House of Lords
Monday, 26 January 2015.
2.30 pm
Prayers—read by the Lord Bishop of Leicester.
Ofsted: Academy Chains
Question
2.36 pm
Asked by Baroness Jones of Whitchurch
To ask Her Majesty’s Government what plans they have to give Ofsted the powers to inspect the management of academy chains.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, when inspecting an academy in a chain, inspectors can and should consider the effectiveness of the governance arrangements and the school improvement support provided by the chain. Ofsted also carries out inspections of groups of academies within chains. These are an effective means of considering the management of academy chains and ensuring academy chains are held properly to account. The Secretary of State has written to HMCI recently, setting out our views out on this, and the letter is available on our website.
Baroness Jones of Whitchurch (Lab): I thank the Minister for that reply, and I am very pleased that the Secretary of State has belatedly been forced to make some concessions on this matter. However, can the Minister explain why we continue to have one set of rules for the people who run academy chains and another set of rules for local authorities? The latter are assessed on their strategic leadership of their schools, which of course is essential to the schools’ performance and improvement. So why do we not assess academy chain managers on the same basis as local authorities?
Lord Nash: There have not been any concessions. It is completely unnecessary for Ofsted to inspect chains’ head offices. Its batched inspection methodology, which it has used in a number of cases, is working extremely well. Ofsted has a great deal to do. As of September this year, it is taking in-house all its subcontracted inspectors, who do the vast majority of its inspections, and it is unnecessary to ask it to do a further task that is not needed.
Baroness Brinton (LD): Could my noble friend explain to the House what role the new regional commissioners will have in relation to academy chains and Ofsted? For example, if Ofsted finds that a school is not being supported as it should be by its parent academy chain, whose responsibility is it to remonstrate with the academy chain and make sure that it gets that support?
Lord Nash: The regional schools commissioners are responsible for looking at the performance of academy chains, particularly schools that are doing poorly. They are in close touch with all academy chains. Each regional schools commissioner has a responsibility for an academy chain, and it will be their task to make sure that appropriate support is brokered and, in extreme cases, to help to broker a change of sponsor.
Baroness Massey of Darwen (Lab): My Lords, the Secretary of State’s letter mentions an inspection framework for the management of academies. Exactly what inspection framework is meant?
Lord Nash: The Secretary of State’s letter in relation to chains talks about it not being necessary to introduce a new inspection framework. There is a clear framework for inspecting all schools in this country.
Lord Naseby (Con): Is my noble friend aware that he is surely right? Local authority inspections are one thing but, in addition, there are a whole host of charitable foundations that have Ofsted inspections—but that is, again, in a different framework.
Lord Nash: Yes, I was merely referring to the fact that the letter that the Secretary of State refers to talks about a new framework and that we have not got a new framework for the inspection of chains.
Baroness Eaton (Con): Does my noble friend agree that the overwhelming success of the majority of free schools and academies is the strongest evidence yet that allowing autonomy and freedom to schools and heads is the best way in which to raise standards?
Lord Nash: I entirely agree with my noble friend: free schools are our most successful group of non-selective state schools, with 24% rated outstanding. We are told by Ofsted that we have the highest-performing school system that we have ever had. The performance of the first batch of primary academies is much higher than that of local authority maintained schools, and secondary academies open for any length of time are clearly also doing better.
Baroness Farrington of Ribbleton (Lab): My Lords, would the Minister care to comment on a fear that local authority schools have a much higher percentage of children with special needs, particularly those with special needs that affect their behaviour? The Minister very kindly wrote to me, giving me the percentage improvement in free schools and academies, but many schools contact me to say that their local academies and free schools do not take as many children with difficulties and problems, and that, in addition, those schools get better funding.
Lord Nash: I am very happy to write to the noble Baroness again with more details on this. However, as far as I am aware, most academies, particularly the 1,000 schools that we have taken out of local authority maintenance over the past four years, many of which were languishing in failure for years, have very high rates of pupils with SEN, EAL and free school meals. However, I am happy to write to her with more details.
NHS: GP Salaries
Question
2.42 pm
To ask Her Majesty’s Government what is the average salary paid to general practitioners working within the National Health Service.
Baroness Jolly (LD): My Lords, in England, in 2012-13, the average income for a contractor GP was £105,100 and for a salaried GP £56,600—both before tax. A contractor GP is a practitioner who entered into a contract with the NHS as a single-hander or as part of a partnership. Eighty per cent of GPs are contractors.
Lord Trefgarne (Con): I am grateful to my noble friend for that reply. In view of these quite respectable salaries, might it not be reasonable to expect a little bit of work in the evenings and on Saturdays?
Baroness Jolly: My Lords, the Government recognise that GPs work hard but that some patients would like more convenient opening hours. We have invested £50 million in piloting improved access to general practice this year, which will benefit 7.5 million patients. A further £100 million of investment will follow next year, which will mean that even more patients can have access to longer evening and weekend hours.
Lord Reid of Cardowan (Lab): Will the Minister confirm that the increased remuneration for GPs was part of structural and other changes in the NHS which took hundreds of thousands off the waiting lists, reduced the maximum waiting time from three years to 18 weeks, halved the incidence of hospital acquired infections and increased the efficiency and service in our accident and emergency units to 98% over a decade, and that, if all those beneficial changes have now been reversed, that cannot be placed within the context of doctors’ wages?
Baroness Jolly:Certainly those changes under the last Government are well recorded but GPs wages have been falling every year in real terms since 2005-6. The expenses-to-earnings ratio increased from 62.7 to 63.7 and the additional funding announced at the end of last year will support general practice and out-of-hospital care more widely to improve infrastructure and pilot new ways of working.
Baroness Barker (LD): My Lords, following the Royal College of General Practitioners report in June 2014 about the difficulty of getting doctors to practise in areas of deprivation, what progress has been made to ensure that poorer areas have the requisite number of GPs?
Baroness Jolly: I can tell my noble friend that today has brought good news. NHS England, Health Education England, the Royal College of GPs and the BMA today published a 10-point plan to boost GP numbers. As part of this, NHS England is working with the BMA and the royal college to explore a time-limited incentive scheme to offer additional financial support to GP trainees committed to working for three years in areas where it is hard to recruit GPs.
Baroness McIntosh of Hudnall (Lab): My Lords, in view of the answer that the noble Baroness has just given, I wonder whether she was listening to the Radio 4 report at lunchtime today—I am sure that she was not and has many better things to do—about the extreme difficulty that these schemes are having in recruiting trainee doctors into general practice. Indeed, the University of Leicester attempted to recruit 250 doctors, if I remember rightly, but fell about a third short of that number. In those circumstances, is it appropriate for us to be casting a jaundiced eye on what these people are paid?
Baroness Jolly: I am not sure about the salary and I am sorry that I missed the programme. We are aware that there are certain areas where we feel that there are not GPs and there should be more GPs. We are
working really hard and, as I said, this new incentive is in place as of today and will, we hope, be able to solve that problem.
Lord Lawson of Blaby (Con): My Lords, can my noble friend explain why GPs in this country are paid substantially more than GPs in France, despite the fact that the standard of medical care in France is at least as high as it is in this country, if not higher? I speak as someone who from time to time receives medical care in both countries.
Baroness Jolly: I suspect that the French GPs do not have such a competent union.
Lord Laming (CB): Does the Minister agree that sooner or later we will have to tackle the issue of developing a comprehensive primary care service in this country that operates for 24 hours, around the clock and seven days a week, which is a much bigger issue than GP salaries?
Baroness Jolly: Community and primary services are being looked at in the round by NHS England with a view to seeing what changes need to be implemented to effect, I guess, the way in which we work in modern times.
Lord Turnberg (Lab): Is the noble Baroness aware that the number of patients being seen by general practitioners is rising year-on-year? Is she also aware that the amount of bureaucracy is becoming overwhelming for GPs, who are spending up to 50% of their time uselessly filling in forms and papers? Could they not spend more time seeing patients?
Baroness Jolly: Yes, indeed. Again, we are working hard with NHS England to try to reduce the sort of form filling and bureaucracy that GPs are currently having to do so that they can spend more time with their patients.
Lord McColl of Dulwich (Con): My Lords, does the Minister realise that many GPs are thoroughly demoralised by all the attacks on them by ill informed politicians? What is more, without mentioning which party it was, a certain group criticised GPs and said, “We know what you are doing. You are on the golf course playing golf rather than doing your work; so we are going to pay you only for what you do”. The GPs thought that that was rather a good idea and it resulted in a 25% pay rise.
Baroness Jolly: My Lords, I am sorry, I missed the question in the whole of the tale.
Baroness Wheeler (Lab): My Lords, I thank my noble friend Lord Reid for once again setting the record straight on this issue. Moreover, in Labour’s last year in office, 98% of patients were being seen by their GPs within four hours. Does the Minister agree that the key problems that need to be addressed were set out in the Nuffield Trust’s recent report—an emerging crisis in the GP workforce, not enough GPs being trained, more trainees now working part-time, more existing GPs planning to retire early, and the numbers just not keeping up with those of hospital doctors?
Baroness Jolly: There is a whole mix of issues. Morale is clearly one, but it is our view that the 48-hour target did not work. From 2007 to 2010 the percentage of patients who were able to get an appointment within 48 hours when they wanted one declined from 86% to 80%. This Government take a different approach. We are trying to focus on local solutions rather than top-down targets. According to the latest data from the GP patient survey published in January this year, 84% of patients were able to book an appointment at their GP surgery when they needed one and 91.8% of patients got an appointment at a time that was convenient to them.
Lord Mawhinney (Con): My Lords, going back to the answer my noble friend gave to the noble Lord, Lord Laming, who made a fundamentally important point, she said that the work of GPs was being looked at by NHS England. As I understand it, NHS England is answerable, in some form or other, to this Government. Does my noble friend accept that if there is to be the sort of fundamental and comprehensive change that not only the noble Lord, Lord Laming, but a lot of other people believe to be necessary, that change will have to be agreed on a cross-party basis rather than on a narrow, government basis, whoever happens to be in Government?
Baroness Jolly: Yes, consensus is already a good idea. I am sure that the next few months will see all of us airing our differences. But in some areas—the one that comes to mind immediately is the area of joined-up services between health and social care—there is already quite a lot of agreement.
Defence: Type 26 Frigates
Question
2.51 pm
Asked by Lord West of Spithead
To ask Her Majesty’s Government whether they intend to place an order for any Type 26 Frigates before the General Election; and if so, how many.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con): My Lords, we are working positively with BAES to maintain momentum on detailed ship design, cost, technical integration, supply chain and shipbuilding on the Clyde. Our common aim is to achieve greater maturity in designing the capability needed by the Royal Navy while maximising taxpayers’ value for money. We expect to make an announcement before the end of this Parliament. We are planning to replace the 13 Type 23s on a one-for-one basis.
Lord West of Spithead (Lab): I thank the Minister for that reply. Interestingly, Japan is an island nation dependent for its existence on the sea, rather like the United Kingdom, but it does not run global shipping and is not responsible for 14 dependencies worldwide. It has just decided, in this very dangerous and chaotic world, to increase the number of destroyers and frigates in its navy from 47 to 52. Does the Minister think, in view of the fact that we have only 19 destroyers and
frigates, that replacing the 13 frigates with the Type 26, bearing in mind that the oldest of them is seven years beyond its design date already, is very urgent? At the very least we should order long-lead items for those 13 now.
Lord Astor of Hever: My Lords, it will be for the 2015 SDSR to consider how best to deliver the capability that the Royal Navy requires in the long term, but to ensure that the Navy gets the number of Type 26s and the capability that it requires we must be certain that we have a mature design and build programme before committing to an initial order size. I can assure the noble Lord that we expect to make decisions on some of the longer-lead items shortly.
Lord Trefgarne (Con): My Lords, would it not be a good idea for some of these frigates to be built other than in Scotland, in view of the uncertainties surrounding that place?
Lord Astor of Hever: My Lords, the Type 26 will be built by BAE Systems on the Clyde. Complex UK warships are built only in UK shipyards and we have no plans to change this. Although the contract has not been awarded, we have been clear that from 2015 the Clyde will be the UK’s only shipyard that builds complex warships.
Lord Davies of Stamford (Lab): Will the noble Lord tell the House what the incremental cost is of maintaining and refitting the Type 23s, which would not have been necessary had the Type 26 programme come forward on time? If the reason for the delay in the programme is lack of money, as I suspect, why on earth have the Government underspent in their defence budget in this Parliament—against a much reduced, severely reduced, some of us think irresponsibly reduced defence budget? The Government have underspent by nearly £400 million; the exact figures were given to me in a Written Answer the other day. Is that not a dereliction of duty, both to the country and to members of the Armed Forces themselves?
Lord Astor of Hever: My Lords, I cannot give the noble Lord the figures that he requires, but I can assure him that we want to get the Type 26s and the capability that the Royal Navy needs, to get value for money for the taxpayer, and to have a very strong British shipbuilding industry.
