Psychoactive Substances Bill [HL]

Lord Paddick Excerpts

Tuesday 23rd June 2015 Lords Chamber

Moved by

[Lord Paddick]

1: Clause 1, page 1, line 3, after “about” insert “reviewing the Misuse of Drugs Act 1971 and”

[Lord Paddick (LD)]

My Lords, I will speak also to the other amendments in my name and that of my noble friend Lady Hamwee in this group. This group is fundamental to our debate on the rest of the Bill, as it asks the Government whether they are really committed to an evidence-based approach to combating drugs—basically, whether they are committed to doing what works in practice.

Amendment 1 is a minor amendment which sets out our proposals in the overall context of the Bill. The key amendment is Amendment 5, which would require the Secretary of State to commission an “independent evidence-based review” of the Misuse of Drugs Act 1971 and its implementation, and to publish the results. Amendments 111, 112 and 115 would ensure that this review had to take place before the rest of the provisions in the Bill came into force. If, in the face of the evidence that such a review would produce, the Government were still determined to press ahead with this, so be it. However, our amendments would give the Government time to consider whether a different approach, based on evidence of what works, would produce the outcomes we all seek.

I will be clear: the Liberal Democrats are as concerned about the harm caused by the misuse of drugs in general, and the misuse of new psychoactive substances in particular, as anyone else in this House, including the Government. Liberal Democrats want what parents and families want. Parents want their children to avoid taking drugs. The evidence suggests that education, rather than criminalisation, is more likely to achieve that end. If their children use drugs, they do not want them to be harmed by taking them, let alone be killed by them. The evidence suggests that the best way to do that is through education and concentrating resources on the drug dealers, not the users. If their children use drugs, the last thing they want is for the rest of their children’s lives to be ruined by a criminal record for simply having small amounts of a relatively harmless substance on them. Educate them if they are being reckless, and if they are addicted, treat them.

Our concern, borne out by the evidence from other countries, is that prohibition and the criminalisation of drug users do not reduce the harm caused by drugs. They do not save lives, reduce addiction or deal with the serious criminality associated with drugs, such as the violence associated with drug dealing. Our concern is that the Bill—yet another Bill based on prohibition and criminalisation—will not only be ineffective in reducing the considerable harm caused by new psychoactive substances but will increase that harm, cost more lives, increase addiction and boost the profitability of drug dealing.

I expect the Government to say that they do not believe this will be the case, and that they have a manifesto commitment to enact this legislation—and of course under the Salisbury convention we on these Benches will not try to wreck the Bill. What we are asking for is an independent, evidence-based review of how effective current legislation is in achieving what it sets out to achieve—that is, a review of the Misuse of Drugs Act 1971—before we give effect to another piece of legislation which is very similar to that.

I can tell noble Lords that making drugs illegal is not an effective deterrent, and that the classification of drugs under the Misuse of Drugs Act lacks a sound scientific basis in the case of many of the drugs listed in that legislation, and therefore it lacks credibility in the eyes of those whom the system of classification is designed to deter. However, rather than taking my word for it, I ask the House to support an independent review. We are not asking for a major piece of new research but for a similar exercise to that carried out recently by David Anderson into the far more complex area of surveillance, which he completed in less than 12 months. We are not trying to delay the passing of this legislation, just asking that we hold back from giving effect to it until after the review has been conducted. It may well be that, having seen the review, the Government decide to adopt a different approach.

The Liberal Democrats want a health-based and harm reduction-based approach to dealing with the problems caused by the misuse of drugs. If I thought that making even more drugs illegal would save one life or stop one person becoming addicted, I would not be asking for this review. Therefore, will the Minister commit to having such a review so we can ensure that, before this Bill comes into force, we learn the lessons of the past? I beg to move.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am puzzled. Somebody has lost the plot and it is probably me. I do not see why this has to delay the legislation at all. I follow that in this group, Amendment 115—the last one—would indeed delay the legislation. It involves an insertion into Clause 57, which is about commencement. However, I do not think that applies to any of the other amendments. On the face of it, Amendment 5 seems to demand the implementation of the Bill. How would one review its implementation under proposed new subsection (1)(b), except by bringing it into force and letting it go ahead? Unless someone can explain why Amendment 115 within this group necessarily has to be passed, I do not see that any delay at all is involved.

