Counter-Terrorism and Security Bill

Baroness Ludford Excerpts

Monday 2nd February 2015 Lords Chamber

[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 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.

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[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.

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[Lord Harris of Haringey]

My Lords, this is something of a mess. I was certainly alerted—and I know that other noble Lords will have been alerted at the same sort of time—to the developing problem of a gap in terms of communications data eight or nine years ago. It was so long ago that I can no longer remember exactly when it was. The gap is occurring because of the nature of the way in which communications take place using the internet, and it is a gap which is worsening and getting bigger.

Communications data, as opposed to intercept, are used in virtually all major crime and terrorist cases. They are an essential component, concerning who was there, who was where and who was communicating with whom. That is nothing new; what has changed is the way in which those messages are transferred from one place to another. It is a fact that it is no longer easy, using conventional means and conventional mechanisms, to keep track of that information, and that is causing the problem. It is a problem and a gap which has been getting worse over the last few years.

Something urgently needs to be done to remedy that gap, but it has not happened. The previous Government and this Government have failed to do something about it. We are now moving inexorably towards a general election, which is a few weeks away, and it will be down to whichever Government are in place after that to deal with this. I share the concern of the noble Lord, Lord King, that, following the election, that may not be a rapid, simple or straightforward process.

What do we do now? The first thing is not to oversell the importance of either these amendments or the mythical Blencathra’d amendments that may or may not exist somewhere else. The amendments will not be a magic bullet. The mere passage of these proposed new clauses, or a version of them, does not mean that terrorism will be prevented or that serious crime will stop, but they would be an essential and necessary tool in trying to minimise the risk. Let us not pretend that the failure to include them will automatically mean that there will be a terrorist atrocity. However, it will mean that such an atrocity will be that bit more likely and that it will be that much more difficult to deal with it and stop it.

This is not just a question of the legislative provisions and the fact that we are being dilatory in getting round to dealing with this issue. I understand and have all sorts of sympathy for Ministers in the context of a coalition where one side of the coalition is less keen on such a provision than the other and starts to position itself in advance of a general election. I have lots of sympathy for all that, but the fact is that collectively Governments over the past eight to 10 years have failed to address and deal with this issue.

There is a second vital element, which is that there is a degree of public support for and public buy-in to the changes that have been made. That is why not pretending that this is a magic bullet is so important. In the past, security measures have been oversold as the one necessary thing that will stop all these atrocities, and every time that excuse is used it has bred public cynicism about these measures.

Part of what has to happen is a proper public debate about why these powers are needed, why they matter and why they do not constitute the infringement of civil liberties and personal liberty that some people assume. Failing to have that debate has been a wasted opportunity over the last few years. When the Joint Committee produced its report, the Government should have used that as the opportunity to say, “Let’s have that public debate”. Had they done so, we might now be in a position where there was a public understanding of these issues and a readiness to go forward.

The reality is that if the noble Lord, Lord King, presses his amendments, people will say that the parliamentary process has been abused, and we have no doubt already had dozens and dozens of emails and letters saying precisely that. It is an abuse of the process because it does not allow the normal times for debate, but we have failed to give ourselves the time for that, and that is why we are in such a mess.

Should we agree to these amendments? No, because they do not incorporate the views of the Joint Committee; no, because we have not had an opportunity for the public debate; and no, because we have not had the report of the Independent Reviewer of Terrorism Legislation. I do not want to get into why we have not had all those things but the fact is that we have not. It would therefore be wrong to press ahead with these amendments at this stage, much as I personally believe that something along these lines is necessary and much as I personally believe that we should have taken action much sooner. However, the reality is that those other things are not in place. I blame the Government—of course I would because I am on this side of the House—for failing to have those other elements in place and for failing to ensure that there has been the necessary public debate. However, to press today without public support and public debate, and in the absence of having the views of the independent reviewer, clearly would be a mistake, particularly in the context in which people would see that the legislation had been rushed through by some sort of legislative sleight of hand.

The noble Lord, Lord King, gave the Government a week’s opportunity to move forward. The Government have not taken that opportunity. For the very reasons I have given about not having public support or having built things up, I do not believe that they should have responded to the noble Lord’s amendment last week by bringing forward their own amendments to do all this overnight. But it would have been an enormous step forward, and still would be an enormous step forward, if before Third Reading the Government were to publish the revised versions of the legislation that they have, even if they are not the final product, so that that public debate can start. Some of the myths about communications data and what the Government are trying to do could be dispelled.

We are in a sorry mess. Frankly, I do not think that the amendments in the name of the noble Lord, Lord King, solve the problem. They could conceivably make it worse. But for goodness’ sake, we need to treat people like adults, not pretend that this is a magic bullet, and allow the public debate to take place.

[Baroness Ludford]

My Lords, I cannot resist the opportunity to add my ha’penny-worth, to respond to my noble friend Lord Howard of Lympne, and to acknowledge proudly the label of pesky Liberal Democrat. I also thank the noble Lord, Lord Blair, for saying that he at least does not disagree that the Liberal Democrats have a position of principle here. However, I disagree with him about the 2004 Spanish election. The Partido Popular did not lose the election because of the bombing being by Islamists. It lost because it tried to misrepresent those bombings as being by ETA, which was against the advice of its own intelligence services.

My noble friend Lord Paddick has put extremely well, and much better than I could, all the objections of principle. The storage of everyone’s web browsing for 12 months, even if it is only up to the first forward-slash, would blur the boundary between communications data and content. It could reveal an awful lot about people’s health, sexual characteristics, political views, marital problems and other potentially embarrassing personal information. This is simply too much power to give to the state. Yes, 12 months’ storage of everyone’s web browsing history is an objection of principle.

I also stress the practical difficulties of scooping up third-party data and setting up a transatlantic jurisdiction on a war which we are destined to lose. From my time as a Member of the European Parliament in the last few years, I have some experience of this in the wake of the Snowden revelations and the whole impact that had on the attempt to get data sharing across the Atlantic without the framework of a transatlantic data-protection agreement. The noble Lord, Lord Cashman, who is not in his place, will remember those debates. We need to work co-operatively with US-based companies rather than try to overreach ourselves in terms of jurisdiction. I fear that the reaction to that, which already has happened in the last few years, is that it could lead to fragmentation and balkanisation of the internet. The glory of the internet is that it is global. We in the West look askance at what is happening in China and Russia in trying to cut themselves off from the global internet. I foresee that that could happen transatlantically as well. Companies in the United States are under a great deal of pressure to comply with at least the safeguard provisions of US law, partly as a result of the lively public debate there in the last 18 months, which is unlike in this country where there has not been so intense a public debate. Of course, we know that they are going faster and faster down the route of encryption, with all the problems that my noble friend Lord Paddick mentioned.

