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House of Lords

Monday, 2 February 2015.

2.30 pm

Prayers—read by the Lord Bishop of Carlisle.

Schools: Substance Abuse Education


2.37 pm

Asked by Lord Howarth of Newport

To ask Her Majesty’s Government what plans they have to improve teaching in schools about the dangers of substance abuse.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, drugs education is a statutory part of the new national curriculum for science. Pupils should be taught about the effects of recreational drugs, including substance misuse, on behaviour, health and life processes. Provision in this area can be further strengthened through PSHE education. To support teachers, we have provided funding to the drug and alcohol information service Mentor-ADEPIS to produce resources and guidance.

Lord Howarth of Newport (Lab): My Lords, is the Minister aware that evidence was given to the Home Affairs Select Committee that most schools provide drug education on just one occasion in the school year, or even less? Is he aware that the charity Mentor said:

“We are spending the vast majority of the money we do spend on drug education on programmes that don’t work”?

Is he aware that his department told the committee that it did not monitor the programmes and resources that schools use to support their teaching in this very important area? What steps have been taken since the publication of the Select Committee’s report to improve this state of affairs, and does he agree that very much more needs to be done if Education Ministers are to fulfil their proper responsibility to help to protect young people against the dangers of substance abuse in general and the consumption of drugs in particular?

Lord Nash: Ofsted tells us that the drugs education in schools is good. There are a great many charities working with schools, not necessarily during formal curriculum time. Attendance is at an all-time high at schools. Absence has fallen substantially. We have strengthened the national curriculum to cater for more drugs education.

Baroness Meacher (CB): Will the Minister support the constructive policies of many European countries, which have been shown to improve prevention; reduce the numbers of young people addicted to drugs; reduce the prison population, particularly of young people; and increase the numbers of young people and others receiving treatment, relative to the performance of this country on all those measures?

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Lord Nash: We certainly look at what is effective in other countries; I know that ADEPIS has looked at this. We have supported a number of UN resolutions in this respect.

Lord Storey (LD): My noble friend may be aware that the Health and Social Care Information Centre found that drug abuse was more prevalent among those young people who had been excluded from school, at something like 12%, than among those in school. What plans do the Government have to reach those pupils so that this problem can be dealt with effectively?

Lord Nash: My noble friend makes a very good point. Attendance at school is, as I say, at an all-time high. However, this is one of the focuses of the troubled families programme, which has been so successful.

Lord Mawhinney (Con): My Lords, bearing in mind my noble friend’s original Answer, does he have any concern that talking about “recreational drugs” might have the effect of undermining the Government’s very strong desire to deal with substance abuse?

Lord Nash: I agree with my noble friend—it is very unfortunate terminology—but I do not think that our determination is any different.

The Countess of Mar (CB): My Lords, many young people in schools have parents who are already drug abusers. Is any special pastoral care—and, in particular, guidance—given in schools to children of these parents?

Lord Nash: I mentioned the troubled families programme. Families affected by substance misuse are at the heart of our drugs strategy, which commits to support those with the most complex needs. I think it is true that the troubled families programme has been extremely successful.

Baroness King of Bow (Lab): In 2013, the Office for National Statistics records a sharp increase of 21% in the number of deaths from drug misuse in England. Among men, deaths from heroin and morphine are up a staggering 32% on the previous year. Given the dangers of substance abuse and that those dangers are clearly growing according to the Government’s own statistics, does the Minister think that the Government should act with more urgency to find programmes that actually work?

Lord Nash: Among 11 to 15 year-olds drug use has continued to fall from a peak in 2013. It was down again last year. We are very concerned about “legal highs”, or new psychoactive substances, from which there have been a number of deaths. That is specifically why we have introduced the ADEPIS programme, which has produced a range of resources to support teachers when teaching about legal highs. We have already banned more than 500 new drugs and created the forensic early warning system.

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Baroness Perry of Southwark (Con): Does my noble friend agree with me that schools cannot be expected to do everything on their own, and that it is vital that parents also play a part not only in monitoring what their children are doing when they are out in the evenings but in discussing these issues with them in an open and frank manner?

Lord Nash: I agree entirely with my noble friend that parents have a role to play. We have our CANparent trials. One thing that is very important for parents to instil into their children is a sense of routine, particularly in the evenings and late at night.

Lord Brooke of Alverthorpe (Lab): Is the noble Lord aware that, according to the latest figures, the number of young people presenting with alcohol problems at A&E has increased? Is he also aware—and this is hearsay—that people who do talks at schools say that when they make approaches to speak on drugs, alcohol and other mental health problems, they often get a warmer reception and greater welcome in the private sector than at state schools, where their approaches do not get a similar response?

Lord Nash: It is true that figures show that alcohol abuse among young people of school age is down, but that may not be the case for those in their late teens or early 20s. On the noble Lord’s point about the private sector, we are trying to make sure that all state schools have an active extracurricular programme so that these kinds of extracurricular courses are well attended.

Lord Ramsbotham (CB): My Lords, can the Minister confirm that drugs education is on the syllabus of young offender establishments? Although there may be treatment, there is not much evidence of education, which is just as important.

Lord Nash: I agree entirely with the noble Lord. That is not really my brief, but I agree that more education in prisons would be a very welcome thing.

Pregnancy: Discrimination at Work


2.45 pm

Asked by Baroness Thornton

To ask Her Majesty’s Government what measures they are taking to address the findings of the Trades Union Congress report, The Pregnancy Test: Ending Discrimination at Work for New Mothers.

Lord Popat (Con): My Lords, the Government welcome the TUC report as a useful contribution to our understanding of pregnancy and maternity discrimination, which is unacceptable and unlawful. The Government have commissioned new research from the Equality and Human Rights Commission on the attitudes of employers to pregnancy and maternity leave, as well as on the prevalence and causes of pregnancy discrimination in the workplace. The results of the interviews with 3,000 employers and 3,000 employees will be published later this year.

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Baroness Thornton (Lab): I thank the noble Lord for that reply. I am sure that he is aware that Maternity Action believes that as many as 60,000 pregnant women and new mothers were forced out of work in 2014. The excellent TUC report ThePregnancy Test confirms that 40 years after the anti-discrimination legislation was passed, women are still losing jobs and being harassed at work when they are pregnant or have just had a baby. This situation is exacerbated by the dramatic drop in tribunal cases for maternity discrimination by at least 25% due to the huge hike in tribunal fees. So the consultation is very welcome, but what action will the Government take to deal with the double whammy of lack of enforcement of the law and lack of redress for working women of childbearing age?

Lord Popat: My Lords, tribunals should be the last resort. The company’s grievance procedures should be able to address that issue, and failing that we have ACAS, which normally looks into these cases. As regards fees for the tribunals, ACAS has been able to look into roughly 80% of the cases, although it now costs money to go to the tribunal. However, where people cannot afford it, there can be remission of the fees, and quite often the tribunal will award costs if a pregnant woman or mother-to-be wins the case.

Baroness Benjamin (LD): My Lords, some mothers make a conscious decision to give up their successful careers to bring up their young children during the early stages of child development, which is so important. But often they find it difficult to re-enter the workplace and pick up where they left off. Can my noble friend say what the Government are doing to encourage more employers to make sufficient provision—and there is evidence of some good practice—to help these women to bring back their skills and experiences into the job market?

Lord Popat: My Lords, yes, it is important for women who have taken maternity leave to go back to work. Quite often women leave employment with a view to returning to work; that is where the Equality and Human Rights Commission plays a very significant role with BIS in supporting employers to recruit these women back to work.

Baroness Turner of Camden (Lab): My Lords, should not the Government take more steps to ensure that the law that exists at the moment is fully carried out? It is not—lots of women are not aware and think that this is discretionary. It is not discretionary at all; it is an entitlement, which is not being kept without a struggle on the part of women concerned. Could not the Government do a great deal more, including what has already been recommended, to ensure that what is already the law is properly carried out by employers?

Lord Popat: The noble Baroness raises a very important question. We must get to the root cause of this employment discrimination and find out which groups of pregnant women are most at risk of discrimination and which types of employers—looking at size and sector, for example—are most likely to get complaints

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from female employees, so that we know where the issues to be addressed exist. That is why the Government have commissioned the largest ever study of pregnancy and maternity-related discrimination in Great Britain.

Baroness Greengross (CB): Is it not the case that if we were to look at responsible business practice, and the return to the employer of acting responsibly, we would find that those women who are protected and whose jobs are secure after they come back into the workplace repay those companies more than twofold by their loyalty and commitment to the organisation? Could not the Government publicise this more?

Lord Popat: I agree with the noble Baroness, which is why we are carrying out in-depth research into the aspect of what more we can do. It is important that more women have the choice of family and work at the same time. I hope that the research will come up with a recommendation on what more the Government can do. But this is an area that we do take seriously. We have a larger number of women working at the moment than we had in 2010, and of course we want more of them to come back to work—hence the Government have come up with a number of different schemes, including the nursery allowance and all that, to encourage them to come back to work.

Baroness McIntosh of Hudnall (Lab): My Lords, the Minister made an observation about women having a choice between staying at home and looking after their children and going out to work. Would he not agree that, increasingly, it is a choice that few people have, because most families can no longer survive on one income? That is why it is extremely important that women are not discriminated against when they have children in getting back into work afterwards.

Lord Popat: That is correct—once again I agree with the noble Baroness. That is why the Government have introduced flexible working and are now encouraging, helping and supporting employers, through a number of different schemes, to make sure that they encourage ex-employees to come back to work.

Caste: Equality Act 2010


2.51 pm

Asked by Lord Avebury

To ask Her Majesty’s Government what is the timetable for implementing the legislation to incorporate caste as a protected characteristic under the Equality Act 2010.

Baroness Garden of Frognal (LD): My Lords, we have no immediate plans to incorporate caste into legislation. We are aware of the recent Tirkey v Chandok Employment Appeal Tribunal judgment and are considering its implications for discrimination law. The judgment opens the possibility of a legal remedy for claims of caste-associated discrimination under existing legislation, in the ethnic origins element of Section 9 of the Equality Act 2010. We note this potential protection and have always stated that we completely oppose caste discrimination.

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Lord Avebury (LD): My Lords, can my noble friend give an undertaking on behalf of the Government that, if they are re-elected in May, they will pursue this matter to completion, as recommended by the UN Committee on the Elimination of Racial Discrimination? As regards the tribunal case of Tirkey that she mentioned, have the Government considered the opinion of the EHRC that it is not binding on all future cases of caste discrimination and that an express provision in the Equality Act, which has already been decided by Parliament, is necessary for reasons of legal clarity?

Baroness Garden of Frognal: My Lords, I cannot make promises on behalf of a future Government not yet elected, but post-election, of course, the incoming Administration will need to consider how to discharge their legal obligations in respect of the outstanding duty to legislate. On my noble friend’s second question, we of course take note of what the EHRC says, but I should make it clear to the House that this view was expressed by the commission in its submission on the Tirkey case and not part of the judicial decision.

Baroness Thornton (Lab): My Lords, it is almost two years since this House voted by a very large majority that caste should be considered for inclusion in the Equality Act 2010. As the noble Lord, Lord Avebury, has said, the recent employment tribunal judgment reinforces the point that caste discrimination is an issue coming before the courts and that clarity of the law is required. This issue cannot be ignored or sidelined, so what exactly is the Government’s timetable for taking this forward after this terrible delay?

Baroness Garden of Frognal: My Lords, we are conscious of the delay in this matter. During the passage of the Enterprise and Regulatory Reform Act 2013, when the need for explicit caste legislation was debated extensively, it was generally acknowledged that a full public consultation should be undertaken, not least because there was no general consensus on even basic concepts, such as a workable definition of caste itself. Because of a number of delays, there is no longer sufficient time before the election to put it through.

Lord Deben (Con): My Lords, my noble friend will remember that in those debates this House specifically refused to support the Government’s position and refused to accept the delay. We voted for a change in the law. We are now two years later and that change has not been implemented. The Government owe it to this House to say that they will implement it, and that any future Government made up of the two parties of this Government will also implement it.

Baroness Garden of Frognal: My Lords, I recognise the frustration around the Chamber over this matter. However, the debates during the final stages of the then Enterprise and Regulatory Reform Bill made clear that caste is a controversial and difficult issue, and that the Government would need to proceed carefully, involving public consultation. I believe that the Tirkey v Chandok case, which was unknown at the time those debates took place but which has potentially

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significant implications for the law in respect of caste and race discrimination, clearly illustrates the need for caution.

