick (CB): My Lords, my remarks on this Second Reading of the Counter-Terrorism and Security Bill will pose some critical questions about detailed aspects of the Bill, but they should in no sense be considered to signal opposition to the Bill—quite the contrary. The Government’s case for strengthening current counterterrorism legislation, faced as we are by a whole range of new threats—for example, by lone wolf terrorists, by the possibility of even more sophisticated conspiracies of the 9/11 or 7/7 types or by events such as those that occurred in France last week, which seemed to be somewhere between the two—has been entirely convincing.

I hope, too, that in debating this we will condemn the appalling and odious misuse of language that comes up all the time in the publicity from the jihadis—when, for example, they are claiming completely erroneously that they are supported by their religion, which fortunately in recent days has been contradicted by many, or when they misuse the word “martyr”, which, in my understanding of the word, means someone who is killed by someone else for their principles, not someone who blows themselves up along with a lot of innocent civilians. In any case, I think that the emergence of new terrorist organisations in Syria and Iraq, operating under the umbrella label of an Islamic State and totally impervious to the international conventions on the rules of law, clearly strengthens the case that the Government have made. The provisions in the Bill seem broadly proportionate to those threats and should avoid the criticism of overreaction. The case for fast-tracking this legislation also seems to be a convincing one.

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The Government’s contention that a sunset clause for the Bill as a whole would not be practical seems to make good sense, as some of the provisions are indeed intended—and justifiably so—to make lasting changes to our counterterrorism legislation. As the Government point out, some of the measures on TPIMs and data retention will already be caught by sunset provisions in the basic legislation that is being amended. However, it is not clear to me that the provisions on, for example, the seizure of passports or the making of temporary exclusion orders should change our laws in perpetuity, even if it is difficult to predict at this stage exactly how long they will be needed and will be justifiable. Therefore, I hope that the Government will take a careful look at that issue of sunset clauses in the context of at least those two rather important parts of the Bill and will address that issue in our further debates.

There is a tricky issue that has not yet come up in this debate: to whom are these various fairly draconian provisions to be applied? Which categories of people are they to be applied to and who will decide to whom they will be applied? Can we, for example, assume that someone going to Syria to help the Free Syrian Army or other groups seeking to overthrow the Assad regime—an action that the Government approve of and support—would not have these provisions applied to them? Can we assume that an ethnic Kurd from London going to help in the defence of Kobane would not be caught by them? Indeed, can we assume that a person of Ukrainian ethnic origin, going to support the voluntary militias resisting the Russian-sponsored efforts to destabilise and fragment Ukraine, would not be caught? Perhaps the Minister could throw some light on these rather difficult judgments, which have quite important foreign policy implications as well. I hope that the Government will agree that there needs to be some process of transparency and a means of informing Parliament on the judgments that they make as to who falls within these interdictions and who does not. Otherwise, we could end up in the bizarre situation that the United States ended up in at the beginning of the Second World War, when they were prosecuting people who came to serve in the RAF. This is not a clever place to get ourselves to and I hope that some thought will be given to how we clarify that we are not going to go there.

Like my noble friend Lord Evans of Weardale, whose remarkable maiden speech I listened to with great pleasure, I have concerns about Part 5 of the Bill, which relates to the Prevent programme and the moving on to a statutory basis of the Home Secretary’s guidance, with some extremely wide-ranging and totally unspecified powers to issue guidance in this respect to schools, universities and local government. It seems from what Ministers said in the other place that this is certainly intended to apply to universities. I wonder how the Government consulted the universities ahead of reaching that conclusion. It is not going to be enough to say that they are now consulting the universities about how to apply it, because the consultation that the Government are now carrying out does not give the universities the option to say that they would rather do it voluntarily; they are simply being asked to comment on how the guidance should be applied once this Bill becomes law. It would be good if we could hear a bit

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about whether there was any consultation and whether the Government share some of the concerns about academic freedom and freedom of speech at universities. Is this not an area where the willing co-operation between the Government and the universities is likely to be more fruitful and more effective than wielding the sledgehammer of a statutory obligation, backed up—so I understood from Mr James Brokenshire in another place—by the possibility of criminal prosecutions? Perhaps the Minister could address that point.

My final detailed point—I think that I am the only person so far who has raised this—relates to Part 6 of the Bill, which deals with kidnap and ransom insurance. I wholeheartedly commend this proposed change to the law. It has always seemed quite perverse that the Government’s policy of refusing to pay ransoms for people taken hostage—a policy that I believe, on balance, is clearly preferable to entertaining such payments—should sit alongside treating as perfectly legal insurance activities aimed at assembling such ransom. So I support the provision, but what is not clear to me—perhaps the Minister can make it clearer—is just how far-reaching the proposed changes to the law in the Bill will be. Will those who assemble ransoms for Somali pirates be caught by it? Hitherto, the Government have seemed to take the view that they have no evidence of such ransoms assisting terrorism. That was a pretty heroic assumption, if I may say so. We have only to look at the activities of al-Shabaab in Somalia—nobody doubts that al-Shabaab is a terrorist organisation—to see that it is extremely dubious to say that it is not laying its hands on some of the ransoms being paid to Somali pirates.

Can the Government therefore say whether those in the private sector to whom the amended law will apply can really be sure that moneys paid to Somali pirates never reach al-Shabaab? Will the Government now issue guidance on the obligation to file suspicious activity reports for any payments that could reward criminal activity? That is a matter on which your Lordships’ EU Select Committee has had a long and rather unprofitable correspondence with the Home Office over several years. I hope that the matter will now be put to rest. I am of course perfectly happy for the Minister to reply in writing on this point, because it is fairly complex, but it would be wrong if we missed this opportunity at least to require by law private sector operators who are assembling ransoms in circumstances that do not provide funds for terrorism—which clearly will be outlawed by the Bill when enacted—to file suspicious activity reports. Perhaps the noble Lord can address that matter when he winds up the debate.

Broadly speaking, I support the Government on the Bill and I very much hope that in the course of Committee and Report some of the increased safeguards that have been called for around the House will be inserted by the Government. As for the guidance on how Part 5 is to be applied to schools and universities, the very least that could be done is for the Government to undertake that the guidance will be finalised before the Bill completes its passage through Parliament, so that we and all those to whom it will apply know precisely what is to be applied.

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7.02 pm

Baroness Buscombe (Con): My Lords, I begin by echoing the words of my noble friend the Minister in paying tribute to our security services, who do an amazing job under the most difficult and, I suspect, at times, hugely frustrating circumstances. Along with the police and our Armed Forces, much of what they seek to do is often compromised, for all the right reasons, to protect our fundamental freedoms of free speech, a free press, our rule of law and our human rights—as well as protecting our lives. For terrorism, a constant is change and we need to give our agencies the tools that they need to adapt to change.

In addition, and to the best of our ability as a legislature, we need to anticipate and thereby try to future-proof measures to counter the activities of those who seek to thwart us. This is not a knee-jerk reaction to what happened in Paris last week. Some of the measures are concerned with how we confront British nationals who are highly organised and intent on acts of terrorism both within our midst and beyond our borders, including in mid-air and with the aid of the internet, and who are not necessarily concerned for their own safety.

As shadow Minister for the Home Office in 2001, I was very much involved in taking a counterterrorism Bill through your Lordships’ House. From rereading some of the debates, it is clear that we are now in a different place from 2000 and 2001, requiring some different tools and defences, particularly in relation to communications, because of the speed of change in technology.

Turning to the Bill, I want to focus my contribution on just some of the more controversial measures. It is important to say at this point that we are all making judgments about the proposals in, to some degree, a vacuum, as we do not know—nor should we—all that our intelligence services know and seek to know. What is clear is that the threat is real and, as we see on our screens here in Parliament, it is considered severe.

I declare an interest as a member of the Joint Committee on Human Rights, but I must say straightaway that I do not agree with all that is contained in the report that we published yesterday. It is important to note that the committee did not invite a briefing from the intelligence services prior to publishing its report. I have been briefed by the security services, and that brief has given real context to the proposals in the Bill.

Time for consideration by the Joint Committee on Human Rights and other interested parties has been a constraint—although even on that point I must say that, although the report states that not enough time has been given for scrutiny, we have had a lot more time thus far than allowed post 9/11, when we accepted that we had to support the then Labour Government and the work of our security services. To all those who say that these measures are just about being seen to be doing something, I say that I wish that that was true, but it is not.

In addition, I want to put on record that the press release issued by Justice saying that the JCHR report is highly critical of the Bill is just wrong. In its haste to

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make headlines, Justice obviously has not read the report properly. In many ways, the report supports the Bill and is thoughtful and measured in its response.

We must trust our security services to seek to do the right thing. I, for one, wholly support the measures in the Bill, with a few provisos, particularly in relation to judicial oversight to keep our Executive in check and to allow the independent reviewer the ability to review the working of the additional preventative measures to assure us that they are necessary and proportionate in all the circumstances.

I say “preventative” because that is what the measures are: making prevention a statutory duty on several levels. First, the Bill is focused on British nationals who are travelling to Syria and Iraq with the aim of carrying out terrorist activities. Some of those who we know have returned will probably have committed heinous crimes abroad and are now living in our midst. In most cases, those individuals will have been radicalised and may encourage others to follow their path.

Travel to and from Iraq and Syria can be quick and straightforward. The Bill is intended to assist our intelligence services in their task of tracking those individuals and to try to prevent them from becoming radicalised in the first place. The ability to communicate for harmful purposes via the internet through social media and other means is also addressed in the Bill, as well as the means of travel which are vulnerable to attack.

With regard to specific powers, in Part 1, Chapter 1, the power enables the police to seize and retain a person’s travel documents at a port where there is reasonable suspicion that the person is travelling outside the UK for the purpose of involvement in terrorism-related activity. The key is the ability to allow our enforcement agencies to act quickly where speed may be of the essence, always bearing in mind the speed of communications that can benefit and protect the identity and whereabouts of the individual concerned, making it much harder for the police to track them.

It is important to stress here that, although the travel documents are seized for an initial period of up to 14 days, the individual would not be detained. In addition, once consideration of further disruptive action has been completed, or 14 days after the day on which the travel document was seized, whichever comes first, the travel documents must be returned to the individual if no further action is being taken against the individual and a court has not approved a further retention period. To me, that all makes sense and is entirely reasonable, given that judicial oversight kicks in regarding any extension to the initial 14-day period.

Turning to Chapter 2 of Part 1, relating to the introduction of temporary exclusion orders, I must declare that I distance myself from the report of the Joint Committee on Human Rights, as I entirely disagree with the committee’s stance. Unlike my colleagues on the committee, I am not opposed in principle, or indeed in practice, to the removal of passports from British citizens on a temporary basis. On the contrary, I entirely support the logic of the introduction of TEOs, given the nature of the threat and the fundamental

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importance of recognising the desire on the part of some of these individuals to commit acts of terrorism on our transport network.