Counter-Terrorism and Security Bill

Baroness Ludford Excerpts

Monday 26th January 2015 Lords Chamber

Moved by

[Baroness Ludford]

76: Clause 17, page 10, line 32, after “or” insert “is necessary to”

[Baroness Ludford (LD)]

My Lords, the amendment stands in my name and those of my noble friends Lady Hamwee and Lord Paddick. I shall speak also to Amendment 77. In this grouping, there is also Amendment 78 of the noble Baroness, Lady Smith of Basildon.

The Explanatory Notes refer to data that are “necessary” to attribute internet protocol addresses to a person or device. However, that word does not appear in the Bill; I believe that something similar happened in the draft Communications Data Bill in 2012, which was picked up by the committee on the draft Bill. There is a tendency to put “necessary” in Explanatory Notes but not to transfer that to the Bill. Amendment 76, therefore, at least seeks to apply the test of “necessary” to communications data that could,

“assist in identifying, which internet protocol address … belongs to the sender or recipient of a communication (whether or not a person)”.

At least it tightens up, somewhat, the scope of communications data—relevant internet data—required.

I have seen an itemisation of possible data—I confess that I do not know what the origin was, but it refers to possible data which would be required to be retained. I state just for interest that it includes,

“account-to-IP address mappings for broadband … source IP address and port for NAT on mobile and cloud networks … MAC addresses on cloud WiFi networks … source port information in server logs”,

and:

“MAC addresses from end-user equipment”.

This is above my technical pay grade and I think we need some clarity about what sort of information is being required. Therefore, in Amendment 77 we are requesting that when the term “other identifier” is used, meaning an identifier used to facilitate the transmission of a communication, what qualifies as “other identifier” should be specified in regulations made by the Secretary of State.

I have seen it cited that there has been consultation with industry on these matters. Certainly, the Internet Services Providers’ Association has complained that it was not consulted on this section on the collection of IP addresses. It posted something on its website on 24 November, so something may have happened in the intervening two months, but it certainly felt at that time that it had not been consulted. Of course the association would be qualified, as the experts, which I am not, to know what is being talked about here and what is, indeed, necessary and essential to identify an IP address.

I mentioned at Second Reading that the Bill refers to,

“the sender or recipient of a communication (whether or not a person)”.

I still believe that it is somewhat misleading to suggest that a person can be identified from an IP address. Even with a static IP address allocated to a particular device or subscriber, you would at best know who the subscriber was, but you would not necessarily know who was using the device at a particular time. It may not have been the subscriber; it may have been a friend, a relative or a business associate. If it is a dynamic IP address I understand that there can be tens of thousands of people who could have used it. Even with this other information, even if you can identify the device that was using it at 4.12 pm on a Tuesday afternoon, it is still not clear that you can, of itself, then identify the person using it. You would need other investigations—police investigations—to ascertain who precisely was using the device.

I hope that I have conveyed the meaning of Amendments 76 and 77, which seek to put greater precision into the Bill as to what further communications data are being required to be kept.

[Lord Rosser]

My Lords, our Amendment 78 in this group seeks to make it explicit that the extra data retention provided for in Clause 17 does not extend beyond that which is necessary for the purpose of identifying a user from the internet protocol address. The amendment is not meant to impact on the rest of the Data Retention and Investigatory Powers Act.

Clause 17 amends the definition of “relevant communications data” in the Data Retention and Investigatory Powers Act 2014. The clause expands the definition of “relevant communications data” to include an extra category of data—described as “relevant internet data”—in Section 2 of the DRIP Act, to allow the Secretary of State to use powers under Section 1 of that Act to bring in regulations to ensure that this “relevant internet data” is retained by communications service providers. Essentially, the Government are using this fast-track primary legislation to amend emergency primary legislation from last July to enable the Secretary of State to bring in secondary legislation relating to a clause in this Bill, which extends the current provision on data retention.

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[Baroness Ludford]

My Lords, I appreciate my noble friend’s extensive reply and explanation. I am still somewhat uneasy that the terms of the Bill are permissive in that the data may need to be retained if it may “assist in identifying”, which is quite loose language. Will my noble friend explore whether there is any way of getting further precision? Presumably the limit of the extent of the kind of data we might be talking about is known, and I feel that what the data are should be spelt out somewhere, even if it is a broad list, so that everybody can understand this matter—I shall join him in the tutorial that he has invited the noble Baroness, Lady Lane-Fox, to carry out, as I have already frankly admitted my own ignorance. It is not helpful to have potential legislation when people do not know what data on them will be retained. It seems reasonable to ask my noble friend to reflect further on the idea of importing the words “necessary and proportionate”, which I think he used, into the Bill and/or to consider further whether it is possible to spell it out in regulations. In awaiting, I hope, that further reflection, I beg leave to withdraw the amendment.

Amendment 76 withdrawn.

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[Baroness Lane-Fox of Soho (CB)]

My Lords, I apologise for not being able to speak at Second Reading. I was detained at a board meeting.

This House has given me many occasions to feel both alarmed and surprised. Today is no exception, first, in describing Tinder to my Back-Bench friends during an earlier part of the debate and, secondly, in rising to speak against four noble Lords for whom I have the greatest respect and who have offered me enormous friendship since I entered your Lordships’ House. I should like to cite three brief reasons why I oppose the amendment.

First, I wholeheartedly agree that we need a more detailed, complex and timely debate around this enormously complicated issue. The Government were slow to react compared to the quick review by America of the oversight and security services post-Snowden. This Government have looked lacklustre in their response. However, different processes are under way.

I declare an interest as being part of a panel set up by the Deputy Prime Minister and administered by the Royal United Services Institute. The Information Commissioner work is also continuing and we have the emergency legislation referred to as DRIP, which has already been talked about this afternoon. I believe it is very important that those pieces of work reach the next stage and that the debate in Parliament puts all of them into the mix.

Secondly, it is easy to underestimate the power of the public’s view on this subject. The noble Lord, Lord West, mentioned that he thinks that the public are fairly disinterested in this issue but I disagree wholeheartedly. A YouGov survey found that only 6% of people believe that the Government have a coherent data strategy but that it affects them directly. Another poll whose results I saw recently said that just 2% of people trust the Government when it comes to their data. That is immensely important for the reason that the noble Lord, Lord Paddick, most eloquently espoused earlier—to build trust and engagement among exactly the groups that this legislation is trying to reach.

More than that, perhaps I may give two technical examples that make me believe that such trust is so vital. There is now a move towards more and more use of the dark web—a place where it is very difficult to collect any data—and towards more and more encryption. At one end of the spectrum is a small start-up—actually it is not so small any more—called Wickr. This was started by a woman in the US and it enables communications to remain completely secure. Imagine sending a message that is never stored on any server anywhere. Not only does it disappear remotely in your hand but also it never stays on the network. She has had enormous success in building her app—quite understandably for many people, who believe that they should have a private mechanism for communication and that the Snowden revelations have shown that systems are not safe or secure. Then, more in the mainstream, we have Facebook, which has recently asserted that it is starting a sub-site on the dark web—the unregulatable and uncontrollable web—so that its customers can feel safe.