Lord Harries of Pentregarth (CB): Does the Minister agree that it would be quite inadequate to leave issues of racial and gender equality to employment tribunals? What is different about caste discrimination, when the judge in the Tirkey v Chandok case said that his judgment applied only to the facts of that particular case, and did not make any ruling about caste in general?

Baroness Garden of Frognal: Indeed, my Lords, but the Employment Appeal Tribunal is an authoritative court and, for the time being at least, its judgment in that case is the law of the land. The EHRC intervened in the appeal and I imagine would wish to consider another intervention, if it thought that was necessary.

Lord Cashman (Lab): My Lords, all discrimination is difficult to deal with, but such procrastination is entirely unacceptable when more than 200 million people experience caste discrimination every single day. Therefore, will the Minister please report back the strength of feeling in this House that the procrastination is entirely unacceptable?

Baroness Garden of Frognal: I will, indeed, report back the frustration of this House but I come back to one of the difficulties, which is that there is no agreed definition of caste. Many cases which are in the pipeline could be brought under the ethnic origins discrimination legislation.

Epilepsy: New Treatments


2.57 pm

Asked by Baroness Hussein-Ece

To ask Her Majesty’s Government what assessment they have made of the availability and accessibility of new epilepsy medications and treatments.

Baroness Jolly (LD): My Lords, we want all patients with epilepsy to have access to high-quality, patient-centred services wherever they live. The National Institute for Health and Care Excellence has published clinical guidance and quality standards to drive improvements in the treatment of epilepsy both for children and adults. NICE will assess the safety and efficacy of any new treatments that could be beneficial to improving the quality of life for patients with epilepsy.

Baroness Hussein-Ece (LD): I thank my noble friend for that response. However, is she aware that the report by the Neurological Alliance The Invisible Patients highlighted a lack of care, planning and commissioning for people with neurological conditions and that for those living with epilepsy in particular there seems to be a marginalisation and a heavy reliance on parents

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researching new treatments, care and diets? What do the Government plan to do to improve this state of affairs and will my noble friend perhaps say something about the very promising new trials and the cannabis-based treatments that are being rolled out across the country for people with intractable epilepsy?

Baroness Jolly: The noble Baroness asked quite a few questions. I think that parents will always want to look on the internet, now that that is a fairly safe area for advice. Clinical commissioning groups are responsible for planning the majority of epilepsy care, apart from the critical care, which is handled by NHS England. Two trials of cannabidiol are taking place in the UK and plenty in the States. I am sure that NICE will be keen to approve anything that is proved to be safe and effective as soon as possible.

Lord Walton of Detchant (CB): My Lords, in the course of my career in neurology I have treated many patients with epilepsy at all ages and in all its variants. There is no doubt that there has been a remarkable transformation in the management of all the types of this condition as a result of research in our universities and in the pharmaceutical industry. Nevertheless, there are still some patients in whom seizures are intractable and do not respond effectively even to the most modern drugs. Quite apart from what the Neurological Alliance has said, is the Minister aware that the Association of British Neurologists has identified a striking unevenness in the quality and availability of specialised neurological care throughout the country? What are the Government doing to make certain that these facilities, which are so necessary in treating this condition, are more properly and evenly distributed?

Baroness Jolly: There are four such facilities in the UK: one in Bristol, Alder Hey in Liverpool, one in London and, I am sorry, I have forgotten offhand the fourth. The Government certainly are on to this and are sympathetic to the comments that the noble Lord has made.

Baroness Ford (Non-Afl): My Lords, can the Minister say what progress, if any, has been made to provide advice to pregnant women on the use of sodium valproate before and during pregnancy? I remind the Minister that I first raised this issue in the House in November 2010. I declare an interest as the honorary president of Epilepsy Action and a supporter of the campaign group InFact, which has done so much to highlight this issue.

Baroness Jolly: Yes, I have read the debate that the noble Baroness called in the past. Sodium valproate is a big issue for women of child-rearing age. It would have been prescribed in the first place by a consultant. I expect that she or he would advise the woman about that concern.

Lord Winston (Lab): My Lords, would the Minister be kind enough to answer the question asked by the noble Lord, Lord Walton? I do not think he was referring to just four centres for neurological disease around the United Kingdom. Neurological damage and brain damage are major problems, particularly

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stroke. Can the Minister tell us what plans the Government have to improve these services, which are currently still below par?

Baroness Jolly: Certainly. As I said, clinical commissioning groups are looking at the majority of epilepsy services. On stroke, across the country there is a huge move to set up stroke care pathways. The noble Lord will know about that as well.

Baroness Barker (LD): My Lords, are all CCGs required to commission therapeutic drug treatment programmes and to share the data nationally so that there can be shared learning on what works best for patients?

Baroness Jolly: This is a really big issue for epilepsy. As I said, CCGs commission the majority of services. NHS England commissions the specialised stuff. There needs to be a far more effective data-sharing programme to know where we stand on these issues.

Lord Foulkes of Cumnock (Lab): My Lords, the Minister has been very sympathetic in answering these questions. What does she think about companies that make huge profits out of selling these medicaments, such as Boots the chemist and its chairman who refuse to pay taxes in the United Kingdom?

Baroness Jolly: As the noble Lord would expect, I am very uncomfortable about any large corporations, or indeed very wealthy individuals, avoiding paying their tax.

Lord Patel (CB): My Lords, going back to the original Question on new treatments for epilepsy, does the Minister agree that the problem is that there is no single drug that is effective for the full spectrum of epilepsy? Therefore, many treatments are promoted, including cannabidiols, which have not been fully evaluated. Until a drug is accepted by the regulatory authorities in the EU and the USA, and has been evaluated by NICE, it should not be available to patients.

Baroness Jolly: The noble Lord is absolutely right.

Baroness Wheeler (Lab): My Lords, on commissioning, CCGs have a strategic influence and make key commissioning decisions that impact on the lives of nearly half a million people with epilepsy in England. Yet, last year’s Epilepsy Action report showed that only 10% of them had produced written needs assessments for people with epilepsy and that 70% reported that they did not have any plans to do so, either for this or for people with other neurological conditions. What are the Government doing to remedy this appalling situation?

Baroness Jolly: If the noble Baroness is referring to the joint strategic needs assessment, that is produced by the clinical commissioning groups working in conjunction with local authorities. It is up to them to make decisions about what they consider to be important.

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Lord Howarth of Newport (Lab): My Lords, if there is evidence that cannabidiol, and indeed cannabis itself, is efficacious in relation to epilepsy and other conditions, should not the Government accelerate the evaluation that the noble Lord, Lord Patel, has just called for?

Baroness Jolly: I am certainly not including cannabis in this but cannabidiol is being trialled in two places—Edinburgh and Great Ormond Street—with a view to moving it through to NICE as soon as the evidence is there and then on to treatment if that is deemed sensible.

Baroness Hussein-Ece: My Lords, when I asked my supplementary question, I mentioned that there was a heavy reliance on the parents of children with this condition researching new treatments. I meant to declare that a member of my family has this terrible condition—intractable epilepsy—and I have seen at first hand how parents try very hard to look for alternatives. One is the ketogenic diet, which was not offered or thought of until the parents pushed for it and then the child’s condition improved enormously. Some parents will not have that kind of access or know how to research it in the same way. Surely the onus is on the commissioning groups or the clinicians to suggest alternative treatments.

Baroness Jolly: Indeed. That particular diet has been approved by NICE and so there should be no problem. Neurologists should know that it is available and prescribe it.

Lord Christopher (Lab): My Lords, I remember some years ago that a higher proportion of epileptics were in prison than in the population generally. Is that still the case and is anything being done about it? Otherwise, recidivism may be happening unnecessarily.

Baroness Jolly: My Lords, that poses a very big question. I do not know what the statistics are but I am happy to drop the noble Lord a line.

Counter-Terrorism and Security Bill

Order of Consideration Motion

3.06 pm

Moved by Lord Bates

That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1, Schedule 1, Clauses 2 and 3, Schedule 2, Clauses 4 to 12, Schedules 3 and 4, Clauses 13 to 24, Schedule 5, Clause 25, Schedule 6, Clauses 26 to 36, Schedule 7, Clauses 37 to 41, Schedule 8, Clauses 42 to 49, Title.

Motion agreed.

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Local Audit (Appointing Person) Regulations 2015

Local Audit (Smaller Authorities) Regulations 2015

Protection of Freedoms Act 2012 (Code of Practice for Powers of Entry and Description of Relevant Persons) Order 2015

Regulation of Investigatory Powers (Communications Data) (Amendment) Order 2015

Motions to Approve

3.07 pm

Moved by Baroness Williams of Trafford

That the draft Orders and Regulations laid before the House on 8, 10 and 17 December 2014 be approved.

Relevant documents: 17th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 27 January.

Motions agreed.

Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations 2015

Motion to Approve

3.07 pm

Moved by Lord Popat

That the draft Regulations laid before the House on 8 December 2014 be approved.

Relevant documents: 17th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 27 January.

Motion agreed.

Counter-Terrorism and Security Bill

5th Report from the Joint Committee on Human Rights

Report (1st Day)

3.07 pm

Schedule 1: Seizure of passports etc from persons suspected of involvement in terrorism

Amendment 1

Moved by Baroness Hamwee

1: Schedule 1, page 34, line 5, at end insert—

“( ) A constable or qualified officer must, in carrying out the duty in sub-paragraph (8), provide the person with a summary of the reasons for the suspicion.”

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Baroness Hamwee (LD): My Lords, Schedule 1 to the Bill provides for the seizure of passports from persons suspected of involvement in terrorism. Paragraph 2 deals with the seizure of passports at a port, and paragraph 2(8) sets out what the officer undertaking this exercise must tell the person. He must tell him that he is suspected of intending to leave Great Britain or the UK—there is a slightly different provision for Northern Ireland—

“for the purpose of involvement in terrorism-related activity”,

and that the officer is entitled to exercise the power to seize. Reciting those statutory grounds does not seem to be enough. There is no provision on the face of the Bill for the person to be informed of at least the gist of the reasons for the suspicion.

The draft code of practice, which has been out for consultation, includes some notification requirements but it does not include this one. As the Joint Committee on Human Rights pointed out, the draft code provides that,

“where a senior police officer authorises retention”—

this is at a different stage—

“the individual must be given a written notice which should … inform the person that they may … request reasons for the retention of their travel documents … Elsewhere, the draft Code provides that a police constable exercising the power … must issue the person with reasons for its exercise … ‘if requested’ and if travel documents are returned within the”,

first period which is provided by the schedule,

“they are to be accompanied by a notice reminding the individual that they may formally request reasons as to why their travel documents were seized and retained”.

None of that addresses the need to tell the person straightaway.

I should like to see in the Bill the JCHR recommendation,

“that the Code should provide that a person subject to the exercise of the power should be informed of the reasons for its exercise at the earliest opportunity in every case, and not merely where the individual makes a request”.

That is very fundamental, not only to the exercise of the power but as to how it is perceived. We rightly spent a good deal of time in Committee—and will, I am sure, spend more time—on the difficulties of perception and perceived discrimination against certain groups, which perhaps is a different issue from actual discrimination but is a very real issue.

In Committee, the noble Lord, Lord Pannick, supported my point. He said:

“No one would suggest that all detailed reasons must be given, but if someone is told that their passport is being taken away they should be told the essence of the reasons why if this power is to be acceptable and not criticised as obviously unfair”.—[Official Report, 20/1/15; col. 1236.]

It was building on that phrase “the essence of the reasons” that I have provided in my amendment for a summary of the reasons and not for the detail. I am aware that there may be security issues around that.

In Committee, the Minister gave a very long response to the group of amendments of which this was one—I think that there were 24 amendments—so it was quite an achievement to cover the ground. I fear that I did not manage to extract from the response a reply to this specific point. At the end of his reply, I asked him

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whether some comments he was making applied to gisting, and he said that they did not. Therefore, it seemed to me appropriate to bring the matter back at this stage in the hope that I will hear that we could include something like this in the Bill but certainly in the hope of hearing a detailed defence of the Government’s position. I beg to move.

Baroness Buscombe (Con): My Lords, I am a member of the Joint Committee on Human Rights and I should like to say strongly that I do not support this amendment. There was a very good reason why we said that reasons should be given “at the earliest opportunity”. We absolutely accepted that there will be occasions on which it simply is not reasonable, either on security grounds or because of the speed with which the information is travelling in relation to the possible perpetrators from whom the passport is being taken, to expect the police to have reasons to hand. The phrase “at the earliest opportunity” leaves it sensibly open for the police to be able to respond in good time with some information as to why this has taken place. The committee discussed at great length that to expect a summary there and then on the spot—which is what the noble Baroness is asking for—would probably be too difficult in certain circumstances.