For example, currently if our intelligence services have reason to believe that an individual may have the intent to commit an act on an aircraft outside our jurisdiction, there is nothing they can do to stop them other than talk to other authorities outside our jurisdiction. If the individual complies with the process of a TEO—

Lord Clinton-Davis (Lab): Does the noble Baroness consider that there should be any rights of appeal at all about a decision?

Baroness Buscombe: I would hope that the noble Lord would wait a moment. I am about to come to judicial oversight. I am talking now about the ability in principle and practice to have a TEO. If he can wait, I think he will be pleased to hear what I have to say following.

If the individual complies with the process of a TEO—this is a very important point and I hope it is helpful—they could be able to return to this country within two days under a managed return. The JCHR is concerned to make the process less onerous, but onerous for whom? The passengers on that aircraft? These orders would make it unlawful for the individual to return to the UK without engagement with the UK authorities and that would be supported by the cancellation of the individual’s travel documents and inclusion of their details on watch lists. It allows for the imposition of certain requirements on the individual once they return to the UK.

The JCHR proposes an alternative to TEOs, which is to introduce “notification of return” orders, requiring UK nationals who are suspects to provide advance notification of their return to the UK on pain of criminal penalty if they fail to do so. I have tried hard to draft a measured response to this proposal, given that it simply does not recognise the minds and nature of militarised and/or radicalised individuals whom our enforcement agencies may be dealing with. In any event—and we will probably look at this more in Committee—I suggest that the committee’s proposed alternative may contravene Article 6 and the right to prevent self-incrimination.

Where I do agree with the JCHR report is in its desire to support these measures with some form of judicial oversight, if that oversight is humanly possible, given the speed of communications available to the individual concerned. Already our agencies operate in effect with one hand behind their backs in order to meet HR obligations and the rule of law; I will not support a measure which means both hands are tied. I am pleased that my noble friend the Minister has said in his opening remarks that he is now committed to considering some form of judicial oversight in relation to TEOs.

Perhaps it is helpful to add that we now know that those whom these measures are aimed at are rarely carrying out these acts of terrorism in a vacuum. Most of them have a very professional, well financed, powerful and evil force supporting, funding and directing them, even though they may appear in practice to be acting alone. The difficulty is to ensure to the best of our

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ability that innocent people are not caught and impeded by these measures, although realistically that may not always be possible. But then that is why there are safeguards in place to minimise free movement where the individual co-operates and is indeed innocent. In addition, I support the proposal of the JCHR that the operation of these measures should be reviewed over time by the independent reviewer.

Turning to Part 2 of the Bill, relating to TPIMs, I entirely support the Government’s proposals to locate a TPIM subject away from their home address, given that this would be of real practical assistance to the police and MI5 in distancing individuals from their associates. The effect of amending the definition of terrorism-related activity in the TPIM Act would be to increase the threshold at which conduct is considered to be a terrorism-related activity. The proposal also to prevent individuals subject to TPIMs from acquiring and/or owning firearms, offensive weapons or explosives is overdue, coupled with a new power to require TPIM subjects to meet with statutory bodies specified by the Secretary of State. I think anyone beyond your Lordships’ House, hearing that these measures to support our agencies are not already in place, would be amazed.

Part 3 of the Bill relates to communications data—data which can help identify who has made a communication and when, where and how. It can include the time, and duration of a phone call, the phone number or e-mail address which has been contacted and the location from which a call has been made. It does not include the content of a call or e-mail—it is not hacking. It was interesting listening to the excellent and very thoughtful maiden speech given by the noble Lord, Lord Green of Deddington, where he made this very point—it is not hacking.

The new measures relate to IP addresses which are shared by multiple users, and IP resolution is the process of identifying who used an IP address at a given point in time which can then be used at any point in time to identify who has accessed a particular service or website. The Bill seeks to require communications service providers to retain data showing which device used which IP address at which point in time. Again, in my view this is overdue, given that capability in this area is increasingly undermining the ability of law enforcement agencies to use communications data to keep us safe. The data can be retained for up to a maximum of 12 months. I notice that in his very excellent maiden speech the noble Lord, Lord Evans of Weardale, said that access to communications data falls short of what is required. I think it is a great shame that he is unable to take part in further debates on this Bill, as his experience would obviously help us a great deal.

Turning now to Prevent duties in relation to activities in universities, I have concerns in line with those set out in the JCHR report. Universities and all other institutions where young people gather away from home present opportunities for young people to socialise freely among different faiths and cultures—to listen to other points of view, other ideas, other perspectives on life. Living side by side is not enough; the chance to communicate openly without fear of reprisal is of

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critical importance. That said, I want to hear more from the Government about the objectives and the safeguards contained in the Bill. Indeed, there is a meeting with Ministers for interested Peers on Thursday this week to discuss this matter, which I will attend and I encourage others to do so in order to further consider these particular proposals.

Finally, I want to add my support to the proposals for more assistance for the work of the independent reviewer and for the power of the Secretary of State to establish, by regulation, a Privacy and Civil Liberties Board to provide advice and assistance to the Independent Reviewer of Terrorism Legislation in the discharge of his functions.

In conclusion, achieving the right balance is difficult and made more so by recent events. Debate, particularly in the media over the past few days, has been too often characteristically and depressingly skin deep with poor analysis. Fixed opinions do not work well in a changing world. Human rights are, to some degree, subjective and in considering the measures in this Bill, I believe our first priority should be to support our enforcement agencies which work tirelessly in their incredibly difficult quest to protect our fundamental freedoms.

7.18 pm

Baroness Lister of Burtersett (Lab): My Lords, it goes without saying that we are united in our abhorrence of violent terrorism, not least as our debate takes place under the shadow of the appalling murders in Paris. However, the magnificent solidaristic reaction in France and beyond reminds us of the values our Government seek to protect through this legislation. Democracy, the rule of law, individual liberty, mutual respect and tolerance of different faiths and beliefs are not, as claimed, uniquely British values but—I would argue—values of democratic citizenship. The implications of the Bill for democratic citizenship and human rights are what I wish to explore in my contribution—with reference to the report of the Joint Committee on Human Rights, of which I am a member—not least because if the Bill is seen to infringe the citizenship and human rights of one particular community, it could have the opposite effect to that intended. This echoes the point made so strongly by the noble and learned Lord, Lord Lloyd of Berwick.

In Part 1, the JCHR accepted the case for a new power to seize travel documents but, in view of the significance of such a,

“power to interfere with the right to leave the country”,

it emphasised the importance of the,

“procedural safeguards … to ensure that it is not exercised disproportionately”.

We therefore made a number of recommendations for strengthening these safeguards so as to uphold the rule of law. The proposal for temporary exclusion orders has been more controversial. To his credit, the Minister, James Brokenshire, rejected his colleagues’ attempts to persuade him to rename it a “managed return order”, which was advocated also by some noble Lords, because, he acknowledged,

“it is exclusionary in its nature during the period prior to return”.—[

Official Report

, Commons, 6/1/15; cols. 207-08.]

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He also argued that this is “not about citizenship”. That may be true in so far as it is not about the formal, absolute deprivation of citizenship; I welcome the retreat from the proposal originally announced by the Prime Minister in September. Clearly, however, it fetters the right of a citizen to return to his or her country of citizenship and therefore it is “about” citizenship, and in effect suspends it.

In the JCHR’s view there is,

“a very real risk that the human rights of UK nationals will be violated”,

and we made clear our opposition,

“in principle to any exclusion of UK nationals from the UK, even on a temporary basis”.

As the noble Lord, Lord Thomas of Gresford, noted, we therefore suggested that “notification of return” orders, which would require,

“UK nationals who are suspects to provide advance notification of their return to the UK on pain of criminal penalty if they fail to do so”,

would represent a,

“more proportionate interference with the right … to return to the UK”,

in a way that is,

“compatible with the UK’s human rights obligations”.

The arguments in support of proper judicial safeguards were well aired in the other place, leading to the welcome, if somewhat vague, commitment to return to this issue in your Lordships’ House. The JCHR was clear that the Bill must,

“provide expressly for a judicial role prior to the making of”,

an order. We also supported the view of the Independent Reviewer of Terrorism Legislation that the powers in Part 1 should be subject to review by him, and we recommended that they be,

“subject to a renewal requirement”,

so that Parliament can consider the case for their continuation,

“in the light of the Independent Reviewer’s report on their operation in practice”.

I turn to Part 5 and, in particular, to the application to universities of the new statutory duty to have due regard to the need to prevent people being drawn into terrorism. Here I declare an interest as an emeritus professor at Loughborough University. As Universities UK, my former union UCU, the NUS and the JCHR, among others, have asked, how is this new duty to be balanced with the obligation on universities to defend academic freedom and freedom of speech? In oral evidence the Minister tried to reassure the JCHR on that account, but I am afraid we were not reassured, because:

“Broad terms such as ‘extremist’ or ‘radical’ are not capable of being defined with sufficient precision to enable universities to know with sufficient certainty whether they risk being found to be in breach of the new duty and therefore subject to direction by the Secretary of State and, ultimately, a mandatory court order backed by criminal sanctions for contempt of court”.

We warned that:

“This legal uncertainty will have a seriously inhibiting effect on bona fide academic debate in universities, and on freedom of association”.

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Universities UK raised a particular concern about paragraph 57 of the draft guidance, which explicitly states that universities must include “non-violent extremism” in the risk assessments they will be expected to carry out. As the former vice-chancellor of Salford University asks in the current Times Higher Education, could the new obligation,

“be used against opponents of fracking … or any radical opposition to the status quo?”.

Surely universities are just the place where young people and others should be able to explore “extremist” ideas, however unpalatable, without being treated as potentially being on the path to terrorism or as popularising “views which terrorists exploit”, to quote the guidance. I found a recent article by Professors Paul Thomas and Ted Cantle, who have done much work in this area, very helpful in thinking about these issues. They point out that:

“Leading academic analysts of terrorism … have long-argued that how democratic states respond to terrorist threats is crucial—a response of repression or unjustified surveillance can represent precisely the undermining of democratic rights and processes that extremist groups hope to achieve”.

They also warn that,

“the further pressure to ban extremist speakers in universities and colleges will remove almost all opportunity for young people to hear extremist views and to have them challenged in an open and reasoned way, as though they are so seductive that any attempt to oppose them will result in failure”.

Instead, they argue for an education approach based on,

“open dialogue, with prejudiced views challenged but in a patient and respectful way”,


“trusts the power of education and shows a faith in the potential of all young people to develop resilience against extremism and hatred by enabling them to learn and to practice real, democratic debate and citizenship”.