If we do not listen to what the world is doing and move and engage with it, allowing people to feel that their concerns around security are being addressed, there is a danger that we will take a retrograde step with communications Bills, such as with this amendment.

Finally, I believe that we need to engage much more deeply with both civil liberties groups and the industry itself. Here, I agree with a recent statement by President Obama, which I hope the Committee will forgive me for repeating. At the press conference in Washington which he shared with our own Prime Minister, he said in answer to a question about surveillance and about whether there was a swing to security from privacy:

“In six years I and the Prime Minister have seen a constant threat stream across our desks—the pendulum doesn’t need to swing but we need a consistent framework. There needs to be a debate about the laws and the discussion needs to involve the tech industry, who have responsibilities not only to security but also to the customers who use their products, and it also needs to involve the civil libertarians who are tapping us on the shoulder”.

I urge the Government to address the very real concerns of the general public on the one side and the security services on the other, particularly about the boundaries and framework for data collection, but I urge them not to do so by way of this amendment.

[Baroness Ludford]

My Lords, there are objections of both process and substance to these amendments which make it inopportune and injudicious to cut and paste this amendment into the Bill—to “bounce” it into the Bill, in the words of my noble friend Lord Blencathra, whose speech I thoroughly commend. As the noble Baroness, Lady Lane-Fox, has just mentioned, there is an issue of trust. We all know—it is commented on with great regularity—that there is very little trust in politicians and parliamentarians. The noble Baroness, Lady Neville-Jones, even though she would like an updated communications data Bill, referred to the poor reputation of the existing model. However, it is the existing model, shorn of the safeguard of judicial authorisation and scrutiny and the safeguard of restrictions on the exercise of powers, that it is proposed should be inserted in the form of these amendments.

I have counted five current reviews of investigatory powers, which make it bad timing to proceed with the substance of these amendments. As I understand it, there is one by the Independent Reviewer of Terrorism Legislation, David Anderson, another by the Intelligence and Security Committee, another at the request of the Deputy Prime Minister by the Royal United Services Institute, another by Sir Nigel Sheinwald on the international aspects, and one by the Interception of Communications Commissioner, Sir Paul Kennedy, into the use of RIPA to identify journalists’ sources. With all those reviews going on, I think it is rather disrespectful to them to say, “Well, we won’t wait for those conclusions but we’ll stick into this Bill all this new capacity to collect communications data”.

Mention has been made of the capability gap. The 2012 committee report said that the Government failed to share with the committee the research findings behind their assertion of a then 25%, going on 35%, capability gap, and that such a figure was “unhelpful and potentially misleading”. Therefore, we simply do not know what the capability is. My noble friend Lord Strasburger mentioned the revelations of the Tempora programme. I am not sure why we bother to legislate half the time, as GCHQ seems to go a great deal beyond the scope of any Bill.

The report also said:

“Part of the gap is the lack of ability of law enforcement agencies to make effective use of the data that is available”.

That is not my assertion but the assertion of a very thorough and wise Joint Committee report. I agree with it that addressing that ability should be a priority.

There was also mention of the failure to consult communication service providers and internet service providers, and there have been recent complaints, which I mentioned earlier, by the Internet Services Providers’ Association about the lack of consultation. Before any redrafted legislation is introduced, the Joint Committee recommended extensive and meaningful consultation,

“once there is clarity as to the real aims of the Home Office”,

which would be quite useful.

[Lord West of Spithead]

While I understand what the noble Baroness is saying about the various studies, does she agree that over six years, which is how long it has taken us to address this starting to lose data, is rather a long time? It is slightly longer than it took us to defeat Hitler, and it is a long time to keep on looking at other things. Do we not have to take some action if we are to achieve something?

[Baroness Ludford]

I thank the noble Lord for that remark, but I understand that the Independent Reviewer of Terrorism Legislation has a target date of May—four months away—to produce his report. I am sure that we can wait four months.

I would also mention the huge expense that these amendments would produce. One can also query the value of a sunset clause. If hundreds of millions of pounds had been spent on the project by December 2016, it is likely that Parliament would say, “We have spent so much already, so we might as well carry on”.

The noble Lord, Lord King, quoted me as preferring targeted to blanket surveillance. What I meant was not what he has put forward in his amendments. He has removed some of the organisations, but I understand that there is still no specification that it is the security services and the police; the reference is to “purposes”. Other agencies could be pursuing matters for the purpose of serious crime, so the provisions would not be limited to the police and security services. By targeting, I meant not limiting it to certain “purposes”; I meant it to limit the scope of Amendment 79, which replicates Clause 1 of the draft Bill.

As my noble friend Lord Blencathra said, it was the huge breadth of that Clause 1, which is now reflected in Amendment 79, which was so objectionable. The Joint Committee said:

“It is hardly surprising that a proposal for powers of this width has caused public anxiety”.

Even the Intelligence and Security Committee said that more detail was needed on the face of the Bill, but that detail is not in the amendments put forward today. The Joint Committee concluded:

“Clause 1 therefore should be re-drafted with a much narrower scope, so that the Secretary of State may make orders subject to Parliamentary approval enabling her to issue notices only to address specific data gaps as need arises … We do not think that Parliament should grant powers … on the precautionary principle”—

the idea was that new ways of communicating would come along. That was an extremely wise conclusion, yet the amendments consist of precisely the breadth of that Clause 1.

The Joint Committee was particularly exercised over the possible requirement to keep web logs and, as the noble Lord, Lord Blencathra, said, wanted,

“Parliament to address and determine this fundamental question”,

specifically. Amendment 79 does not allow us to address that specific and fundamental question. In the mean time we are legislating on IP addresses in this Bill. Neither I nor any of my colleagues have objected to that, although we wanted to tease out some of the detail.

The Joint Committee also said that there were huge technical and civil liberties concerns about the collection of third-party data and the lack of detail on that in the Bill. The report states:

“United Kingdom CSPs are rightly very nervous about these provisions”.

They simply could not understand the implications of having to collect data from third-party suppliers who happened to cross their networks.

Counter-Terrorism and Security Bill

Baroness Ludford Excerpts

Tuesday 20th January 2015 Lords Chamber

[Lord Phillips of Sudbury (LD)]

My Lords, I strongly support Amendments 2, 3 and 4. The measures contained in the Bill are of fundamental importance, but they are extremely difficult to construct in a way which holds an appropriate balance between state security and individual liberty. The notion in the amendments that the outcome of what we are doing should be reviewed by the independent reviewer within two years and put to Parliament is eminently sound. My only query is whether or not the role of the independent reviewer in looking over the consequence of this part of the Bill might not be better addressed to the whole of it. There are other parts of the Bill whose outcomes are no less difficult and problematic to anticipate. I hope the Government will give a positive response to these amendments.