[Lord Paddick]

My Lords, if I may assist the Committee, clearly these amendments can be taken separately and, if the Committee is minded to say that there needs to be a review and no delay in giving effect to the legislation, that is a matter for the Committee. We are talking about the Misuse of Drugs Act in that amendment rather than the Bill, if that helps the noble Lord.

[Baroness Meacher]

I wonder if it might help the Committee if the noble Lord withdrew Amendment 115 simply so that we can debate the need for a review of the Misuse of Drugs Act without setting it in the context of a delay to the psychoactive substances ban.

--- Later in debate ---

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, first, I welcome the amendment and the way in which it was proposed by the noble Lord, Lord Paddick, because it has sparked a genuine debate, one of real high quality and passion on all sides of the argument. I thought that the arguments in the contributions we heard were pretty finely balanced for and against. I want to try to respond to some of those points. The point made by the noble Baroness, Lady Bakewell, relating to Ireland is an example worth looking at. That issue comes up in a later group of amendments and I will be happy to respond in more detail at that point, if I can.

I want to pick up on the comments made by my noble and learned friend Lord Mackay of Clashfern. He talked about the difficulties that the Government are facing and about these new versions of psychoactive substances that are coming on to the market. In fact, the European centre that monitors these things is identifying two new versions per week. More than 500 have been identified and banned since 2010. That is the difficulty that the noble Baroness, Lady Meacher, touched upon when she referred to temporary banning orders. We have tried those so we have some evidence that they do not work, because the minute we clamp down on one substance, up pop another one or two—or three or 10—somewhere else. The challenges that we face are clear.

Another point in the evidence—evidence that people have cited in all their contributions from their different perspectives on this—for the Government to take action on this is that we are seeing a general fall-off in the use of drugs, as the noble Lord, Lord Rosser, mentioned. The positive signs are there about the current approach to drugs. I will come back to this at some point but there has been an overemphasis on the Misuse of Drugs Act, which was a response to a series of international conventions, such as the UN convention. It recognised that the fight against narcotics and drugs was a global fight. We therefore introduced legislation but if there was just the Misuse of Drugs Act, as it was configured in 1971, there would of course be little support from any part of the House. The fact of the matter is that that is only one part of the legislation.

The noble Lord, Lord Patel of Bradford, talked about the excellent work being done in treatment and rehabilitation. There is work going on in education and very sophisticated work going on in policing, a point raised by the noble Lord, Lord Condon. In fact, having been a commander, the noble Lord, Lord Paddick, was at the centre of the challenge of finding new ways to tackle those issues through law enforcement. There is a whole suite of different ways in which we are tackling this but across the majority of drugs and age groups, there has been a long-term downward trend in drug use over the past decade, a point made by my noble friend Lord Blencathra. Among 11 to 15 year-olds, drug use has been falling since its peak in 2003. More people are recovering from their dependency now than in 2009-10, and the average waiting time to access treatment is now down to three days. As a result of such innovation, the work that has been done in that area is providing alternatives and treatment. However, enforcement is part of that.

I come to the point that against the downward trend that we are seeing, in one area we see that the opposite is actually the case: usage is increasing and the number of deaths has almost doubled. There were 120 deaths of young people in 2013, and all the evidence is that that trend is on the rise.

[Lord Paddick]

Of those 120 deaths, for how many were new psychoactive substances the sole cause and for how many was it a mixture of these with alcohol and other controlled drugs?

[Lord Bates]

I do not have an exact breakdown, but that is how the health—

[Lord Paddick]

I can assist the Minister, because in only 23 of those deaths did the post mortem find only psychoactive substances in the bloodstream. It is important that we get the facts straight in these cases.

--- Later in debate ---

[Lord Bates]

I certainly agree with the noble Baroness that the wider issue is not narrow, it is very broad, but what we are trying to do here with this Bill is very narrow. It is very focused and based on the evidence. The noble Baroness says that the two amendments are linked but distinct. Now she is a lawyer and I am not, but to me if they are linked then they cannot be distinct. They are linked in the sense that if they are both moved together, then one effect will be to have a review which will delay action being taken on this menace—or mischief, as the noble Lord, Lord Condon, said—which is happening up and down this country and through which people are suffering and dying. We need to take action and we are doing that on the basis of medical evidence, law enforcement evidence and evidence from the Local Government Association.