I welcome the issue of the draft guidance for consultation last month but rather than provide reassurance it has, if anything, exacerbated the JCHR’s concerns. For now I will raise just one concern that Universities UK is particularly worried about: what it calls the “over-prescriptive and onerous” expectations with regard to external speakers, which include the requirement of:

“Advance notice of the content of the event, including an outline of the topics to be discussed and sight of any presentations … etc”.

As someone who is quite frequently asked to lecture at other universities, will I now be required to send my notes to be vetted in advance?

In view of such concerns and the very special place that academic freedom and freedom of speech enjoy in the context of university education, as recognised in Section 202 of the Education Reform Act 1988, the JCHR concluded that the best way to ensure that these principles are protected would be either,

“to remove universities from the list of specified authorities to which the new duty applies”,


“to add the exercise of an academic function to the list of functions which are excepted from the application of the duty”.

We also recommended that the guidance should be scrutinised by both Houses by way of affirmative resolution. At the other end of the educational age-scale,

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can the Minister explain just how nursery staff and childminders will be expected,

“to identify children at risk of being drawn into terrorism”?

It is crucial that fears about terrorism do not lead to the erosion of the very principles of democratic citizenship that the Bill purports to defend. We now have an opportunity and a responsibility to ensure that these principles are protected as we subject the Bill to scrutiny.

7.27 pm

Lord Carlile of Berriew (LD): My Lords, the terrible events in Paris last week give great grief without measurable mitigation. Nevertheless, such events provoke an instructive debate in which we have an opportunity to reassess some of the beliefs we have about the way in which politics, legislation and the authorities should deal with issues such as civil liberties and terrorism. The events in Paris have led many to re-examine the crucial balance between state power and civil liberties; we do well to remember that this is not science but art, and that it must to an extent reflect the development of events.

The civil liberties effect of what happened last week was not merely the continuing results for those few suspects who are still being hunted as alleged conspirators in what occurred. The effect on civil liberties has been to demonstrate how such events can put the majority in fear of exercising their basic rights, such as: free speech; artistic impression, which I regard as very important; the right to laugh at other people’s beliefs in a democratic society; and the corresponding responsibility to absorb being laughed about—particularly if you are involved in politics.

In this House, we are fortunate to have such a wide expertise of all the relevant disciplines and issues that can inform a Bill which is going to have considerable debate before your Lordships’ House, as the noble Lord, Lord Hannay, said, and will be fully considered. In this debate we have been particularly fortunate to hear two skilled maiden speeches from people who understand the security services and how they act. I look forward to hearing future contributions from the noble Lords, Lord Evans and Lord Green, on these issues. Indeed, I believe it behoves those who govern this country, and the two Houses of this Parliament, to listen to the advice of people such as those two noble Lords; to the advice of the predecessor of the noble Lord, Lord Evans, the noble Baroness, Lady Manningham-Buller, from whom we shall hear later; and to the advice of his successor, Mr Parker, who gave an unusual and not quite unprecedented but very well informed and important speech last week.

I say to my noble friend Lord Thomas of Gresford that to caricature a group of officials at the Home Office as a cadre, in the way in which I think he intended, does little justice to people who—in my experience—agonise over every issue that affects civil liberties well before they ever reach the point of advising Ministers. As others have said, we must remember that the people who police terrorism— whether they are police officers, the Security Service, the Secret Intelligence Service, or those officials in the Home Office and others—are brave and thoughtful people who play a

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very important part in the life of this country, and who have been extraordinarily successful. One of the reasons why there have been so few terrorism events in this country is because of the rate of attrition which has been caused by those services, and we should not forget that for one moment.

This Bill takes a few necessary steps. Some of them do not go quite as far as one would wish, others a little further, but it takes some important steps which are a responsible act by this Government. There are other issues to which we will return after the election, such as the whole picture of communications data. The canard “snoopers’ charter” is a brilliant piece of branding, but it is grossly misleading. We must allow the authorities of course to have a proportionate, reviewable, and judicially scrutinised set of powers, but a set of powers that will enable them to catch terrorists and putative terrorists. When the media naively said that there had been 50 telephone calls between the wives of the two terrorist brothers in France last week, what they should have said was that the wives’ telephones were used for communications which may well have been relevant. The authorities need to be able to take an interest in such communications. Those people who really believe that the authorities spend their time looking at the Amazon or Tesco Direct communications, or the idle chatter of your Lordships and other more ordinary citizens, are simply not looking at reality. As I am sure the noble Lord, Lord Evans, would confirm, MI5 does not have the time to intervene in the communications of ordinary citizens unless there is a reason; occasionally it happens by mistake.

Subject to proper control by legislation, and subject to proper review, these measures are broadly necessary. One of the most effective forms of review is scrutiny. As I was David Anderson’s predecessor, my noble friend Lady Hamwee wanted to be courteous to me, so I will say what she wanted to say: one of those scrutineers is David Anderson and I can state, with uncharacteristic modesty, that the present Independent Reviewer of Terrorism Legislation is matchless and incomparable in his role. We are very lucky to have him doing that job. In my comments on this Bill, I merely reflect what has been said by David Anderson, with whom I agree in all respects, and indeed the cogent summary that was given in a relatively short intervention by the noble and learned Lord, Lord Goldsmith, earlier in this debate.

I want to comment first on Clause 1, which relates to the seizure of passports. We heard some criticism of Clause 1, but I say to your Lordships that they have got to get real about what Clause 1 is dealing with. Let me give you an example. It is hypothetical but not unrealistic. Suppose a suspicious travel agent who is public spirited telephones the police and says, “I have just sold an air ticket in suspicious circumstances”, and the authorities decide it is worth following the person who has bought the air ticket. That kind of incident can occur within an hour, and it does not leave the time to go off to a judge to get permission to seize that passport. We have to allow the authorities to deal with the urgent provisions made in Clause 1 and Schedule 1.

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Secondly, I turn to temporary exclusion orders. I absolutely welcome what my noble friend the Minister said in response to the representations by Mr Anderson. I agree with the independent reviewer that judicial intervention at the appropriate stage and in the appropriate way is desirable, and I look forward to seeing the Government tabling amendments which may not exactly reflect what Mr Anderson says but reflect the spirit of his representations.

The third thing I want to say is about Prevent. As someone said earlier, Prevent is a really difficult part of counterterrorism policy. I say that with feeling, because I played a part in the formation of the current Prevent strategy. The first thing to say about Prevent is that it cannot actually be done by the police. It is best done at ward level, at community level. It is better administered by local authorities, and by far and away in many areas the most successful participants come from the third sector and are not officials at all. Prevent needs imagination; it needs originality. I went to see one Prevent programme in which a young Muslim man was teaching young people about the dangers of being radicalised on the internet in the boxing club he was running, when they had had their bouts, were tired, and were drinking Lucozade or Red Bull by the side of the ring. The evidence was that that kind of activity is very successful. However, it is quite difficult to bottle that activity, so it needs a great deal of work and that means resources. Prevent has not had sufficient resources. Resources have been removed from some good programmes. It also needs better oversight. The Prevent Oversight Board, of which I am a member, actually does very little. It does not need control, but it either needs to be replaced by something that exercises a much more imaginative oversight over Prevent or it needs to be given more to do.

The fourth issue I want to mention is the Privacy and Civil Liberties Board. I am intensely suspicious when I open a tin that says “chocolate biscuits” and it contains cheese biscuits. I prefer what is in the tin to be reflected by what is on the tin. This is not a Privacy and Civil Liberties Board; this is a counterterrorism legislation review board, so if we are going to have that kind of board let us call it that. Let us be honest about what it is. I believe that reflects a view held by David Anderson. More importantly, it is vital that the independent reviewer has the capacity to see secret material, to act quickly in real time if necessary, and to communicate with the security services without having to consult a whole range of people, although he or she should be able to consult whom he or she wishes. My understanding—and I look forward to hearing from the Minister on this in due course—is that the board is being postponed in its operability at least for further reflection and consultation. It is inevitable that we will return to this after the general election has taken place, and through clear policy which will be subject to affirmative resolution if it is to be brought into force. I hope that the Government will agree that this provision, while welcome in principle, is not quite ready to be fully enacted at present. That is a perfectly respectable position for any Government to take, and I hope and trust that my Government will take it.

Those are my reflections on the Bill. I give one coda, which returns to where I started. It is about

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religion. I am not a religious person; indeed, I suspect that if I were provoked I would say that I believe that religion is responsible for quite a lot of ills in the world. But one thing that struck me when I looked at that parade in Paris on Saturday was that behind the phalanx of European leaders with their arms linked there was no phalanx of world religious leaders—although there were some. But among those religious leaders, there were four men from Albania, a small country which has desires to be part of mainstream Europe but which has quite a long way to go. They were the four leaders of the religious communities in Albania—two Muslims and two Christians arm in arm in declared solidarity that religion should never be used for the ends that were claimed last week. My call would be to the religious leaders of the world to link arms, as the European political leaders did, to draw to the world’s attention that, if there is a God, and if there are blessings from that God, one of them is peace and not a ghastly, asymmetrical conflict that threatens to visit us for another generation.

7.42 pm

Lord Hennessy of Nympsfield (CB): My Lords, I declare my membership of the Royal United Services Institute’s independent surveillance review. I share the threat and risk assessments that are the motive power behind the Bill, and I share the natural and, perhaps, instinctive regret of many who live in an open society such as ours whenever the state needs to reach for more powers of intrusion and intervention into the lives of individuals than it would if times were more tranquil and secure. I hope, even in advance of such legislation passing, for the day when at least parts of it can be repealed.

The line between security and liberty is never static, nor is it clearly drawn. It is always a truly jagged frontier, and this has certainly been case with what one might call the construction of the new protective state that we have created in successive instalments since the atrocities of 11 September 2001. I add my welcome to the noble Lord, Lord Evans of Weardale, to your Lordships’ House as a hugely experienced shaper and former operator of that protective state. I also add my congratulations to the noble Lord, Lord Green of Deddington, on another fine maiden speech.

The key criterion for our new protective state, in my judgment, should be that of the great Sir Karl Popper in his classic 1944 study, The Open Society and Its Enemies, in which he wrote:

“We must plan for freedom and not only for security, if for no other reason than that only freedom can make security secure”.

It is a tough book and that is one of the easier sentences to absorb, but it also happens to be the crucial sentence in the entire book. That is the approach and state of mind that we need to cling to, especially when our spirits recoil from particularly dreadful events, such as those that occurred in France last week, as here in the UK we face exactly the same configuration of threats generated by jihadi-related terrorism.