[Baroness Ludford (LD)]

My Lords, on Amendment 2, can the noble Lord opposite explain whether there is any particular reason for choosing two years for the sunset clause, after which time, subject to an affirmative resolution, there would be a permanent continuation? What is the logic behind that two-year split? Why is there not, in a sense, a rolling sunset clause every two years? If there is a rationale to it, perhaps the noble Lord can explain the reason for that two-year review and then no more, as it were, apart from the normal rules that apply to primary legislation.

[Baroness Buscombe (Con)]

My Lords, I, too, would like to understand from the shadow Minister opposite why a period of two years has been chosen. What is the logic? In seeking to explain Amendment 2, he appears to have concluded that there is a strong chance that this measure may not be necessary at the end of a two-year period. I wish that he was right on that—even if he had a hunch that it could be right—but all the commentators that one has been listening to, some more expert than others, have explained to us, as have the Government, that we will probably face great difficulty in the area of counterterrorism for a number of years. In that case, I suggest that a two-year period is far too short, indeed unreasonable, given that an affirmative resolution of both Houses takes time and energy away from the job in hand.

On Amendment 3, I made clear at Second Reading that I support the independent reviewer having the opportunity to review this legislation in the fullness of time. However, I think that producing an annual report is far too onerous and unnecessary. I do not support these amendments.

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[Baroness Buscombe]

My Lords, I will add to what my noble friend Lord Carlile said. Speaking as a member of the Joint Committee on Human Rights, it is certainly my understanding that we kept this aspect of our report purposely broad to ensure flexibility and to leave it to the experience and expertise of the independent reviewer in supporting a role for them in reviewing this and all other counterterrorism legislation, ensuring that he or she should not be pinned down by prescription, in either content or time limits.

[Baroness Ludford]

My Lords, I agree with my noble friends and the noble Lord, Lord Pannick, on the need for both broad scope and flexibility in powers for the independent reviewer. On Amendment 4, can the noble Lord, Lord Rosser, say whether there is any further detail on the requirement that:

“The Secretary of State shall publish figures on the usages of powers”?

What sort of degree of detail or scope was envisaged?

On Amendments 41 and 41A, it may just be that I am a little befuddled, coming back from much less complicated EU legislation to more complicated domestic legislation. However, as I read those amendments, they seem to refer only to a review of the arrangements for food and accommodation, because they are specifically inserted after paragraph 14 of Schedule 1. I am not sure that that refers to a review of the whole powers under Clause 1 and Schedule 1 because it seems to be rather specific about just the powers in paragraph 14. Indeed, the term “arrangements” seems to refer only to the arrangements appropriate for the person, which, according to the draft code of conduct, relate to food and accommodation, and so on. It may be that I am completely on the wrong track here; if so, I will be most grateful for the noble Lord’s clarification.

[Lord Ashton of Hyde (Con)]

My Lords, I am grateful to the noble Lord for tabling these amendments, which cover issues concerning the oversight and accountability of officers who exercise the powers in Part 1.

Amendments 3 and 55A would require the Independent Reviewer of Terrorism Legislation, David Anderson QC, to report annually on the exercise of powers contained in Part 1. I am grateful to the noble Lord for tabling this amendment because it allows us the opportunity to give due consideration and attention to a very important matter—that of ensuring that there are appropriate checks and balances and independent scrutiny of our counterterrorism powers, including those introduced in the Bill.

We have discussed at length the need for the measures contained in the Bill before us today, as the eight hours of debate in Second Reading amply demonstrated, but it is of course a cardinal principle that these important powers are subject to robust independent scrutiny. As most noble Lords have said, the recent report by the Joint Committee on Human Rights on the measures contained within this Bill included a recommendation that the remit of the Independent Reviewer of Terrorism Legislation be extended to cover those areas of our domestic counterterrorism laws which are currently not subject to independent review. I think this, among other things, is recognition of the excellent job which David Anderson QC has done in his current role and the high regard in which he is held. I wanted to take the opportunity to make that point. I hope that virtually all noble Lords who spoke will be reassured that the Government are giving careful consideration to the points raised by the Joint Committee and, indeed, to David Anderson’s last annual report, which covered similar ground.

Another part of this Bill, Part 7, deals with the vital matter of checks and balances by providing for the creation of a Privacy and Civil Liberties Board. I very much look forward to our consideration of that part of the Bill, which I know from the various contributions made at Second Reading and today will be of particular interest to a number of noble Lords. Clearly, there is more to be said about how the board will operate and how it will genuinely support and enhance the independent reviewer’s capacity. It is apparent that we cannot simply keep adding to the independent reviewer’s role. David Anderson has himself been clear that he is operating at the limit of his capacity, as my noble friend Lord Carlile mentioned, and that there is a need for reform of the independent reviewer role. I hope that our debate on Part 7 will allow us to explore these broader considerations.

However, we need to consider the whole question of oversight in the round. If I may say so, it seems a little premature to take this amendment in isolation ahead of the wider debate that I know we are going to have when we get to Part 7 of the Bill. So I ask the noble Lord to withdraw the amendment today in the knowledge that we will certainly consider the issue which it raises during our deliberations of the broader issues about how our oversight arrangements for the use of counterterrorism powers should be structured and resourced, which we will be having next week. I refer, too, to my earlier remarks that we are giving consideration to the JCHR report as well as to the last annual report from David Anderson.

Amendments 4, 41, 41A and 50A introduce a requirement to publish statistics on the use of the passport seizure and temporary exclusion powers on an annual basis and introduce an annual review of the arrangements made by the Secretary of State under Paragraph 14 of Schedule 1, which allows the Secretary of State to make arrangements he or she thinks appropriate in relation to persons whose travel documents have been retained for the retention period. The Government are committed to increasing the appropriate transparency of the work of our intelligence, security and law enforcement agencies, but it is essential that this is done without damaging national security or effective law enforcement and, above all, public safety.

The Government have committed to publishing an annual report on disruptive and investigative powers. The first report, covering the operation of these powers in 2014, will be published shortly. We intend to cover the use of the new passport seizure power in future annual reports. This approach is consistent with our approach to similar disruptive and investigative powers, such as the exercise of the royal prerogative to cancel or refuse to issue a British passport, which are included in the annual transparency report. We will also include the exercise of the temporary exclusion power in these reports.

For the reasons I have given, I therefore hope that your Lordships will feel reassured about the exercise of these powers and, accordingly, I would be grateful if the noble Lord would withdraw the amendment.

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[Baroness Ludford]

Just before my noble friend sits down, would he clarify whether I understood correctly that someone could be caught by sub-paragraph (10) if they had accidentally committed any of these activities of giving encouragement or offering assistance? Is this because of general principles of law or interpretation? Maybe I misheard him. Perhaps he could enlighten me.