[Lord Paddick]

My Lords, the debate this afternoon has been passionate on both sides, and both sides of the argument seem to be equally committed to believing that their side is right. If ever there was an example of why we need an independent, evidence-based review, the debate this afternoon is it because everybody who has spoken in the Chamber this afternoon cannot possibly be right. We might agree to a review of the Misuse of Drugs Act, but people will then ask why we would want to link it to this piece of legislation. The noble Lord, Lord Condon, for whom I have a great deal of respect, raised this as an issue.

The fact is that somebody said that the definition of madness is to carry on doing exactly the same thing while expecting a different result. Some people brought forward evidence in this argument that prohibition and criminalisation of drugs do not work, which the Minister has countered. One of the campaigning organisations called Release, which no doubt has sent information to noble Lords, claims that the UK has the highest lifetime amphetamine and ecstasy use, the second-highest cocaine use and the fourth-highest lifetime cannabis use in Europe. Not everybody can be right on this and my real concern—there is some evidence which we will come to in future amendments when we consider the Irish situation—is that this Bill, or this approach of prohibition and criminalisation, actually makes things worse. It makes people less safe. It makes more people die. It gets more people addicted. What I am concerned about is, if we make even more drugs illegal, it will have completely the reverse effect to the one wanted by everybody in this House, which is to make it safer, to have fewer deaths and fewer people addicted. That is why this amendment is here. That is why this amendment is linked to this Bill and that is why I wish to test the opinion of the House.

--- Later in debate ---

[Lord Rosser]

We have an amendment in this group and it is not about post-legislative scrutiny. It calls for the Secretary of State to publish an annual report on new psychoactive substances and sets out some of the information that must be included in the report.

There is currently a real lack of data collected and published on new psychoactive substances and their impact. For example, the first indication of a new drug tends to come from a hospital admission. If this happens in the United Kingdom, the National Poisons Information Service is informed and it then advises the European Monitoring Centre for Drugs and Drugs Addiction. The EMCDDA tells the National Poisons Information Service of drugs detected elsewhere in Europe. However, the Home Office keeps its own lists, the main one being the forensic early warning system, and, to date, successive Ministers have been unable to explain the relationship between the EMCDDA list and the Home Office list, which suggests that data are not being collected and published in a consistent or helpful way. Similar problems arise with monitoring drug-related deaths and overdoses. No proper data are collected on drug deaths as the data we have rely on examining countless records, which is why they are often incomplete and take years to publish.

There is a significant problem, too, with hospital admissions. The National Poisons Information Service collects new drugs but does not collect data on all drug- related overdoes. We do not know how many hospital admissions result from taking these new substances. Nor do we know in how many cases new psychoactive substances were a factor for those needing to access mental health services. Anecdotal evidence suggests that legal highs are a major factor, especially for adolescent mental health services.

In their response to the expert panel, the Government accepted the importance of information on new psychoactive substances and that it should be shared systematically at both a local and national level in a timely manner. However, the Government did not appear to accept the current inadequacies in the information, including those to which I have referred.

The expert panel said that, with the rise in the availability of NPSs, coupled with possibilities for NPS market development via the internet, the UK drug scene had become increasingly complex and fractured, and that a number of information issues arose from this. These included,

“the difficulty for any one agency to keep to keep abreast of all the new developments … the acknowledgement that the Misuse of Drugs Act 1971 needs to be supplemented by other legislation has meant that more professional networks require information including trading standards … the current time lags involved between data collection and publication of data obtained by current networks mean these systems cannot be employed in the service of providing more timely early-warning-type information; and … the need to collect, analyse and distribute information in a more systematic and timely fashion to help inform policy and practice at both a national and local level”.

Frankly, the Government’s response did not address all these issues since there seems to be a view that the forensic early warning system’s annual report can fit the bill. In its recommendations, the expert panel says:

“There is a need to establish prevalence, evidence and harms associated with NPS”.