Counterterrorism and security legislation requires especially careful crafting, as we all agree. Not only does it have to reflect the Karl Popper criterion but it also has to meet a test of practicality. Here, in one particular aspect of Part 5, the Prevent section of the

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Bill dealing with the universities, lies, in my judgment, an anxiety on the practicality front. I declare an interest as a semi-retired professor of contemporary British history at Queen Mary, University of London. My particular concern is stimulated by paragraph 61 of the Government’s consultative paper,

Prevent Duty Guidance

, dealing with the duties of higher education institutions. The paper says:

“We would expect the institution to have robust procedures both internally and externally for sharing information about vulnerable individuals (where appropriate to do so). This should include information sharing agreements where possible”.

The difficulty here lies in the degree to which, in today’s universities, even the most conscientious and pastoral care-minded tutors and supervisors can be such sensitive eyes and ears for the proposed Prevent panels under the Prevent duty as described in the draft guidance.

When I graduated in 1969, only 7.5% of the age group were in higher education; now it is close to 45% and rising, and the ratio of teachers to taught has widened. However much we university teachers try to compensate for that, it is genuinely harder to get to know your students well, and the old “in loco parentis” requirement has long since lapsed. When I tutored and taught substantial numbers of undergraduates, my own view was that I would intrude and intervene in their personal lives only if they came seeking help or guidance. That was usually about financial difficulties or family circumstances. I appreciate that it will be but a small number of students to whom the proposed Prevent requirements are likely to apply. But even here, unless a sudden and overt bout of proselytising occurs, indicating a fast-developing radicalisation, it will be very difficult even for the most attentive tutor to pick up mood swings, for example, let alone the real reason for such oscillations in mood and temperament. I appreciate that the Government have consulted and are consulting with universities on what, if the Bill receives Royal Assent, will be their duties under Part 5. However, I respectfully suggest to the Minister that, if it has not already happened, officials should talk to university teachers active at the level of tutorials, supervisions and seminar classes about the possible compliance problems on which I have touched.

In no way do I diminish the perils that we face, nor the rapidity with which radicalisation can occur among some men and women in the university age group. Until the first examples of this came to light in our country, I lived under the illusion that young men and women, whatever their origins or faith, who had been taught in our schools and universities and passed through our colleges, would almost organically have picked up a feel for the values, practices and essentials of a pluralist, open society. I was truly shocked when I discovered that that was not so and, to be frank, felt naive in my previous assumptions.

I recognise, as the noble Lord, Lord Evans, said earlier, that the Prevent section is an especially difficult segment of the Government’s Contest counterterrorism strategy. I ask the Minister and his colleagues to look again at what early warning can practically and sensibly be expected from those who tutor and those who teach.

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7.48 pm

Lord Clinton-Davis: To fight against terrorism effectively is absolutely vital but we need to be careful about how we do it, and we should not try to cut corners in any way. There is a real danger with hastily prepared legislation that it might be error-prone, and this Bill may well, unhappily, fall into this category. The Joint Committee on Human Rights, representing several political parties, came to the conclusion that this Bill contains powers that could result in colleges banning certain speakers. If undiluted, this could result in undesirable effects. I would like the Minister to address this situation because it worries a lot of people and this view has not been wholly represented in the House today.

I have some further reservations about the Bill and I hope that the Minister will be able to respond to these anxieties. It is absolutely essential that the power to make temporary exclusion orders should be subject to some judicial oversight. The Minister was not altogether clear on this. This oversight should be invoked by a prior application to the court. The Government’s view is that the Secretary of State alone should make this decision. That is undesirable. There should be an appeal procedure and a sunset clause that would apply to any decision to seize an individual’s passport. I think the appeals procedure can be invoked rather speedily but it requires legislation to that effect.

The requirement that the Government should specifically limit the amount of information kept by communication service providers should extend only to what is needed to identify individuals by IP addresses. Affirmative resolutions of both Houses of Parliament—not just ill defined public consultation—should apply to the guidance given to specified authorities concerning their duties to have due regard in exercising their functions to prevent people being drawn into terrorism. Will the Minister respond to this point, which has also been made by many others who are deeply concerned about this question?

Local authorities should be given, subject to affirmative resolution of both Houses, formal government guidance regarding the need, under the legislation, to establish and sustain local support panels to ensure that individuals who are thought to be vulnerable to becoming involved in terrorism are properly dealt with. I invite the Minister to say something about that. Should the Government not revisit the proposed Privacy and Civil Liberties Board and state exactly what the board should do and what its functions are? It is important for there to be some definition on these matters. Finally, although I have tried to be more specific about the proposed legislation, I hope—probably in vain—to get a constructive reply from the Minister. I sympathise with him: he has a very difficult choice, but it is also important that Parliament has a choice. This Parliament has a voice as far as these issues are concerned. We cannot ignore the civil liberties aspect.

7.55 pm

Lord Condon (CB): My Lords, I add my congratulations to the noble Lords, Lord Evans and Lord Green, on their excellent contributions to today’s debate. I look forward to further contributions from them.

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I support the aims of this Bill and almost all of the proposals within it. As a former commissioner of police, I want my former service and the intelligence services to have the necessary powers to prevent and detect terrorism. On balance, I believe that the measures contained in the Bill are necessary, proportionate and should be supported. However, the Government must put forward a compelling case as we take this Bill through its various stages and show how these new measures are integral to an overall coherent strategy to prevent and detect terrorism. In assessing whether the Government have this strategy right, it is worth very briefly taking stock of the aims of the terrorists we face.

At the Second Reading of the Counter-Terrorism Bill in July 2008, I spoke in your Lordships’ House against extended detention without charge as a disproportionate distraction when faced with what we knew about the aims of the terrorists. I referred to a book, Governance in the Wilderness, written by al-Qaeda’s then chief theoretician. That book and others like it, then and now, that author and others like him, then and now, in al-Qaeda, Islamic State, ISIL and other groups, have a very clear manifesto for individuals and groups who wish to pursue a jihad against us. They advocate turning the developed world we know into a fearful and divided wilderness where only those under jihadi influence enjoy security and everyone else is in constant, disruptive fear for their safety. They see this struggle as a war of ideas and lifestyles which will be fought for decades or, in their terms, maybe even centuries. They want no form of legitimate power or influence or dialogue in our country. They do want to create parallel, extremist societies within this country, France, Germany and other countries with significant Muslim communities. They crave most of all and encourage an endless cycle of violent attacks, widespread publicity, repressive and divisive government responses and legislation—if they can get it—and the radicalisation and recruitment of further young people to carry out even more terrorist attacks. Any legislative response by us must be designed to break and disrupt that cycle of terrorism and not unintentionally to feed and encourage it. I believe that this Bill passes that test.

The men and women who carry out these violent acts may not be sophisticated. They are often very vulnerable people who have a distorted and perverted view of Islam and seek martyrdom as an end in itself. However, we should never forget that they have been indoctrinated and inspired by individuals and ideas which we must understand and which will take generations to combat. This is a very long battle for hearts and minds.

I understand and share the outrage at attacks such as those in Paris last week, but we must keep our collective nerve. We must emphasise the normality and general safety of our daily lives. Sadly, and inevitably, acts of terrorism will occur but not often enough for us to sacrifice the essential freedoms which define who we are and how we live together. If in legislative terms we run scared and overreact, the terrorists win and we fail all our citizens. But, again, I am confident that we are not overreacting with this Bill.

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I will briefly raise two specific observations about the measures in the Bill. First, it contains a number of measures which address the specific gaps in the police and intelligence agencies’ powers to disrupt people seeking to travel abroad to engage in terrorist activities and to control their return to the UK. Other noble Lords have spoken about the proposed powers. I support these measures but seek reassurance from the Minister that we are also monitoring and learning from the actions taken in other European countries. Denmark, for example, which reportedly has the second highest rate of recruits to Islamic State, has adopted a programme of counselling, mentoring and training which has had reasonable success with young people returning from Syria and elsewhere. This so-called Aarhus model developed in Denmark’s second city seems to have significantly reduced the number of young people leaving Denmark to join Islamic State. I hope the Minister will be able to reassure your Lordships that we are learning lessons from this programme and others like it as well as putting forward our own proposals.

My second observation is about resources. As others have said, Part 5 of the Bill refers to the risk of being drawn into terrorism. The Government’s Prevent programme is designed to stop people becoming terrorists or supporting terrorism. Clauses 21 to 32 apply the new general duty on specified authorities. Like the noble Lords, Lord Evans of Weardale and Lord Hennessy, and others, I am not yet fully persuaded of the need for a statutory requirement although I remain open to persuasion. But even if we do implement this new statutory duty, for understandable reasons police forces and local authorities continue to face dramatic reductions in budgets. The Bill’s impact assessment specifies £119 million over 10 years to fund some of the new measures. Like the noble Lord, Lord Harris of Haringey, I have fears about how the police service and others will respond to these new statutory duties. Can the Minister reassure us that the police service, local authorities and other partner agencies will have the resources to deliver the additional statutory duties contained in Part 5 if we go ahead with it?

In combating terrorism, we must be courageous and resilient but we must also be stoical and truthful with the public. We must acknowledge that violent acts of terrorism will probably be part of our lives for decades to come and we cannot legislate them away simply by a cascade of new tougher laws and powers. However, what we can do is dramatically reduce the likelihood and frequency of attacks with a coherent overall strategy with emphasis on both prevention and detection. I believe that the Bill is part of such an overall strategy. With laser-like intensity as we go forward, we will have at some stage to focus more on the perceived weaknesses in our ability to understand, monitor and disrupt the modern communications between terrorists and their supporters which so easily enable or facilitate violent acts.

Finally, we must be very careful that we do not encourage widespread public fear that our everyday lives are constantly in danger of terrorist attack. Vigilance must not be overwhelmed by despondency and anxiety. The victims of terrorism must never be forgotten, and they never will be forgotten, but their killers should

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become anonymous footnotes in our history and should not be allowed to change our way of life or the freedoms we enjoy. I support the Bill and look forward to more detailed debate in Committee.

8.04 pm

Baroness Shields (Con): My Lords, I add my congratulations to the noble Lords, Lord Evans of Weardale and Lord Green of Deddington, on their maiden speeches and their thoughtful and insightful interventions on these vital issues of national security. Their experience is timely and we should all express our gratitude to them for serving in this House and bringing their great wealth of knowledge to this debate.

I welcome the opportunity to speak on this most important legislation and start by declaring my interest as the Prime Minister’s adviser on the digital economy. The focus of my remarks today will be on the issue of communications data and, specifically, Part 3 of the Bill, on data retention, which concerns a technical point but one with particular significance to counterterrorism efforts. I come to this discussion after decades of experience in executive roles with the world’s leading global internet and technology companies. In those roles I have witnessed first hand the vital importance of access to communications data to support law enforcement in serious and organised crime investigations as well as matters of national security.