We have to accept that some of the information will probably arrive without much notice to those who have the difficult task of removing the passport. Given that the person will already be at a port or an authority in order to leave the country, surely it is right that in such cases we give trust and time to the security services and the police to do what they have to do in an emergency—that is, to remove the passport—and then, at the earliest opportunity, state the reasons.

3.15 pm

Baroness Ludford (LD): My Lords, I meant to ask the noble Baroness a question before she sat down. My noble friend Lady Hamwee emphasised that this is about providing a summary of the reasons for the suspicion. That is not proof or anywhere near it—it is not even a great deal of detail—but a summary of the reasons for suspicion. The requirement has quite a low threshold and would at least provide a basis on which a person may comprehend why these powers were being exercised. It seems reasonable and not too high a threshold to expect of the security services and the police.

Baroness Buscombe: My Lords, this is the Report stage and in order for me to speak a second time it has to be accepted that the noble Baroness asked me the question before I sat down. The whole point of this is to allow for a reduced bar, in a sense, which is not sufficient for the power of arrest but is something less. It is wrong in any way to box in the security services and police in a difficult situation where, because of security reasons, they may not even know whether they can give the information.

I am trying to set the scene. We are talking about a different world from the one in which it is accepted that there would be a warrant for arrest and reasons given, where there would be understanding and matters would be beyond suspicion. All I am saying is: “Please

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can we give the security services and the police the freedom to act, sometimes with extreme speed, to stop someone leaving the country—someone who may want to do something on the mode of transport—without having to give such information?”. In any event, the summary probably would not satisfy—it is not meant to satisfy—the person from whom the passport is being taken.

Baroness Hussein-Ece (LD): My Lords, I support the amendment and wish to address the comment made by my noble friend previously. It is quite a serious matter for a family, who may have spent a great deal of money purchasing tickets and planning a holiday, to arrive at a port or an airport to leave and then to have their passports, or one family member’s passport, seized. It seems to me quite reasonable to provide that person with a summary as to why their passport is being seized.

There is also the issue that there needs to be some accountability; otherwise, there is a danger of the whole system being seen as racially profiling people for whatever reason. We have learnt lessons from what happened with stop and search—there was not always sufficient intelligence or reasons given for people being stopped and searched. Further, a report published in 2013 by Her Majesty’s Inspectorate of Constabulary documented the poor training of officers who are exercising the power. It seems eminently sensible to have an extra layer which provides a safeguard and a degree of accountability around what is a no small matter of a passport being seized.

Recently I was travelling back from Paris with my son, who happens to have a Muslim name. He was questioned when we got to immigration control and we almost missed our Eurostar back home. He was asked whether he had been to Turkey recently. He does have family in Turkey and it would be entirely reasonable for him to go there, but he was singled out because of his name; there was no other reason. As it happens, he has not travelled to Turkey in the past year, but we were detained for some time and it was a worrying thing. His passport was not seized or anything like that, but the incident indicated to me that because of my son’s name, and for no other reason that I could see, he was questioned. My son is not a frequent traveller to Turkey and we had been on a day trip to Paris. He was questioned very seriously and we were within a minute of missing our train back. That showed me that this can be done quite randomly and with no proper intelligence.

Lord Harris of Haringey (Lab): My Lords, this would be a safeguard without substance. What is required here is that a person is given a summary of the reasons for suspicion. The noble Baronesses who have spoken in support of the amendment have said that the summary obviously could not include the full intelligence, and quite rightly so. Presumably, the summary of the reasons will be, “There may be intelligence which suggests that”, which is hardly a reason that will satisfy anyone and seems essentially to be pointless. Surely the fact that someone is told that this is being done under Schedule 1 to the Counter-Terrorism and Security Act is all the summary of reasons that will ever be given. Dressing it up by saying, “You are being provided with a summary of the reasons: namely, that

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you are thought to be a person to whom Schedule 1 to the Counter-Terrorism and Security Act applies”, does not provide much of a safeguard. Is this not just gesture politics?

Lord Pannick (CB): My Lords, this is not gesture politics. There are many areas of the law where an obligation to provide a gist of the reason is imposed precisely in order to try to achieve a compromise between the duty of fairness and the demands of security. In these areas of the law, providing a gist does give individuals the substance of the allegations against them. In this context, the constable can exercise the relevant power only if he or she has reasonable grounds to suspect. In general, the constable must be able to provide at the least a summary of the reasons why they have reasonable grounds.

I understand the point that there may be security reasons why the constable is either unable, or is concerned that he or she may be unable, to provide even a summary. I wonder whether the Minister might consider, prior to Third Reading next week, coming back with a revised amendment that would impose the obligation set out in the amendment moved by the noble Baroness, Lady Hamwee, but subject to an exception—if the constable believes that there are or may be security reasons not to provide the summary. In the context of the exercise of a power as serious in its implications as this—that is, seizing someone’s passport—surely there ought to be an obligation, at the time when the power is exercised, to tell the individual why it is being exercised.

Baroness Butler-Sloss (CB): My Lords, following on from what the noble Lord, Lord Pannick, has just said, it may be possible to add to the amendment the words, “or in the case of emergency”.

The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con): My Lords, I am grateful to my noble friend for giving us an opportunity to discuss this issue again. It was part of a very large group of amendments in Committee, so I would like to put on the record some additional remarks which I hope will provide further reassurances about the circumstances in which the power may be exercised.

The Government are absolutely committed to the appropriate and proportionate use of the power to seize travel documents. The impact of this amendment would be to reduce the effectiveness of the power and the speed at which it could be used. We should remember that the context for this is that we have up to 600 people suspected of travelling to Syria and engaging in terrorism-related activities. It is in that context that we are seeking to disrupt, if not stop, such actions. This gets to the heart of the purpose of this power, which is to disrupt immediately the travel of individuals who are reasonably suspected of travelling for terrorism-related activity and to give the police time to investigate them.

It may of course be, as my noble friend Lady Buscombe mentioned, that this happens in the context of a tip-off, which might be from a security source or from a family member who at that point has some fear

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of the individual. There could be reasons why it is not possible to give more detailed reasons. However, a police officer of superintendent rank would have had to have been satisfied that the reasonable suspicion grounds had been met. It would be inappropriate to reveal the source or content of that information. There would need to be a full consideration of what the individual could be told, and this is likely to involve gisting—which I will come back to in a second.

Given the immediacy of the power, it would be impractical to conduct this consideration at port, and it would potentially damage prosecution prospects to do so at this point. However, if the police apply to extend the retention period, they must give as much information as possible about the reasons the individual’s passport was retained, without prejudicing national security. The Bill contains robust authorisation and review processes to ensure that the power is appropriately and lawfully used.

I did not make the following remarks in Committee—I am trying to add to the reply which I gave then. First, the reasonable suspicion test must be met. The use of reasonable suspicion as an evidential standard is used in relation to many other police powers. What constitutes reasonable suspicion will depend on the circumstances in each individual case, but there must be an objective basis for the constable’s state of mind, based on the facts, and it must be specific to the individual. At the point of seizure, the individual will be informed that their travel documents were seized because there were reasonable grounds to suspect that they were intending to travel overseas for the purpose of involvement in terrorist-related activity outside the UK. The police are not detaining the individual, nor are they permanently removing the individual’s passport privileges.

Secondly, the police are under a statutory duty to return the travel documents as soon as possible if the test is no longer met and investigations do not substantiate grounds to support further action being taken in respect of the person. Thirdly, a senior police officer of at least superintendent level must authorise the decision to exercise the power. Fourthly, this senior police officer’s authorisation is further reviewed by a police officer of at least the rank of chief superintendent, and this review must be started within 72 hours of the seizure. Fifthly, the reviewer’s findings must be reported to the chief constable of the force which exercised the power and he or she must consider those findings and take appropriate action. Sixthly, unless a court agrees to extend the retention period, the police must return the travel documents after 14 days from the point at which the documents were seized.

The whole process is further governed by a statutory code of practice, which my noble friend Lady Hamwee referred to in her introduction, which makes provision for how officers are to exercise the power and ensures proper use of it. The code also provides that a person who has had their passport seized may write to the police requesting that the reasons are provided for the exercise of the power. The police must respond, following detailed consideration of any sensitive information. Therefore, an individual can receive more detailed reasons as to why the power was used in their case, even when the passport is returned very promptly.

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As the Bill stands, there is a clear threshold that must be met to justify the exercise of the power. The disclosure of any information relating to national security requires careful consideration on a case-by-case basis. This amendment would require such considerations to have taken place before the power could be exercised. A police officer at port would not be able to make this judgment. As I said, this would have the effect of preventing the power being used as intended as a disruptive measure. In the light of this and of the extensive and robust safeguards already in place to govern the exercise of this power, the Government believe that the change proposed in this amendment is not necessary and would have the consequence of inhibiting the use of this important power.

3.30 pm

On the point raised by my noble friend Lady Hussein-Ece, both stop and search and Schedule 7 examinations at port have lower thresholds than the travel document seizure power being discussed. Nor do those powers have the same stringent authorisation and review requirements as these measures do.

The noble Lord, Lord Pannick, asked whether gisting would be available in connection with this power. In relation to the judicial review element—because there is an ability to seek judicial review—the Justice and Security Act provides the basis on which closed material procedures could consider the evidence being made available to them.

My noble friend Lady Hamwee asked why the person could not be provided with a summary of the reasons. To provide a summary of the reasons would require consideration of what the individual can be told and is likely to involve gisting. It would be impractical to consider that at this stage.

Two noble Lords asked whether the power might be used as a kind of stop and search for profiling. It is important to say that the exercise of the power must be based on reasonable suspicion and will take place before the person presents at port. It will not be a border officer acting on their own judgment; it will happen ahead of time, with a police officer and a superintendent having agreed that there is sufficient reason for the power to be exercised. With those assurances, which I am grateful to the noble Baroness for having given me the opportunity to put on record, I ask her to consider withdrawing her amendment.

Baroness Hamwee: My Lords, the noble Baroness, Lady Buscombe, quite reasonably asked us to imagine a situation. I understand what she described. But perhaps we should also imagine the reaction of the individual—so the whole of the scene.

My noble friend the Minister talked about the return of documents as soon as possible, senior authorisation, the 72-hour limit, the role of the chief constable and the court, and so on. None of those is likely to satisfy the individual at the point at which they have been stopped. Let us say that you are an outraged, innocent traveller. Everything that has been described by way of safeguard is after the event. On the point about profiling and discrimination, perception is so important. The safeguards will not answer that point.

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My noble friend said that the amendment was not necessary. It may not be necessary in terms of reasonable suspicion—that is not my argument—but something is necessary, even if it is difficult. On giving reasons at the earliest opportunity, I take the point made by the noble Baroness, Lady Buscombe, that the police may not know at this point. I can imagine that there might be an urgent phone call to the effect that so and so is likely to go through border control in 30 minutes’ time or on to such and such a flight, and the services will need time. However, that having been said, the code does not even provide for an explanation at the earliest opportunity. It talks about “requesting reasons”; it puts the onus back on the traveller. However, the officer may not know the reasons—so you can request them as much as you like but you will not be given them by somebody who has not been informed of them.

I take the point about security. I suspect that these situations might all be emergencies. To conclude, is there some way of encapsulating and dealing with this concern? If it is not in the Bill at Third Reading, could there be at the very least a change to the code to make the arrangement more human for the person affected? I would be very happy between now and next week to try and thrash out how this might be provided.

Lord Bates: On the latter point, of course the code is open to consultation. I certainly give an undertaking that my noble friend’s remarks will be fed into that consultation process.

Baroness Hamwee: I thank my noble friend and beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 1A

Moved by Baroness Kennedy of The Shaws

1A: Schedule 1, page 37, line 16, at end insert “(“a warrant of further retention”)”

Baroness Kennedy of The Shaws (Lab): My Lords, I return in this set of amendments to matters that I raised in Committee. I do so as a member of the Joint Committee on Human Rights, which is concerned about the inadequacy of providing for the right to a fair hearing on these matters under Article 6 of the European Convention on Human Rights. I say immediately that we recognise the availability of judicial review but the availability of JR alone is not sufficient to satisfy the requirement of the right to a fair hearing under Article 6.

I remind the House that this Bill gives a significant power to the authorities to remove a passport and prevent someone travelling. It provides for a judicial consideration only after 14 days, so you do not go immediately to a court unless you seek judicial review. However, after 14 days the judge is under a duty to extend the period of retention of the passport for a further 30 days so long as he or she is satisfied that the investigation into the person is being conducted “diligently and expeditiously”. That is the only test for the judge at that point. We can well imagine someone turning up to say, “We need to keep this passport longer because we are still making our inquiries and working as fast

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as we can”. All of us who know how the courts work know that it is very hard for a judge to go behind the simple statements presented to the court.