Lord Palmer of Childs Hill (LD): My Lords, there are reports that the delays referred to by other noble Lords are due to arguments about the growing sophistication and weight of the Type 26s, which has vastly increased costs. BAE Systems originally put the weight at 5,400 tonnes, which has now risen to 6,500 tonnes. Fully loaded, they are expected to weigh 8,000 tonnes. Costs have risen by £100 million per frigate. Can my noble friend say what action the MoD is taking, following Sir Nick Houghton’s comment that there was,
“an expensive habit of over-specifying our equipment needs”?
Lord Astor of Hever: My Lords, my noble friend makes a very good point. As an example, we acknowledge that there have been in-service reliability issues with the Type 45 destroyers’ power and propulsion systems. I can assure my noble friend that we have learnt lessons. We are addressing them as we take forward the Type 26 programme.
Lord Rosser (Lab): Can the Government indicate to what extent a decision to order Type 26 frigates before the election, and the number of them, pre-empts options on the future strategic role of the Navy under the 2015 strategic defence and security review, which has yet to be undertaken? Could the Government indicate their assessment of the extent to which there will be an export market for the Type 26 frigates and whether there have been any expressions of interest?
Lord Astor of Hever: My Lords, bilateral conversations are ongoing with a number of international partners to explore opportunities for co-operation on the Type 26 itself, as well as on its design and on the systems that are planned to be fitted to it.
Schools: Foreign Languages
Question
2.57 pm
Asked by Lord Sherbourne of Didsbury
To ask Her Majesty’s Government what assessment they have made of progress in teaching foreign languages in schools.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, the inclusion of a foreign language in the English baccalaureate measure has raised entries from pupils in England by 20% since 2012. We are reforming GCSEs and A-levels in foreign languages, with new teaching from September 2016, to ensure that they are demanding and relevant to employers, and further and higher education. From September last year, maintained primary schools have had to teach a foreign language to pupils from the age of seven.
Lord Sherbourne of Didsbury (Con): Does my noble friend agree that one of the many advantages of learning a foreign language is the practical benefit to trade and diplomacy? In the case of non-European languages such as Cantonese, Mandarin and Arabic, where the sounds and structure are very different, is it not easier for children to learn them if they are taught them from a very early age?
Lord Nash: I agree entirely with my noble friend about the importance of these matters. It is clear that developing language skills helps cognitive development. Offering more children the opportunity to learn Mandarin, for instance, will help to encourage mobility between the UK and China, and the long-term success of our economy. The Prime Minister has pledged to increase substantially the number of people learning Mandarin Chinese. The Confucius Institute at the IOE is leading the way in this regard.
Baroness Coussins (CB): My Lords, the Question is about progress. The problem is that we have no real idea about that, because there is no benchmark either to help schools to interpret the national curriculum guidelines consistently, or for pupils to know what level of competence they should achieve at the end of each key stage. Will the Minister agree to consider introducing a light-touch measure for progress linked to the Common European Framework and apply it to all key stages?
Lord Nash: In April last year, we published a set of key principles for assessment, produced as a result of consultation on accountability. We also announced last May a new package of pupil assessment methods developed by teachers for their fellow teachers. Schools are able to develop whatever methodology of assessment they like. However, I will take note of what the noble Baroness says and look at that further.
Baroness Perry of Southwark (Con): Will my noble friend tell me what the Government are doing to ensure a supply of well qualified and competent teachers of modern languages, both at primary and secondary level?
Lord Nash: I am delighted to answer my noble friend’s question. We have increased the bursary available to people with a first class degree in, for instance, languages, to £25,000. We are providing £2 million to fund nine projects across the country that will help primary and secondary teachers teach the new modern language curriculum at key stages 2 and 3. The National College for Teaching and Leadership facilitates an expert group for languages and also has a pilot scheme for subject enhancement in primary schools.
Baroness Jones of Whitchurch (Lab): My Lords, does the Minister accept that it is the quality of foreign language teaching, particularly in primary schools, that remains a key challenge? I note what he has just said, but that teaching has been characterised by some as being “rusty O-level” and only a page or two ahead of the children. We all support the idea of extending foreign language teaching to primary schools, but it should not be at the expense of quality. Given what the Minister said, is he satisfied that enough extra resources are being put in to make that kind of teaching a distant memory?
Lord Nash: We believe that they are, but obviously we will keep this matter under review. We do feel that we need to redress the situation in languages. The European Survey on Language Competences in 2012 showed us that our 2011 GCSE students were the worst at languages across all the countries surveyed.
Baroness Maddock (LD): My Lords, is the Minister aware that, particularly in Canada, for example, schools are bilingual? Are there any plans to try to get more bilingual schools in England, particularly in some of the European languages?
Lord Nash: I am sure that the noble Baroness will be delighted to hear that we have introduced six new bilingual schools under the free schools programme—
notably the Bilingual Primary School in Brighton; the Europa School UK near Abingdon; the Judith Kerr Primary School; the La Fontaine Academy in Bromley; and the London Bridge School. Later this year, the Marco Polo free school will be opening.
Baroness Donaghy (Lab): My Lords, the Minister will be aware that I have expressed concern in the past about the changes in teacher education and the increasing difficulty of national planning. In view of the shortage of language teachers, does he envisage a situation where there will be a complete shortage of language teachers in certain parts of the country, and how does he plan to rebalance this particular problem? Will he speak to the university colleges of education and the church colleges about the importance of teacher education?
Lord Nash: I agree entirely with the noble Baroness about the importance of the matter. More than 1,800 places for modern language teacher trainees are allocated for 2015-16, which is an increase of 4%. As I say, we have substantially increased the bursaries, which were brought in for language teachers by this Government.
Lord Cormack (Con): My Lords, for how many of our secondary and primary school pupils is English a second language, and is the Minister confident that we have sufficiently able teachers of English to make sure that, when children leave primary schools and go on to secondary school, they are fluent in the English language?
Lord Nash: We are very focused on increasing the quality of literacy in this country. Our phonics programme is now acknowledged to have been a substantial success. We have focused the national curriculum, particularly in primary schools, much more on language skills.
Baroness McIntosh of Hudnall (Lab): Will the Minister say whether any resources have been made available to schools to bring in native speakers? It used to be that teaching assistants—for example, French, German, Italian or Spanish assistants—were available and could be funded, particularly in secondary schools. My guess is that in primary schools they would be even more useful. Is there any effort to make that happen?
Lord Nash: The noble Baroness makes an extremely good point. We have given the British Council, for instance, £500,000 to recruit foreign language assistants to work in the UK. Currently, some 1,250 foreign language assistants have been recruited for English schools, and the British Council is working with Hanban to introduce a number of Chinese language assistants into the country.
Lord Reid of Cardowan (Lab): Given the multicultural identity and diversity of ethnic backgrounds of people in the United Kingdom at present, there must be hundreds of thousands—perhaps millions—of people, including, I suspect, hundreds of thousands of schoolchildren, who are bilingual. What thought have
the Government given to, or what action have they taken on, mobilising this resource by focusing either on recruitment or on some form of potentially creative, if informal, educational process to make sure that we use the resources that our multicultural society has given us?
Lord Nash: The noble Lord makes a very good point. I have talked about what we are doing in terms of teaching assessments, but I will look at the point he has made in more detail.
Baroness Trumpington (Con): My Lords, will the Government consider special courses for foreign students wishing to learn the va et vient of English parliamentary language?
Lord Nash: That is certainly something that we will look at.
Baroness Brinton (LD): My Lords, given that there has been a substantial increase in foreign language teaching in primary schools, are the Government concerned about the drop from 84% in 2012 to 76% in 2013—and what specifically are they doing to make sure that primary foreign language teaching does not drop further?
Lord Nash: I am not entirely sure that I understand the point; I may have to pick it up in correspondence.
Lord Davies of Stamford (Lab): Perhaps I may give the noble Lord another opportunity to answer the very pertinent question from the noble Lord, Lord Cormack, about the proportion of primary school children in England for whom English is not their first language. I think that the Minister inadvertently forgot that question.
Lord Nash: We are fully aware of the high proportion of primary school pupils in England for whom English is not their first language. Many schools are suffering with pupils who come to the country not speaking any English at all. With regard to which languages pupils may study at primary school, of course they could study their native language but that would probably not pass muster with Ofsted in a broad and balanced curriculum.
Local Government (Review of Decisions) Bill
First Reading
3.07 pm
Lord Taylor of Holbeach (Con): My Lords, I beg to move that this Bill be now read a third time—a first time.
The Bill was brought from the Commons, read a first time and ordered to be printed.
Motor Vehicles (Variation of Speed Limits) (England and Wales) Regulations 2014
State Pension Regulations 2015
Universal Credit (Work-Related Requirements) In Work Pilot Scheme and Amendment Regulations 2015
Motions to Approve
3.07 pm
Moved by Lord Bourne of Aberystwyth
That the draft Regulations laid before the House on 26 November, 1 December and 3 December 2014 be approved.
Relevant documents:16th and 17th Reports from the Joint Committee on Statutory Instruments and 21st Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 22 January.
Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015
Motion to Approve
3.08 pm
Moved by Lord Wallace of Tankerness
That the draft Order laid before the House on 4 December 2014 be approved.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments.Considered in Grand Committee on 22 January
Counter-Terrorism and Security Bill
Committee (2nd Day)
3.09 pm
Relevant documents: 5th Report from the Joint Committee on Human Rights, 8th Report from the Constitution Committee, 14th Report from the Delegated Powers Committee
Clause 13: TPIMs: travel measure
Baroness Hamwee (LD): My Lords, in moving Amendment 70, I shall speak also to Amendment 71—slightly less fast-tracked legislation than that which my noble friend the Chief Whip sought to take through the House just now.
Under the Terrorism Prevention and Investigation Measures Act 2011, the Secretary of State can impose restrictions on an individual leaving a specified area—the so-called “travel measures”. Clause 13 provides that the Secretary of State must publish factors to be taken into account when deciding whether to impose such restrictions on an individual. My amendment would add not only the restrictions but “and what restrictions to impose”. The area to which I have just referred is not defined, quite understandably, but it could be anything from a small postal district to a very large region. This is a probing amendment, seeking reassurance about the factors that will be applied to the decision as to what the area is, as well as whether to impose the travel measure. I appreciate that the Secretary of State’s decision will have to be a reasonable one, but I am looking to find a way not only to make the criteria objective, but as far as possible, transparent.
Amendment 71 would add to proposed new subsection (1A) of Section 23 of the 2011 Act the provision that, where there is a travel measure, an individual who breaches it is not guilty of an offence—because breaches of the TPIMs measures are offences—if he contravenes the measure,
“with reasonable excuse and in exceptional circumstances”.
I have in mind, again in probing, how an individual who leaves a fairly confined specified area will be dealt with if, for instance, there is a medical emergency involving either himself or a family member living with him, or if there is a sudden severe illness of a family member who is living at the family home and not at the place where the individual has been relocated. Quite understandably, he will want to get there as fast as possible and not have to take time seeking a permit allowing him to do so. It is a humanitarian and reasonable matter that one might well have in legislation. If my noble friend gives me assurances about how these things have been dealt with in the past—they are not new—and understanding has been shown so that a prosecuting offence has not been pursued, I will be happy with that. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con): My Lords, I am grateful to my noble friend for tabling these amendments, which allow us to have a discussion on the travel measure that can be imposed on a TPIM subject.
Amendment 70 would amend the requirement for the Secretary of State to publish factors to take into account when deciding whether to impose restrictions under the travel measure. This would add an additional requirement to publish factors on “what restrictions to impose”. The purpose of the requirement in the Bill is to indicate the types of factors that the Secretary of State may consider when deciding whether to impose the travel measure. In each instance the location and size of any boundary will depend on the individual case. The factors that the Secretary of State may consider could include: national security considerations
necessary to prevent or restrict involvement in terrorism-related activity; the original location of the TPIM subject, and by virtue of that, their family connections; the ability to access services and employment; the proximity to airports or ports; and the proximity to other TPIM subjects or prohibited associates. Any restrictions would have to be necessary and proportionate, as the noble Baroness rightly reminds us. The Secretary of State will publish these factors at Royal Assent and a copy will be placed in the Library.
Amendment 71 would allow a TPIM subject to use a “reasonable excuse” in exceptional circumstances to justify leaving the United Kingdom. In such circumstances, a prosecution for breaching the TPIM notice could not be brought. All other breaches of a travel measure—or any other measure—already allow for a reasonable excuse. The reality is that, if a TPIM subject leaves the UK without permission, they will be absconding from their TPIM notice. This is a very serious matter, as I am sure the noble Baroness would agree. It was the problem of absconsions which led to the creation of TPIMs as a successor to control orders. These individuals may very well pose a danger to the public in this country or overseas. We maintain that there is no reasonable excuse for leaving the UK without permission.
If a TPIM subject has a legitimate need to leave the UK, they can seek permission from the Secretary of State. There should be no circumstances where they leave the country without prior agreement. This morning, I discussed with officials the length of time that such measures might take. The experience is that these exchanges, permissions and interactions tend to take place on a very speedy basis. In the circumstances, we would not anticipate that there would be a problem in securing that permission.
I trust that, with that explanation and those reassurances, my noble friend may feel able to withdraw her amendment.