[Lord Ashton of Hyde]

I did say that we believe that accidental or reckless encouragement should be captured when its consequence is to encourage,

“the commission, preparation or instigation of acts of terrorism”.

[Baroness Ludford]

Is there not rather a difference between accidental and reckless?

[Lord Ashton of Hyde]

I completely agree that there is a difference between those two words, but they are not mutually exclusive.

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[Baroness Hamwee]

I do not think that the noble Lord was present when I said that all our amendments today, and no doubt on subsequent days, will be probing ones. I think he was here when I said that many of our amendments—not just the ones that I and my noble friends have tabled—are about the workability of these provisions. I am sure that the Committee would like to understand what will happen at each stage.

I do not of course expect an immigration officer to come out with the kind of address that might be made to the Bench at a later point, but there is a very great difference between that and seizing the document under the provisions in Schedule 1. I dare say that the code of practice—and any additional guidance—will deal with this. I hope that it does, because I think it ought to. I am going to talk later, under a different amendment, about perceived discrimination, which I am sure the noble Lord will be as concerned about as I am. That is, in part, addressed when those who are exercising powers are as clear as they reasonably can be at any given stage about why they are doing so.

One set of amendments would change the 14-day period to seven days. The Joint Committee on Human Rights raised this point and drew comparisons with other provisions, such as those relating to property rights under the Anti-terrorism, Crime and Security Act, where an application must be made to a court to retain cash after 48 hours; equally, where a person is arrested under Section 41 of the Terrorism Act 2000 on reasonable suspicion of being a terrorist, a judicial warrant of further detention must be applied for within 48 hours of arrest. The JCHR recommended that seven days should be substituted for 14 days. I would have hoped that the committee did not make this point, but that would be adequate time to assemble the material that needs to be presented—and indeed to assemble the presentation—to the court, which in any event can extend the time.

The last of my amendments in this group, Amendment 28, amends Schedule 1(8). Under paragraph 8(4),

“the judicial authority must grant an extension if satisfied that the relevant persons have been acting diligently and expeditiously”.

My amendment would add a reference to “reasonable grounds”. In other words, it seeks to ensure that the judicial authority would apply the same test as under paragraph 2.

[Baroness Ludford]

My Lords, in relation to this group, without I hope stretching anyone’s patience, I will just repeat two questions that I asked at Second Reading, to which I do not think I got an answer. The first question, which may be very daft, is why it is not possible to use powers under Schedule 7 to the Terrorism Act to retain passports for up to seven days. Why can those not be used for outward travel? The Minister may not be able to instantly answer that. Secondly, how do you stop a rolling renewal? I gave the analogy of declaring the whole of Greater London a terrorism exclusion zone. How do you stop that just being renewed on a repetitive basis?

[Lord Pannick]

My Lords, in relation to the amendment of the noble Baroness, Lady Hamwee, concerned with the giving of reasons, and in relation to the concern of the noble Lord, Lord Harris, I suggest that the answer is the one given by the Joint Committee on Human Rights, from paragraphs 230 to 233. The obligation in the Bill should surely be that there is a duty to give the gist of the reasons. 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. It may be necessary to write in an exception. There may be security reasons why not even the gist can be given. It is fundamental that if you exercise a power of this sort you give the gist of the reasons for doing so.

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[Lord Harris of Haringey]

My Lords, I wish to comment on Amendments 42 and 43 in this group. I have to say that the grouping is slightly odd because it relates to a whole range of different issues. I assume that the purpose of the amendments of the noble Baroness, Lady Hamwee, is to ensure, first, that the way in which the action of removing someone’s passport is carried out is mindful of equalities issues and the background of the people concerned; and, secondly, that a proper record is kept of what is done, so that any subsequent look at how the powers had been applied can show that they had been applied proportionately. I have no objection to that; indeed, it goes to the essence of the point about this power and the subsequent powers—the extent to which they will be exercised in such a way as to achieve their purpose but avoid a situation in which they alienate a particular community by reinforcing the narrative that suggests that that community is being oppressed or whatever.

In that context, it would be helpful if the Minister could indicate how frequently it is anticipated that these powers will be used? Are we talking about six, 600, 6,000 or 60,000 times a year? It makes a significant difference because if every time people from a particular community try to leave the country they have to go through these procedures—and these documents are held for a period, whether for six, 12 or even two hours—that will produce resentment. If the powers are to be used in a much smaller number of cases, it may be that the proportionality will seem to be more reasonable. It would be useful if the Government, in asking for these necessary powers, were to confirm how frequently the powers would be used. I am sure they have considered that. Perhaps the Government can say, having thought through the information and intelligence that has been available for, say, the past six months, how many times they think they would have sought to use these powers.

[Baroness Ludford]

My Lords, I, too, will speak to Amendments 42 and 43, which I strongly support and to which my name is also attached. The draft code of practice refers to the need for an objective basis for the constable’s state of mind and how such information must be specific to the personal conduct of the person and not formed on the basis of assumptions about attitudes, beliefs or behaviour of persons belonging to particular groups. Training in equalities would want specifically to address the danger of stereotyping or behavioural assumptions. There has been a great deal of concern in the last decade and a half about what might sometimes be called racial, ethnic or religious profiling. One of the things that distinguishes this country from, for instance, France is that we believe—and this also relates to the need to record statistics on the use of the powers—that it is a useful exercise to record statistics which include, as indeed does our census, a voluntary question on ethnic identity and religious practice because it helps inform social, economic and, in this case, legal lessons to be learnt. It is not helpful, as is sometimes done in other countries, to pretend that we are colour and identity blind, because that actually means that we are blind in terms of the policy conclusions drawn. The need for training to avoid discriminatory behaviour and stereotypical assumptions and to record how the constables and other qualified officers behave and perform their duties is a useful addition to the Bill.

[Baroness Buscombe]

My Lords, listening to this debate and a debate on the previous amendments, some of which I was listening to on my screen elsewhere, I say we must not lose sight of just what an incredibly difficult task our intelligence services and police face in relation to counterterrorism. As I said at Second Reading, we do not know all that the intelligence services know. We must not tie their hands too much and be too prescriptive. I suggest that these powers are not being sought lightly. We have to be really careful when we debate “how many hours” and “as soon as possible” in Committee to step back now and again to remind ourselves why we are here and what we are debating.

With specific reference to these amendments, I have some sympathy with my noble friend Lady Hamwee in relation to “possession” or,

“under his or her control”.

That sounds more all-encompassing; perhaps that comes from my legal background as well. It would be good to hear the Minister’s view on this.