The Bill provides for a closed material procedure at that hearing but makes no provision for the interests of the excluded party to be represented by a special advocate. You can ask for an extension, and for the person whose passport has been removed and the counsel representing them to remove themselves from the court. While in other circumstances that would immediately give rise to the special advocate procedure, here it does not.

It was the view of the Joint Committee that the best way to ensure compatibility with Article 6 was to amend Schedule 1 to the Bill so that it provides a genuinely judicial system of what we called “warrants of further retention”, directly analogous to the system of warrants of further detention of terrorism suspects in Schedule 8 to the Terrorism Act 2000. In fact, that has been used as the model in these circumstances, except for this set of provisions. I know that in Committee the Minister said that detention warrants were of greater seriousness than removing someone’s passport, but we would remind the House that interfering with family and private life by seizing someone’s passport is rather important and a significant intrusion into one’s liberties. However, the standards that we would expect seem to be absent.

The amendments put forward in my name fall under a number of different headings. The length of the period of retention concerns us; it should be seven days, not 14. The grounds that must be satisfied for a judicial warrant of further retention should be gisted and a summary of the withheld information, at least, should be provided to the court. That is different from the position proposed in the previous amendment because although lawyers would be involved at that point, a constable at the scene, say, could not be expected somehow at short notice to provide a statement that did not in any way risk disclosure of sensitive information. In this case, lawyers would have already been involved and gisting would have been perfectly possible.

Therefore, my set of amendments deals with these matters and reflects the amendments proposed in Committee. They provide for proper judicial oversight, which should happen speedily—not within 14 days but seven. We would expect, as in any other procedures whereby liberty and citizens’ rights were seriously being interfered with, there to be opportunities for knowing, at that point and in gisted form, the reasons for retention. If there are going to be closed procedures, the special advocate procedure should be invoked. That is what this set of amendments seeks to do. Given the seriousness of this matter—because it is a great intrusion—I hope that, having had some time to reflect, this House, the Minister and the Government will decide that that is the proper way in which to deal with such a significant interference with citizens’ rights. I beg to move.

Lord Bates: My Lords, I am grateful to the noble Baroness for again moving the amendment. At the outset, I should say that I recognise absolutely that we are talking about a serious matter here and that there should be safeguards. The issue between us—and the Joint Committee, for that matter—is on whether we believe that the safeguards are indeed adequate.

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The noble Baroness is suggesting that taking a passport for up to 30 days is an infringement of liberty, and we accept that. However, for reasons that she pre-empted, we do not accept that that is equivalent to the pre-charge detention arrangements under Schedule 8 to the 2000 Act. This is very much a disruption technique. Of course we recognise that this is an infringement and it needs to be carefully monitored. Her amendment would name an extension of the seizure period a “warrant of further retention”, and seeks to draw an analogy with the Act to which I have just referred. I hope that noble Lords will agree that this is not an appropriate analogy, for the following reasons.

Individuals subject to this power will remain at liberty. Their passport privileges are not removed permanently. During the period that the police hold that person’s passport, the police and others need to work diligently and expeditiously to investigate further the nature of the information. Due to the nature of the hearing envisaged in a number of the amendments in this group, the court would need to provide for closed material proceedings with the appointment of special advocates. As the House will know, closed material proceedings are resource intensive; it would be challenging, if not impossible, for such a hearing to take place within that initial seizure period. Indeed, by the time that it is heard, the travel documents might already have been returned, or alternative disruption action might have been taken. This power is already subject to considerable safeguards, which are proportionate to the level of interference.

Let me briefly reiterate the measures in place to ensure that this power will be used in a fair, reasonable and lawful manner. First, the reasonable suspicion test must be met. I will summarise the points because they also relate to the previous group. This is a clear threshold that is well understood by the police to justify the exercise of the power. At the point of seizure, the individual will be informed that his or her travel documents are to be seized because there are reasonable grounds to suspect that he or she is intending to travel overseas for the purpose of involvement in terrorism-related activity outside the UK. The disclosure of any further information would require careful consideration on a case-by-case basis.

3.45 pm

Secondly, the police are under a statutory duty to return the travel documents as soon as possible if the reasonable suspicion test is no longer met and investigations do not substantiate grounds to support further action being taken. Thirdly, a senior police officer of at least superintendent level must authorise the decision to exercise the power. Fourthly, this senior police officer’s authorisation will be further reviewed by a police officer of at least the rank of chief superintendent. This must take place at 72 hours after seizure.

Fifthly, the reviewer’s findings must be reported to the chief constable of the force that exercised the power and he or she must consider those findings and take appropriate action. Sixthly, unless a court agrees to extend the retention period, the police must return the travel documents after seizure. I should just clarify

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that the court can extend retention only up to 30 days in total: if the hearing is at day 14, the maximum number of days by which the retention period can be extended is 16. The information provided will enable a person to understand why they are under investigation and help the court to consider whether the case is being considered diligently and expeditiously. The 14-day period has been set deliberately, following consultation with the police. By this point, the investigation should have progressed to the extent that a court can meaningfully consider whether it is being conducted diligently and expeditiously, and the evidence heard should be tailored to the case being considered.

The whole process is further governed by a statutory code of practice that makes provision for how officers are to exercise the power and ensures the proper use of this power. The code will be laid before Parliament following Royal Assent for consideration under the made affirmative procedure. The code provides that a person who has had their passport seized may write to the police requesting the reasons provided for the exercise of the power, and the police must respond, following detailed consideration of any sensitive information. An individual can therefore receive more detailed reasons as to why the power was utilised in their case, even in a case where the passport is returned promptly.

Your Lordships should also be aware that a person subject to this power is not prevented from making representations at any time, including at the point of seizure. Crucially, individuals can already challenge the exercise of this power, if they choose to do so, by seeking judicial review or taking other civil action.

The Government are absolutely committed to the appropriate and proportionate use of the power to seize travel documents, but these amendments would reduce the effectiveness of the power and the speed at which it could be used. In the light of this, and the extensive and robust safeguards already in place to govern the exercise of this power, the Government believe that the changes proposed in these amendments are not necessary and would inhibit the power. Accordingly, I hope that having provided this additional layer of reassurance to your Lordships, the noble Baroness may feel able to withdraw her amendment at this stage.

Baroness Kennedy of The Shaws: My Lords, I cannot pretend that the resistance to the argument that there should be proper judicial oversight is not disappointing. I know that the Joint Committee on Human Rights feels strongly that powers like these are very serious powers to take to the state. They also send out a message that is going to be received very negatively, because there will almost undoubtedly be occasions when people fail to travel to important family occasions and where the reasons for preventing that travel are based on information that is not satisfactory. There will be a real backlash, and we will find the communities affected feeling very alienated as a result. That is why having proper judicial oversight is so important. I am disappointed, but at this stage I beg leave to withdraw my amendment.

Amendment 1A withdrawn.

Amendments 1B to 1G not moved.

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Amendment 2

Moved by Baroness Hamwee

2: Schedule 1, page 39, line 27, leave out “is” and insert “and any accompanying persons is or are”

Baroness Hamwee: My Lords, Amendments 3 and 4 are also in this group. In Committee, I raised the issue not only of “arrangements”—the term used in the schedule—for persons unable to leave the United Kingdom after the retention of travel documents, but arrangements for their travelling companions. The Secretary of State can make arrangements for the person concerned, but often people do not travel by themselves, and those who are with them will be affected as well, as the noble Baroness just said. My noble friend Lord Ashton said that the debate had,

“highlighted a potential gap in the current provisions”,

and said that,

“the Government are committed to considering this issue in greater detail”.—[

Official Report

, 20/1/15; col. 1257.]

My question is, of course, whether the Government have now had a chance to consider the situation. If we do not refer to other people in the Bill, and if it is a fair point that arrangements for companions of the traveller in question should be considered, is there some other basis on which the arrangements could be made without the provision being ultra vires? I beg to move.

Lord Bates: My noble friend Lord Ashton indeed undertook to go back to consider whether the intention was that those travelling companions would be covered. The brief answer is that I can confirm that parliamentary counsel’s view is that that is indeed the case under the current wording. I hope that that will provide assurance, but for the purpose of the record, I can confirm that paragraph 14 of Schedule 1 already gives the Secretary of State sufficient scope in appropriate circumstances to make arrangements for travel companions of a person whose travel documents are retained. That is because such arrangements will relate to the person subject to the exercise of the power. An amendment to the Bill to apply that provision to travelling companions is therefore in our view, and that of counsel, unnecessary.

Amendment 3 would widen the ability of Paragraph 14 to include where a person is,

“unable to make the journey to which the travel relates”.

The additional wording is unnecessary, as it is captured in the current drafting of,

“unable to leave the United Kingdom”.

For that reason, we are unable to accept the amendment; but I hope, having had the opportunity to clarify that important provision, that my noble friend will feel able to withdraw her amendment.

Baroness Hamwee: My Lords, that is good news. I had not thought that the words “in relation to” the person could extend to “in relation to relations”, as it were. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendments 3 and 4 not moved.

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Amendment 5

Moved by Baroness Hamwee

5: Schedule 1, page 40, line 32, at end insert “including in identifying persons intending to leave Great Britain (or the United Kingdom in the case of a person at a port in Northern Ireland) for humanitarian purposes and not for the purpose of involvement in terrorism-related activity”

Baroness Hamwee: My Lords, I shall speak also to Amendments 6 and 7. In Committee I raised the issue of people who might be travelling for humanitarian reasons rather than simply—if that is the right term—because they are involved in terrorist-related activity. I recognised the difficulties in this, as an individual could assert that he is simply travelling to give humanitarian aid. It is hard to untangle what constitutes support, as envisaged by the Bill, which is more than humanitarian assistance. To put it another way, showing that humanitarian assistance is not so intractably bound up with the activity in whatever country it may be is very difficult.

I therefore chose to base my argument on the position of reputable organisations such as the Red Cross. I had not anticipated the contribution from the noble and learned Lord, Lord Hope of Craighead, which extended the matter very usefully to issues that had come to his attention in his chairmanship of the Joint Committee on the Draft Protection of Charities Bill. He drew the committee’s attention to examples where there had been deterrence to those organisations—I think it is fair to say organisations rather than individuals —that were seeking to go to the areas in question for all the right and good reasons, but feared that they might be prosecuted under the terrorism legislation.

I take the point made by the noble Lord, Lord Harris of Haringey, and I think I took it at the time, that this is actually quite difficult to find one’s way through as a matter of practice. Rather than adding it to the Bill, I have suggested—and I am grateful that the noble and learned Lord has added his name to Amendment 5—that the training to be provided and dealt with in the code of practice should include identifying people to whom this applies; that is, persons intending to leave for humanitarian purposes, not for the purpose of involvement in terrorism-related activity. In other words, those who had exercised the immediate power should be assisted in this.

The other two amendments in the group take me back to the issue of equalities, discrimination and the perception of discrimination. At col. 145, my notes tell me, I dealt specifically with the Equality Act, which was mentioned in debate, as well as recording when the powers are exercised. There is a provision in the code about monitoring. I think that monitoring requires recording, and we are all only too aware, as my noble friend Lady Hussein-Ece has referred to today, of the problems of profiling and inappropriately stereotyping—well, any stereotype is probably inappropriate—and inappropriately identifying individuals who may be the subject of suspicion. I beg to move.

4 pm

Lord Hope of Craighead (CB): My Lords, the noble Baroness mentioned my name in her speech in support of this amendment. I put my name down to support it

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for reasons which I shall go into very briefly. As I mentioned in Committee, my attention was drawn to this problem by evidence which we received in the Joint Committee on the Draft Protection of Charities Bill. That evidence came in part from the independent reviewer, David Anderson QC, and in part from Muslim organisations which are interested in providing assistance to people who need humanitarian aid in places like Somalia which are difficult to penetrate without the assistance of the people who effectively run the country.

I shall make two particular points, without repeating what I said in Committee. First, David Anderson was critical of the definition in the legislation which he described as “monstrously” broad. It was broad for a particular reason, which one can see from looking at Section 1(5) of the 2001 Act, which contains the definition put into this Bill for its purposes. It states:

“In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation”.