Baroness Hamwee: My Lords, that is very helpful. I wondered whether my noble friend might refer to the need to have a passport to travel outside the UK, which would probably have been dealt with as part of the arrangements for the individual. I will read through the list of considerations which my noble friend gave in response to my first amendment. I beg leave to withdraw Amendment 70.
3.15 pm
Clause 15: TPIMs: appointments measure
72: Clause 15, page 10, line 3, at end insert—
“( ) The individual may request a person or persons to be specified in place of the person or persons previously specified.”
Baroness Hamwee: My Lords, in moving this amendment I will speak also to Amendment 74. The noble Baroness, Lady Smith, also has an amendment in this group.
Clause 15 deals with appointments which an individual can be required to keep. Following comment from the current Independent Reviewer of Terrorism Legislation, this takes advantage of the legislation in order to require individuals to attend appointments, for instance, in connection with deradicalisation. I really do not like that term: perhaps I might say appointments that would help the individual return to or lead a more comfortable and normal life. Amendment 72 would add that the individual could request somebody other than the specified person.
Different individuals respond in different ways to different counsellors, if I can use that term in a very wide sense. This work has to be dealt with case by case, and it would be a pity if it were to fail because of the individual and his counsellor simply not getting on and there not being a sensible opportunity to change the personnel. We all know of people who we simply cannot rub along with for reasons that sometimes we cannot even quite identify.
Amendment 74 would provide, in connection with such appointments, that the Secretary of State would be deemed to have given permissions for travel to enable the individual to attend appointments and, crucially, will not unreasonably withhold permissions to attend appointments relating to deterring other people from involvement in terrorist-related activity. We are all aware—it is a matter of common sense—that returning fighters may have a positive role in deterring other people. In the debate on Thursday on the latest proscription order that has been introduced, the noble Baroness gave an example of a woman trying to return to this country who was disillusioned with what she had found—I think—in Syria. That sort of disillusionment should be harnessed, and I would like to find every way of making this legislation positive as well as inevitably negative. I hope that my noble friend can assure the Committee in that connection.
I gave the Bill team notice of this matter this morning—if it has not yet reached the Minister, I will understand if he cannot answer—and will pick up an issue that the independent reviewer raised. This matter was also taken up by the JCHR: the question of privilege against self-incrimination. The Government’s response to the independent reviewer’s report was to say that this would not be appropriate. The Government referred to a “blanket approach”. Can the Minister unpack that a little today? I beg to move.
Lord Rosser (Lab): My Lords, our Amendment 73 is in this group. As has been said, Clause 15, on appointments for people on terrorism prevention and investigation measures, allows the Secretary of State to require an individual to attend meetings with such persons as the Secretary of State may specify, at such locations and at such times as the Secretary of State may by notice require. The specified persons may choose the time and place of the meeting. The clause is expressed in general terms and the purpose of the amendment, which is a probing amendment, is to give the Government the opportunity to say more about
what kind of meetings an individual would be required to attend, for what purposes or objectives and over what period of time. It would also be helpful if the Minister could say if assessments will be made of the outcome of these meetings and to whom the assessments, if they are made, will be given.
Our probing amendment provides for the Secretary of State to be able to instruct an individual on a TPIM to attend deradicalisation programmes, since we think it is important that the Secretary of State should be able to require people to attend Channel meetings and appointments and possibly those relating to other parts of the Prevent programme. However, I hope that in his response the Minister will not only address the specific point covered in this probing amendment but talk in more depth about how the Government envisage using powers under Clause 15.
Lord Bates: My Lords, I am grateful to noble Lords who have spoken in this debate. I will put some remarks on record that I hope will answer some of the points made by the noble Lord, Lord Rosser, and then deal with some of the points made by my noble friend Lady Hamwee. I am grateful to noble Lords for raising these matters.
Amendment 72 seeks to amend the appointments measure by overtly stating that a TPIM subject may request an alternative person to the individual specified by the Secretary of State. The Secretary of State will consider whether an appointments measure is necessary for a TPIM subject for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. If a TPIM subject wants to meet a particular person, such as a counsellor, there is nothing to prevent them from making their own arrangements to do so, as long as the measures in their TPIM notice are not breached. In addition, the TPIM Act 2011 already provides the ability—under Section 12—to vary the measures in the individual’s TPIM notice, or for the Home Office to grant permission for the subject to do something they would otherwise be prohibited from doing.
The choice of people or organisations—a point touched on by the noble Lord, Lord Rosser—that a TPIM subject is required to meet will be decided on a case-by-case basis. To develop that a bit further, the types of people who it might be appropriate to recommend particular meetings with include probation officers, somebody from a job centre, if, for example, they are looking for work, or another of the individual’s mentors. As my noble friend said, the point is that we want people who return to the UK to be reintegrated into mainstream society because we believe that they can be very important elements in the prevention strategy aimed at those who might follow in their footsteps. This consideration would include whether such requests might lead to more genuine engagement or were aimed at undermining the effectiveness of this measure, or whether any national security concerns were raised.
Amendment 73, in the name of the noble Lord and the noble Baroness opposite, would amend the appointments measure in Clause 15 that allows the Secretary of State to require an individual to attend meetings as specified by the Secretary of State. The appointments measure is a broad power that allows
the Secretary of State to require a TPIM subject to meet relevant organisations or people who can contribute to their ongoing management and integration. The measure includes the ability to require TPIM subjects to meet specified people to assist with their deradicalisation, including, but not limited to, providers of the Channel programme, for example. It is therefore unnecessary to specify explicitly that this is available via the appointments measure.
Amendment 74 seeks to specify that the Secretary of State may not unreasonably withhold permission for a TPIM subject to attend appointments related to deterring other people from involvement in terrorism-related activity. The purpose of the TPIM notice is to protect the public from terrorism and to prevent the TPIM subject from engaging in terrorism-related activity. If the measures are no longer necessary, the TPIM notice must be revoked. Therefore, anyone on a TPIM notice remains an ongoing national security concern. This being the case, we do not consider TPIM subjects necessarily to be good people to mentor others. However, if a TPIM subject chose to speak at a meeting to deliver a deterrent message, he or she could do so as long as it did not breach any of the measures in his or her TPIM notice. If it did breach any of the measures, or he or she encouraged people to engage in terrorism, of course they could be prosecuted.
Turning to the specific point—I am grateful to my noble friend for sending the notice to the Bill team ahead of this debate—about David Anderson’s report on TPIMs, the new measure will be an important part of the management of TPIM subjects and will mean that they must meet organisations and other persons as required by the Home Secretary. Its primary purpose is not to gather evidence to prosecute TPIM subjects. Nevertheless, it would be undesirable to create a situation where a TPIM subject provided clear evidence of committing a crime—including terrorism—but where, due to a statutory bar, that evidence could not be relied on, in any circumstances, in criminal proceedings.
In addition, the criminal courts have the power to exclude evidence where to allow it would have an adverse effect on the fairness of proceedings. We consider this to be a sufficient safeguard to ensure that information obtained in these meetings cannot be unfairly used against the individual. However, we will consider on a case-by-case basis whether appropriate assurances can be provided about how information obtained through the appointments in these measures will be used.
I was asked whether the assessments would be reported back—and, if so, to whom. Where appropriate, assessments will be provided to the Home Office. The ongoing necessity for meetings to continue will be kept under review depending on the nature of the meetings. Some may be one-off while others may be regular over a prolonged period. I think that the overarching message of the response to these amendments is that each case will be different and therefore, in order to be effective, each TPIM will need to be tailored to the individual concerned. With that additional information and explanation, I hope that my noble friend will feel able to withdraw her amendment.
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Baroness Hamwee: My Lords, I am grateful for the response. On the last point which is not the subject of an amendment, I am glad to hear that questions of reassurances about evidence are and will be dealt with case by case. I had perhaps not understood the context of this, and that that might be the case. I am glad to hear it.
I hear what my noble friend said on my other amendments in the group and I do not think that it is necessary to detain the Committee, other than to comment that a change of counsellor/mentor/adviser will be within the provisions for review, which I think is how my noble friend explained how a change might be made. It is useful to understand that that might be the procedure. However, I am glad to see that it is appreciated that, for this to be successful, it must be a very personal matter. I beg leave to withdraw the amendment.
Amendments 73 and 74 not moved.
Clause 16: TPIMs: miscellaneous amendments
75: Clause 16, page 10, line 10, leave out subsection (1) and insert—
“( ) At the end of section 9(2) (review hearing) and section 16(6) (appeals) of the Terrorism Prevention and Investigation Measures Act 2011, insert “save that, in the case of a TPIM notice which requires the individual to reside at a specified residence which is not in an agreed locality and with which the individual has no connection, in reviewing the Secretary of State’s decision that condition A continues to be met, the court must reach its own decision whether, on the balance of probabilities, the individual is, or has been, involved in terrorism-related activity”.”
Lord Brown of Eaton-under-Heywood (CB): My Lords, Amendment 75 is not a probing amendment. This is for real. Perhaps the most challenging feature of Part 2 of this Bill is the reintroduction of internal relocation orders into the TPIM regime, which many of us would regard as a regrettable necessity. Amendment 75 concerns what should be the appropriate level of judicial oversight in these cases and would, I believe, go some way to take the sting out of the highly toxic question of internal relocation.
The amendment is designed to give effect to one of the independent reviewer’s 10 recommendations made in his March 2014 report into TPIMs—recommendation 3. Put simply, although I fear I shall have to explain the amendment a little more fully in a moment because, on its face, it is less than crystal clear in its effect, the position is this. Under the present TPIM regime, one of the four conditions that has to be satisfied before a TPIM order can be made—it is called Condition A—is that the Secretary of State “reasonably believes” that the person concerned,
“is, or has been, involved in terrorism-related activity”.
That is the particular condition which is referred to in Section 3(1) of the 2011 Act, which in turn is what Clause 16(1) of this Bill relates to.
At present, if a TPIM order is made, the courts can review it or hear an appeal ultimately against it only on a limited basis. The court is expressly required by the statute to apply the principles of judicial review. In other words, the court decides only whether the Secretary of State was acting reasonably or perversely in reaching her belief. The court does not have the jurisdiction to reach its own conclusion. This would continue to be so if Clause 16(1) is enacted in its present form.
Personally, as I made plain in what I regret was my rather overlong speech at Second Reading, I can see no true distinction between the Secretary of State reasonably believing something and her being satisfied of it on a balance of probabilities. But the more important point for present purposes is this: even if there is a difference, the decision as to the person’s involvement in terrorism under Clause 16(1) as it stands, subject only to the limited scrutiny of judicial review, is one solely for the Secretary of State and not for the courts. Like the independent reviewer, David Anderson, I believe that the decision should be for the courts, especially—I emphasise “especially”—in those cases where the Secretary of State is to deploy that most disruptive of measures, now to be made available to her, internal involuntary relocation—“internal exile” as it has been called. Indeed, that was the term used at Second Reading by the right reverend Prelate the Bishop of Durham.
Make no mistake, these orders—because we used to have them in control order cases—are deeply resented, not least, of course, by the persons’ families, who can be very severely and very harshly affected. They contribute worryingly to what some civil liberty and minority groups call the “folklore of injustice”. At Second Reading , the noble Baroness, Lady Kennedy of The Shaws, called it the “folklore of oppression”. It was, said David Anderson, perhaps unsurprisingly, only “with a heavy heart” that he came to the recommendation that this measure should be reintroduced as now is provided for by Clause 12 of this Bill.
My amendment is tailored simply to apply to those TPIM orders that require relocation. It provides that in these particularly troubling cases it will be for the court to reach the final, substantive decision, on the balance of probabilities, as to whether the person being internally exiled is, or has been, involved in terrorism-related activity.
I should make it plain that there is nothing particularly novel or radical about this proposal. The Prevention of Terrorism Act 2005 introduced control orders in place of the original discredited Belmarsh regime of the internment of foreign suspects without charge and without trial on an indefinite basis. The 2005 Act, by Section 4(7)(a), provided in terms that the court could confirm a derogating control order only if,
“it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity”.
That is precisely the position which, I suggest, should be achieved here.
As Mr Anderson pointed out at paragraph 6.16 of his 2014 report, the Government had already accepted in relation to the earlier proposed ETPIMs legislation—the enhanced TPIMs scheme, which in the event never came into being—that at the High Court review of such enhanced orders the Home Secretary should be required to prove the suspect’s involvement in terrorism on the balance of probabilities—again, just as I suggest should be the position here.
The Joint Committee on Human Rights, at paragraph 4.14 of its report on the Bill just this month, welcomed the introduction of the balance of probabilities test, but added that,
“in order for this change to make a real practical difference, we recommend that the TPIM Act be amended to require the court also to consider whether the balance of probabilities standard was satisfied, in place of the current, lighter-touch judicial review standard. Such an amendment would give effect to the unimplemented part of the Independent Reviewer’s recommendation”.
Mr Anderson himself, at paragraph 6.17 of his 2014 report, having doubted whether his proposed change—from the Secretary of State reasonably believing the suspect’s involvement in terrorism to the court being satisfied of this on the balance of probabilities—would have made a difference in any of the earlier TPIM cases, importantly added:
“It would however help reinforce the legitimacy of TPIMs, by enabling the Government to say (as it cannot at present) that a TPIM notice may only be upheld if it is proved to the satisfaction of the High Court that the subject has been involved in terrorism”.