It suggests that we should:

“Develop detection and data collection tools across criminal justice and health services, and other relevant settings, for example, schools and universities”.

A recommendation refers to developing,

“internet tools to monitor internet activity around NPS”,

and to the need to:

“Record health and social harms related to NPS by utilising professional networks and other early warning systems … understand local markets, including through headshops, retail outlets, prisons and local police assessment”.

On enhancing the share of information on NPSs, the panel said:

“Sharing information at both local and national levels is essential in helping to achieve a reduction in the demand and supply of drugs and in promoting comprehensive and effective interventions”.

It is fairly clear from the report of the expert panel that it does not think enough is currently being done in the area of the provision of information. The purpose of this amendment, as I said at the beginning, is to provide for the Secretary of State to publish an annual report on new psychoactive substances. The amendment sets out, in not quite so extensive a list as that of my noble friend Lord Howarth of Newport, some of the information that should be included in that report.

I hope the Minister will reflect further on this issue—the importance of information on NPSs—and the adequacy of the current information and the systems and methods by which it is provided. Our amendment gives the Minister the opportunity to do just that and I hope it is an opportunity she will take.

[Lord Paddick]

My Lords, I waited until this moment to speak because it seemed unfair to comment on the amendment in the name of the noble Lord, Lord Rosser, without his having spoken to it first. I have some sympathy with what the Labour Party is proposing, but I prefer Amendments 4 and 6 proposed by the noble Baroness, Lady Meacher, for the very reason that she articulated. The market for new psychoactive substances and that for other substances covered by the Misuse of Drugs Act cannot be treated as separate. The whole reason for the existence of new psychoactive substances is the controlling of other drugs. There would be no need for people to develop so-called legal highs if they could get the high legally from controlled drugs. It is essential that the annual report includes exactly what the noble Baroness proposes: an assessment of the impact on health and the social harms brought about by the Misuse of Drugs Act and this Bill.

The noble Lord, Lord Howarth of Newport, gave a long list of things that could be included in the report. If everything he suggested was included, it might not only put the Government off producing the report but put me off reading it or trying to wade through it. I agree with the noble and learned Lord, Lord Mackay of Clashfern, that post-legislative scrutiny of a Bill such as this by a Joint Committee of both Houses would be appropriate, but it should not mean that there should not also be an annual report, because things are changing so quickly. We have heard from other noble Lords about how different drugs come into mode and out again. We therefore need an annual assessment of whether the legislation is still fit for purpose.

[Baroness Chisholm of Owlpen (Con)]

I am grateful to the noble Baroness, Lady Meacher, and the noble Lords, Lord Rosser and Lord Howarth, for setting out the case for their respective new clauses. In one way or another, these all require an annual report on the impact of the Bill, and we have covered a huge amount of ground. Let me say at the outset that good lawmaking absolutely dictates that all new legislation should be reviewed post implementation to consider its effectiveness, and this is no exception. We are committed to post-legislative review of all new primary legislation. I can therefore assure the noble Lords and the noble Baroness that the Government fully intend to carry out a review or reviews of this legislation, once implemented.

Of course, data are hugely important, and it is important that we take in all aspects of the Act. It is right that the evidence required to produce an adequate review of the Act is fully and carefully considered. However, it is really important to remember that, given the time lag of some of the key data sources, it is unlikely that any useful data will be available within the first year of the implementation of the Act. Such a review normally takes place three to five years after Royal Assent to allow for a rich source of data to be collected, particularly if we are going to collect the amount of data that I feel is important, as the noble Lord, Lord Howarth, suggested. Indeed, as my noble friend Lord Blencathra said, it takes time to collect the data. It is important for the departments to conduct a particular review to make sure that they have everything in place. Certainly, in this case, we would not want to wait three years to review this legislation.

Understanding the evidence for and against the different legislative options to tackle the growth of psychoactive substances was central to the terms of reference of the Home Office’s New Psychoactive Substances Review Expert Panel, set up by the Liberal Democrat Minister Norman Baker. Alongside the expert panel’s report, the Home Office also published an evidence review last autumn. This set out the available evidence at the time on psychoactive substances. The review examined the identification of new psychoactive substances, along with the characteristics of users and their motivations for using these substances. It also examined the market and the evidence of harms. The evidence review provides us with a good basis for understanding the extent of the market, the uses and the problems associated with new psychoactive substances, and for measuring any changes over time.