It is that kind of scenario that may give rise to problems for a reason which was explained to us by one of the charitable groups. It said that when you go to these difficult countries, in order to get anywhere within those areas, you have to encounter and deal with the gate-keepers. The chairman of the Muslim Charities Forum asked:

“How can we go through the gatekeepers to reach the neediest people in Syria, Somalia or different parts of the world”,

if doing so would be caught by the Section 1(5) definition?

One can see how the thing might build up. The police might have information that the individual passing in front of them has previously gone to these areas and has provided money, as we were led to believe is necessary, in order to get through the gate. The proscribed organisation says, “All right. We’ll let you through, but you have to pay us a certain amount of money to do that”. It is a real trap. Of course, to give money to a proscribed organisation is prima facie assisting the purposes of the organisation, but the real reason for giving such money is to penetrate through the gate to provide the assistance which would otherwise not be available. These are my two points: first, the breadth of the definition and, secondly, what the evidence suggested to us is a very real problem in dealing with these areas.

Noble Lords will remember that in Committee we discussed an amendment to the primary legislation and, in particular in view of the contribution of the noble Lord, Lord Harris, I see that that is a very difficult thing to do at the moment without a good deal of further study and, no doubt, this is not the proper place for it anyway, although I suggest it may have to be dealt with sometime. What the noble Baroness is suggesting in her amendment is that there should be something in the code of guidance for officers so that they are alerted to this problem. Therefore, if they have that kind of intelligence, although what individuals say will not be conclusive, at least they will be aware that these people may have good reason for whatever they are said to have done which prima facie might seem to conflict with the definition in the statute.

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On reflection, it would seem that the code is a better way of dealing with this without getting into the difficulties of amending primary legislation, which would go right across the board and might have rather deeper effects than we can contemplate at the moment. I suggest that the noble Baroness’s amendment is quite carefully crafted and there is real merit in the proposal that she has made.

Lord Harris of Haringey: My Lords, I have enormous respect for the noble and learned Lord, Lord Hope of Craighead, who has identified and talked about an issue that potentially has problems for humanitarian organisations under certain circumstances. However, the amendment remains irrelevant to that. While it may be quite attractive to use a code of practice as a means to identify this issue and make sure that officials are more aware of the potential complications, this code of practice relates to circumstances in which there are reasonable grounds for suspecting that person of the intention of leaving Great Britain for the purpose of,

“involvement in terrorism-related activity”.

It would be to stretch that definition to suggest that there is a suspicion that you are personally involved in terrorism-related activity because your organisation may have paid a sum of money to a gate-keeper in one of these circumstances, because this is about involvement in terrorism-related activity. I am therefore not sure that this is the right mechanism for addressing what I suspect is a real and valid problem that we need to find some way to address. Perhaps we can do that next time we revisit terrorism legislation, which will probably be in about four months’ time.

Baroness Ludford: My Lords, I urge the merit of these amendments very briefly. First, there has been a slight tendency in our discussions in the first part of this afternoon to assume that the actions by the officer at port would almost invariably be on the basis of intelligence that had been supplied before the person reached the port. However, the code stressed that there are two possible scenarios, which appear to be put on an equal footing. One is that information is provided to the police before or when a person arrives at port; or it can take place at port, on the basis of observation of behaviour,

“information obtained from any other source; or a combination of these”.

Therefore, there is fully in the code the scenario where observation of behaviour leads to the reasonable suspicion. That is the context in which these amendments play a part.

The draft code also stresses, in paragraph 24, the obligations under the Equality Act 2010 which police officers must bear in mind when exercising these powers. However, there is not really any reference to specific training on the use of these powers in this context as opposed to rather broad Equality Act obligations.

Finally, can the Minister consider strongly the need for the monitoring of the individual exercise of the powers—not just to monitor them broadly but to record? There is a difference between monitoring in a broad sense and recording when and in what circumstances these powers are exercised.

2 Feb 2015 : Column 476

Baroness Smith of Basildon (Lab): My Lords, I will speak briefly to Amendment 5, which, if I have understood correctly, is to do with training under the code of conduct specifically with regard to humanitarian aid.

I am sure that no one in your Lordships’ House would want to deter those who wish to give such support or aid from doing so. We have a proud history in this country of people—whether as individuals, or through organisations, their churches or charities—who risk their own lives to help and support others. Therefore, we understand what we are seeking with the amendment. My concern is that I would assume that the training to be given to those who would exercise power under this schedule would want them to correctly identify those who are going for terrorism-related purposes. Part of that should include identifying those who are going for humanitarian reasons. That does not necessarily need to be in the Bill; I can think of other groups, for example. I was talking to a friend yesterday evening who some years ago went to Afghanistan as a photojournalist, and he asked whether we specified journalists in the legislation.

The assurance that we seek, which it may not be necessary to put in the Bill, is that, after undertaking the training, those who exercise powers under this legislation fully understand exactly what they are looking for. We want to ensure that those who are going overseas for legitimate reasons—because, even when there are travel advisories out, there are people who would risk their own lives to help others, or to report back to people at home and in other countries—are not excluded or caught under this legislation. I am not sure whether this amendment is the correct way in which to do that, or that it fully identifies all those whom we would not want to be caught under the legislation. My anticipation would be that the training would include the proper use of the powers. If the Minister could confirm that, that would be helpful.

Baroness Hussein-Ece: On the point that the noble Baroness has just made, I was just thinking how difficult it must be to distinguish those who are genuinely going abroad for humanitarian reasons to support people in desperate need. We do not want to deter people who want to do that—it would be a sorry state of affairs if we thought that they should not do that. Perhaps in the guidance for those who are engaged in that work and want to do it, it might be helpful to let them know or give out some information as to what sort of things would be required to demonstrate the purpose of their trip, rather than officers trying to ascertain it when they are at border control. Perhaps we could give advice to what would be predominantly Muslim charities —I can openly say that here—that would be affected by the legislation, to let them know what would be expected of them when leaving the country to engage in the work that they are doing. Perhaps we could give them more information, rather than leave it to an arbitrary officer at the point when they are leaving to ascertain whether this person is going for true humanitarian reasons or for other, terrorism-related instances.

Lord Ashton of Hyde (Con): My Lords, I am grateful to my noble friends for tabling these amendments, which cover issues concerning the statutory code of practice that governs the exercise of the power to seize travel documents.

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To take the last point first, my noble friend Lady Hussein-Ece asked what was expected of charities, rather than just turning up at the airport and finding themselves victims, if you like, of these powers. I shall take that back and ask whether that is suitable, but at the moment I have no knowledge of a particular government draft for charities. But I shall take that back—and I take the point.

As your Lordships will be aware, a public consultation on the draft code of practice for officers exercising functions under Schedule 1 was launched on 18 December and closed last week, on 30 January. We continue to review and consider the consultation responses and any required amendments to the code. In summary, responses have been broadly positive concerning the extent to which, for example, the code appropriately describes who is subject to the new power, the test for exercising the power, how information is provided to people subject to the power and the safeguards against repeated use of the power. Respondents have commented on issues such as the need for an authorisation process and the time this might take, the availability of legal aid for individuals subject to the power and whether the specified police ranks for the authorisation and review functions are set too high. We have, of course, also considered the contributions of noble Lords and Members of the other place to debates on this chapter of the Bill throughout its consideration in the context of that consultation.

We agree with a number of respondents on issues such as the availability of legal aid and clarifying whether family members may access temporary support arrangements, if required. We will revise the code to reflect these points and other additional points that we consider appropriate. A summary of the consultation responses will be published in due course.

I recognise my noble friends’ intention, in tabling Amendment 5, to require the police to receive training so that they may distinguish between individuals travelling for humanitarian purposes and individuals travelling for involvement in terrorism-related activity. That point was made by the noble Baroness, Lady Smith.

4.15 pm

As previously outlined, there is a clear threshold which must be met before a police officer can exercise the power in Schedule 1. The police officer’s decision is subject to authorisation and review. The Government do not consider that this Bill introduces any new risk of prosecution for charities or non-governmental organisations operating in the humanitarian field. It is clear that the intention of the power is to disrupt the travel of those who support or assist individuals with acts of terror. The important point is that we would not wish to encourage potential foreign fighters to leave the UK under the pretence of providing humanitarian aid, and we do not believe that the police require specific training to identify and distinguish individuals travelling for humanitarian purposes.

We fully understand some charities’ concern that they or their staff may be liable for prosecution for a terrorist offence if, in the course of their humanitarian efforts, they pay money to a designated or proscribed

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group, as mentioned in Committee by the noble and learned Lord, Lord Hope of Craighead. However, we are not aware of any cases of genuine aid workers being prosecuted in the UK for involvement in terrorism-related activity. It is important to note that prosecution would take place only if there was sufficient evidence that an offence had been committed, and if the prosecuting authorities considered it in the public interest to do so.

The noble and learned Lord, Lord Hope, outlined the problems of the breadth of the definition of terrorism in respect of gate-keepers specifically. I accept that there are issues in those regards but I do not think that they are addressed by the amendment. As I said before, in respect of gate-keepers in various countries, we are very concerned that no aid should go to those gate-keepers if they are terrorist organisations. There is a danger that that could happen. I submit to your Lordships that this legislation is clearly directed at individuals involved with acts of terror, and not any other legitimate activity.

Amendments 6 and 7 would require the code of practice to deal with,

“other relevant legislation (including the Equality Act 2010)”,

and require officers exercising functions under Schedule 1 to “record the performance of” these functions. The code of practice already makes reference to other legislation where relevant, including the Equality Act 2010. Officers will already be familiar—this relates to the point made by my noble friend Lady Ludford—with their duties under the Equality Act 2010 and the code reiterates the duty that officers are under,

“to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation; to advance equality of opportunity between people who share a protected characteristic and people who do not share it; and to take steps to foster good relations between those persons”.

The code of practice requires the police to monitor the use of this power and,

“consider in particular whether there is any evidence that it is being exercised on the basis of stereotyped images or inappropriate generalisations”.

They must also review whether the records—so this is recorded—

“reveal any trends or patterns which give cause for concern, and if so take appropriate action to address this”.

The Government fully recognise the concern of the House about the need for appropriate oversight and reporting arrangements. This is why the Government have tabled an amendment to extend the remit of the Independent Reviewer of Terrorism Legislation to cover the power to seize travel documents in Part 1 of the Bill. We will consider that amendment later this week. In addition, the Government have committed to publish an annual report on the use of disruptive and investigative powers, and we intend to cover the new travel document seizure power in future reports.

On the basis of this explanation, I hope that your Lordships will feel reassured about the exercise of these powers and, accordingly, I invite the noble Baroness to withdraw the amendment.

Lord Hope of Craighead: Could the noble Lord clarify one point? I may have done so incorrectly, but I took him to say that, if a humanitarian organisation paid money to a gate-keeper that happened to be a

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proscribed organisation, that would be taken as assisting that organisation. The humanitarian organisation would therefore be open to prosecution and to the seizure of passports, which the amendment deals with. It is important to be clear on this because there are people listening—those from the Muslim charities in particular —who are deeply concerned about whether they are at risk. That might not have been quite what the Minister meant to say, but I would be grateful if he could clarify that.

Lord Ashton of Hyde: The Government’s position is that we do not want people to pay money to terrorists for any reason, so I think that what the noble and learned Lord said was correct.

Baroness Hamwee: My Lords, there were a few nuggets in that, for which I am grateful, so I shall not spend time on Amendments 6 and 7.

I absolutely take the point that there might be other entirely legitimate reasons for going to Syria or wherever, as the noble Baroness, Lady Smith, suggested. It made me realise how important gisting is, or an explanation of the reasons for many powers being exercised, because the reasons may come out in an exchange at that early point—the noble Baroness is right about photojournalists and many other completely proper reasons.

The Minister said that the Government do not want people to use humanitarian reasons as a pretext. I did not use that term, but that was exactly what I meant. I think I said that someone could assert that they were going out for that purpose. I agree with that. As to whether officers need training, let me just say that I put question marks against that rather than ticks.

Not being aware of prosecutions does not entirely answer the point. The noble and learned Lord, Lord Hope, talked in Committee about the chilling effect. I fear I have not followed up his references, but he also pointed us to legislation in Australia and New Zealand, which, as I understood it, he felt dealt rather better with that point. The noble and learned Lord nods at that.

I had hoped that we might have been able to take the matter a little further today. On some points we have, but I think that this may remain a real issue. Having said that, I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendments 6 and 7 not moved.