My proposed amendment, as I have explained, is in fact rather more limited than Mr Anderson’s recommendation. Rather than applying to all TPIM orders in future, it would apply only when internal relocation is one of the measures ordered. There is of course no such phrase as “internal relocation” or “involuntary relocation” in the Bill—it is not used in Clause 12 or indeed in paragraph 1 of Schedule 1 to the 2011 Act, which Clause 12 amends. Therefore my amendment, I hope accurately, has had to spell out the particular circumstances which constitute the internal relocation and where it would apply.
I hope that the House will support this amendment and indeed that the Minister may himself come to see its merits. It would, I suggest, send out an important message that we in this House recognise the very real problems that result from internal relocation orders and are concerned to balance the need for them, as best we may, by strengthening the safeguards against their inappropriate use. The court should be given this additional responsibility in its oversight role. The independent reviewer’s recommendation ought not lightly to be rejected. The fact is that I have yet to hear or read of any cogent, coherent basis for rejecting it. I beg to move.
Baroness Kennedy of The Shaws (Lab): My Lords, I have spoken about internal exile, as I choose to call it, on a number of occasions in this House. I am persuaded by the independent reviewer that, because of the threat faced by this country at this time, there may be the rare occasion when one would want to disrupt the connections and associations in a particular place of someone subject to a TPIM order. It should be used on the rarest of occasions, and the standards that the courts should look to in making the decision should be high.
I support what the noble and learned Lord, Lord Brown, has said. We should see this idea as a huge departure from what we would consider normal. For people to be taken away from their families and the place that they know and sent to live somewhere else in the country is a very hard thing. We have to recognise that sometimes it will disrupt good associations as well as negative ones, so that they are no longer with their mother or father, or with some of the people who are voices of sanity as distinct from siren voices. It surely makes sense to say that this is such an exceptional step that there should be this additional safeguard, which has been proposed by one of our most senior retired judges.
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Lord Carlile of Berriew (LD): My Lords, the noble and learned Lord, Lord Brown, has moved his amendment with his customary cogency and clarity, and I agree with him and with the remarks that have just been made by the noble Baroness, Lady Kennedy. Over the years I have had the opportunity to visit people who were subject to relocation orders under the control orders regime. I have seen that, in some cases, the relocation was accepted with good grace; in other cases, however, particularly those where children were involved, it caused great disturbance and much resentment. I have also taken the trouble to read all the judgments in the relocation cases that went before the courts under the control orders regime. My instinct is the same as that of the judges who heard those cases. If you read the judgments, although the judges were not required to do so, I think in every single case—from memory at least—they applied the standard that is set out in this amendment for completeness and in order to make it clear that they approved of the relocation in the circumstances of the case.
I agree with the comments that have been made, that we should be extremely reluctant to order people to relocate, because of the disturbance that it causes to their family and because they are very dislocated as a consequence of that relocation. As a general proposition, all restrictive measures under counterterrorism legislation should be exercised only when there is a clear necessity to do so, and the balance of probabilities is a good test. With those comments in mind, I hope that the Minister will at least accept the principles behind the noble and learned Lord’s amendment, whether it be probing or otherwise—it is the principle that counts.
Lord West of Spithead (Lab): My Lords, I would like to strongly support the amendment by the noble and learned Lord, Lord Brown. These measures are things that you only do in very, very special circumstances and under very controlled conditions, but the removal of them from the old control orders regime—we realise now—was a mistake and an error. I absolutely think that we have to put these measures in place to ensure that people are protected in these circumstances.
Lord Hope of Craighead (CB): My Lords, I wish to add just a small point in support of what my noble and learned friend Lord Brown of Eaton-under-Heywood has said, and that is to stress the word “legitimacy” which he used in the course of his address. It is crucial that this particular system should not be open to
challenges in the court to any extent; one must try to the maximum to minimise the risk of challenges. This is a very difficult area, as shown by these cases to which the noble Lord, Lord Carlile, just referred. It is the interaction between Article 3 of the Convention on Human Rights, which deals with detention, and Article 8, which deals with respect for the family life of everyone. Where you get these human rights in play, it opens up the possibility of arguments being raised by way of challenge to orders of this kind.
The strength of the amendment which is being suggested is that it cuts back the open door—if I might put it this way—to challenges, and limits them in the most sensitive of all areas, which is the kind of relocation to which the noble and learned Lord has drawn attention. It is right that this is not a probing amendment. It is actually a very important point to try to secure these TPIMs in a way that makes them robust enough to stand up against possible challenges which, if the amendment was not made, would be very likely to come.
Baroness Hamwee: My Lords, my support for the noble and learned Lord’s amendment is for real, to use his own term. I was reading a little—obviously I do not have the experience of other noble Lords, including my noble friend—about control orders at the time they were to be abolished and TPIMs introduced. One could not help but feel quite disturbed by some of the experiences undergone and the impact, as has been said, not only on the individuals subject to the orders but on members of their families so, as I say, I support this amendment.
I have just one question for the noble and learned Lord. It is about whether it is necessary—he must consider it is because he has included them—to have the words about the individual having “no connection”. As I read it, but I might have missed something, the amendment to Schedule 1 to the 2011 Act takes out the references to having a connection with a locality because the 200-mile limit is being introduced. If that is so, and we are losing references to there being a connection in the Schedule, is that reference necessary in the amendment?
Lord Macdonald of River Glaven (LD): My Lords, I think noble Lords on all sides of the Committee have acknowledged that, because of the situation in which we presently find ourselves, powers of this sort are regrettably necessary. However, as noble Lords have said, their legitimacy is critical, and the rigour with which conditions are examined before they are imposed and the nature of that imposition itself are of the utmost importance. For all those reasons, I support the noble and learned Lord’s amendment.
Baroness Lister of Burtersett (Lab): My Lords, I apologise that I was not here at the beginning of the noble and learned Lord’s remarks. I support the amendment and the remarks made by my noble friend Lady Kennedy of The Shaws. I have a question for the Minister. Members of the Joint Committee on Human Rights, of which I am one, with heavy heart agreed that we had to agree with the independent reviewer, but we said:
“We look to the Government to be proactive in bringing forward ideas about how to mitigate the alienation and resentment likely to be caused in some minority communities”,
by relocation. I would be very grateful if the Minister could give the Committee some idea of what ideas might be brought forward by the Government.
Baroness Smith of Basildon (Lab): My Lords, it is always with some trepidation that I rise to speak in a debate where I am the only non-lawyer to contribute, so I was particularly grateful to hear my noble friend speak, so I am not the only non-lawyer contributing to this debate. All noble Lords have made the point that relocation with a TPIM should be an exceptional provision. That has been the case. We were very disappointed when the Government removed the relocation part of TPIMs and the old control orders. Nobody likes the idea. As the independent reviewer said, this is something that has to be done in the interests of public safety. My understanding is that they are used only rarely. If my information is correct, currently only one person is subject to a TPIM provision.
Not being a lawyer, I have a couple of questions for the noble and learned Lord, Lord Brown. I think one of the reasons why the Government have made changes here is because they consider that substituting,
“is satisfied, on the balance of probabilities”,
for “reasonably believes” is a higher legal test. The noble and learned Lord, Lord Brown, said that is not the case. I am not a lawyer, so I leave it lawyers to have that debate, but it would be helpful to have some clarity about whether that is in law a higher legal test than “reasonably believes”. The noble Lord, Lord Carlile, said that in effect this is already happening and is how the courts see their role at present. If that is the case, it would be helpful to have some facts on that.
My other point was alluded to by the noble Baroness, Lady Hamwee. It is about individuals subject to the relocation part of a TPIM having no connection. My understanding is that part of the reason would, in some circumstances, be that the person would have no connection with the area they were going to to ensure that they were not associating with people they had engaged with in the past who had led them into terrorism-related activities or potential terrorism-related activities. That is not an easy thing for anybody, and nobody welcomes somebody being moved to an area where they have no connection, but if we were to rule that out in all circumstances, that might be quite difficult. I would be interested to know a bit more about this. I think there is widespread support for a very high test that should be used only in exceptional circumstances, but I am interested in the Minister’s comment and welcome further clarification from the noble and learned Lord, Lord Brown.
Lord Bates: My Lords, I am grateful to noble Lords for having spoken in this debate. I say that I am grateful as a general courtesy. It has not been an easy debate to speak to, and I ponder whether my response will be sufficient to ease noble Lords’ and the noble and learned Lord’s concerns. I shall just raise some points with the noble and learned Lord on his amendment, but I give advance notice that this is one issue on which we need to reflect more.
I am particularly cognisant of the support that the amendment has received from my noble friend Lord Carlile, as a former Independent Reviewer of Terrorism Legislation, as well as from my noble friend Lord Macdonald, who reviewed the legislation in 2011. He looked at its adequacy, which led in a way to the introduction of the more focused TPIM. Then, of course, there is the noble and learned Lord, Lord Hope. So there has been a range of voices. I shall put some points and answer some questions and then take it from there.
I am grateful to the noble and learned Lord for raising this matter; he has tremendous expertise in this area. Replacing the previous text at the point in the Bill does not amend the standard of evidence that the Home Secretary must apply when considering whether the person is or has been involved in terrorism. I underscore the point that all noble Lords have made—the noble Baronesses, Lady Smith and Lady Kennedy, made it—that this is a regrettable necessity. The amendment would therefore have the effect of requiring, for TPIMs that include relocation, the court and the Home Secretary to make independent judgments on whether the person is or has been involved in terrorism, but on different bases. It is therefore highly likely to lead to some confusion. It also removes the enhanced safeguard of raising the standard to that of the “balance of probabilities” for TPIMs which do not include relocation.
The Government recognise that the enhancements to the TPIM Act in the Counter-Terrorism and Security Bill were not part of the package of measures agreed by Parliament in 2011. It is therefore right that we consider whether the current legal threshold of reasonable belief continues to be the appropriate test for the imposition of a TPIM. We have concluded that the threshold should be increased for all TPIM notices to recognise the stringent preventive measures that may be imposed. Given her remit in relation to a range of aspects of terrorism, the Home Secretary remains best placed to make the decision to impose a TPIM notice to protect the public from terrorism. It is therefore right and proper that it should continue to be for the Home Secretary to decide whether a TPIM notice should be imposed, as it has been since 2011 and as it was under the previous system of control orders established in 2005.
I well remember the noble and learned Lord’s speech at Second Reading. He apologised, but I think that we were all immensely helped when he talked about his experience of how control orders were often struck down by the courts when they were actually brought forward. The TPIMs were therefore an attempt to limit the incidents in which they could be introduced on that basis, by introducing time limits and raising the threshold test, as well as allowing them to have access under supervision to the internet and telephony.
The court will continue to be required to review the Home Secretary’s decision as to whether the conditions for imposition of a TPIM are met—and the court must now, as part of its review, satisfy itself that the Home Secretary could make that decision at the higher legal threshold. This comes to the point raised by the noble Baroness, Lady Smith, who asked whether it is a higher legal test to have a “balance of probabilities”.
Although I tread deferentially in the company of distinguished lawyers, certainly my understanding is that you have reasonable suspicion, then reasonable belief and then, above that, a higher threshold of the balance of probabilities, which is where we are heading now. The courts will continue to apply an intense level of scrutiny to the decision-making process on the issue.
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I turn to some of the specific points that were raised. A relocation measure will be included in an individual’s TPIM notice only if it is necessary to prevent or restrict the individual’s involvement in terrorism-related activity. This is in line with the long-standing use of this type of power under both the Prevention of Terrorism Act 2005 and currently under the TPIM Act 2011.
This clause also implements the Independent Reviewer of Terrorism Legislation’s recommendation that the definition of terrorism-related activity in the TPIM Act should be narrowed. As David Anderson stated, at present a TPIM notice could be imposed on someone who is three stages removed from actually committing a terrorist act: the giving of support to someone who gives encouragement to someone who prepares an act of terrorism. Therefore, we have tried to narrow this down in the TPIM.
Clause 16 amends the definition of,
“involvement in terrorism-related activity”,
so that it does not include conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct which facilitates or gives encouragement to the commission, preparation or instigation of acts of terrorism, or which is intended so to do.
On the courts’ involvement, there is general cross-party consensus that the Home Secretary is best placed to make the decision to impose a TPIM order to protect the public from terrorism, given her remit in relation to a number of terrorism-related activities. Following the increase in the legal threshold to a balance of probabilities, the court must, as part of its review, now satisfy itself that the Home Secretary could make that decision at the highest legal threshold—which is, in a sense, judicial oversight of the review of the Home Secretary’s decision.
As regards relocation, a TPIM’s subject’s family may move with them if they wish to do so. On a purely humanitarian level, support would be available to the individual and their family to assist in their move and with the costs of obtaining any additional property that they may have to acquire.