It is important to be clear what we are talking about in Part 3. It is specifically about resolving IP address in order to identify the who, when, where and how of connections or communications. It does not provide for access to what people are saying or what they are sharing. Part 3 provides a simple technical fix to a technical problem of resolving an IP address. However, the value of that data can be pivotal in moving forward investigations. The police can use an IP address to prove or disprove an alibi, identify associations between suspects and tie an individual to a particular location or crime scene. Communications data have played a significant role in every security service counterterrorism operation over the last decade. These include the Oxford and Rochdale child grooming cases, the 2007 Glasgow Airport terror attack, and the Soham murders of Holly Wells and Jessica Chapman, to name but a few. If these data are not retained on reasonable terms, the implications are obvious.

Just last week, at the height of the horrific killings in and around Paris, Andrew Parker, director-general of MI5, spoke of the potential for mass casualty attacks in the UK by ISIL and al-Qaeda terrorists. He said:

“We increasingly face a world in which those who pose a serious threat may be able to operate beyond our reach”,

adding that MI5 will need,

“the right tools, legal powers and the assistance of companies which hold relevant data”.

He also warned that,

“a lack of cooperation from internet companies means that there is a risk of terrorists slipping through the net because MI5 cannot track them”,

and he renewed calls for enhanced access to digital communications.

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As your Lordships will be aware, there are currently gaps in communications data capability that have a serious impact on the ability of law enforcement agencies to carry out their functions. One such gap is identified in the internet protocol address resolution in Part 3 of the Bill. The IP address identifies who in the real world was using the IP address at any point in time, or at least which device they were using, such as a mobile phone or a tablet. The IP address will not always tell us—

Baroness Ludford: I apologise for intervening, but the noble Baroness is clearly an expert in these matters. Will she remove my ignorance? There are not enough IP addresses to go round, so you do not have one for every device, certainly not for every PC. So you can identify what device was using the IP address at any particular time, but how do you know who was using the device?

Baroness Shields: I hope noble Lords will understand if I carry on and then come back to the question, as I think that I may be able to answer it. However, it is a very good question and an important intervention.

The IP address will not always tell us who is operating the device, because the addresses are changed and shared when mobile phones move to connect between different masts, or laptops or tablets come online in the home, used by individuals across various networks. However, the IP address helps us significantly to narrow down the field: it is just one aspect of the information that we need. The communication service providers who issue the IP addresses to identify computers and mobile phones currently do not log which device is used at each address and when. This means that law enforcement agencies cannot work out who is using an IP address at a particular time. This impedes the investigations.

This legislation will amend the Data Retention and Investigatory Powers Act, which this House considered last summer, to enable Government to require that communication service providers, under a data retention notice, retain that data that can be used to link a specific device or individual to an IP address. We are not talking about requiring every single internet start-up to do so. The Government’s approach has always been proportionate and risk based, but without these data it is far harder, if not impossible, to attribute a particular action on the internet to an individual person.

These data will be available only to those public bodies that are entitled to them for lawful purposes where, on a case-by-case basis, this is necessary and proportionate. The value of these data can be clarified in this example: if a server hosting child sexual abuse images were to be seized, IP resolution would allow the police to trace the individuals who accessed the images where the server holds a log of the IP addresses and of the times that they were used.

This legislation asks for only a small addition to the automated systems that already run our nation’s communications infrastructure. The recording of which person uses which address and when is generated in the normal course of operation, and is thus not overly burdensome for these companies. This Bill will require CSPs, subject to reasonable notice, to retain vital data

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that can help dramatically in our country’s ongoing battle to bring criminals to justice, protect the most vulnerable and keep the United Kingdom safe.

Part 3 of this Bill is not politically controversial. As my noble friend the Minister has already mentioned, the Joint Committee on the Draft Communications Data Bill looked at this issue specifically and concluded that it did not think that IP address resolution raises any particular privacy concerns. These provisions will be limited. They will not enable the retention of weblogs, which, as some noble Lords have said today, become a list of the websites that you visit, for instance. Instead, they will help the appropriate agencies identify which device is the particular network identifier.

IP resolution will help us locate terrorists and criminals, but it is important to understand that it will not help us in every situation. The obligation to store the data in the UK is limited, but the technical action of resolving it must not be so. For instance, IP address resolution applies only to data generated or processed within the UK and not overseas, so it is thus further limited in scope and potential to combat what has become a global challenge. Furthermore, the rise in anonymous and encrypted internet traffic, the use of proxies and the sharing of one public IP address across hundreds if not thousands of devices make it ever harder to locate a specific device on the internet in the UK and abroad. Resolving IP addresses is an important first step, but it is only one part of a much larger problem that continues to morph and requires constant scrutiny, re-evaluation and response. We must remain diligent to stay ahead.

How do we address the wider problem and keep on top of the fast-moving threats that we face online? I believe that a new mode of collaboration between government and industry is needed to ensure a safe, creative and resilient internet from which we can learn, earn our livelihoods and keep in touch with our loved ones. We have done a lot of work in this Government to improve co-operation with internet and communications companies on the removal of terrorist and extremist content from their platforms, and to prohibit their use by those who will do so to distribute propaganda and radicalise our citizens. In its recent report on the brutal murder of Fusilier Lee Rigby, the Intelligence and Security Committee concluded that these companies must do more to fulfil their social responsibilities and help combat the serious threat that we face from terrorism. We must work with these companies to find better ways to alert government to the terrorist and illegal activities that threaten our livelihood.

Part 3 of this Bill is a significant step and one that we must all support, but it alone is not enough. There is no silver bullet. In specific terms, there remains a pressing need to update legislation to ensure that data for new types of internet communications on the ever evolving platforms and products are available in the future, just as data for telephony have been in the past. The Joint Committee on the Draft Communications Data Bill accepted this requirement, subject to the appropriate safeguards. David Anderson QC, the Independent Reviewer of Terrorism Legislation, is conducting a statutory review of these issues at present.

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My right honourable friend the Prime Minister has been clear that we will need to return to this matter in the next Parliament. In fact, in light of recent events we must urgently do so. As a matter of general principle, this Bill is an important occasion on which to acknowledge and reflect on the importance of continued co-operation between government and the technology industry to assure the safety of our nation.

8.15 pm

Lord Judd: My Lords, I declare an interest as a trustee of Saferworld and as somebody involved in the governance of universities.

It has become clear in the debate that we all agree on the sinister and horrible nature of the threat and that it is probably increasing. Although as parliamentarians we must constantly keep them under constructive criticism and scrutiny, it is appropriate to put on record my admiration for the police, the security services, the armed services, the Home Office and indeed Ministers—the men and women who are grappling with this situation.

What exactly are we defending? I thought that the significant speech by the noble Lord, Lord Evans of Weardale, came very close to understanding the complexities of the situation and the interplay between security and human rights. I found his remarks very important. However, one thing has come across to me clearly from recent events and from this debate: by definition, terrorism is international. If we are to grapple with it effectively, there has to be maximum effective international co-operation. This is no time for us in Britain to be involved in a debate as to how we can extricate ourselves from our international involvements. It is a time in which we should strengthen those as a way to contain the nightmare before us.

Ultimately, what we are defending is not just our economy, our wonderful literary, artistic, musical and architectural inheritance, or our fantastic landscape. All of these matter very much; I will take second place to nobody in emphasising how important they are to a civilised society. However, directly and immediately, it is our people and their families whom we must defend. To do that, we have to defend relentlessly our imperatively important system of justice and the principles on which it is based, for which we have struggled for centuries. We have not perfected it, but for centuries we have been improving the situation. It is there to protect our people.

Central to this, in my estimation as a non-lawyer—a lay man—is habeas corpus, equality before the law, fearless impartiality, transparency and knowing the case against you. Here, of course, the issue of interception becomes very important. Of course we must understand the dangers of and the anxieties of those responsible for our security about what could happen if we go down the road of bringing intercept evidence into court. I believe that it is a matter not of how we do not do it but of finding a way to do it that improves the quality of the other elements that I have described.

We must beware of counterproductivity, accentuated by shortcuts. Terrorism works best, it seems to me, in a context of ambiguity: when there are larger numbers of people, many of whom—I have said this before in

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this House—would abhor the act of terrorism as much as any of us, but who sometimes just wonder whether, however misguided and horrible, these people are on their side. That is why it is imperative that we emphasise the importance of human rights in our society. I put it as strongly as this: if we have a good, demonstrably effective and encompassing record on human rights, the extremists will be on the defensive. People will want to embrace that kind of society because they feel that it is in their interests. If there are some doubts about how far human rights really apply to them in a particular situation, we begin to get into trouble. People can be influenced in the wrong direction, in a way that leads them to involvement with the very worst. This issue of counterproductivity cannot be overstressed.

Policing and building security depend essentially on working with the community. I was glad that the noble Lord, Lord Wasserman, made the point about being certain that anything that we do on the security front is not at the price of conventional policing, because conventional policing has a vital role to play in combating terrorism. At its best, conventional policing is close to the community, knows the community in which it works and can therefore play a critical part in foreseeing what might happen, in informing and in being able to brief the specialists whom we must have to deal with crises as they emerge.

I want briefly to deal with a couple of specific points; they have been referred to in the debate. The first is the temporary exclusion order. I find it very difficult indeed to believe that, in the Britain in which I want to live, we can ever contemplate isolating somebody abroad. At a practical level, we can lose control of the situation by abandoning them abroad, where they may become more active. It is surely much better to have them under our jurisdiction.

In that context I was interested by the report of the Joint Committee on Human Rights. We are fortunate to have the Joint Committee working for us. I always feel that its reports are indispensable reading, as I am sure the Minister does, and its members do not mince their words in their recent report. They say:

“We are opposed in principle to any exclusion of UK nationals from the UK, even on a temporary basis … In our view, the Government’s objective of managed return could be achieved by a much simpler system requiring UK nationals who are suspects to provide advance notification of their return to the UK on pain of criminal penalty if they fail to do so”.

They recommend that the Bill should therefore be specifically amended to cover this point. At the same time, to the Government’s credit, they welcome the Minister’s indication that the Government will return to the issue of judicial oversight during our deliberations in the House of Lords.

The other issue, on which several noble Lords have spoken, is education at school level and at higher education and university level; there have even been references to what all this means at pre-school level. Again, in the Britain which I love and which is dear to me, a pillar of our society has been the principle of academic freedom—the autonomy and independence of universities. We must be very careful indeed, whatever the threats, about how we begin to infringe on that. I am glad that on that point the Joint Committee on

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Human Rights reminded us in its report that Parliament gave statutory recognition to academic freedom in Section 202 of the Education Reform Act 1988, which provides that university commissioners,

“shall have regard to the need to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions”.

That has been central to the exercise of freedom in our society. I am a bit alarmed about the implications of some of what is in the proposed legislation. I hope that the Minister will be able to reassure us.