Clause 4: Temporary exclusion orders: supplementary provision

Amendment 8

Moved by Baroness Hamwee

8: Clause 4, page 3, line 35, at end insert “and a summary of the reasons for the imposition”

2 Feb 2015 : Column 480

Baroness Hamwee: My Lords, Amendment 8 takes us back to the subject of gisting, but in the context of the imposition of a travel exclusion order. Clause 4 requires an explanation of the procedure for applying for a permit to return. I would extend that explanation to a summary, bearing in mind the security issue of the reasons for the imposition. I am not seeking a detailed explanation, but for reasons to be given that give an outline, so far as it can be given, for the individual to understand what is being imposed on him.

Amendment 9 would insert a reference to not having a reasonable excuse when failing to comply with a condition attached to the permit to return. In Committee, I referred to a “material failure to comply”. The Minister pointed to the provisions in Clause 10 dealing with the offence which would flow from breaching the condition—in particular, that an individual subject to a TEO would be guilty of an offence if he returned without reasonable excuse. I am seeking to align the provisions and to attach similar wording to the provision that deals with the invalidation of a permit. I beg to move.

Baroness Warsi (Con): My Lords, I want to add words of support for the noble Baroness, Lady Hamwee. Providing the “gist”, as it was referred to by the Joint Committee, would certainly dispel some of the concerns that could arise about the potential random use of these powers, even if they were not so used. Providing that little bit more information, with individuals having direct experience of the reasoning, rather than the oversight process that would follow, would have a useful purpose.

Lord Bates: My Lords, I am grateful to my noble friend for moving this amendment and for giving me the opportunity to put further remarks on the record in relation to the imposition and operation of temporary exclusion orders. The amendments tabled by my noble friends seek to make provision for the Secretary of State to provide a temporary exclusion order subject with a summary of the reasons for the decision to impose the order on them. They also seek to ensure that a permit to return is not invalidated if the individual who fails to comply with a specified condition has a reasonable excuse.

My noble friend tabled an amendment similar to Amendment 8 during Committee. I responded at the time by providing the reasoning for the decision on the subject of the temporary exclusion order. In her previous amendment, she sought to oblige the Secretary of State to disclose the reasons behind her decision. In Amendment 8 she seeks to oblige the Secretary of State to disclose a summary of these reasons. However, the very nature of the information on which the Secretary of State is likely to base the decision to impose a temporary exclusion order means that its disclosure, whether in full or as a summary, could damage national security and might put lives at risk.

As I told the Committee when we discussed this matter previously, it is of course important that the individual is informed that they are subject to a temporary exclusion order, that that is done as soon as possible and that they are given an indication of why this is the

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case. However, again this must be balanced against the implications of the disclosure of such information. The Government take very seriously the decision to impose counterterrorism measures on individuals and the responsibility to provide those individuals with an indication of why the measure has been imposed. However, the Government also have a responsibility to protect the national security of this country and to ensure the safety of our citizens, which could be put at risk by the disclosure of such sensitive information.

I therefore trust that your Lordships will understand that it would not be appropriate for a temporary exclusion order subject to be provided with a summary of the reasoning behind the Secretary of State’s decision. Any notice given to the individual will state that the Secretary of State has reasonable suspicion that they have been involved in terrorism-related activity abroad. We believe that that is sufficient disclosure and that it informs the individual of the basis for the decision, while protecting sensitive information.

Amendment 9 would prevent the permit to return being invalidated where the individual had given a reasonable excuse for failing to comply with the conditions of the permit. Again, this is similar to an amendment tabled by my noble friend in Committee, during which my noble friend Lord Ashton assured her that the amendment was unnecessary. If a temporary exclusion order subject fails to comply with the conditions of the permit to return due to circumstances outside his or her control, the individual would be able to show a reasonable excuse for returning other than in accordance with a permit to return. In those circumstances, the person would not be criminalised. The objective of the amendment is therefore already achieved by the current drafting relating to the offence.

In the event that the individual failed to comply with a condition of the permit to return before travelling back to the UK, the Government would apply discretion to issue a new permit without the condition in question. Any other failure to comply due to the actions or decisions of the individual would understandably result in the invalidation of the permit to return. The Secretary of State will only place conditions on the permit to return that she deems necessary to manage the safe return of the individual and minimise the threat that he or she poses to the UK. Failure to comply with any of these conditions is a serious matter and must be handled accordingly.

4.30 pm

Most importantly, we consider that it is right that the reasonable excuse provision should relate to any possible prosecution rather than to the validity of the permit itself. This allows the court, and not the individual, to decide what would be a reasonable excuse. The approach adopted in this amendment would encourage the individual to decide whether or not to comply with particular conditions. The individual might feel that he or she had a reasonable excuse, or pretend to have a reasonable excuse, and thereby frustrate the purpose of the permit.

I appreciate the objective of this amendment and the points raised by my noble friend Lady Warsi—but, for the reasons I have set out, it is preferable that the

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objective should be achieved through the drafting relating to the offence rather than to the validity of the permit. We cannot risk these individuals feeling able to choose whether or not in their own mind they comply. Therefore, we cannot support this proposal and I urge my noble friend to consider withdrawing her amendment.

Baroness Hamwee: My Lords, I thank the Minister for that. I certainly had not envisaged putting any ideas into an individual’s mind as to what might be effective to explain his position. On a more general point in response to the comments on gisting, an individual who is subject to these processes is likely not to be wholly open-minded as to the reasonableness of the Secretary of State. Issues of transparency are important here as well. The Government rightly talk about a balance and I do not disagree with that. However, having in mind the need for a balance, I am sorry that the Government have not been able to produce a provision dealing with gisting at the various points at which it might—or to my mind should—arise. My attempts are very amateur. It is a shame that the Bill does not reflect the Government’s approach, which of course, on the issue of balance, I fully share. Having said that, I beg leave to withdraw the amendment.

Amendment 8 withdrawn

Amendment 9 not moved.

Clause 20: TPIMs: miscellaneous amendments

Amendment 10

Moved by Lord Brown of Eaton-under-Heywood

10: Clause 20, page 13, line 36, leave out subsection (1)

Lord Brown of Eaton-under-Heywood (CB): In moving Amendment 10 and speaking to Amendment 11, I am returning to an unimplemented recommendation made in his March 2014 report by the independent reviewer about which I spoke at Second Reading and in Committee. These are the only amendments which relate to Part 2 on TPIMs. I want to make just five points.

First, the main and certainly the most contentious change in the TPIM regime brought about by Part 2 is the provision for internal relocation orders—internal exile, as it is being called. In short, it gives the Secretary of State power to require someone who is suspected of involvement in terrorism to move as far as 200 miles away from their present home. Not surprisingly, these highly disruptive kinds of order—which, in years past, used occasionally and contentiously to be made in control order cases—are deeply resented. Occasionally, however, I accept that they are a regrettable necessity.

Secondly, one of the conditions to be satisfied before any TPIM order can be made is that the individual in question is or has been involved in terrorism-related activity, which is known as condition A. Under the present legislation, the 2011 Act, that condition is met if the Secretary of State “reasonably believes” that that is the situation. Clause 20(1) of the Bill would substitute for the requirement of reasonable belief on

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the part of the Secretary of State the requirement that he be satisfied on the balance of probabilities that the person is involved in terrorism.

Thirdly, to my mind there is no practical difference between those two tests, hence the effect of Amendment 10 would simply be to leave out Clause 20(1), which substitutes one for the other. But far, far more important than Amendment 10 is Amendment 11, which is directed to the court’s oversight powers with regard to TPIM orders. Under the 2011 Act as it stands there is provision for initial review hearings of these orders and later for appeals by the High Court in each case. However, for reviews and appeals, the 2011 Act expressly provides that:

“The court must apply the principles applicable on an application for judicial review”.

Amendment 11 would widen the court’s jurisdiction so that it would be for the court to decide for itself whether the person in question was probably involved in terrorism and not merely for the court, as now, to ask itself whether the Secretary of State’s conclusion about that was one that he could reasonably arrive at or whether it was, on the contrary, perverse.

Fourthly, this strengthening of the court’s oversight powers was specifically recommended by Mr David Anderson, the independent reviewer, in his report of last year. In his recent oral evidence that he gave in November and December respectively to the Joint Committee on Human Rights and the Home Affairs Committee of the House of Commons, he expressly regretted that his recommendation had not been implemented. In fact, Amendment 11 is more limited than Mr Anderson recommended. He recommended that in all TPIM cases the final decision on whether the person is or has been involved in terrorism-related activity should be one for the court rather than for the Secretary of State, subject only to judicial review. My amendment would secure that this is so only in those most troubling of cases that I have already mentioned where the suspect is to be relocated far away from his own home.

Fifthly and finally, I should note with gratitude that last Thursday, after the debate in Committee at which widespread support was shown for my amendment, the Minister was kind enough to see me to discuss this question. Essentially, as I understand it—he will correct me if I am wrong—the Government’s position is that this amendment is not necessary because case law shows that the court interprets and applies its review powers in such a way as to suggest that in effect the court already takes the final decision itself. If that remains the Government’s view, I would challenge it for these reasons.

First, it postulates, necessarily, that the court is disobeying the express statutory prohibition placed on it by the 2011 Act against exercising any fuller or wider jurisdiction than that of judicial review. Secondly, I must ask rhetorically why the independent reviewer would make this recommendation and, indeed, regret its rejection if in truth it is quite unnecessary. Thirdly, given that the Government accept that what they suggest is the court’s actual present approach to these cases—namely, that of deciding the question for itself—

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why on earth not write that into the statute and thereby, as Mr Anderson himself put it in his report,

“help reinforce the legitimacy of TPIMs”,

and reassure a sceptical public and a worried minority community that the court is indeed playing its full part in safeguarding those at risk of these orders against the inappropriate use of this draconian power?

Amendment 11 is the important one. Amendment 10, as I indicated in Committee, is really an optional extra. I beg to move.

Lord Howard of Lympne (Con): My Lords, I oppose Amendment 11. I shall be brief, but I appreciate that what I am about to say runs the risk of disturbing the relative tranquillity of this afternoon’s proceedings. Amendment 11 seeks to transfer the responsibility for the making of a crucial decision in this process from the Secretary of State to the courts. It is but another skirmish in the turf war between some judges on the one hand and Ministers and Parliament on the other hand which has featured so extensively in recent debates in your Lordships’ House, not least in the context of judicial review. It is my contention that decisions as important as the one we are currently contemplating should be made by the Secretary of State and not by the courts, so I hope that the view which was ascribed by the noble and learned Lord to the Minister about who is to take the final decision is based on a misapprehension. That is because I am firmly of the view that it is the Secretary of State who should take the decision.

My reason is very simple. It is the Secretary of State who has the responsibility of protecting the people of our country from terrorism and terrorism-related activities, and it is the Secretary of State who is accountable to the people of our country for the exercise of that responsibility: accountable to the electorate both in their capacity as an individual Member of Parliament and in their capacity as a member of the Government of the day.

It is right, as the noble and learned Lord has acknowledged, that the decision of the Secretary of State should be subject to the normal processes of judicial review. That is a feature of the current proposals. But it is the Secretary of State whose decision it should be, not a decision of the courts.

4.45 pm

Lord Tebbit (Con): My Lords, I rise to say how much I agree with my noble friend Lord Howard. He is absolutely right, and I find myself becoming irritated today as I hear this dancing around pins on some of these amendments. What we have to remember are the rights of those who are at risk of being murdered. A number of noble Lords in this House have lost friends to terrorism. I have lost five friends in particular who were murdered by terrorists. Unlike the BBC I am not ashamed of calling them terrorists—that is what they were. Every time I go home, I look at my wife, who was almost savagely murdered by terrorists. I suffer not a little myself from the effects of terrorism. I get bored and irritated by those who do not seem to understand that the most important human right of all is the right not to be murdered.

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I hope noble Lords will get on with it and get this Bill through as quickly and expeditiously as possible, and give the Government the powers with which to deal with those who wish to murder other people.

Lord Hylton (CB): My Lords, we can all sympathise with the noble Lord, Lord Tebbit. I apologise for daring to intervene—

Lord Tebbit: I do not ask for sympathy. I ask for action to prevent other people being murdered by terrorists.

Lord Hylton: The noble Lord might recall that this Bill is being dealt with under fast-track provision. I support Amendment 11, which was spoken to by my noble and learned friend. Before 2011, banishment or internal exile—sending someone to Siberia—was unknown as a penalty or punishment in this country. I believe that most of the general public trust judges rather more than they do Secretaries of State.

Lord West of Spithead (Lab): Perhaps the noble Lord will give way. I just feel that phrases like “sending to Siberia” do not help very much. When I was a Minister, I used to send people occasionally to Gloucester from London, but it is hardly in the same category, I would suggest.