It is correct that enhanced TPIMs would be imposed to a higher standard of the balance of probabilities. This is exactly the same as the change being made in this Bill. The function of the court in the ETPIMs proposal is essentially the same as in this Bill. Therefore, I reassure the noble and learned Lord that there is no difference between the model in the draft ETPIMs Bill, to which he referred, and the measures which we are debating today.
I realise that I have skipped through a number of points. I have given an undertaking to reflect on the contributions made by noble Lords in this debate and perhaps to meet the noble and learned Lord before
Report, should he be willing to do so. In view of that, I ask him to consider withdrawing his amendment at this stage.
Lord Brown of Eaton-under-Heywood: I am grateful to the Minister for that considered response. I am perhaps even more grateful to all those who spoke in support of this amendment. I say to the noble Baroness, Lady Hamwee, that I will, of course, look afresh at the correct matching of my wording with that of the amended paragraph 1 of Schedule 1 to the 2011 Act when we come back to that.
The noble Baroness, Lady Smith of Basildon, asked whether there is a higher test involved in balance of probabilities than that in reasonable belief. This runs parallel to a point made by the Minister just now. When we come back to that, I would be very grateful if the Minister could give us an illustration of where, on the facts, you could reach a different conclusion on reasonable belief from that on the balance of probabilities. I maintain that there is no distinction.
However, that is, frankly, almost an irrelevance. Regarding my amendment, I do not in the least mind—I am completely agnostic on this—whether one leaves in Clause 16(1) as it stands and adds the wording suggested in my amendment after it, or, as the amendment proposes, leaves out the subsection and inserts my wording in its place. I do not mind whether the Secretary of State makes a decision—as initially she is bound to do—by way of reasonable belief or as a conclusion on the balance of probabilities. What matters is that the decision of hers should then be subject to review or appeal by the court, not on the basis of judicial review but on the different basis of her having to establish to the satisfaction of the court, on the balance of probabilities, that the person concerned has been engaged in terrorism-related activity. That is a real difference, and I will say, with the greatest respect to the Minister, that if he looks back at Mr Anderson’s 2013 and 2014 reports on TPIMs he will see that that was the position that was going to be arrived at regarding enhanced TPIMs; it was going to be for the court—whatever the Minister decided—then to reach its own conclusion on the balance of probabilities.
The noble Lord, Lord Carlile, who brings huge expertise, having been a distinguished independent reviewer, suggested that actually there is not all that much distinction between the judicial review standard that a court is presently required to adopt and an appeal by which the court would have to be persuaded on this issue and reach its own decision. The court does its best by way of judicial review and, in an area as sensitive and relevant to human rights as this, the court will of course go out of its way to adopt as intrusive a standard of judicial review as it feels it can. However, it simply cannot—it would be disobeying the statute if it tried to—substitute its own decision for that of the Secretary of State.
I hope that that meets most of the points that were raised. Of course I am prepared—and am grateful for the offer—to talk to the Minister. We have only a week between now and Report on this part of the Bill. Of course I am not going to press the amendment today, but it may well become necessary to do so a week today, unless the Minister sees the light—if I may put
it that way—and is prepared to shift the Government’s position. In the mean time, I beg leave to withdraw the amendment.
Clause 17: Retention of relevant internet data
Baroness Ludford (LD): My Lords, the amendment stands in my name and those of my noble friends Lady Hamwee and Lord Paddick. I shall speak also to Amendment 77. In this grouping, there is also Amendment 78 of the noble Baroness, Lady Smith of Basildon.
The Explanatory Notes refer to data that are “necessary” to attribute internet protocol addresses to a person or device. However, that word does not appear in the Bill; I believe that something similar happened in the draft Communications Data Bill in 2012, which was picked up by the committee on the draft Bill. There is a tendency to put “necessary” in Explanatory Notes but not to transfer that to the Bill. Amendment 76, therefore, at least seeks to apply the test of “necessary” to communications data that could,
“assist in identifying, which internet protocol address … belongs to the sender or recipient of a communication (whether or not a person)”.
At least it tightens up, somewhat, the scope of communications data—relevant internet data—required.
I have seen an itemisation of possible data—I confess that I do not know what the origin was, but it refers to possible data which would be required to be retained. I state just for interest that it includes,
“account-to-IP address mappings for broadband … source IP address and port for NAT on mobile and cloud networks … MAC addresses on cloud WiFi networks … source port information in server logs”,
“MAC addresses from end-user equipment”.
This is above my technical pay grade and I think we need some clarity about what sort of information is being required. Therefore, in Amendment 77 we are requesting that when the term “other identifier” is used, meaning an identifier used to facilitate the transmission of a communication, what qualifies as “other identifier” should be specified in regulations made by the Secretary of State.
I have seen it cited that there has been consultation with industry on these matters. Certainly, the Internet Services Providers’ Association has complained that it was not consulted on this section on the collection of IP addresses. It posted something on its website on 24 November, so something may have happened in the intervening two months, but it certainly felt at that time that it had not been consulted. Of course the association would be qualified, as the experts, which I am not, to know what is being talked about here and what is, indeed, necessary and essential to identify an IP address.
I mentioned at Second Reading that the Bill refers to,
“the sender or recipient of a communication (whether or not a person)”.
I still believe that it is somewhat misleading to suggest that a person can be identified from an IP address. Even with a static IP address allocated to a particular device or subscriber, you would at best know who the subscriber was, but you would not necessarily know who was using the device at a particular time. It may not have been the subscriber; it may have been a friend, a relative or a business associate. If it is a dynamic IP address I understand that there can be tens of thousands of people who could have used it. Even with this other information, even if you can identify the device that was using it at 4.12 pm on a Tuesday afternoon, it is still not clear that you can, of itself, then identify the person using it. You would need other investigations—police investigations—to ascertain who precisely was using the device.
I hope that I have conveyed the meaning of Amendments 76 and 77, which seek to put greater precision into the Bill as to what further communications data are being required to be kept.
Lord Rosser: My Lords, our Amendment 78 in this group seeks to make it explicit that the extra data retention provided for in Clause 17 does not extend beyond that which is necessary for the purpose of identifying a user from the internet protocol address. The amendment is not meant to impact on the rest of the Data Retention and Investigatory Powers Act.
Clause 17 amends the definition of “relevant communications data” in the Data Retention and Investigatory Powers Act 2014. The clause expands the definition of “relevant communications data” to include an extra category of data—described as “relevant internet data”—in Section 2 of the DRIP Act, to allow the Secretary of State to use powers under Section 1 of that Act to bring in regulations to ensure that this “relevant internet data” is retained by communications service providers. Essentially, the Government are using this fast-track primary legislation to amend emergency primary legislation from last July to enable the Secretary of State to bring in secondary legislation relating to a clause in this Bill, which extends the current provision on data retention.
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The change in the rules on data retention is, it seems, a response to the increasing incidence of one IP address being allocated to numerous devices. I stress that we accept that this extra category of data will be an important tool for law enforcement, including protection of national security. Many providers currently have no business reason for keeping a log of who has used each address. It is therefore not always possible for the law enforcement agencies accessing the data to identify who was using an IP address at any specific point in time.
Amendment 78 is designed to ensure that the text of Clause 17 matches the explanation given in the Explanatory Notes: that the extra data is only that needed to,
“allow relevant authorities to link the unique attributes of a public Internet Protocol (IP) address to the person (or device) using it”.
In Committee in the other place, the Home Office Minister said that the Bill already limited the scope of Clause 17 in the way proposed in this amendment. The Government also said that they did not intend to issue new regulations following on from this Bill because the change in the definition of “relevant communications data” would alter the meaning of the 2014 regulations. Therefore, the combination of this primary legislation and the existing secondary legislation is meant to be sufficient to bring about a change in the types of data retained by communications service providers. Our view is that this could create confusion in interpreting the regulations, which we surely want to avoid. We believe it would be better if the Government accepted the amendment to achieve clarity.
We also have concerns about how we can allow for the retention of internet protocol address information without demanding the retention of web logs. Clause 17 is meant to cover the identifier for the recipient of a communication. That is supposed to cover e-mails, but not web logs. Can the Minister explain how communications will be separated from web logs, bearing in mind that, for example, a distinction would have to be made between visiting a web page and using that page to send an e-mail?
In addition, what is the definition of “a communication”, including in relation to contact on social media? Does receiving a Facebook “like” or a Tinder “match” count as “a communication” for these purposes? I hope the Minister can provide assurance that the legislation is sufficient to make distinctions of this kind regarding the apps and websites that so many people now use. On Report in the other place, the Home Office Minister said in response to the points we made, including the need to define a communication:
“A communication can include any message sent over the internet”.—[Official Report, Commons, 6/1/15; col. 236.]
That begs the question of what is the definition of a message in this context: does being tagged in a photo on Instagram count as “a communication”, which the Government now define as any message sent over the internet? What about being mentioned in a tweet: does that count as “a communication”? I hope that the Minister will be able to give a definition of what is and is not included as any message sent over the internet, now that the Government have given that as the definition of a communication.
At Report stage in the other place the Home Office Minister said that if he had any further reflections on the points that we had raised, he would write further. No subsequent letter has surfaced from him. As well as responding to the questions I have raised, perhaps the Minister here will say whether we will or will not be receiving a further letter from the Minister in the Commons.
Lord Bates: My Lords, I am grateful to my noble friend for introducing this amendment. I will try to address the key points and then come back to the questions that she and the noble Lord have raised.
To be clear, communications data are the who, where, when and how of a communication, but not its content. They are a vital tool in the investigation of
serious crime, including terrorism, and in safeguarding the public. Gaps in communications data capability are having a serious impact on the ability of law enforcement and the intelligence agencies to carry out their functions. We shall talk about these wider issues in the next group of amendments, but it is significant that communications data have played a very important role in every security service counterterrorism operation over the last decade. The data are used in 95% of serious and organised crime investigations handled by the Crown Prosecution Service. That is what we are talking about at present.
On the point raised by the noble Lord, Lord Rosser, Clause 17(3)(c) contains a statement about what is not data for the purposes of the Bill. I think that that is a legal definition of a web log; so there is specific mention in the Bill of what cannot be accessed under this provision.
However, the provision in the Bill is on the issue of IP addresses. Every internet user is assigned an IP address to ensure that communication service providers know which data should go to which customer and route that accordingly. Addresses are sometimes assigned to a specific device, such as a broadband router located in a home or company. However, as my noble friend Lady Ludford referred to, they are usually shared between multiple users—hundreds or even thousands—and allocated automatically by the provider’s systems. The amendments seek to ensure that the scope of this provision is limited to the retention of data that are required to allow the identification of a user from a public internet protocol address, and I am very pleased that on that principal issue there is not a great deal of difference between us. It is important that this provision goes no further than is absolutely necessary to ensure that communications service providers can be required to retain the data necessary to link the unique attributes of an internet connection to the person or device using that data at any given time.
At this point, I should say to my noble friend Lady Ludford that in essence we are talking here about adding another essential piece of the communications jigsaw. We are not actually saying—and I do not think that anyone is making this claim—that somehow an IP address on its own will be sufficient to identify what has happened. However, alongside other communications data—for instance, other CCTV footage or other surveillance evidence that may be there—this could be helpful in identifying who was where on a particular device and communicated with whom at a particular time.
The noble Lord, Lord Rosser, asked for examples of access data that may be required. An example is port numbers, which are akin to a house number, where an IP address is akin to a postcode. I know that the noble Baroness, Lady Lane-Fox, could probably give us a tutorial on the technical points; I could probably do with one at some point. Other types of data include the MAC address—the identifier of a particular computer—the time, the location and so on. Those are the types of data covered by “or other identifier”, and that is set out in the Explanatory Notes which accompany the legislation and in the addendum to the draft data retention code of practice,
on which the Government have recently consulted. The code of practice sets out very detailed safeguards concerning how data can be collected. The consultation began on 7 December and concluded last week, and we look forward to informing the House of the findings very shortly.
The way in which an internet service provider identifies its individual customers varies from company to company depending on how their systems work. It is therefore important that the legislation is drafted in such a way as to enable us to work with individual communications service providers so that they retain only the data that they need to resolve an IP address. Our ability to do so would be limited by the amendment, which specifies the items of data to be retained in secondary legislation. For that reason, we cannot agree to the amendment.
The amendments seek to ensure that the provision goes no further than IP resolution, and I am able to confirm that the provision is already limited in this way. Clause 17(3), to which I have already referred, defines the data to be retained as data which,
“may be used to identify, or assist in identifying, which internet protocol address, or other identifier, belongs to the sender or recipient of a communication”.
At this point I should say that, although we are talking about the Counter-Terrorism and Security Bill, this provision will be of significant assistance to those who are seeking to tackle, for example, the worrying growth in accessing child sexual exploitation online. That is an important element here.
The noble Lord, Lord Rosser, asked whether the Minister for Security, my honourable friend James Brokenshire, will be writing. The Minister in the Commons dealt with all the salient issues. We of course reflected on the points raised in the debate, but there is nothing that we see as requiring further clarification at this stage.
The noble Lord also asked whether the combination of primary and secondary legislation is confusing. This legislation is accompanied by a retention of communications data revised code of practice for those implementing the legislation. The Government also work closely with communications service providers. This will ensure that there can be no confusion about how the legislation can be applied.