Security cannot be imposed. Security, like policing, even in a conventional sense, works best when it works with, involves and has the assent, endorsement and the identification of the community with its purposes and what is necessary to fulfil them. We have to be careful again within the language of our deliberations—and there has been reference to language—that we are not reinforcing doubt or even marginally encouraging and fanning alienation. Do the provisions of the Bill—this is what we shall have to scrutinise in every clause as we go through it—help us to build society’s security or may we inadvertently be causing dissent and anxiety? We must watch that closely because, as the noble Lord, Lord Evans of Weardale, said, there is no fundamental clash between the principles of security and human rights. Indeed, they are there to reinforce each other and we must make sure that in every step of the Bill just that is happening.

8.28 pm

Lord Butler of Brockwell (CB): My Lords, I would have liked to have started my remarks by congratulating the noble Lords, Lord Evans and Lord Green, on their maiden speeches but I cannot honestly do so because other House of Lords business prevented me from hearing them. However, I have heard enough favourable references to make me look forward warmly to reading them in the OfficialReport tomorrow.

Last summer I was critical of the Government’s treatment of Parliament in respect of the Data Retention and Investigatory Powers Act—DRIPA—which, in my view, took too long to prepare and offered unnecessarily limited time for this House to debate. In the past, I have also been critical of the quantity of legislation, particularly Home Office legislation. Even though this Bill is being fast-tracked, I am less critical of it in respect of those aspects. Like the majority of others who have spoken, I believe that the Bill contains necessary and useful provisions and that the Government are giving Parliament greater opportunity to consider it. Even so, there is evidence that parts of the Bill have not been fully thought through before presentation, and there is a regrettable and unhelpful element of political window-dressing in some parts of it. I shall return to those aspects. One feature of the debates in the other place was the large number of issues which the Government themselves identified as requiring further consideration in this House.

Nevertheless, I believe that further legislation is necessary, both to deal with the growing threat of domestic terrorism and with the particular circumstances created by the involvement of UK citizens in jihadism

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in Syria and Iraq. That threat has been growing and changing, and it is right that UK law should be developed and changed to deal with those new circumstances.

As many others have said, this debate takes place under the shadow of the terrible attacks in Paris, which remind us vividly of the imminent danger posed by perverted religious fanaticism. Moreover, those attacks appear to have been carried out by well armed but also well drilled and disciplined terrorists—exactly the sort of people who developed their training and discipline as jihadists in Syria and Iraq.

My knowledge of this subject has been mainly derived from my experience as one of your Lordships’ two representatives on the Intelligence and Security Committee of Parliament. Your Lordships will know that this committee recently published a detailed report on the mercifully more limited but similarly horrific attack on a soldier in Woolwich, Fusilier Lee Rigby. The House has not yet had an opportunity to debate that report but I have been asking myself what lessons can be drawn from it which bear on our consideration of this Bill. Much of the attention on the publication of the report focused on the performance of the intelligence agencies and the improvements needed in them—none of which in the committee’s view, I remind the House, could have prevented the attack on Lee Rigby—and on the one clue to the intentions of one of the attackers present in an internet message not available to the intelligence agencies.

There are other lessons to be learnt from the report which support the measures in the Bill before us now. One is that, although both attackers of Lee Rigby were identified by the intelligence agencies well in advance of the attack—in fact, one of them had gone abroad in an effort to make contact with a jihadist organisation—neither of them was under close scrutiny at the time of the attack and neither of them had been referred to any part of the Prevent programme. A second one is that both those potential attackers were highly security-conscious, so, although they had been subject to numerous investigations, their plot to murder a soldier was not uncovered or available to the agencies. The third is that both the attackers had other problems symbolic of alienation from our society, such as drug dealing and other criminal activity. All those three characteristics apply, mutatis mutandis, to the Paris terrorists.

What conclusions can be drawn from that case which are relevant to the present Bill? I suggest that the main one—and it is supportive of the provisions in the Bill—is that, as so often in terrorism cases, prevention is much better than cure and prevention cannot begin too early. So it is necessary to have powers to prevent people going abroad to take part in jihadism. If they do go abroad, it is necessary to have powers to monitor them on their return and to take action.

However, action directed at individuals is not enough. It may come too late. We also need action directed towards the communities from which jihadists may come. We need to ensure that locally there is a counter-narrative to jihadism, that local authorities, universities and schools have both the duty and the means to combat extremism while not infringing freedom of

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speech. Only finally do we need to ensure that, if people reach the point of being radicalised, the law enforcement agencies have the power to prevent them from breaking the law. In the face of the growing threat, we cannot afford to be lethargic about this. So it is welcome that the Government make the Prevent and Channel programmes into statutory obligations on those in a position to influence individuals who may be vulnerable to the propaganda of extremists.

Nevertheless there are parts of the Bill which smack of gesture politics and, as many other speakers have pointed out, which need clarification and improvement. The Government admitted in the House of Commons that judicial review of passport confiscation and supervised returns to this country needed further consideration in this House. So does parliamentary oversight of communications guidance to local and other authorities. As other speakers have pointed out, notably the noble Lord, Lord Judd, because there is such a narrow margin between free speech and censorship, there certainly should be parliamentary oversight of the guidance that is applied in these areas. However, if I may reassure the noble Lord, Lord Judd, my experience of universities suggests that those in higher education will not easily allow their academic freedom to be infringed.

There is also the vexed question of the Bill’s use of the term “temporary exclusion orders” when they are nothing of the kind. The term appears to have been adopted only to save the Prime Minister’s face when he unwisely said that,

“what we need is a targeted, discretionary power to allow us to exclude British nationals from the UK”.—[

Official Report

, Commons, 1/9/14; col. 26.]

Such a measure would be impracticable and contrary to international law.

I also have serious reservations about the proposed Privacy and Civil Liberties Board, which smacks of being a knee-jerk reaction to the revelations of Ed Snowden. Its purpose is nominally to support the Independent Reviewer of Terrorism Legislation, but it is all too likely to be a fifth wheel on his coach—a coach which, as steered by the present reviewer and his predecessor, appears to have been running satisfactorily without that support. It may well be unwise to rush through the establishment of a body of this sort in the few weeks before a general election without more consideration. I hope that the Government will at least wait for the imminent report of the ISC on privacy and security. I was very reassured by the suggestion—I think from the noble Lord, Lord Carlile—that the Government have indicated that they will not rush this body through in order to institute it before the general election. If the Minister could confirm that tonight I would be greatly reassured.

I should like to make one other point arising from last week’s speech by the director-general of the Security Service and the Prime Minister’s statement that if he is returned to office he will want to go ahead with the Communications Data Bill. In doing that, I am greatly reinforced by what was said by the noble Lord, Lord Carlile, and the noble Baroness, Lady Shields. In all the hubbub about this matter, sight seems to have been lost of the fact that what these proposals involve is

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simply the retention of records of communications—not even retention by the Government, but retention by the providers. What that would allow is properly authorised access by the law enforcement agencies only to the communications of those whom they have reasonable grounds of suspecting as meaning to do us harm. When that is properly understood, it seems to me much less objectionable than some have represented.

That is a debate for another day. Meanwhile, as so many speakers have said, there is a considerable amount of work for your Lordships’ House to do on this Bill. Subject to those points, I support the Bill.

8.40 pm

Lord Roberts of Llandudno (LD): My Lords, it is a privilege and a responsibility to take part in the debate this evening. I come from one of the most beautiful towns in the whole of the United Kingdom—Llandudno. I think I know the community of 22,000 people, and we have a Buddhist centre, a synagogue and, within reasonable distance, a mosque. We have Anglican churches—that is, the Church in Wales—and we have Welsh nonconformist churches. We are one group together. I remember that, at the time of tensions in Northern Ireland, the Roman Catholic priest and I were singing carols together outside the English Methodist church. At a local level, we are getting on well together.

However, when you come here you sometimes find that you have to struggle to gain at this level what we are already experiencing at a local level—not only in my town but in many other places. Sometimes we have battled here and we have won arguments. On immigration, we have mainly seen the end of detention of children for immigration purposes. We have seen other strides forward. At other times, we fail. We struggle, and I know that some of us have struggled very hard for the right of asylum seekers to be employed within six months of their arrival here.

It is difficult to get this message through. In this world we want people to be partners together. I was delighted that my noble friend mentioned the four Albanians—two Muslims and two Christians—who walked together in the demonstration in Paris. That is what I would like to see throughout the UK. We can be the example, where we are able to have multifaith groups. They exist in many places and people are able to say, “My brother, my sister, my family; we are one family”. We could really tackle a lot of these stresses before they become threatening. That we can do and here is an opportunity in some way or another to encourage it.

However, the world is full of uncertainties. I am not the only one who remembers the time when it was better to be red than dead—so some said. Others said that it was better to be dead than red. There are uncertainties and there is always some difference, as there is here between security and liberty. We are trying to see where is the line that needs to be drawn. This Bill seeks to draw that line. It has been improved but, as many have said, there are many improvements that we yet wish to see. We are grateful to those who have already battled for improvements. I sometimes measure our civilisation by Alan Paton’s values. Noble

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Lords will remember Paton as the author of

Cry, the Beloved Country

. In a lecture in 1953, he declared himself a liberal and defined the term thus:

“By liberalism I don’t mean the creed of any party or any century. I mean a generosity of spirit, a tolerance of others, an attempt to comprehend otherness, a commitment to the rule of law, a high ideal of the worth and dignity of man, a repugnance of authoritarianism and a love of freedom”.

That is my level.

What happened in Paris is a tremendous tragedy in so many ways. How does Alan Paton’s dream inspire not only Paris, France and the leaders of the free world but us in this country? What exactly does freedom of speech mean? Who should have it and under what circumstances can it be limited? The Deputy Prime Minister, Nick Clegg, got it right in his recent article. He said:

“This is the bottom line: in a free society, people have to be free to offend each other. There is no such thing as a right not to be offended”.

Here we are protected by parliamentary privilege. We are able to make remarks that we would be arrested for outside this House. Because the occasion demands it—and today it certainly does—we must be free to speak truth as we see it, be that right or be it wrong, without fear of what could be done to us.

The Bill does four things that we need to tackle. Others will disagree. Threats to our freedom can often come from within these walls as well as from without. We have to ensure the presumption of innocence, the right of abode, the right to privacy and freedom of speech. I want to focus this evening on one of those four: freedom of speech. In Chapter 1 of Part 5, Clauses 21 to 26 refer to,

“regard to the need to prevent people from being drawn into terrorism”.

It does not say “from being terrorist” or “from terrorist acts” but from being drawn into terrorism. Surely, this means the spoken word. I am just asking a question; I do not have the answers. Is this not an assault on the very free speech that all sides of the House have spent this week swearing to defend?