Lord Hylton: Gloucester is rather nearer to London than 200 miles, which is a possible distance. Having said that, I reaffirm my support for the amendment.

Baroness Hamwee: My Lords, at the last stage I supported the noble and learned Lord. I had not thought it would be appropriate to come in at this stage because I had to deal with something else while remaining in the Chamber, so I was not able completely to concentrate on what he said. However, as one of those who, I suppose, must be regarded as having danced the most during the earliest part of this afternoon, I reaffirm my support. I trust the courts to take a proper attitude to the issues which come before them, which is what this amendment is about.

Lord Woolf (CB): Before the Minister rises, I will just say that, as I understand what is proposed by my noble and learned friend Lord Brown, he is not saying that the courts’ powers should be in any way unusual. This is really giving them an ordinary responsibility within the scope of judicial review as I have always understood it.

Lord Bates: I am grateful to the noble and learned Lord for moving the amendment. I was conscious of disagreeing with only one element of what my noble friend Lord Howard said. He said that he was going to disturb the tranquillity of the proceedings. From the perspective of the Government Whips’ Office and of Ministers, tranquillity is quite a sublime quality in debate on these matters. These matters evoke strong feelings on all sides of the House. My noble friend Lord Tebbit brought home from his personal experience

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the point that we are dealing with real threats to real lives. That is the ultimate threat to liberty that we are seeking to legislate for in the Bill before us.

I said that I would reflect on the point made by the noble and learned Lord, Lord Brown, last week, as I took it as seeking clarification. I was grateful to him for the time which he gave me, my officials and the legal team from the department in reviewing this matter. However, as the noble Lord, Lord Howard, put so succinctly, this is a matter of principle. It is a well observed principle that, in the realm of national security, the Executive have ultimate power, responsibility and accountability. That is the way that it has been, whether it is in relation to exercising royal prerogative over passports, temporary exclusion orders, interception of communications, excluding foreign nationals or deprivation of citizenship for those with dual nationality —I could go on. The principle is this: when it comes to national security, the Executive have to take the responsibility. That is an onerous responsibility to take. It is also entirely right, as the Bill provides for, that there should be an ability to challenge such a decision of the Secretary of State by way of judicial review and the courts.

I promised the noble and learned Lord that I would seek to put some additional words on the record which might give him some comfort. They are in relation to the technical legal point that he touched on, as did the noble and learned Lord, Lord Woolf, but they do not seek to move away from the fundamental grounds on which the Government are resisting this amendment, that of not wanting to sacrifice the principle that it is the Secretary of State who should decide.

As part of the review of the TPIMs imposed in the cases of CC and CF, their legal representatives argued that in TPIM cases the reasonable belief test,

“requires that at least the foundation of past facts upon which the belief is predicated must be proved on the balance of probabilities”.

As part of Lord Justice Lloyd Jones’s consideration, he applied Judge Collins’s judgment in the case of BM, who said that,

“to found a reasonable belief that a subject is or has been involved in TRA”—

that is, terrorist related activities—

“and that a TPIM is necessary does not involve the requirement to establish involvement in specific TRA to any higher standard than that which can properly give rise to such a belief. No doubt some facts which go to forming the belief will be clearly established, others may be based on an assessment of the various pieces of evidence available. But there is certainly no requirement that particular TRA needs to be established to the standard of at least more probable than not”.

Based on this precedent, we expect that the courts will see the balance of probabilities as a higher standard and that this will impact on their consideration.

As the noble and learned Lord will be aware, the court will also seek to interpret the difference in wording, as it is entitled to do. His amendments seek to differentiate between the test which the Home Secretary is required to apply and that which the court is to apply. Given her remit in relation to a range of aspects of terrorism, the Home Secretary remains best placed to make a holistic decision to impose a TPIM notice in order to protect the public from terrorism. The Government hold firm to that principle, which has had cross-party

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support. I express my gratitude to my noble friends who have spoken against the amendment, I hope that, with that additional explanation, the noble and learned Lord will see why the Government take the position that they do and will not be able to support the amendment if it is pressed.

Lord Brown of Eaton-under-Heywood: My Lords, I am grateful to all those who contributed to this debate and to the Minister for the words which indeed provide a little comfort. Perhaps my gratitude to the noble Lords, Lord Howard and Lord Tebbit, is slightly less pronounced than to others. I venture to suggest that the logic of their position would be that one should revert to the original test that the Secretary of State set for him or herself as to whether to make these orders: not one of reasonable belief but the lesser test of reasonable suspicion. The question in the present proposed Bill is simply, “Who ultimately should be satisfied on the balance of probabilities that this person is or has been involved in terrorism-related activity?”.

We are all against terrorism but we are also—I venture to believe and hope—all in favour of basic human rights and not making orders too readily against those who may well be as innocent as the day is long. In fact, Mr Anderson said in making this recommendation that it was in large part to give legitimacy to the process that we should make the court the final arbiter. He said that in fact he thought it would have made no difference to any of the earlier TPIM cases—but just think what assurance the public would have that only the right people were targeted.

As to the Minister’s point about it being invariably a matter of principle that the court’s powers did not go beyond those of judicial review, with respect—as I ventured to point out in Committee—that is not so. In the 2005 Act, 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”.

However, there it is. Given what may be thought to be the somewhat inactive—I restrain myself from saying “pusillanimous”—stance adopted by the Opposition here, clearly I will not divide the House. However, I suggest that there remains time, with a week before Third Reading, where the Minister could still come to recognise that there is much to be said in favour and, on true analysis, very little to be said against this amendment.

Lord Bates: In terms of the Government’s position on this, it is a principle. We gave it a great deal of reflection and that is the position. I am afraid that I am not able to give any commitment that the government position will change between now and Third Reading. Therefore, should the noble and learned Lord wish to test the opinion of the House, he should do so now.

Lord Brown of Eaton-under-Heywood: I was not relying on any reconsideration as a basis for not dividing the House. I merely say that it still remains open to the Government if they suddenly see the light.

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In the mean time, I take such comfort as I can from the words uttered today by the Minister. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Amendment 11 not moved.

5 pm

Amendment 11A

Moved by Lord King of Bridgwater

11A: After Clause 21, insert the following new Clause—

“Part 3AEnsuring or facilitating availability of dataEnsuring or facilitating availability

Power 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.

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(5) In this section—

“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.

(6) See—

(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, I will speak also to the other amendments in the group, Amendments 11B to 11T, in my name and those of the noble Lords, Lord West, Lord Carlile and Lord Blair.

In Committee, we had a full debate on the subject of these amendments. It was then generally established that there was pretty widespread agreement among the majority in this House, with some caution and reservations from the Benches behind me about adequate safeguards, that there was an urgent need for proper access and improvements that have been loosely and generally described in the draft communications data Bill.

There has been adequate and clear evidence, and statements by the Prime Minister, the Home Secretary, the shadow Home Secretary and the former director-general of MI5, the noble Lord, Lord Evans, in a maiden speech in this House. Other previous directors-general of MI5, including the noble Baroness, Lady Manningham-Buller, agreed on this, as did the noble Lords, Lord Butler and Lord Armstrong, who also spoke in the debate. They all recognised the problem we face, which is that our legislation has failed to keep pace with the rapid growth of the new technologies around the internet and the complications in the whole field of social media communication. One should recognise—it is common ground—that the extraordinary speed of ISIL’s southwards advance across Syria and into Iraq was achieved on WhatsApp, which is able to communicate with thousands of people at the same time and get messages across much more efficiently than was possible with some of the old military communications systems, as anyone who has been a soldier will recognise.

It is against that background that we have heard the clearest warnings. The noble Lord, Lord Evans, in an impressive maiden speech said that in 2013, when he was director-general, he thought that the worst was over. He now admits that he was wrong, and anyone who looks at the current situation and the threat that we face in this country and more generally in the world from terrorism will realise what he meant. Chillingly, he also said that the threat was increasing but our capacity to meet it was diminishing. That gets to the whole purpose of what I and noble Lords who join me in this enterprise have sought to bring before this House. This Bill, by chance, deals with an aspect of data collection; and the opportunity therefore arose to take the steps that the previous Government sought to recognise. The noble Lord, Lord West, referred to his experience in that Government and recognised the

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need for this perhaps six years ago; it was certainly needed three, four or five years ago. This Government recognised it and published a draft Bill two and a half years ago that sought to address the issue, which was then the subject of examination by the Joint Committee of both Houses, under the chairmanship of the noble Lord, Lord Blencathra, who is in his place today.

By the end of the Committee debate on this issue, we had provided an opportunity for this House to take a decision that would then give the other place the chance, if it wished, democratically to incorporate the essential provisions of the draft communications data Bill into this counterterrorism legislation in the recognition that they were an important part of the counterterrorism needs of this country at this time. The point was made absolutely fairly by the noble Lord, Lord Blencathra, that his Joint Committee criticised a number of aspects of the draft Bill. We sought in our amendments to deal with a couple of the more specific and difficult aspects that had attracted particular criticism.

The first of those was that the draft Bill set out a whole range of purposes for which data could be collected. Given the urgency of the situation, we decided to delete all those that involved local authorities, the health service, the Inland Revenue and a number of very worthy bodies that might otherwise have been included and might have a case for collecting data. But in the short-term, stop-gap measure needed in the immediate months ahead, we limited our proposal simply to national security and serious crime. Moreover, we recognised that this was not perfect legislation and that it needed improvement—as the noble Lord, Lord Blencathra, said in a number of criticisms—so we put a sunset clause on it. In the mean time, to make sure that we deal with another concern, we have also asserted that it would be subject to affirmative-procedure orders of both Houses of Parliament, whenever the Secretary of State wished to make such an order under this legislation.

Against that background, we then learnt during the course of debate that the Government did a significant amount of work on the previous draft communications data Bill and the noble Lords, Lord Blencathra and Lord Armstrong, had the opportunity to see some of that. The noble Lord, Lord Blencathra—I do not think I am misquoting him—said that he was satisfied that 95% of the Joint Committee’s criticisms had been met. So we entered the Committee stage with the challenge to the Government to pick up our original, older amendments to the draft communications data Bill and either replace them with the present improved versions that are apparently sitting in the Home Office, or make them available to noble Lords for us to table to meet the criticisms that these amendments are not as good as they should be.

I think it is now common knowledge that the Government have not felt able to offer these improved versions—and I understand that there is a problem, because they feel that further work needs to be done—because it was decided not to proceed with the draft communications data Bill, so it has not been given the priority that others might have hoped it would be given in having further work done on it.

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The position is further complicated because, I understand, both the Government and the Opposition reached an agreement through the usual channels that the Bill that we have before us would be fast-tracked, but the condition of agreeing to the fast-track arrangement was that no substantial additions would be made to the Bill. One understands why that was put in, against the background to agreeing the fast-tracking of legislation of this kind, but my point is simply that that was decided before Paris and before the events in Belgium, and before the almost certain knowledge that access to social media, which the French security authorities have but which we do not, was crucial in so quickly tracking down the people responsible for that outrage in Paris. The Home Secretary and the Minister were put on record as believing that that was almost certainly the case.

I understand that both the Government and the Opposition will oppose my amendments today, so I will just say this to the House. I start with quotations from the Home Secretary herself in a Statement that she made to the House three weeks ago:

“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 … 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.]

Noble Lords can find that Statement by the Home Secretary in Hansard and check it right through. It was echoed by two people on the Back Benches who know much about the subject, in the shape of Mr Jack Straw and Sir Malcolm Rifkind, who both emphasised the importance of getting access to those communications data to handle the challenge of the new technologies, which at the moment is not adequately available to us.

We are now faced with a significant gap. A lot of days are going to pass. I understand that the Prime Minister and the Home Secretary have made it clear—I think that the noble Baroness leading for the Opposition and the shadow Home Secretary also made it clear on behalf of the Opposition—that this legislation would have a high priority in the next Government, whomever they may be. But look at the situation. We in this House have no idea who the next Government will be. We do not have much idea how long it may take to form that Government. I recall the days spent trying to form coalition agreements when this Government came to office.

I also remember that, many years ago, when I was more closely involved, we won an election. We had something called L Committee, which was the legislation committee. The Government arrived full of enthusiasm, full of manifesto pledges and guarantees that had been given at one stage or another from one department or another. Enthusiastic Secretaries of State went into their new department to be embraced by officials saying, “We are delighted that you have given the top priority to our legislation. L Committee will meet next Tuesday and you must ensure that you come out top of the list”. So those pledges made here that this or that will be the first priority, when we do not know which Government there will be, are obviously the most uncertain that we could face at this time.