The noble Lord, Lord Howarth, also mentioned that it was necessary for a wide range of data to be collected on the prevalence of traditional illicit drug use and its related harms. While the evidence on psychoactive substances is less established, there are data on a number of previously unseen substances identified in the UK, as well as on the prevalence of the use of some types of psychoactive substances, related deaths and treatment demand. Of course, the monitoring of data, along with the way they are collected so that they can be strengthened to provide a more complete picture of the use and harms of psychoactive substances, will continue over the period until a full review is done.

Psychoactive Substances Bill [HL]

Lord Paddick Excerpts

Tuesday 23rd June 2015 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I support the noble Lord, Lord Howarth, on both those amendments. We talked a lot about legislation earlier on today, but we know, both internationally and from the Home Affairs Select Committee and others, that legislation does not make very much difference at all to the key issues relating to drugs, whether traditional drugs or new psychoactive substances. The important job the Government have concerns information. I have said it before and will say it again: young people do not want to kill themselves, believe it or not, and they do not even want to harm themselves and finish up in hospital. Why do they kill themselves and finish up in hospital? Because they do not have the information they need to keep themselves safe. Why do they not have the information? Because far too many substances are banned in a rather simplistic way. Countries such as the Netherlands, which have coffee shops where people can get cannabis, have very little problem with heroin, for example. There are other ways of keeping people safe. But the most important way, as the noble Lord, Lord Howarth, says, is information. I agree with his ideas about how this should be done—it cannot be typical government information. It really is important. If we stopped focusing on legislation quite so much and focused on some of these other issues, we might actually make some progress.

I want also to support the noble Lord, Lord Howarth, in relation to the testing centres. Testing centres would be a very important adjunct if we were to have a more proportionate system where low-harm substances would be regulated, labelled and so on, as recommended by the European Commission and approved by the European Parliament. If we had a proportionate system like that, and had testing centres, a young person could go into a testing centre and ask whether a substance was low harm and okay to take. With a combination of a proportionate legal system, testing centres and really good information, we would begin to have a really good drugs policy. Would that not be wonderful? We could lead the world with such a policy.

Many Latin American countries talk about these things. They know just how bad the war on drugs can be. They know just how important it is for the demand end of the drugs market to be managed effectively in order to save them from tens of thousands of deaths a year, corruption, government failure and all the rest of it. It is absolutely disastrous across the Atlantic. In my view, we have a responsibility to ourselves and our young people but also to Latin America and central American countries.

I very strongly support what the noble Lord, Lord Howarth, said. I really hope that Ministers will take it very seriously and somehow link it with a proportionate, rational system of drug control.

[Lord Paddick (LD)]

My Lords, I support these amendments. However, I have some concerns. The first is, as has been previously mentioned, the limited forensic capacity that the Government and police have. Already the police service has to make rationing decisions as to which cases it refers to forensic laboratories. This Bill could create a massive increase in the amount of work that forensic laboratories would have to do.

Before we had new psychoactive substances and this Bill, the idea of websites that advised what was a safe dose of an illegal drug seemed somewhat contradictory, and there would have been some fairly stiff arguments against providing testing stations for drugs that are illegal to possess. However, as noble Lords will know, this Bill does not criminalise possession, and therefore does not make it illegal to take these substances. Therefore, the case for public information about safe dosage and having testing centres appears absolutely necessary if the Government are to continue to pursue this idea that simple possession for personal consumption of new psychoactive substances should remain legal.

Drugs: Cannabis

Lord Paddick Excerpts

Wednesday 17th June 2015 Lords Chamber

[Lord Bates]

Part of the argument here is that one of the reasons why Sativex is not widely prescribed, although it has been licensed for marketing, is that general practitioners believe that there are other drugs which are more effective in tackling the issues it is meant to deal with. That is a point for debate, but we are acting on the advice of the Advisory Council on the Misuse of Drugs and abiding by the decisions of the Medicines and Healthcare Products Regulatory Agency. It would be a derogation of duty for the Government to do anything other than that.