In relation to Amendment 11, “evidence”, “as soon as possible” and “12 hours” have been mentioned. We need to give the security services the freedom—if that is the right word—to be able to do their job and need to trust them to some considerable degree to do the right job. I worry about the reference to statistics and so on in relation to later amendments in this group. Of course we must be concerned about discrimination but at the same time how can we know—and how can my noble friend the Minister, with respect, stand here today and say—how many times we think these measures will be sought or used? We are in an incredibly difficult place at the moment on a global level. We have to do all we can to protect our citizens and collaborate with others across international boundaries to ensure to the best of our ability that we can counter terrorism. In that case, we should not ask for statistics at this stage. I understand where and why statistics look good and that we can look back and say that this made sense or that did not, or that it looks as if we have overused this or that power. Let us give the freedom necessary for the security services to do the job properly or to the best of their ability in the most difficult circumstances, remembering also that the circumstances have changed considerably since our last counterterrorism Bill. We are now in a situation where the speed to be able to act is absolutely of the essence, given that so much of this relates to information and evidence coming from possibly multiple sources and often digitally, in which case with enormous speed. We are asking our security services to act in response to that speed and the speed with which the perpetrators, those who we are seeking to prevent from carrying out terrorist acts, are able to act against us.

--- Later in debate ---

[Baroness Ludford]

My Lords, I thank the Minister for explaining these welcome amendments. Something is puzzling me and it may simply be my lack of understanding of the field. The test which the court has to determine in the case of prior permission, under Amendment 52, or in the review of urgent TEOs, under Amendment 44, is whether the decisions are “obviously flawed”. I am challenged to understand the position with an in-country statutory judicial review in Amendment 65, which I understand would follow the normal principles of judicial review, including necessity and proportionality. I know that the independent reviewer referred to a test of “obviously flawed” in a commentary that he made, but I do not understand the justification for the difference in the test in Amendments 44 and 52 compared to the statutory judicial review in Amendment 65. The phrase “obviously flawed” seems both a high and a somewhat problematic threshold: obvious to whom? I would have thought that the application of that test would create some difficulties. However, I may be on entirely the wrong track.

[Baroness Butler-Sloss]

My Lords, I want to ask a rather practical question. The whole of Clause 2, together with the amendments, appears to deal with someone over whom the Government assume there will be some degree of control. I take the example of someone who has gone to Syria and comes back through Syria to the airport in Istanbul. He then seeks to fly back to England and is made the subject of a temporary exclusion order. What is to happen to that person in Istanbul? What are the Government of Turkey to do with this person? If you stop them at an airport outside the United Kingdom, is there not a very real danger that they will just go back into Syria or into Iraq? What I have not understood about this temporary exclusion order is what will happen to these people who are not able to come back to this country.

--- Later in debate ---

[Lord Bates]

On the point just raised by the noble Lord, Lord Hylton, we have been very mindful of the fact that we need to work, not in isolation but in partnership with other countries. The level of co-operation and working across Europe in particular with our European colleagues, not least because of the events in Paris, has increased dramatically. We want to learn what works best. To answer my noble friend’s point, these orders will not exclude somebody from the UK per se. Through them we are saying that if you have been abroad and we believe that there is evidence that you have been engaged in terrorist activities we are not simply going to allow you to drift in and out of this country with impunity. That would need to be managed and supervised. We want that to happen—it is the purpose of the temporary exclusion orders.

My noble friend Lady Ludford—it now seems like a little while ago—was the first to speak about this. She raised a point about the tests and the phrase “obviously flawed”. Here, we are seeking to introduce a permission-stage model and a statutory judicial review mechanism similar to those already in place for the TPIM and asset-freezing regimes, which will consider both the decision to impose the TEO in general terms and for the in-country elements. Having considered these suggestions, we tabled these amendments in line with the recommendation. It is, as was said, simply consistent with those other elements to which we are referring. I hope that that has been helpful.

[Baroness Ludford]

I apologise for prolonging this, but I forgot to ask my noble friend something earlier. I am trying to understand the architecture of all this. Under the new clause relating to prior permission of the court, in Amendment 52, proposed new subsection (9) says:

“Only the Secretary of State may appeal against a determination of the court under … this section”,

and the urgency provision. I wonder whether that is a bit unfair on the person. Why would the individual not have a comparable right of appeal? Is there a clear reason why that is the case?

[Lord Bates]

Again, I will write if necessary, but I think the answer is simply that in that example, it is the Secretary of State who has made her decision and then subjected that decision to scrutiny by the courts. The courts will obviously make their judgment, and therefore the appeal is in connection with that particular part of the process. The individual concerned with that has access, through different routes, to judicial review of the temporary exclusion order. On the point about the Secretary of State, the individual is not involved in that stage, but will have the chance to challenge the substance. We are basically talking about two not quite parallel but different parts of the process. Therefore, the rights of appeal apply to different entities or individuals, as appropriate to those elements.

With those comments, I commend the amendments standing in my name in this group and invite noble Lords to consider not pressing theirs.

Counter-Terrorism and Security Bill

Baroness Ludford Excerpts

Tuesday 20th January 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)]

My Lords, I am grateful to my noble friend for bringing forward these amendments, which provide an opportunity to put further information on the record as to how temporary exclusion orders will work in practice. Amendment 57 seeks to provide that a temporary exclusion order ceases to be in force immediately when revoked, not when notice of revocation is given. We believe it is important that notice of revocation is given and that this is the point at which the order ceases to be in force. It is right that the individual concerned is made aware that the restrictions and obligations imposed on them will no longer be in place.

Similarly, Amendment 64 seeks to ensure that any variation or revocation of the in-country obligations placed on an individual come into effect immediately rather than once notice has been given to that individual. In the same way, we believe that it is right that notice of revocation is given and that this is the point at which the obligations cease to be in force. It is important that the individual concerned is made aware that the obligations imposed on them will no longer be in place. More importantly, it is vital that the individual is informed of any variation to the obligations before these variations take effect to avoid an unintentional breach, which could lead to prosecution.

Amendment 63 seeks to provide that notice of any in-country obligations comes into force when an individual is actually given the notice. As the individual will have returned to the UK under the terms of the temporary exclusion order, we will usually know the whereabouts of the individual and, in practice, should always be able to serve the notice on them in person. But it may be expedient for an individual as well as for the authorities for notice of a variation, for example, to be posted to the individual rather than served in person. In addition, there may be circumstances in which an individual absconds and is therefore no longer at the contact address. In all those circumstances, it is right that notice can be deemed to have been given, provided proper procedures are followed. Parliament will be able to review those procedures, but I can assure your Lordships that they will be based on well established practice in relation to immigration decisions.

Finally, Amendment 62 seeks to allow the Secretary of State to impose the in-country obligations of a temporary exclusion order on an individual who is about to return to the UK, as well as on those who have already returned to the UK. The in-country elements of a temporary exclusion order cannot be imposed until the individual has returned to the United Kingdom, a point on which my noble friend sought clarification. This will allow law enforcement partners to assess the most appropriate measures to manage the risk posed by the individual at that time, which may be a matter of years after the decision to impose the order was originally taken. It may even be appropriate to arrest and prosecute the individual, rather than impose any in-country measures on them. Therefore, it would not be appropriate to apply the in-country measures to someone who is about to return. It is better to wait until the individual is in the UK and form an assessment about the in-country measures at that stage.