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We shall fail to take what I see as this exceptional opportunity presented to us, which could have gone to another place for its consideration, and the risk will continue for longer than it need to have done. Noble Lords who have been present in the past few minutes in this House will have heard the contribution from the noble Lord, Lord Tebbit, and the concerns that many have. As a fellow occupant of the Grand Hotel in Brighton on that night, I know exactly what he meant. We face a very serious threat from terrorism.

I understand that the Government and the Opposition feel honour-bound to hold to their position, but we will lose an opportunity to put in place a temporary, stop-gap measure which could have reduced the threat to our nation from terrorism at present. We just have to pray that we do not pay too high a price for that. I beg to move.

Lord Lloyd of Berwick (CB): My Lords, I support the amendment. Like others, I have been involved with national security for many years—longer, I suspect, than anyone else in this Chamber, except my noble friend Lord Armstrong. I worked with the Security Service when it did not even exist, so in my first report, I had to refer to the Security Service, SIS and GCHQ en bloc as “the agencies”. I continued to work closely with the Security Service until I gave up being chairman of the Security Commission in 1999. Others referred in Committee to their first contact with the Security Service. I remember an occasion long ago when I visited its premises in Gower Street. The door was opened by a young lady I knew and we said simultaneously, “Fancy seeing you here”. Her name was Elizabeth Manningham-Buller, and I think we all agree that she has done very well. I would very much like the noble Baroness, Lady Manningham-Buller, to be aware of that but she is not in her place, and I am sorry that she is not here to hear me say it.

5.15 pm

I support the amendment for all the reasons given by the noble Lord, Lord King, both on the earlier occasion and today. However, there is a further reason that has not so far been mentioned. It involves looking more closely at other provisions in the Bill. There are currently 2.5 million Muslims in this country who are utterly loyal. In addition, there are 100,000 Muslims who sympathise with the terrorists. Every time we pass a piece of repressive legislation we alienate some of the 100,000, and we will be truly safe only when they have changed. That will probably take a generation or so—the same sort of time as it took to reach a solution in Northern Ireland. My noble friend Lord Condon once said, in a speech that I shall never forget, that you do not change people for the better by putting others behind bars. Every bit of terrorist legislation that we have passed since 2001 has alienated an unknown number of sympathisers. This was clearly so in the case of control orders, which created much anger and did very little good, if any. It would certainly be the case if we reintroduced relocation.

In every piece of counterterrorism legislation there is a balance to be struck. I do not know whether the Government performed that operation when introducing the present Bill, but my guess is that it will do far more

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harm than good. Why do I say that? The justification put forward by the Government for the Bill concerns 500 would-be terrorists who are or have been fighting in Syria. Of these, 250 have already returned, so we are talking about the other 250 who are still there. Let us assume that 200 of those 250 decide to come back, of whom let us say 100 would have been stopped under the existing legislation. It is of course unlikely that all 100 would arrive on the same day, so they would be spread out over months or maybe years. Let us suppose that 25 of them arrive before next May; that number is obviously a guess, but it could be an estimate. They will join the 250 who are already here, as we know, and the 2,000 long-term suspects who are also already here, many of whom are known to have undergone weapons training in Pakistan; that figure has recently been confirmed. Yet, with one exception—the London bombing—we have been kept safe. Whether the current risk, as it is called, has been severe or substantial has made no difference because the Security Service has been unbelievably successful at its job.

We are now told by the Government that this Bill is needed badly and cannot wait until the spring. It must be forced through Parliament by the fast-track procedure. I cannot help wondering whether the Government consulted the Security Service to see whether the Bill could not wait until this spring. I feel sure that it would have answered that of course it could. The 25 additional suspects arriving before May would not make the slightest difference from its point of view.

At Second Reading, I said that I could think of no good reason for introducing this Bill now, still less for giving it the fast-track procedure. That remains my view. Another worrying feature is the timing. The threat level was raised from substantial to severe on 30 August. I have said that it has made no difference in the past, but what happened on this occasion? The Prime Minister announced that he would introduce this legislation on 2 September. How did that come about? The threat level has often been raised from substantial to severe without necessitating urgent legislation. I can remember only one occasion when there has been urgent legislation said to be like this, and that was in 2005. The 2001 Act was about to expire and the Belmarsh prisoners were about to be released. The Government thought up control orders, and we had five days in which to consider the legislation. Nobody suggests that the situation now is in any way comparable to that.

On 2 September the Prime Minister had two draft Bills before him: the present Bill and the draft communications data Bill, which my noble friend Lord Butler described as a “Bill in waiting”. We need to know why the Prime Minister chose this Bill rather than the communications data Bill. This Bill is not urgent and will save no lives. The other Bill will save lives and has been waiting for more than two years. In replying to the debate on 26 January, the Minister said that this Bill was more vital than the communications data Bill. I cannot agree with his view, but I do not for one minute criticise him. Through no fault on his part, he cannot have been in possession of the full facts. We need to know why the Prime Minister chose one Bill rather than the other. We need to know whether he preferred this Bill for political reasons.

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We need to know, for example, whether the Prime Minister wanted the Conservative Party to be seen as the party that is tough on terrorism. I accept, of course, that that is pure speculation on my part. However, it seems to me that we must be satisfied one way or the other. If there is anything at all in my concerns then it seems to me that the present Bill is tainted, and no agreement between the two parties can prevent that being so. If that is so, the Government must surely defer further consideration of the Bill, and must do so before Third Reading.

I hope I have shown that deferment of the present Bill will cost no lives. It can be brought back after the general election, by which time the reviewer, David Anderson QC, will have completed the review on which he has already engaged, and which covers much of the same ground. There will then be room, in the mean time, for consideration of the communications data Bill, which we all look forward to.

It may be asked why, if all that is so, I did not take part in the debate last week. The reason is simply this. In my speech on Second Reading I said that I was against the Bill in principle. It did not seem likely that I would be able to take advantage of any of the amendments that would be put down. However, I came on 26 January to support an amendment put down by my noble and learned friend Lord Brown, and I happened to notice that the very next amendment was the one that we are now debating. That was the opportunity that I had been waiting for.

Lord Phillips of Sudbury (LD): Before the noble and learned Lord, Lord Lloyd of Berwick, sits down, perhaps I may say that I always listen immensely carefully to what he says, by dint of his experience, but I am not fully clear why he is adamantly against the Bill as a whole. I understand that it is largely due to its potential counterproductivity, as he sees it. However, I am not clear why he is in favour of this set of amendments.

Lord Lloyd of Berwick: For the very reason that, as I have tried to explain, I can see no reason for the Bill to be brought forward now. I hope the noble Lord will understand that. Therefore we have, in any event, a gap. Much more important than that, however, is that the other Bill will save lives; this Bill will not.

Lord Carlile of Berriew (LD): My Lords, I shall make a few very brief comments in supporting my noble friend Lord King. It is not right that we should replay the whole of the debate in Committee.

The first is that, as I understand it, the Government acknowledge—and by that I mean the whole of the Government—that there is a gap in the facilities which are necessary for the proper prevention and detection of terrorism. I understand it to be acknowledged by the whole Government that that gap is recognised as being in the field of communications data. The issue is what should be used to fill that gap. I am very disappointed, if I may say so with great respect to my noble friend the Minister, in the response—or rather, the lack of response—that has been given to last week’s debate in Committee. I say that for this reason.

My understanding—following the committee so ably chaired by my noble friend Lord Blencathra—is that, following severe criticism by his committee of the

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communications data Bill, from which these amendments are derived, though not copied exactly, a further draft Bill was prepared. We were told last week that that further draft Bill was shown to my noble friend Lord Blencathra, and to another member of his committee, the noble Lord, Lord Armstrong, whom I am delighted to see in his place. The judgment made by my noble friend and the noble Lord was that nobody could decently describe the draft amended Bill as a snoopers’ charter at all, and that it went 95% of the way towards meeting the need. One derives from that that it was recognised as a good Bill which met almost all the requirements set out in its criticism by my noble friend’s committee.

5.30 pm

Last week, we asked the Government to provide us with a copy of that draft Bill, but that has been refused—not in the bluntest “we refuse” terms but in simply avoiding providing us with it. Had we been provided with that draft Bill, my noble friend Lord King and the noble Lord, Lord West, along with the noble Lord, Lord Blair, would have been at least 95% certain—the same percentage—of tabling an amendment that contained the provisions of that draft Bill.

The most engaging part of the speech by my noble friend Lord King was his unexpected plea of guilty to making promises, as a Minister in a Conservative Party manifesto, which were not kept. However, in saying that, he illustrated the uncertainty of waiting until after a general election, particularly one that has such an uncertain outcome, before setting off down the road of legislation on this issue. We could be waiting a very long time before this important gap is filled. So I respectfully ask the Minister to explain to the House why concerned Members who have identified an acknowledged gap have not been vouchsafed a copy of the good Bill, which we would have put down as an amendment. Logically, if we had been provided with that text, we would have expected all parties in this House to support it, unless there were some cheap political points to be made out of not doing so.

The amendment that we have tabled has distilled all the necessary elements from the previous communications data Bill, although we acknowledge that it could be improved—particularly if we were given the text to which I referred. We have added the sunset clause and the provisions relating to affirmative orders to which my noble friend Lord King referred earlier.

The Government should really reflect once again on this matter. The failure to fill this gap is a risk to national security—and national security is not an empty phrase. The meaning of national security to the people of this country is that it is the rolled-up rights of those 60 million people not to be the victims of terrorism in our streets. It is the duty of government to protect national security, as the Prime Minister has acknowledged on many occasions. So I say to my noble friend, please do not take a completely unnecessary risk with national security by failing to provide the text that ought to be acceptable to all parties.

Lord Blair of Boughton (CB): My Lords, I was brought up to believe that politics was the art of the possible. As a supporter of this amendment, it seems

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to me that we have reached a position whereby politics is the art of the preposterous. I exempt from that charge those noble Lords who object to this amendment on principle; they will mainly be Liberal Democrats and Cross-Benchers, but there will be other objections on principle. They and I disagree, but I suggest that both positions are perfectly respectable. It is not the same position as what I understand to have been happening in the case of the Conservative and Labour Front Benches.

Let us consider what we are all agreed on. I am not going to rehearse the arguments in detail. We are all agreed that jihadist terrorism is a real and present danger and that it is an increasing danger, indicated by a threat level of severe. We are all agreed that we have a degrading technological ability to monitor and intercept communications data, vital to the disruption of terrorist attacks. There is a gap, as the noble Lord, Lord King, has said.

What do I mean by preposterous? The provisions of this amendment, previously the stalled communications data Bill, go back in principle to the concerns of a Labour-controlled Home Office in 2007-08 about the degradation of our technological capability. So this had a Labour birth. The provisions were then adopted by a Conservative-led but not entirely controlled Home Office. In either 2010 or 2011, I was personally briefed in the most positive of terms about the communications data Bill by one of the Conservative noble Lords, who carried the Home Office ministerial brief in your Lordships’ House. I will not name him because he is not in his place. So it had a Labour birth and was a Conservative-supported Bill before the Paris attacks. Then, as we have heard, the current Conservative Home Secretary lamented the lack of progress on the Bill in a Statement to the House of Commons. And then in your Lordships’ House we discovered, in Committee, the existence of the Bill in the Home Office.

The noble Lord, Lord King, has made it clear to the House that we would table the amendment only once, and if it was sent to the other place we would not indulge in ping-pong. We just want the Commons to have the opportunity to consider this matter again. Despite this, the Conservative and Labour Parties are prepared to do precisely nothing at this stage about this gap. I do not understand fully the nature of the usual channels, but the next Government will be principally led by either the Labour Party or the Conservative Party —so they do not need to worry any more about letting each other down over a fast-track procedure. One of them will be responsible for doing that, and the other one would be agreed anyway. So why do we not put it forward?

In closing, I remind this House that elections and changes of Government are of great interest to jihadi terrorists. In 2004, they killed more than 190 people and injured a further 2,000 in bombs on trains in Madrid. They changed the course of the Spanish general election as a result. In 2007, they planted major car bombs in the Haymarket and bombed Glasgow airport to mark the day when Gordon Brown became Prime Minister. Had the London bombs exploded, hundreds of young people would have died in a night club. We face an election now and, who knows, we may have another one shortly afterwards; we may have a multi-party coalition

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assembling with a whole range of views on the subject of this amendment. I am acutely disappointed by the decisions of both Front Benches to refuse to accept this amendment or, better still, propose a better one, on a matter of such national interest. I urge both Front Benches tonight publicly to commit to bringing forward legislation about communication data monitoring as an urgent priority for the next Government and, particularly, I assume, their L Committee.