[Lord Paddick (LD)]

My Lords, will the Minister please confirm that the drug he mentioned in answer to a previous Question is no longer approved by NICE? Does he agree that it is slightly disingenuous of him to suggest that a cannabis-based product is widely available in this country?

[Lord Bates]

It is not that the drug is no longer approved; it was never approved by NICE. It has been licensed for marketing and is available on private prescription in England. In Wales, it is available on prescription. People are still evaluating its performance. NICE’s view was that alternatives are available which are more cost effective and more effective in their treatment outcomes. That is a decision for it.

Anderson Report

Lord Paddick Excerpts

Thursday 11th June 2015 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement made earlier in the other place. I certainly endorse the comments that he made at the end about the work of those in the intelligence and law enforcement community, who are there to protect us and whose successes, as he said, often go unrecognised.

We welcome the report by David Anderson QC, the Independent Reviewer of Terrorism Legislation, into the operation and regulation of law enforcement and agency investigatory powers. It is a report which the shadow Home Secretary called for when emergency legislation was being debated last summer, since we believe that the current legislative framework is no longer fit for purpose. While technology has moved on, the same cannot be said for either the law or the oversight arrangements. Reforms are needed, and we need to get them right in order to protect both our liberty and our security when addressing the threats we face.

In media broadcasts the independent reviewer has given today, he said that there are two problems with the law in this area as it stands. The first is that no one can understand it since it is spread over 64 Acts of Parliament, which have also proved variable in their application. The second is that there is a need for stronger safeguards and protections. For example, instead of it being the Home Secretary who decides whether you can tap the telephone of a suspected drug dealer or terrorist, it should be for a judge to do so, in order that it can be seen to be done in a proper and independent fashion. It seems that last year the Home Secretary authorised some 2,345 warrants. According to the report of one interview David Anderson has given, the Home Secretary has, in his view, effectively been doing this in her spare time when not running the department. Whether the Home Secretary shares the concerns of the independent reviewer about the workload imposed on her by having to decide whether to authorise all these warrants is no doubt something on which the Minister will be able to enlighten us, but I have a feeling that Mr Anderson thinks that warrants should be authorised by a judge—full stop—rather than having concerns over the workload it involves for either this Home Secretary or indeed any other Home Secretary.

Proportionate surveillance and interception saves lives and averts and disrupts terror attacks and other major crimes. There is no doubt that these powers are needed and we cannot allow the sunset clause on the existing powers to lapse at the end of next year without having new legislation in place. However, strong powers need strong checks and balances, including effective oversight of the way the system works. Public acceptance of the need for such powers will be diminished if there is a belief that they are being abused for purposes that impinge on our privacy, and for which they were neither intended, nor for which authorisation for their use has been given.

We have to ensure that we put arrangements in place to address the concerns that personal privacy can be invaded without justification and proper prior authorisation. We welcome the proposals in the independent reviewer’s report to strengthen oversight that involve a new and stronger independent surveillance and intelligence commission, merging the existing system of commissioner, and of course introducing judicial authorisation of warrants. Do the Government also welcome these proposals?

The independent reviewer has also concluded that there should be no question of progressing proposals for the compulsory retention of third-party data before a compelling operational case for it has been made out, which he says it has not been to date. Is that recommendation in line with the thinking of the Home Secretary? We welcome the Government’s decision that a draft investigatory powers Bill—presumably based on David Anderson’s report, although perhaps the Minister can confirm that that will be the case—will be subject to pre-legislative scrutiny by a Joint Committee of both Houses. I hope that the Government will also provide time for a full debate on the Anderson report in this House so that all Members have the opportunity to contribute. I hope also that the Government will seek to promote this among the public at large as well, to help ensure that there is the widest possible consent and thus legitimacy for the new framework. Will the Government provide for such a debate?