In terms of the obligations and when they come into effect before return to the UK, the obligations made against the individual will apply only when the individual returns to the UK. Before that point, the individual will be subject to the temporary exclusion order in that their return will be disrupted and controlled, and they may be subject to conditions under the permit to return. But they will not be subject to in-country measures until they return for the reasons that I have outlined. I trust that that is a helpful reply to my noble friend and I invite her to withdraw her amendment.

[Baroness Ludford (LD)]

I apologise that I did not come in before my noble friend spoke but something he said has prompted me. In resisting Amendment 63 in the name of my noble friend Lady Hamwee to require an actual giving of notice, he referred to cases where it could be deemed to have been given. I think that that would refer to Clause 10, under which the Secretary of State may make regulations about the giving of notice under Clause 3. The Clause 10 states:

“The regulations may, in particular, make provision about cases in which notice is to be deemed to have been given”.

My noble friend referred to immigration case law. First, will he give us an idea of what circumstances qualify as “deemed”? Secondly, how much would be included in those regulations under Clause 10 about the criteria or circumstances, or what would qualify in substance as deeming to give notice?

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[Lord Judd (Lab)]

My Lords, this is an immensely significant amendment. Since I think the Minister is the sort of person who listens, I cannot imagine that he will not be prepared at the end of this debate to agree to take this matter away and look at it again to see what can be done.

I listened very attentively to what the noble Baroness, Lady Warsi, said. She has great insight. It rings true to me that if you are trying to keep the good will of the young and—very often in a healthy sense—radical members of the community, transparency is indispensable. I remember talking to a front-line policeman at the time when we were considering 42 days’ detention. He was working with the community. He said that the people who really matter in situations of this sort are those with street credibility. They may have been tempted by or even have tampered with, the wrong kind of activities, but they have street credibility. How do you strengthen them in their understanding and hold the line? That is why what the noble Baroness, Lady Warsi, said is crucial.

Then I listened to my noble friend Lord Harris. I have a very strong bond with him. I must not say this too often, but I knew him when he was a schoolboy, and I have always been delighted to see how he has developed and come on because I was great friends with his father. But my noble friend, who usually has a very balanced approach to police matters, argued this point. How on earth do we think the international community will respond? It seems to be the ultimate in cynicism to say, “We are so worried about this person that we won’t let them come back, so we’ll just leave them with you”. That is extraordinary. We are the people who are trying to win good will in the world so that we can work together. That is an amazing thing to do. We therefore need to have a lot more reassurances on that.

If I am allowed to make this point—I hope I will not be accused of sentimentality; I am being hard-headed about this—whatever our good intentions and however thorough the work, mistakes will be made. There is the possibility of the nightmare of somebody finding himself or herself excluded and left in limbo, knowing that he or she is innocent. It is difficult to imagine what we are creating and generating as regards the humanitarian situation there. Of course we understand—you cannot say it often enough—how real the threat is and how tough action is necessary. However, that tough action has to be transparent in its justification.

[Baroness Ludford]

My Lords, I recall a point I made at Second Reading. The human rights memo notes at paragraph 13 that the Secretary of State proposed to adopt a practice on TEOs equivalent to her,

“practice of not depriving individuals of British citizenship”,

if that would expose them to a real risk of treatment that would be contrary to Articles 2 or 3 of the human rights convention. The Government do not believe that the convention applies if those persons are not within the UK’s jurisdiction, so it is adopted as a practice. However, I asked at Second Reading whether it would be possible to incorporate in the Bill—it is a point worth focusing on even if it said only in a code or regulations—that it is the practice of the Secretary of State not to impose a TEO if that would expose an individual to a real risk of treatment under Article 2 of the convention on risk to life or Article 3 on risk of torture or inhuman treatment. Perhaps there is some way to incorporate that as rather more than a practice.

[Lord Bates]

My Lords, it has been helpful to go through the Bill as the result of the amendments, trying to tease out as much as possible about the workings of the system. Certainly a good many questions have been raised; I will try to respond to as many of them as possible. As regards those that I do not get round to responding to, I will read the Official Report and write in the correct way and then we can return to it on Report should the noble Baroness wish to do that.

It is worth making a few contextual comments. Upwards of 600 people from this country have travelled to the Middle East. Everybody knows that; there is a certain flinching and the reaction is, “Don’t say that again”. However, if that was not the nature of the threat, we would not be bringing forward this measure. About half of those people have returned to the UK. Some might say that that poses quite a risk. We know—it is not an unreasonable thought—that a number of terrorist organisations would seek to advance their warped and perverted cause by seeking to bring down an airliner or blow it up; that is not manufactured but is a real threat to us. Therefore, when the authorities have produced sufficient evidence for a reasonable belief that someone has been involved in terrorist activities, and that that has been tested through a court, if we simply said that they should be able to board a flight on the way home back to the UK, some might say that we were failing in our duty of care to the people in the country and to those on the airliner. As my noble friend Lady Warsi rightly said, none of us would like to think about our children, let alone us, travelling on a flight that may contain people who have been engaged in that activity.

Terrorist Attack in Paris

Baroness Ludford Excerpts

Wednesday 14th January 2015 Lords Chamber

[Lord Bates]

I shall have to write on the latter point. On the former point, the Community Security Trust, which has responsibility for security at Jewish schools and synagogues, has been working closely with the Metropolitan Police and other forces to continue to take appropriate operational response measures to protect the Jewish community from terrorism, hate crime and the impact of public order protests. Police forces continue to work closely with the CST and other Jewish community organisations. I am deeply conscious of the sense of unease and fear which is felt within the Jewish community at this time. My honourable friend the Security Minister is meeting the CST today. I hope that in future I will be able to report back more. If not, I will write on it at the same time as I write on the other matter.

[Baroness Ludford (LD)]

My Lords, in the short time that I have been back in this House, I have learnt to have the highest regard for my noble friend. However, I was slightly surprised that, speaking on behalf of the Government, he stressed the importance of trying to press forward with the communications data Bill because, as it is acknowledged, there is not agreement within the Government on this matter. Is it not the case that—as came out in the debate yesterday on the Counter-Terrorism and Security Bill—that we really need to wait to review and possibly strengthen the legal framework before collecting more data? This also applies at the European level because the Government are pressing for the passenger name record EU directive but are resisting the strengthening of the EU data protection laws, on both consumer data and data that are used for law enforcement purposes. Do not the two need to go together so that people can be reassured that their data are secured before more are collected?