Is the Home Secretary giving herself the right to determine what can and cannot be said in many of our public institutions, including universities? I believe this is so. Is she granting herself the power of sanction over those institutions that fail to abide by her ruling? Under Clause 24, the Home Secretary “may issue guidance” and give directions. Under Clause 25, any failure to abide by this guidance could result in her enforcing the guidance “by a mandatory order”. Is this the freedom of speech that was meant when the four Albanians and the 40 or 50 leaders of the free nations marched to the statue of the republic in Paris? Is this what we speak of when we proclaim our support for free speech? What is the limit? Who has the authority somehow to destroy what we believe is a fundamental right to freedom of speech—the freedom to say things we agree with and tolerance of the things we do not?

In a Written Question—the Minister might remember this—I have tried to get the Government to define what someone has to say to be considered an extremist under these provisions. I understand that they had a very helpful discussion on what an extremist is. The Minister knows that I have not received a satisfactory answer. The vagueness of what is termed extremism

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means that the powers that the Home Secretary is granting herself could be applied to rooting out any ideas she chooses. It need not be only those of Islam. It could perhaps apply to liberalism or socialism, if she so wished. The powers give her that right. Of course, the target here is radical Islam. However, there is nothing in principle to prevent the powers being used to purge other ideas that the Home Secretary might disagree with.

These are difficult questions. Before I finish, I again quote the words of the Deputy Prime Minister from his recent article:

“The same laws that allow satirists to ridicule Islamists allow Islamists (and other extremists) to promote their views … But when they peacefully express views which the majority of people find odious, we need to remember what is at stake. Free speech cannot just be for people we agree with. If it is to mean anything, free speech has to be for everyone”.

The threats that face us are real; they are growing and they cannot be ignored. If we are to remain a free society—this is what our discussion in Committee and on Report will enable us to do—we must protect those cherished freedoms and not undermine them in any way, as, I suspect, some clauses of the Bill threaten to do.

8.49 pm

Lord Thomas of Swynnerton (CB): My Lords, it gives me great pleasure, as another Welshman, to follow the noble Lord, Lord Roberts, and to be reminded of the superior grandeur of Llandudno.

Ours is a generation which has lived in the shadow of war and terrorism but more recently of terrorism. I am a survivor of Brighton 1984, when Anthony Berry MP was murdered by the IRA and the noble Lord, Lord Tebbit, had his life ruined by its activities. I also recall the murders of such noble figures as Ian Gow and Airey Neave, both of whom I knew well. I heard close at hand, in my own house, the bomb in Campden Hill Square which was intended for Hugh Fraser but killed a cancer specialist. I was told by my wife not to slam the door; she thought that I was behaving badly, but it was the IRA.

In addition, at one time in my life I made a special study of the international anarchist movement, which in the years before 1914 sought maximum publicity for what it called “the propaganda of the deed”. It believed that if it managed to “strangle the last king with the guts of the last priest” a golden age would begin. It murdered three Prime Ministers in Spain, a President of the United States, an Austrian Empress, at least one cardinal and did a lot of other damage. The consequences were in the end nil.

Some fine novels explain and describe that era. I think of Conrad’s The Secret Agent, of Henry James’s brilliant Princess Casamassima and Pio Baroja’s La Dama Errante, which tells of what happened to those who tried to murder King Alfonso XIII and Queen Victoria of Spain in Madrid when they were coming back from their coronation in 1905.

I venture to mention these matters to remind the House that, although they were different, we have faced similar challenges to radical Islam in the past—not perhaps as bad, as the noble Lord, Lord Green, reminded

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us—and have survived thanks to a variety of stratagems. We can recall past victories in the battle against terrorism as well as present woes.

The challenge posed now is, of course, an international matter. So was the anarchist movement. Anarchists were once known as “the Internationals”. Radical Islam—which I suppose is the right name and the right way of putting it—is rich. This makes it more formidable in many respects as there can be no weaponry which it cannot afford. Yet wealth can lead to decay faster than poverty.

Radical Islam now has a heartland in Syria and Iraq which we cannot ignore, just as we cannot visit it. There are also, as we have been reminded on many occasions today, many nests of ill intentioned radicals in all the major European cities. This makes everything much more complicated. In these circumstances, most of us see the need, as I think the noble Lord, Lord Evans, will agree, for greater security and greater willingness to give the police powers of investigation and oversight. I say this pace to the noble Lord, Lord Paddick. It is sad that it should be so and it is understandable that such concessions seem to some, including my dear and very old friend the noble and learned Lord, Lord Lloyd of Berwick, a threat to our ancient liberties. However, our ancient liberties are under threat and their preservation requires high spending on intelligence and interpretation. We must assume that our security services and police have the instruments and techniques that they ask for, since one will not be able to forgive anything that goes wrong if we neglect something that could have been done but was not because of a lack of wiser provision. We must try to relate the steps that seem to limit liberty to the time during which there is a real threat. In World War II, for example, people had no doubt about the benefits of temporary censorship and the control of information. Confiscation of passports is an extremely unpleasant idea, but all is a matter of time: if it is temporary, it does not matter. The word “repeal” is used by the noble Lord, Lord Hennessy, very effectively.

On these activities, I will say one thing: we ought always to aspire to seek to capture and then try terrorist conspirators or activists. The killing of the murderers in Paris was understandable and right, but I have always felt that killing Bin Laden in that very calculated way was a bitter response; I would have liked to have seen a trial, complex and difficult though it certainly would have been.

I will also seize on the use of the word “generational”. It is suggested that we are involved in a generational struggle that is going to go on for a very long time indeed. Surely that is very pessimistic. If we are going to win, we must win soon; it is a little pessimistic to think that it will take a matter of years, as the noble Lord, Lord Condon, and others spoke of.

The tone of our current propaganda needs to be measured: it should not be too heavy. We need to recall that what distinguishes our civilisation from others is that we have a sense of humour. When Disraeli referred to the Opposition Front Bench as a “row of extinct volcanoes”, he did not expect to be denounced, as indeed he never was. Would a modern Disraeli be denounced if he spoke of the leaders of the

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Arab spring in similar terms? Radical Islam has not yet shown many achievements of humour, any more than the IRA or the anarchists whom I mentioned did.

8.57 pm

Baroness Berridge (Con): My Lords, as a member of the Joint Committee on Human Rights, I can say that the report we issued on Monday was one of the most positive during my tenure. The Government are to be applauded, as the proposals in the Bill are some of the most complex to get right in human rights terms. France has not just brought home the serious security threat that we face, which no one in your Lordships’ House denies; the French have also shown us the best of responses, namely the bold assertions of our freedoms.

It is one of the highest duties of the state to keep its citizens physically safe, but it is also for the state to enable citizens to enjoy and use their freedoms. Islamic State says that its state is actually very safe: there is no crime on the streets there, but there is no freedom. I am uncomfortable with the language that it is the first duty of the state to ensure security, as sometimes it seems like a trump card placed on the table to exclude further debate. I approach this Bill from the perspective that ensuring our security and our freedoms are two of the highest duties of the state. The principles in the Bill are admirable in performing those duties—with one caveat, which I will come to.

The power in Part 1 to seize passports is a lacuna that I was told of when I was visiting Heathrow Airport to see the Schedule 7 stop-and-search powers in operation. The officers specifically complained about not being able to stop a British citizen who was re-entering the country, question them about their travels and seize their travel documents. The report of the Joint Committee on Human Rights recommends tweaking this power, but is in principle supportive of its introduction. It is similar with the clauses relating to TPIMs. In fact, I have always been concerned about the ending of the power to relocate people, which was removed by this Parliament and arguably diminished the effectiveness of TPIMs.

Turning briefly to Part 6, I was surprised to learn from Walk of Truth, a small NGO run by Tasoula Hadjitofi and for which I hosted an event before Christmas, that IS partly funds itself through the sale of stolen religious art from Iraq and Syria. I hope that my noble friend will investigate whether Part 6 can be strengthened to ensure that there are fuller details of the origins of artefacts transported through our ports.

I join other noble Lords in saying that my tenure on the Joint Committee has been greatly assisted by the work of the independent reviewer, Mr David Anderson QC. As a parliamentarian, you are keenly aware that you lack the necessary security clearance to see the whole picture. Mr Anderson does, and his role is invaluable. I am grateful that Part 7 retains his role and I hope that the Government will take very seriously his need for additional resources in the current context.

Finally: my caveat. I think that all noble Lords are agreed about the mischief that Chapter 2 is aimed at. We need to be firm on our citizens but also need to

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know when they are returning from Iraq and Syria. I welcome the major changes that the Government have made to the proposed solution to this issue, which was at first said to be to exclude our citizens from the UK completely. I particularly welcome the recent concession that that power should be subject to some kind of judicial oversight. However, I still have concern about the power to temporarily exclude our citizens. Although Members of the other place now term that power “managed return”—I note that my noble friend the Minister said, “temporarily disrupt the return”—those terms are not entirely accurate. I welcome the candour of the Minister, James Brokenshire, in saying to the Joint Committee on Human Rights that it still includes a power to exclude our nationals from the UK.

Without getting bogged down in the semantics of Chapter 2, perhaps “conditional return” is a more accurate description. The noble Lord, Lord Harris, noted that those two-year terms can be renewed, so this could be a permanent exclusion. Also, there seem to be few limits in Clause 4 on the conditions that can be imposed on a permit to return. There is a very broad executive power in that regard.

Before I get bogged down in the legal-speak, I have a useful, although imperfect, analogy. Your really badly behaved teenager goes for a sleepover at a friend’s house and is so violently badly behaved that you refuse to accept him home except on certain conditions. Relations between the respective parents would undoubtedly be affected, and it is hardly conducive to wider neighbourhood relations. However evil the behaviour of our citizens abroad, are they not our citizens and our responsibility? Her Majesty’s Government were right to concede that we have to accept our citizens back if they are deported by other nations. Does that power not depend much on the co-operation of other nations if our citizens who refuse to comply with such broad conditions to return have to be detained, perhaps pending deportation to that country? Do we have to pay the costs of such detention to that other nation? What if they escape detention or house arrest and therefore commit an atrocity on foreign soil? Will we then have to compensate for the injuries and loss to that country and its citizens for failing our responsibility to allow our citizens to return?

I note the discussion of our passports. Of course, we do not have a legal right to a passport, and I do not think that this should be viewed primarily in terms of the citizen’s right to return to their own state. It is about the agreement that we have made in customary international law, as I understand it, between one nation and another. When you accept that nation’s citizens with their passports, that nation agrees to take them back at the end of their stay. It is clear that Her Majesty’s Government may be reaching agreements with other nations. Will Her Majesty’s Government be disclosing the terms of such agreements that we might reach about the treatment of our citizens? It is noteworthy to add that France, Germany, the United States and Denmark—all of whom face a similar risk to us—have not suggested that power. Perhaps that is because they have written constitutions. I have pondered on why our risk is different to theirs and why these nations

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have not resorted to a similar power, and have not been able to find a Government who have resorted to this measure.