The digital age is a source of freedom and opportunity but, as we have seen, it brings new challenges from new crimes and new threats to our security that are extensive and go well beyond the horrors of terrorism. We have to ensure that those whose responsibility it is to protect us and keep us safe have the necessary powers to do the job in the changing technological environment in which we live today, while ensuring that those powers are used only for the purposes authorised and intended, and not at the expense of the liberty and privacy of the public at large. We welcome the report by David Anderson, which will help us to do this and ensure that in the key areas of security, privacy and countering the many different threats we face, our very different digital age from that we have known in the past actually serves the interests of the public and our democracy rather than proves to be our master.

[Lord Paddick (LD)]

My Lords, I thank the Minister for repeating the Statement. As he just said, this is one of a suite of reports commissioned by the previous coalition Government into investigatory powers; it is a very important one by the Independent Reviewer of Terrorism Legislation.

On first reading, it appears to be a fair and balanced report. While some may have preferred there to be no state intrusion into people’s privacy, we on these Benches understand that there needs to be a balance between the powers given to the police and to the security services, and the right to privacy and the upholding of individuals’ civil liberties. It is for the police and the security services to argue for more powers, for civil libertarians to argue for fewer, and for us as politicians objectively to decide where the balance properly lies.

The Home Secretary, in her Statement, lists a whole range of potential threats, concluding that,

“we have a duty to ensure that the agencies whose job it is to keep us safe have the powers they need to do the job”.

As a consequence of what the right honourable Member said in the other place, I am concerned that the Government are already biased in favour of the state and against the individual. Thankfully, David Anderson is having none of it and neither should we. Along with consideration of the threats that we face as a country, will the Government consider a digital Bill of Rights to give citizens a clear and unambiguous understanding of where their rights lie and what protections they have against state intrusion? Will the Minister also agree with David Anderson that,

“there should be no question of progressing proposals for the compulsory retention of third party data before a compelling operational case … has been made”,

for it, and agree with him that this case has not been made to date?

The fact is, the draft communications data Bill, to give it its correct title, is hopelessly out of date and can no longer deliver what the police and the security services need while massively intruding into people’s privacy—all pain and no gain. The right honourable member for Sheffield Hallam when he was Deputy Prime Minister took a lot of flak for blocking legislation that required the retention of third-party data. Would the Minister not agree that David Anderson, in his report, agrees with Nick Clegg and the Liberal Democrat position on what some have called the “snoopers’ charter”, even if he cannot bring himself to say that he agrees with Nick?

David Anderson recognises that the Regulation of Investigatory Powers Act is no longer fit for purpose, and we welcome the Government’s approach that there should be a pre-legislative committee of both Houses to look at its successor. Will the Minister confirm that such a committee will be given access to all relevant information to enable it to make a proper judgment on the Government’s proposals?

Finally, we strongly support David Anderson’s recommendation that intercept warrants should be judicially authorised by specialist judicial commissioners, rather than by government Ministers. Surely it is for the police and the security services to decide whether applying for such a warrant is necessary in the interest of national security and it should be for judges to decide whether such action is lawful. Will the Minister give an undertaking that, pending a change in the legislation, the Government will operate within the spirit of the independent reviewer’s recommendations by ensuring that the Secretary of State consults the existing surveillance commissioners prior to authorising such warrants?

[Lord Bates]

My Lords, I thank both noble Lords for their welcome of the report and of the Statement. When we deal with matters of this importance it is vital that we work, as far as possible, in a cross-party way. That was certainly reflected in the commissioning of this review and the Government will seek to continue that as we consider its implications.

The noble Lord, Lord Rosser, rightly asked whether the Regulation of Investigatory Powers Act 2000 is still fit for purpose. That is a key element. Fifteen years ago, we could not have envisaged the plethora of social media that have exploded upon us. Some 204 million emails can now be flying around every minute, placing challenges on those who have the duty of keeping us safe. Therefore, we accept the noble Lord’s important point.

The noble Lord also sought a commitment with regard to clarity on this issue. When we are dealing with matters of great sensitivity that concern people’s individual security and rights, it is vital that the language used is clear and understood, as is the relevant legislation. That is one of the key elements that the pre-legislative scrutiny will bring to the Bill. I am happy to confirm to the noble Lord that the Bill needs to be drawn up before a committee is established. However, when the Bill is presented in the autumn, a Joint Committee will be established which will have a wide remit. It will be for the House to determine the committee’s composition and remit but it should certainly have the very wide remit necessary to carry out its important job of scrutiny.