[Lord Bates]

Again, the thoughts are mutual in terms of respect but also in terms of disagreement. This is just part of the disagreement and people can express their views. The Home Secretary has been very clear that we think that this Bill is absolutely necessary and the security services are very clear that they think this is necessary. The current head of MI5 thinks that this power is absolutely necessary. We want to give it to him. We might disagree with our coalition colleagues about that. I am perfectly able, as a Minister and part of the Government, to say that, as the Deputy Prime Minister was able to offer a different view in the media this morning.

Counter-Terrorism and Security Bill

Baroness Ludford Excerpts

Tuesday 13th January 2015 Lords Chamber

[Baroness Ludford (LD)]

My Lords, this debate takes place in the sombre wake of the Paris atrocities but also in the wake of Sunday’s inspiring marches. We must keep our heads—I think that is the broad intention of everybody—and not repeat the ominous claim in August 2005 by the then Prime Minister that “The rules of the game have changed”. I was impressed by the statement in the excellent speech of the noble Lord, Lord Evans of Weardale, about how our security response is more resilient if it draws on a strong framework of civil liberties and human rights.

Throughout the past two decades, as a Liberal I have been guided in my work, which was mainly in the European Parliament and to a much lesser extent in this House, by a strong preference for judicial over executive powers and for targeted investigation and data collection rather than blanket surveillance. I bring those attitudes and preferences to this Bill together with a concern that the relative speed with which we are proceeding should not be at the expense of our critical faculties.

Like other noble Lords, I have to be selective in my remarks today. The first issue I shall address is that of executive or administrative powers for restrictions on liberty of travel, movement and residence in the operation of document seizures, TEOs and TPIMs under Parts 1 and 2. A lot of good reform has taken place recently in narrowing the scope of stop and search, especially stop and search without suspicion, and I have great regard for the Home Secretary in her leadership on this issue, worried that it would create resentment and alienation among those who felt they were open to discrimination, racial or religious profiling or stereotyping. Obviously, we do not want to recreate that problem, so the first question to ask about Part 1 of the Bill is whether there are alternatives and if genuinely not, are there sufficient safeguards?

On the alternatives, in regard to Clause 1 on removal of passports, I read the briefing from Liberty and then yesterday the report from the Joint Committee on Human Rights. I find persuasive the JCHR acceptance that arrest under Section 41 of the Terrorism Act and police bail with conditions, such as passport surrender, is not a complete answer to the capability gap. However, I ask the Minister why the powers in Schedule 7 to the Terrorism Act to seize travel documents and hold them for seven days cannot be used in this scenario of outward travel. He may not be able to answer today.

In regard to terrorism exclusion orders, I strongly welcome the change of heart in the Bill compared to the Prime Minister’s originally declared intention permanently to exclude people or make them stateless. I am glad that, thanks to the working of the coalition Government, wiser counsel prevailed so that Clause 2 envisages temporary not permanent exclusion and managed return. I, too, would look favourably on the possibility of a change of name. I asked myself whether a measure that the JCHR calls “notification of return” could be an alternative. However, I concluded that this is probably unrealistic as someone could cause a threat en route back to the UK; for instance, of hijack or indeed bombing.

On safeguards, we will have to give great attention to whether judicial supervision and procedural and other safeguards are sufficient. There has to be considerable doubt. As regards the seizure of documents, the Bill includes only the possibility for judicial review not the possibility to challenge the merits of a decision or the existence of reasonable grounds for suspicion. We will need to look at that. There is also the question which other noble Lords have raised of how judicial review can be exercised from abroad. Schedule 8 to the Terrorism Act on the detention of suspects has stronger safeguards and even that has been criticised as being too weak. We would do well to examine carefully the list of about six reforms that the report from the Joint Committee on Human Rights has suggested.

On terrorism exclusion orders, as the Independent Reviewer of Terrorism Legislation famously asked, “Where are the courts in all this?”. I am glad that the Government are committed to looking very carefully at this and I hope they will reflect David Anderson’s suggestions for prior permission and subsequent review, not only on the making of the TEO but also the conditions. There are quite a few other detailed issues that will need scrutiny at subsequent stages of the Bill. In Schedule 1 there is a paragraph entitled:

“Restriction on repeated use of powers”.

However, there does not seem to be any limitation on the frequency or number of occasions as opposed to the duration of each period of detention. How do you stop repeated seizures on a rolling renewal basis in the way that happened in declaring the whole of London a terrorism exclusion zone? It was just permanently renewed, so we never got out of that.

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

As Schedule 7 is mentioned in a schedule to this Bill, I would like to flag up the possibility, perhaps not now but in the future, to look further at Schedule 7 which is, of course, subject to action in the courts. I think we need to pursue the recommendations from the independent reviewer on Schedule 7 to the Terrorism Act.

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

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

“involvement in terrorism-related activity”,

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

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

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

that they already possess.

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

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

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

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

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

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

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

--- Later in debate ---

[Baroness Shields (Con)]

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

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

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

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

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

adding that MI5 will need,

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

He also warned that,

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

and he renewed calls for enhanced access to digital communications.

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

[Baroness Ludford]

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

[Baroness Shields]

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

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

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

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

This legislation asks for only a small addition to the automated systems that already run our nation’s communications infrastructure. The recording of which person uses which address and when is generated in the normal course of operation, and is thus not overly burdensome for these companies. This Bill will require CSPs, subject to reasonable notice, to retain vital data that can help dramatically in our country’s ongoing battle to bring criminals to justice, protect the most vulnerable and keep the United Kingdom safe.

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

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

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

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

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

EU: Justice Opt-ins

Baroness Ludford Excerpts

Wednesday 10th December 2014 Lords Chamber

[Lord Bates]

I disagree with the presumption that the Question was ideological. This is a matter of practical steps, case by case. That is why we think there is a case, in terms of securing our borders, for the European arrest warrant. We would be part of that. We would also be part of measures to tackle modern-day slavery and of cross-border legislation against cyberattack, but we will not be part of other things. I think that is very practical and pragmatic.

[Baroness Ludford (LD)]

My Lords—

[Lord Tebbit (Con)]

My Lords—

[The Lord Privy Seal (Baroness Stowell of Beeston)]

My Lords, forgive me, but we have not yet heard from the Liberal Democrat Benches, so we shall hear from the noble Baroness, Lady Ludford, first. We have plenty of time for other noble Lords to participate in this Question.

[Baroness Ludford]

Can the Minister confirm that the famous corpus juris was in fact purely an academic research report, not a European Commission proposal? Its only product has been the idea of a European public prosecutor, in which the UK is not participating. Can he further confirm that all other EU action against crime is firmly founded on mutual recognition, as promoted by the UK, and that there is no European jurisdiction or European criminal code?

[Lord Bates]

That is absolutely right. The noble Baroness has great expertise in the workings of Europe, and the report to which we are referring is just an academic report, not a Commission proposal.