My noble friend Lady Ludford asked whether any consultations with communications service providers have taken place. The answer is yes—probably not at the time that she was talking about, when the Bill was going through the other place, but certainly since then. We regard communications service providers as an integral part of this whole process and we want to work very closely with them.
The noble Lord, Lord Rosser, asked how we define a communication and whether it includes messages sent by social media. Any messages sent over the internet, including via social media platforms, will have associated communications data. That has always been the case under existing legislation. Where those data are generated or processed in the UK by a company subject to the data retention notice, they can be used to resolve an IP address—that is, they can be retained under this Bill. Those data could then be accessed only
where it was necessary and proportionate to do so for a specific investigation. However, that is quite separate from the content of a communication. What was said or written in, for instance, a Facebook message or a FaceTime call could not be retained under the Bill.
Similarly, the Bill ensures that we cannot ask internet access companies to keep a record of internet services that a given user account may have accessed, known as web logs, even where the data could be used to help resolve IP addresses. Any data which cannot be used to identify or assist in identifying the user of an IP address are already outside the scope of this provision. A requirement to retain data may be imposed only where it is necessary and proportionate to do so.
Accordingly, while I agree with the sentiment behind these amendments, I do not agree that they would add to the tightly drafted provisions that we already have. With the explanation that I have given and with my responses to the questions, I hope that I have offered sufficient assurances to noble Lords and that my noble friend will feel able to withdraw the amendment.
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Baroness Ludford: My Lords, I appreciate my noble friend’s extensive reply and explanation. I am still somewhat uneasy that the terms of the Bill are permissive in that the data may need to be retained if it may “assist in identifying”, which is quite loose language. Will my noble friend explore whether there is any way of getting further precision? Presumably the limit of the extent of the kind of data we might be talking about is known, and I feel that what the data are should be spelt out somewhere, even if it is a broad list, so that everybody can understand this matter—I shall join him in the tutorial that he has invited the noble Baroness, Lady Lane-Fox, to carry out, as I have already frankly admitted my own ignorance. It is not helpful to have potential legislation when people do not know what data on them will be retained. It seems reasonable to ask my noble friend to reflect further on the idea of importing the words “necessary and proportionate”, which I think he used, into the Bill and/or to consider further whether it is possible to spell it out in regulations. In awaiting, I hope, that further reflection, I beg leave to withdraw the amendment.
Amendments 77 and 78 not moved.
79: After Clause 17, insert the following new Clause—
“Part 3AEnsuring or facilitating availability of dataEnsuring or facilitating availabilityPower to ensure or facilitate availability of data
(1) The Secretary of State may by order—
(a) ensure that communications data is available to be obtained from telecommunications operators by relevant public authorities in accordance with Part 3B, or
(b) otherwise facilitate the availability of communications data to be so obtained from telecommunications operators.
(2) An order under this section may, in particular—
(a) provide for—
(i) the obtaining (whether by collection, generation or otherwise) by telecommunications operators of communications data,
(ii) the processing, retention or destruction by such operators of data so obtained or other data held by such operators,
(iii) the entering into by such operators of arrangements with the Secretary of State or other persons under or by virtue of which the Secretary of State or other persons engage in activities on behalf of the operators on a commercial or other basis for the purpose of enabling the operators to comply with requirements imposed by virtue of this section,
(b) impose requirements or restrictions on telecommunications operators or other persons or provide for the imposition of such requirements or restrictions by notice of the Secretary of State.
(3) Requirements imposed by virtue of subsection (2) may, in particular, include—
(a) requirements (whether as to the form or manner in which the data is held or otherwise) which ensure that communications data can be disclosed without undue delay to relevant public authorities in accordance with Part 3B,
(b) requirements for telecommunications operators—
(i) to comply with specified standards,
(ii) to acquire, use or maintain specified equipment or systems, or
(iii) to use specified techniques,
(c) requirements which—
(i) are imposed on a telecommunications operator who controls or provides a telecommunication system, and
(ii) are in respect of communications data relating to the use of telecommunications services provided by another telecommunications operator in relation to the telecommunication system concerned.
(4) Nothing in this Part authorises any conduct consisting in the interception of communications in the course of their transmission by means of a telecommunication system.
“processing”, in relation to communications data, includes its reading, organisation, analysis, copying, correction, adaptation or retrieval and its integration with other data,
“relevant public authority” has the same meaning as in Part 3B.
(a) section (Application of Parts 3A and 3B to postal operators and postal services) for the way in which this Part applies to public postal operators and public postal services, and
(b) section (Interpretation of Parts 3A, 3B and 3C) for the definitions of “communications data” and “telecommunications operator” and for other definitions relevant to this Part.”
Lord King of Bridgwater (Con): My Lords, in moving Amendment 79 standing in my name and that of the noble Lords, Lord Blair, Lord West, and Lord Carlile, I shall speak to all the amendments in the group through to Amendment 99.
This is an exceptional series of amendments that has been tabled in your Lordships’ House today, and I recognise that for some it seems an unacceptable use
of parliamentary time. I make no apologies at all for doing this, as we face a very serious situation indeed in our country at present. Our legislation is not up to date to meet it, and it is the duty of Parliament to ensure that it is at this critical time. It is common ground across the House that the threat is now very significant. We are in the front line and we need to address that.
I start with a bit of history. Noble Lords who have taken an interest in this subject will be familiar with my amendments because they have been lying around for the past two and a half years. They are part of the Communications Data Bill that the Government published in draft two and a half years ago. In keeping with best parliamentary procedure, they invited the Joint Committee of both Houses to examine and report on the Bill, under the distinguished leadership of my noble friend Lord Blencathra, who I am delighted to see in his place today. If I say that that Joint Committee reported two years ago, and in terms of dealings in Parliament, nothing has happened since, it might be thought that the problem has gone away but, of course, the opposite is the case.
I am delighted that the noble Lord, Lord Evans of Weardale, is in his place. In his maiden speech, the noble Lord, a distinguished former director-general of MI5, said that after an extremely difficult period, by 2013 he thought the worst was over. He now admits that he was wrong. The threat in many ways is obvious. Before Paris and Belgium, the Government raised the threat level to severe. Intelligence showed what might be coming. We could easily have been Paris or Belgium. Thankfully, so far we have not been exposed in the same way, except for the tragedy of Fusilier Rigby, but it is a very brave man indeed who says that at the present time we would not be.
I believe that it was Andrew Parker, current director-general of MI5, who said that there are probably about 2,000 people in this country who are either supportive of or actively involved in promoting terrorist activities. I have lived a little bit of my life in the field where terrorism was a major challenge to this country but I never had to deal with suicide bombers. Some of the developments that now exist are of a scale and a difficulty—and a fanaticism, in the jihadist threat—that is of a different dimension to that which we previously faced.
It is easy to think that perhaps we are going through a rather bad phase, but I do not think anybody would seriously believe that about the current problems, particularly in the Middle East. The events just this last weekend in Yemen show yet another country that seems to be in chaos and confusion. I saw with interest—I had forgotten—that we are now in our fifth year with Syria in a state of chaos. If anybody in your Lordships’ House is brave enough to say when any of those countries presently in chaos will return to some measure of normality and peace and calm, I simply do not believe them. The evidence is that, with all the current distress and difficulties, it is going to get worse.
How do we face this challenge? How do we face the explosion of new technology that means we are up against terrorists who are extremely adept at using any new means of communication that is, perhaps, beyond
our reach or, certainly at the present time, beyond our legislation? It is interesting that, at the moment, we are facing this challenge on the basis of legislation that is 15 years old. It is worth remembering that this is the 25th anniversary of the internet. We have to take on board the explosion in new developments since then and the possibilities for communication under new technologies.
I want to deal with one point straightaway. As soon as we start talking about access to communications data, people think—I am certain some very distinguished noble Lords think—somebody is going to listen to telephone calls. However, it is nothing to do with the content. It is to do with who, where and when certain contacts and certain patterns of contact are established. It is on that basis that the intelligence plays such a vital role. It includes the use of things that not all your Lordships—that certainly includes me—are masters of. I am not a tweeter. We have Facebook and Twitter. Somebody tried to explain WhatsApp to me; somebody else tried to explain Snapchat. I do not know about them, but it is absolutely clear that the terrorists and jihadists do. The understanding is that part of the reason for ISIL’s amazing advance across Syria and into Iraq was that their communications were so good and the way they kept together was entirely due to one or other of the last two systems that I mentioned, which they handled with great intelligence.
The problem that we now face is not boots on the ground. That never was the answer to this sort of situation. It is the problem of getting good intelligence. I have tabled what was available to me and my noble friends who have joined me in this enterprise. It is the original draft Bill that was carefully examined by my noble friend Lord Blencathra, and the noble Lord, Lord Armstrong, who I am delighted to see in his place. He was another distinguished member of the Joint Committee that examined that Bill, as was the noble Lord, Lord Jones. They proposed a number of important amendments. The Joint Committee submitted its report to Parliament two years ago. I understand that those criticisms were then considered carefully by the Home Office and were largely, if not totally, accepted. I also understand that amendments have now been suggested that go a very long way to meeting the important observations of that Select Committee. But they have not been available.
We face a crisis in security. There is a major threat and at the same time we have antiquated legislation that badly needs updating. We have done our best by drawing the attention of the House to this issue and by tabling amendments to include complete clauses of the previous Bill that were available to us. I hope that before Report the Government will either table amendments themselves or otherwise make the revised Bill available to Back-Benchers in this House to examine. Amendments could then be tabled so that this House has the opportunity to debate the matter. It will be the only opportunity that we will have in this Parliament and for this year, while the nation is at risk and the threat to our citizens is real. This is the only time in which we can tackle that.
I have carefully read the excellent report of my noble friend Lord Blencathra. It carries a number of
criticisms which are covered in our amendments, some of which are quite significant. The most significant is what was called the snoopers’ charter. It covered far too wide a range of purposes. It not only covered national security and crime but made data available to local authorities to pursue things such as abuse of fly tipping, housing benefit and a whole range of other matters. It was also made available to the Inland Revenue to pursue tax offenders of one sort or another. Against this crisis and because of the quite exceptional nature of what we are proposing, my colleagues and I who tabled these amendments propose deleting all of those additional purposes in the Bill. We have included only national security and serious crime. I hope that everyone in your Lordships' House will agree that those are the critically important issues. Let us remember that what we are doing is not completely new and unprecedented. The principle has been established of data collection. We are bringing it up to date with the new challenges that the new technologies have brought.
I am not alone in having serious concerns. In another place, when the Home Secretary made her Statement two weeks ago following the events in Paris, Sir Malcolm Rifkind, former Foreign Secretary and current chair of the Intelligence and Security Committee said that new technologies were preventing the agencies from exercising the capability they used to have. Jack Straw, who was, unusually, responsible in his time for all the agencies because he was both Home Secretary and then Foreign Secretary said that it was,
“beyond argument that the legislation … has to be revised … so that we can resolve this issue as soon as possible”.
In his further remarks he asked for close co-operation to resolve this communications data issue,
“as soon as possible, and ensure that the intelligence and security agencies and the police have the capabilities today and tomorrow that they had in the past under legislation freely agreed by this House?”.—[
Official Report
, Commons, 14/1/15; col. 875.]
I quote—also from this report—a very good response by the shadow Home Secretary, Yvette Cooper, to the statement made by the Home Secretary two weeks ago. She said:
“Governments need to keep our people safe so that we can enjoy the very freedoms that our democracy depends on”.—[Official Report, Commons, 14/1/15; col. 871.]
“We agree that the police and the agencies need to get the intelligence to keep us safe and that they need updated legislation”.—[Official Report, Commons, 14/1/15; col. 873.]
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I very much agreed with the noble Baroness, Lady Ludford, when she said that she had a strong preference for targeted investigation and data collection, rather than blanket surveillance.
I quote another supporter of this cause: the Home Secretary herself said:
“Let me be absolutely clear: every day that passes without the proposals in the draft Communications Data Bill, the capabilities of the people who keep us safe diminish; and as those capabilities diminish, more people find themselves in danger and—yes—crimes will go unpunished and innocent lives will be put at risk”.—[Official Report, Commons, 14/1/15; col. 871.]
Unfortunately, a bit of a hiccup in the coalition government situation has prevented this happening. It is the duty of Parliament to resolve that: first, your Lordships’ House and then the Commons, because this is not just a House of Lords matter. It has been suggested that with these amendments the House of Lords is usurping the position of the House of Commons. Any amendments that we carry will go to the House of Commons and they will have time—looking at the hours being spent there at the moment—to give it proper consideration. I hope that is not too unkind. In this situation Parliament should act.
There is undoubtedly, from all the advice that we get, a very real risk of a serious outrage in this country. If there was an attack here like the one in Paris, and it became apparent that if the powers of the agencies had been kept up to date it could have been prevented, huge criticism of Parliament would follow—and rightly so.