It is very sad to note that only a few hours ago on the Times Twitter feed there was the report—and I will note with interest the response of Chancellor Merkel—that the anti-Islam demonstration in Dresden this evening made a demand for the German Government to ban the return of jihadi fighters. I am not that comfortable with those bedfellows in relation to this power, but with it we are in danger of undermining the fundamental aspect of collegiality in international law and international relations. The collegiality principle underpins the system that countries accept their own citizens back, without condition or permit to return, so that they can prosecute their case on their own soil. I hope that Her Majesty’s Government can answer the concern that has been raised by the independent reviewer and in the Joint Committee on Human Rights. What will we do if other nations start doing this to us, nations who may use—in our view—spurious national security reasons, such as those mounted by Burma about Rohingya Muslims, to introduce conditions for the return of their citizens to their countries? I fear some kind of long-term tit-for-tat like the Cold War, and pockets of citizens in different countries who cannot go home to their respective nations.

If we act unilaterally to introduce conditional returns, could not some nations go one tiny step further and say, “We do not want our citizens back, even if you deport them to us”? How can you rid yourself of Abu Qatada if Jordan will not take him back? I have seen the successful removal of someone from a plane here in the United Kingdom; our police and security services are indeed very impressive. I am not a soft touch. My world-view understands evil but it is not clear why we do not use the full force of TPIMs and the criminal justice system here in the UK, not at the Turkish Airlines check-in desk. Some of your Lordships have mentioned today the possible contravention of the Magna Carta, and we are rightly applauding ourselves on its anniversary this year. However, I am more concerned that the United Kingdom should still have the privilege of retaining a permanent seat on the United Nations Security Council and could perhaps be seen as a poor role model in acting this way.

I am grateful to Her Majesty’s Government that they are still seeking engagement with the Joint Committee on Human Rights, due to the accelerated nature of the legislation. I hope to have my fears allayed but my final piece of preparation for today’s debate was to sit and read my passport this morning. Inside the front cover it says:

“Her Britannic Majesty’s Secretary of State Requests and requires in the Name of Her Majesty all those whom it may concern to allow the bearer to pass freely without let or hindrance, and to afford the bearer such assistance and protection as may be necessary”.

For centuries, I believe, that phraseology has been on our documents. We need to be very careful and take a long-term view of the potential risks that we run by acting in this way in relation to the validity of our passport when we travel overseas.

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9.08 pm

Baroness Kennedy of The Shaws (Lab): My Lords, I share the horror that has been expressed in this House about the events that took place last week in Paris. They followed on the real revulsion that we all shared about the barbaric killings by ISIL in northern Iraq. Those were the precursors of this Bill. It would be all too easy to write a blank cheque to Government to do whatever it takes to counter terrorism when we have just had these experiences. However, we should be deeply aware of the risks associated with erosions of civil liberties because once we create paradigm shifts inside the law, the reality is that they are very hard to reverse.

I have seen this over laws that were introduced at the time of the Irish troubles in the 1970s when I started doing work in terrorism cases. You actually find that the changes that are introduced inevitably leach into the system as a whole. We see that more recently with the secret courts, which were introduced as an isolated and extreme measure. We have now seen institutional creep and that “exceptional” process is moving into other parts of the system. Our commitment to open justice is thereby being eroded. We must be clear that emergency legislation can never be vacuum-packed. It permeates attitudes and standards—and, I am afraid, rarely to the good.

The Bill was introduced to deal with the threat of radicalised young people leaving the United Kingdom for places such as northern Iraq, Syria or Somalia, participating in terrorism abroad and then returning to this country highly trained to wreak further harm. Those were the concerns that motivated this legislation, and the ones that we can all understand. The Joint Committee on Human Rights, on which I serve, accepted that preventive steps should be taken to stem the flow of travel to join those insurgencies. There was also a very real recognition by the Joint Committee that we have to use the law in these cases. We all felt particular horror at the idea of young women going off to make themselves available to this jihadist struggle by becoming jihadist wives. One wonders whether they are finding it quite as idealistic and romantic as they imagined it would be when they started out.

The prevention of travel is supported by the parents and families of young people. However, it must be pinned down with real safeguards and not operate on the hunches of officers at ports, with the risk of misuse being great and the risk of mistaken use being considerable. We on the committee therefore accepted that there was a need to look at that and that there were gaps in what was legally available to the authorities.

We were also sympathetic to the idea of managed return. We have to find ways to enable the return of those who bite off more than they anticipated—the people who go to those places, see “The horror! The horror!”, to quote Conrad, become sickened by what they see, and who must want to return to the sanity of their lives in this country. Therefore opportunities to bring those people back and find ways to bring them back into our communities should be found.

What is often not understood by many people is that, unlike in previous generations or in previous times, people who are currently in Iraq are in

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communication with their families—that is the nature of modern media—so their families are able to phone them and say, “Please, come home”. They are able to contact them by e-mail. Their e-mails may be being intercepted, but they certainly communicate quite frankly, and some of them do not realise the extent to which the things they say might be a source of evidence against them on their return.

We should therefore be thinking about different categories of people. There are those who are undoubtedly committing horrible crimes over there. We have a responsibility as a nation to prosecute them should they come within our jurisdiction. If we have the opportunity to do so, they should be put through the legal processes, prosecuted, found guilty and imprisoned as our nationals for committing crimes aboard. That should be one of our priorities. We have to ask ourselves whether we will enable that by the introduction of the system we are currently looking at.

We also have to try to prevent people coming back who might commit further crimes. They may very deliberately come back, claiming that they just want to come home, but have ulterior motives. It will be important that the authorities are able to examine those possibilities, so we have to look at procedures that could be created to help us to deal with all that. We need to revisit a number of elements in the Bill but all the time we have to have two important things at the back of our minds. The first is the importance of avoiding the erosion of civil liberties and doing things that are not proportionate to the need. The second thing we have to think about is whether, if we risk miscarriages of justice or the misuse of some of the new powers that are given, we will end up alienating large numbers of law-abiding, decent Muslims in our communities, who are important to us in trying to find solutions to the problems we currently face. Collective punishments are what people feel, and if people feel or perceive injustice, it leads to very negative consequences. We have to have that high in our minds as the Bill goes through the House.

I want to consider the issue of removal of passports when people are leaving the country and there is reason to believe that they may be going to places where they are going to engage in terrorism in one form or another. Is the seizure of a passport from someone suspected of travelling to become involved in terrorism proportionate? We would say yes, but it depends on the safeguards that surround the exercise of the power. The Joint Committee on which I sit noted that while Schedule 1 provides for a judicial role to govern this power, it is not, for example, as strong as the safeguards that are provided in the judicial oversight of warrants of further detention, when someone is detained on reasonable suspicion of being a terrorist. It seems sensible to have parallel provisions. There is no provision, for example, for gisting: giving people an entitlement to having the gist of what the reasons are for removing their passport and not allowing them to travel.

The Bill provides for judicial consideration only after 14 days, at which point the judge is under a duty to extend the period of retention of the passport to 30 days. That is on the basis that he has to be satisfied that the investigation has been conducted diligently

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and expeditiously. Is it really good enough that he just thinks they are moving fast enough or that they are being hard-working enough? Should we not be expecting more to be in the judge’s mind? It also provides for a closed material procedure at the hearing—the secret process that I have mentioned before—and yet there is no provision for the excluded party to be represented by a special advocate. Warrants of further retention should be just the same as warrants of further detention. The Joint Committee on Human Rights recommended that application for the extension of retention should be within seven days, not 14 days, and the judge should be able to issue a warrant only if satisfied that not only was the investigation being pursued diligently and expeditiously but also that there were reasonable grounds to suspect that the person intended on leaving the country to become involved in terrorism or related activities. The person should be informed of the reason for the exercise of the power against them. It should be done at the earliest opportunity and not once they have got a lawyer further down the line and during a process of disclosure later on. That gisting should be referred to on the face of the Bill as it is so fundamental to due process.

If you have secret hearings, there has to be a provision for special advocates. I urge the Minister to look at that. There should also be legal aid and compensation should be available in serious cases where it becomes clear that there has been some misuse of the powers; for example, where the opportunity for someone to go to their grandmother’s funeral or to a family event has been completely destroyed and cannot be revisited ever again.

The most serious power is the temporary exclusion order. As your Lordships know, the Joint Committee on Human Rights has made it very clear that it considers that this is an inappropriate power. We should be thinking about managed return, which is an important thing for the Government to be engaged with. Denmark is doing very successfully and there are many things that we can learn. However, I heard a number of Members of this House being dismissive of the idea of a notification of return to the UK being expected from anybody who wants to return. I go back to the fact that most of the young people in question are in touch with their families from time to time. Those families are trying to persuade them to come back so they could very easily give the authorities notification that they want to come back. Therefore, you could go through the process of having an order made of notification that they want to come back and then the procedures in the Bill could be adapted to fit a notification order. That would replace what is there already without very much surgery to the Bill. It would avoid us getting involved with all the difficulties described by the noble Baroness, Lady Berridge, and others regarding our relations with other countries.

It is not enough just to talk to Turkey. People will not come back on the same routes; they might come back in many different ways, through other countries. We will find ourselves becoming very much the outlier with other countries if we are the people who depart from international law in the protections provided by having a passport. That seems to me a very sensible option, and to dismiss it out of hand is a failure of

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government. The Government have clung to the temporary exclusion order because, initially, they wanted to take people’s passports away from them. They then realised that that was not on because of our international obligations. So now these temporary exclusion orders are being proposed when in fact they do not have to go that far in any circumstances. The notification of return orders could be substituted and I would urge that this be done.

I also ask the House to consider the cost of having people over there, interrogating people who come to ports, and having to arrange with the authorities there for housing people on a temporary basis if they want to manage their return. We should consider the implications of all that financially—and we are saying that the reason we are doing it is that we cannot afford supervision or surveillance. That seems a very strange consideration of the financial problems that we might have.

I again urge the introduction of a judicial role in all this. The independent reviewer again expressed his concerns about the temporary exclusion order and said that judicial scrutiny using judicial review was pretty unlikely if someone was abroad. So we want to encourage people to look at the whole business of the judicial role prior to the making of the temporary exclusion order or, indeed, the notification of return order. There should also be a renewal requirement to enable Parliament to consider whether there is a case for continuing these powers once they have been reviewed by the independent reviewer and he has assessed how they have been conducted. I have great reservations about all this because of what it does in relation to our international commitments. We really are making a big mistake, and I do not think that people who have said with great coolness that we need these powers have thought through the implications for our international relations and the standards that we are trying to set around the world.