I hope that people realise that this is an all-party amendment. I do not regard this as a party-political issue, I regard it as an issue of national security. I hope very much that your Lordships’ House will recognise the responsibility of us all as Members of these Houses of Parliament and take urgently needed action while we have the opportunity—because of the Counter-Terrorism and Security Bill, for which these amendments are fully in scope—to carry this through. So I will listen carefully to the debate. In the light of the contribution by my noble friend Lord Blencathra, I very much hope that we can carry this forward along the lines that he proposed so well and that we take the necessary action. I beg to move
Lord Blair of Boughton (CB): My Lords, I placed my name in support of Amendment 79 with those of the noble Lords, Lord King of Bridgwater, Lord Carlile of Berriew, and Lord West of Spithead. I echo what the noble Lord, Lord King, has said. I am not a party politician but this issue is far beyond politics. I put my name down in order to place in the records of the House the significance of communications data to the police and security services, which are now specifically mentioned in subsection (6) of the new clause proposed in Amendment 87. Those three agencies and the police are the agencies—the only ones—to which this communications data section will now apply.
Those agencies’ needs must be understood. They have been subject to a great deal of obfuscation, both witting and unwitting. The police and the security services are not asking for new powers. Rather, they are asking for the retention of what they already have but are now losing. They need the ability to determine, in specified circumstances, which telephone or other device has been used where, when, and to communicate with whom. This is an investigative tool of equal significance to DNA and fingerprinting, but changing technology is eroding that ability.
This is not the first time we have faced such a threat. I first met the noble Baroness, Lady Manningham-Buller, in the early 1990s, and we were then discussing the fact that mobile telephones were appearing and were destroying the ability of the police and the security services to carry out lawful interception. Fortunately, that technology was overcome and new
measures were brought in—and that is what people in these services are asking for now. The situation is that mobile telephones and the internet are merging. All the different apps for phones mentioned by the noble Lord, Lord King, along with all the other services, are increasingly being used across the internet via something I now know more about than I ever wanted to—a system known as VoIP, the Voice over Internet Protocol. This makes all those transmissions untraceable. I will not specify them, but they are being used in methodologies that Members of this House will be using most days. They are already changing things and we are losing our technological edge on terrorists and criminals.
We are not asking, as I heard a senior politician say on the radio recently, to listen to or to read every message, phone call and visit to an internet site by every person in Britain. A moment’s thought would show that that is completely and utterly impossible. We want to retain for one year data about where and when a particular device has been used, and to communicate with what. If suspicion emerges about a device or its user, that data can be interrogated.
I want to point out the reason for our insertion of the words “serious crime”, because this is not just a terrorist matter. Let me give two examples of capabilities that are now disappearing. A teenager goes missing in Sussex. She has had episodes of self-harm and she was last seen heading towards Beachy Head. All teenagers, whether or not they are capable of self-harm, are likely to have their phone with them. That phone will locate the child—but in a few years’ time, it will not. I cite the example of a dead body found in a field with signs of violence. One of the first things that the senior investigating officer will say is, “Get me the phone data”. What he or she wants to know is which phone has been carried across that field in the past few days. Which phone has been within a few hundred yards of the site of where the body was found? That information is what the police need in order to be able to identify the murderers by the technology that betrays them. At the moment, we can do it in most cases, but we are gradually losing that capability.
I turn to an actual case. Noble Lords will remember the terrorist attack on Glasgow airport. It had been preceded two days before by an attempted atrocity in central London, at the Tiger Tiger nightclub. The Metropolitan Police were 20 minutes behind the bomber when he reached Glasgow airport—and the way they did that was through tracing the phones.
The noble Lord, Lord West, recently mentioned the phrase “snoopers’ charter”, and referred to it as sanctimonious claptrap; I agree with him. In this amendment we have limited those who could exercise this kind of power to the security services and the police when investigating or preventing serious crime. They are not snoopers but lifesavers. Perhaps I may add to what the noble Lord, Lord King, said. I could usefully put before noble Lords how the Home Secretary finished her Statement to the House of Commons:
“It is too soon to say for certain, but it is highly probable that communications data were used in the Paris attacks to locate the suspects and establish the links between the two attacks”.
Given my professional background, I, along with my colleague and noble friend Lord Condon, can say, “Almost certainly”. The Home Secretary went on to say:
“Quite simply, if we want the police and the security services to protect the public and save lives, they need this capability”—[Official Report, Commons, 14/1/15; col. 871.]
Lord West of Spithead: My Lords, my name is also on this amendment in support of the noble Lord, Lord King, along with those of the noble Lords, Lord Carlile and Lord Blair. I will mention some history as well, which is important because of the time lags and time. In 2009, when I was Minister for Security and Counter-Terrorism, I was made aware that changes to communications technology meant that a record of communications information would no longer be held by the communications service providers and that technology was changing the type of data that were available. This information was held purely as it was needed for the companies’ billing procedures—that is why they kept it—and, as such, was available for use by properly authorised state officials, in particular for prosecution of serious crimes and in terrorism cases. New technologies and methods of communication meant that firms were beginning to, and going to, charge differently.
Over time, communications material, which, as has already been said, was used to help to gain convictions in over 95% of serious criminal cases, was going to be lost—a very serious and irrevocable loss that would impact on the security and safety of our nation and our people. To try to ensure such information would be kept, and to access these new technologies, we started to draft a new communications data Bill. There was then an election, the coalition came into power, and the coalition drafted a new Communications Data Bill which was passed to Parliament for pre-scrutiny, as has been mentioned by the noble Lord, Lord King. It had many flaws and underwent considerable redrafting —the noble Lord, Lord Blencathra, will, I am sure, talk about this later—to ensure that there were sufficient safeguards and so on. Indeed, the Home Office, as the noble Lord, Lord King, has mentioned, did a considerable amount of work to rectify all the faults with that Bill. Subsequently, for political reasons, it was kicked into touch. We find ourselves today, some six years—not two and a half years—after we started to try to draft legislation that would ensure no loss of what we already had, having done nothing but expend a great deal of hot air. Week by week we are losing the ability we once had; for example, to place a criminal close to the scene of a crime on a certain day, as has just been mentioned by the noble Lord, Lord Blair.
The Prime Minister and the Home Secretary have both said in the past few weeks that this legislation is needed urgently—and they are right. So why is nothing happening? Well, yes, there are reviews going on, not least by the Government’s Independent Reviewer of Terrorism Legislation, Mr Anderson, and that is very sensible. But perhaps as a nation we should move more expeditiously on such a crucial matter.
One of the great strengths of this House is that it contains globally admired experts on almost every issue under the sun, and it can also act as a conscience
for the elected Chamber in the other place. The noble Lords, Lord King, Lord Carlile and Lord Blair, are acknowledged experts in this field and clearly their advice has to be taken very seriously. They have identified this window of opportunity to rectify the growing shortfall in our ability to prosecute crime, whether criminal or terrorist. Do we really want murderers, people traffickers, serious organised crime and terrorists to be able to communicate and plot out of the reach of our law enforcement agencies? Do we want them to be able to avoid detection and prosecution in a way that they have not been able to in the past? The answer, surely, has to be no.
That does not mean that there do not have to be sufficient safeguards; for example, to ensure data that are properly looked after, as the communications providers have indeed always had to do, and to decide how long such data need to be held for. In addition, we need to investigate the costs because companies will be keeping data they no longer require for themselves so will want to charge us—they will probably want to overcharge us—for the privilege. The Government should be very hard-nosed on this point.
Much has been, and will be, said about individual privacy but, as the European human rights legislation points out, privacy is not an absolute right. There is much emotive claptrap using words such as “snooper”. It is, in that context, interesting to note that the judges at the tribunal looking into the allegation that GCHQ is involved in mass surveillance have just reported and were all absolutely clear in their judgment that there is no “mass” but rather only highly “targeted” surveillance properly authorised. Indeed, as the noble Lord, Lord King, mentioned, the data we are looking at here are not the contents of the letter, but what I would call the outside of the envelope. To be quite honest, the people we should be really worried about looking inside the envelope are various private companies, firms and ne’er-do-wells—not the Government.
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I am sure that numerous amendments to this amendment need to be debated, as the noble Lord, Lord King, mentioned, and added before this can become law. But if we have the will, there must be time to do it. The other place, more so than the Lords, has almost no serious business before the general election and can surely create time to get this legislation right and put into law. The urgency over communications data legislation, described by the Prime Minister as “crucial” for national security, is pressing. Do we really need more studies? They sometimes seem to me to be a way of kicking difficult issues into the long grass. Our nation’s security is too important to play that game. It has been six years so far, with almost no movement. This could end up making even Chilcot seem fast. Surely, in the two months available, Parliament, in particular the other place, can mobilise itself to pass legislation, with all the right protections, that ensures that we remain able to prosecute those who would do society harm but which looks after the privacy of the individual.
Lord Blencathra (Con): My Lords, I am afraid that it falls upon me to be the first to break the all-party consensus. I disagree, reluctantly, with the amendments
in the names of my noble friends Lord King and Lord Carlile and the noble Lords, Lord Blair and Lord West. The 21 amendments would incorporate practically the whole of that original draft communications Bill—called at the time the snoopers’ charter—into the Bill before us and into law. Before any noble Lords think I have gone soft and wet on terrorism, I will quote the introductory remarks of the conclusions of the Joint Committee’s report:
“It is the duty of government—any government—to maintain the safety and security of law-abiding citizens, so that they may go about their lives and their business as far as possible in freedom from fear. This is not only in the public interest; it is in the interest of law-abiding members of the public. For this the law enforcement authorities should be given the tools they need. Reasonable access to some communications data is undoubtedly one of those tools”.
That is what we said two years ago; I stand by it today. What we said in looking at that draft communications Bill is relevant today because, with 21 proposed new clauses, this is almost a Second Reading:
“Our overall conclusion is that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data, but that the current draft Bill is too sweeping, and goes further than it need or should. We believe that, with the benefit of fuller consultation with CSPs than has so far taken place, the Government will be able to devise a more proportionate measure than the present draft Bill, which would achieve most of what they really need, would encroach less upon privacy, would be more acceptable to the CSPs, and would cost the taxpayer less. We make detailed recommendations accordingly”,
on how to do that. That is what we said two years ago; I still stand by it.
The problem we faced a couple of years ago when looking at the Bill was that, with the best will in the world and with the right intentions, the Home Office misdirected itself. Its main concern was to make sure that the Bill was future-proof. RIPA was passed in 2000, while our Joint Committee was looking at this in 2012. The Home Office concluded that it was not going to get a new RIPA every year, so if we were to pass a Bill in 2012 or 2013 it would have to be so wide-ranging in scope that it could encompass every new technological gizmo which might come along. Bear in mind that the ghastly—that is not the committee’s opinion but mine—Facebook and Twitter were invented only between about 2005 and 2007, years after RIPA was passed. The Home Office rightly considered that, if we passed a Bill in 2013, we should make it so that it could encompass any future technological change which came along. That was a fatal mistake at the Home Office and, because it made the breadth of Clause 1 so obscure and so wide to capture everything, people called it the snoopers’ charter. That was not pompous rubbish. The way the Bill was drafted meant that it could be called the snoopers’ charter if the agencies wished to make it so.
Initially the Home Office could not tell us what its real concern was on the grounds of confidentiality, and not letting the terrorists and the bad guys know. Within a couple of weeks most organisations that came before us, including the police, said that all they wanted were “who”, “where” and “when”, the things they used to get from the original telephones and the mobile telephones. They did not want all the wide-ranging theoretical powers which Clause 1 and the proposed
new clauses here could give them. When we came to look at that in terms of the internet, we came across the crucial areas of contention, which were IP addresses and web logs up to the first forward slash. It would seem quite straightforward for someone on my committee to say yes to permitting access to web logs up to the first forward slash. Even if someone was checking up on me and I logged on to bbc.co.uk, that is all you could get. You would not know what else I was on to because after that came the content—the “what”—of the communication.
It was also pointed out to us that if I was logging on daily to Alcoholics Anonymous, you could not see the rest of the pages, but that in itself could give a message that this person was logging on to that website on a daily basis, and there was a bit of content involved in that. My committee determined—absolutely rightly, in my view—that it was for Parliament to decide on those issues. We could not allow the draft Bill with its very broad-ranging Clause 1—which my noble friend has replicated here—to stand without Parliament being able to say specifically, “Yes, we like that bit and we want to have IP addresses and web logs” or not. It was impossible to extricate that. If noble Lords wish to put down an amendment to ban web logs, it would be impossible to draft the amendment because we have no clue to which bit of Clause 1 we should do it.
Our recommendation was that that clause should be split up, with a specific sub-clause to give the House of Commons and us in this House a chance to vote yes or no on whether we want IP addresses or web logs. I took the view that if we did it that way then on balance, with a bit of grumbling in both Houses, the Government would probably have got web logs and IP addresses in that Bill, because Parliament would have been deciding. My committee did not want to pass some general obscure Clause 1, pat ourselves on the back that we had balanced freedom and responsibility and given the security services the powers they needed, to find a few months later a policeman or someone from the Security Service popping up and saying, “Aha, what you did not realise is that we have this additional power hidden in here”.
That was what caused people to call the provision the snoopers’ charter. We were very fortunate in that the Home Office took on board most of our recommendations. I was privileged, and I believe my noble friend—well, I call him my noble friend—Lord Armstrong of Ilminster was also privileged to see some of the revisions that the Home Office made. I would say that it took on board 95% of what the Joint Committee recommended. If that measure had then gone on to become law—it hit political problems in the coalition—no one could rightly call it the snoopers’ charter.
In paragraph 292 of our report we said:
“Whether clause 1 should allow notices that require CSPs to retain web logs up to the first ‘/’ is a key issue. The Bill should be so drafted as to enable Parliament to address and determine this fundamental question which is at the heart of this legislation”.
I believe that the revised Bill the Home Office were working on would have given us that opportunity. We do not have that opportunity today and it is damaging to go forward with these proposed new clauses—
Lord West of Spithead: I am interested in why the noble Lord believes there is no opportunity for us now, within this two-month period, to actually utilise the work that the committee has already so admirably done, and the work that has been done in the Home Office, so that it can be incorporated into a sensible new Bill that covers all these worries?
Lord Blencathra: If the Home Office were to come along with a whole range of those clauses as proposed in our Select Committee report, I would be the first to commend them and to propose them. In the political climate coming up to the election, it may not be possible to produce those clauses and get the consent of both Houses of Parliament. There may be time, but there is severe political difficulty in trying to bounce those new clauses on an unsuspecting public or legislature at this stage.
I congratulate my noble friend on some other key issues in his proposed new clause. He is right to dump all those extraneous public bodies which our committee was very concerned about. The Home Secretary repeatedly says, and rightly so, that she needs the data Bill to tackle terrorism, paedophilia and serious crime. That is the mantra. The committee agreed, but there should not be 600-odd public authorities in the Bill which are allowed to use some of the powers. They do not have the full powers of MI5 and M16—of course not—but it tarnishes the importance of the big players getting access to data if local councils are in there. Of course local councils say that serious crime is involved. They say that fly-tipping is not just someone chucking an old mattress over the hedge of a farmer’s field because gangs are making millions from it, so it is serious crime and local councils want to be in there. I say that they should use other measures rather than a Bill which has constantly been touted as dealing with paedophiles, terrorists and serious crime. In that case, the organisation which is responsible for putting the little lion on British eggs should not be included either. It is: it made a case to be included because apparently, if it is done improperly or wrongly, the EU may cut off £20 million of our funds, and therefore it is serious crime. A distinction has to be made between serious crime related to gun running, people trafficking and big money and the rest of crime.
My noble friend has included the police and the two security services. My committee recommended that we should include the National Crime Agency, HMRC, which also does a lot of work on this, the United Kingdom Border Agency—or whatever we call it now—and the FSA, whatever that is called now too. Those big bodies make up 99% of all requests for data. The other 1% are all the extraneous other bodies.
The committee also made some other very important recommendations which touched on many other aspects of my noble friend’s proposed new clauses. The committee believed that the SPOC—single point of contact—system is far better than anyone ever expected. Nearly all of us on the Joint Committee felt that we could not have the SPOC system as it would be one policeman going up to another and saying, “Hey, Sarge, sign this on the nod and we’ll get access to data”. When the committee visited the Metropolitan Police, we were delighted—perhaps I should have said amazed first—to find that
the system was exceptionally good and exceptionally well run and should be no cause for concern. The police, being the police, of course invented a computer program. No one officer can move on to the next stage to authorise the collection of data until all the boxes have been filled in—not ticked, but filled in. Then another policeman has to review it. In some ways, we should have guessed that the inevitable bureaucracy of the police would come up with a system which was pretty fool-proof and pretty safe. In fact, the committee recommended that the police system was so good that the other extraneous organisations should go through the police and the system should go out to tender. I hope the Met would get it. If the Met got that tender, it would be running a rather good SPOC system in the rest of the country. I hope that placates the noble Lords, Lord Blair and Lord Condon, because I am opposed to some of the rest of the proposed new clauses.
If we go ahead with my noble friend’s proposed new clauses, I am very concerned that we will hit a huge storm of criticism that we are introducing the snoopers’ charter by the back door.
Lord Rooker (Lab): So far, no one who has spoken in this debate has referred to the final amendment in this group, Amendment 99. It is the sunset clause for 31 December next year. So it will go, but it will go because the other legalisation goes anyway. In other words, after the election, we know that both Houses have got to spend a lot of time on this because of the sunset clause. Surely putting the sunset clause in this group, plus the other amendments from the Home Office, meets a lot of the objections that anyone could make to this because this is not a free-for-all for ever. We are legislating to say that at the end of next year it goes and Parliament has to replace it.
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Lord Blencathra: The noble Lord makes a very good point about the sunset clause, which might reassure many of us in this House and perhaps in the Commons, but I do not think it would reassure the masses outside, who are concerned about the so-called snoopers’ charter coming back. If a sunset clause introduced all the flawed measures—and they were flawed in nearly every clause of the draft Communications Data Bill—some would be concerned that that sunset clause would be added to a year later, amended and put in again and again. Once those flawed measures were on the statute book, I would have little confidence that any Government would wish to remove them. After a huge battle, when they had got them on to the statute book, why would they go back and rewrite it? Perhaps I am being slightly too cynical there.
We would do enormous damage to the cause of getting a proper rewritten RIPA if we went ahead with these new clauses today. Of course my noble friend is right: I would be subject to enormous criticism if, by opposing these amendments today, there were some terrorist incident in the next 18 months that could have been prevented if the Security Service had access to some Facebook pages that my noble friends’ amendments would have facilitated. However, I am more concerned about the long-term damage. If we go
off at half cock with these clauses today, we may create a climate whereby it may not be possible to bring in a proper, rewritten RIPA in a few years’ time. Everyone agrees that RIPA needs to be rewritten; it is long past its sell-by date. We need a really good new Bill, and these new clauses should not be part of it—with all due respect to my noble friend.
Lord Carlile of Berriew: My Lords, it is a great pleasure to follow such a cogent and interesting speech by the noble Lord, Lord Blencathra, who has immense knowledge of this area of work as a result of his chairmanship of his committee, which produced an excellent report. I will return to what he said presently.
I do not know how many of your Lordships have had the opportunity to watch the remarkable German film, “The Lives of Others”, which depicted the dangers that the Stasi brought on its whole country of a society bedevilled by surveillance at every level. It is a lesson to us all. Surely we all start from the position that any unnecessary surveillance and invasion of privacy by surveillance, interception of communications or looking at metadata that illegitimately affects the rights of individuals must be avoided. That is certainly the position that I start from. I think that almost everybody in this House starts from that position, whether or not they agree with these amendments, which I support.
The fact is that there is a gap in the capacity of the relevant services at the moment, as the noble Lord, Lord Blair, with his great experience of the police, illustrated very clearly. That gap has not been filled. I am not sure why it has not been filled, or why the Government are so reluctant either to take on board these amendments or to produce an alternative. I hope that it is not party politics. My plea to your Lordships, whether they belong to a political party or not, is not to allow party political considerations to interfere in an issue about national security, which surely must be judged only on the merits and without political prejudices taking part. That is certainly my approach to this matter.
We heard during the course of the very helpful opening speech from the noble Lord, Lord King, that for the country to be safe, a very limited number of relevant authorities, for a limited purpose, should have these powers. The noble Lord, Lord Rooker, as he so often does, put his finger on an important aspect of the amendments: we are not asking that these amendments should endure for ever; we are simply filling a gap that exists until the sunset clause comes into effect. That gives plenty of time after the election in May for both Houses of Parliament to reconsider these matters and to produce what may be more enduring provisions.
There is one peculiarity about what has happened in recent months. In July in this House, both the noble Lord, Lord Blencathra, and the noble Lord, Lord Armstrong, referred to the fact that the Home Office—indeed, the noble Lord, Lord Blencathra, said this earlier—had been very co-operative in considering and dealing with his committee’s criticisms of existing proposed legislation. As he reminded us just now, and as he said in the House in July, it had accepted 95% of the changes recommended by his committee. The noble Lords, Lord Blencathra and Lord Armstrong, told us
at that time that they had seen a draft Bill, and they put that on the record. Nobody else has seen that draft Bill, but the noble Lord, Lord Blencathra, said at that time that he had seen a draft Bill that by no stretch of the imagination could be called a snoopers’ charter. Those were his words. I see him nodding in agreement.
It is my view that the Government should now produce that draft, amended or replacement Bill so that we can see what was offered, and so that if they object to the provisions in these amendments we can come back next week and table amendments which the noble Lord, Lord Blencathra, and others have agreed are not a snoopers’ charter, meet requirements and fill the gap of which I have just spoken. Indeed, if that draft Bill was made available, and we were able to consider it, and possibly table amendments by next Monday, there may be no need to reconsider matters after the general election, although, speaking for myself, I would still prefer to see a sunset clause requiring an affirmative resolution of both Houses so that we could be sure that what had been enacted was fit for purpose and was safe.
I close by, I regret, repeating something which I said a few days ago in your Lordships’ House, because I think it merits being repeated. I absolutely congratulate whoever thought up the term “snoopers’ charter”. Rather like the term “poll tax”, it was a piece of branding genius. Unfortunately, unlike the term “poll tax”, it does not remotely accurately describe what was being suggested. It presupposes malignancy in that distinguished service that has served this country so well and that was recently headed by the noble Lord, Lord Evans, who I am glad to see in his place opposite. The term “snoopers’ charter” implies that the noble Lord would rub his hands in the morning and say, “Now let’s have a look at Alex Carlile’s shopping list and credit card purchases—oh, and who he’s been calling and what internet sites he has been on, because it would be fun to know what he’s been up to”. That is simply a caricature of what the Security Service and the police do.
Today, some figures have been published on the number of people who have gone to take part in violent jihad in Syria in recent months, country by country. I will not trouble the House with the full table, but it is alarming because it shows that there are other countries in the European Union and elsewhere from which violent jihadists have gone in greater proportionate numbers than even the United Kingdom—the Netherlands is one example—although the United Kingdom figures are alarming. When the successor to the noble Lord, Lord Evans, Mr Parker, who has given us his warning on these matters, gets up in the morning, they are the kinds of people he is concerned about. They are the kinds of people to whom attention is given in attempting to ascertain the metadata and, as a result, their movements.
Your Lordships will recall that as a result of the Paris incident, it was revealed, as the newspapers rather naively put it, that the wives of the two brothers involved had communicated about 50 times with one another on their mobile phones. I doubt very much that it was the wives who had been communicating, although certainly their mobile phones had been used
for the purpose of communication. I venture to suggest that if that information, given the history of those two brothers, had come to the attention of the Security Service here and had been acted upon—and, of course, those are two important ifs; I do not mean to criticise the French services, which I think the noble Lord, Lord Evans, would confirm are generally very competent indeed—it is just the sort of information that could have prevented an attack in the United Kingdom. However, there is a gap and it needs to be filled.
I close by saying to the Minister that if he is not prepared to accept these actually rather restricted amendments, which have been offered in good will to try to protect the national security of this country and the safety of its citizens, let him now tell us what alternative the Government have agreed to so that we can now deal with this issue once and for all, without darning the sock.
Lord Condon (CB): My Lords, I thank the four noble Lords who have put their names to these amendments for renewing and re-energising the parliamentary debate about these issues. I will be relatively brief.
I think everyone agrees that there is a gap in the legislation that needs to be filled. I do not disagree with any of those who have spoken so far, not because I am vacillating but because they are all right in what they are trying to say and in their ambitions. We desperately need a clear legislative road map that leads to filling the gaps that are putting our country at risk. Ideally, that road map would lead to legislation before the general election, and that is the spirit of the amendments before us. However, I accept the reservations put forward by the noble Lord, Lord Blencathra, and his committee.
The fight against terrorism and serious crime is not a police and agency fight but a whole-country fight and an international fight, and in the context of our own country we need a critical mass of public and communications industry support for new legislation. The legislation cannot be too far ahead of the wide feeling of support and that they are the right measures at the right time for what we need. I hope that the Minister in his response will be able to give us a sense of how this road map might be laid out. As I say, that would ideally be before the general election, but I suspect that more realistically it will have to be after it. We will therefore be looking to the major parties to set out just what they are prepared to do in this field.
What is absolutely certain is that there is a horrendous gap that gets bigger each day and prevents the agencies that we task with keeping our country safe from doing their best in this field. So I thank again those who brought forward these amendments. This is a vital time for our country to get this matter right.
Lord Evans of Weardale (CB): My Lords, I declare an interest as a non-executive director of the National Crime Agency. Unfortunately, I can neither confirm nor deny the contents of the shopping lists of the noble Lord, Lord Carlile, but he is quite right in saying that we are not here talking about what would amount to a snoopers’ charter.
I have some considerable sympathy for the purpose behind the amendment. It seems to me that there has been a failure in the system to provide the appropriate powers alongside the appropriate controls that will enable the agencies and the police to continue their jobs of keeping us safe from terrorism, as well as, importantly, from serious and organised crime. It was always my view as regards the draft Communications Data Bill that it was at least as important for law enforcement as it was for the intelligence agencies, because the evidence provided by communications data is enormously important and is used again and again in the courts. This is not just an intelligence issue; this is an evidential issue to ensure that justice is properly done in the courts.