The noble Lord, Lord Paddick, asked about rights and a Bill of Rights. The Government have now secured a mandate from the electorate to look at ways of modernising our human rights laws and are reflecting on that. We recognise the arguments about privacy but argue that, for people to enjoy that privacy, they first need security. That is where the balance needs to be struck.

The noble Lord also referred to the importance of people having trust in the system, and it is no accident that David Anderson’s report is entitled A Question of Trust. Indeed, he says on page 245 that,

“the road to a better system must be paved with trust”.

That is a central principle, along with the other principles he outlined. In the report he drew on some public opinion data and pointed out that, far from being sceptical about the security services’ use of data, there was wide support for it among the British public, and that:

“66% think that British security and intelligence agencies should be allowed to access and store the internet communications of criminals or terrorists; 64% back them in carrying out this activity by monitoring the communications of the public at large”.

That is not to say that this is the line we are going down. The Government are still considering all the options but the important thing is to work thoroughly, carefully and methodically. This report, along with that of the Intelligence and Security Committee and the RUSI report which is still to come, commissioned by the former Deputy Prime Minister Nick Clegg, will all provide the firm evidence base that we need to progress in this very sensitive area.

Psychoactive Substances Bill [HL]

Lord Paddick Excerpts

Tuesday 9th June 2015 Lords Chamber

[Lord Paddick (LD)]

My Lords, I will start by explaining briefly my background. I was a police officer for more than 30 years. I served at every rank up to and including Deputy Assistant Commissioner. On a more personal level, two years ago a former partner of mine, who subsequently became my best friend, died from an accidental overdose of a controlled drug. This is not just a professional interest of mine; it is a very personal one.

I do not want to break up the happy consensus portrayed by the Minister about what the position of the three political parties was. As he quite rightly said, the Liberal Democrat manifesto talked about clamping down on those who produce and sell psychoactive substances—not necessarily, as we will see, banning them.

We on these Benches are as concerned about the harm caused by people misusing drugs as the Government and the Labour Party are. We believe that there should be a health-based approach, aimed at reducing harm caused by drug misuse, rather than a legalistic approach that is likely to further criminalise drug users. Successive Governments have gradually eroded the link between criminal penalties and the harm caused by drugs by ignoring the scientific evidence and the advice that they have been given, to the extent that the drug laws in the UK are no longer considered by many people to have any credibility. The Bill, by failing to differentiate between dangerous psychoactive substances and those that are harmless, and by criminalising the production and supply of these substances but allowing simple possession, adds to that confusion and further undermines the credibility of UK drug laws.

As drafted, the Bill is far too broad and indiscriminate, further undermining credibility and efficacy in reducing harm. Legal minds far greater than mine have speculated on whether producing and supplying scented roses, or perfumes that evoke a sense of well-being or romance, could be illegal under the Bill. Those who claim that simply sniffing such substances falls outside the scope of the Bill clearly need to go back to school to learn some simple biology and chemistry. If you sniff something, you are inhaling it; you are taking molecules into your system, exactly as described in the Bill.

As drafted, the Bill would not outlaw simple possession of new psychoactive substances that come on to the market, which could potentially be far more toxic than drugs currently listed as class A under the Misuse of Drugs Act. The Government may well reply—I think that the Minister alluded to this in his opening remarks—that if that is the case, they could be temporarily banned and then designated as controlled drugs under the Misuse of Drugs Act. That course is available to the Government now, without the need for the Bill. My understanding was that the whole purpose of the Bill was to get away from manufacturers constantly changing the formula of psychoactive substances to avoid a drug being banned, yet it does not criminalise possession of what are potentially very dangerous drugs, which could quite easily change in formula in the way that the Bill is designed to eradicate. Either the Government want to send a very strong message that these substances are dangerous, which they may or may not be—in which case, why is possession not a criminal offence?—or they want to say, “Well, actually, these drugs are not as dangerous as controlled drugs”, when in fact they may well be.

As the Bill allows possession of new psychoactive substances while possession of drugs controlled under the Misuse of Drugs Act is a criminal offence, the police will be faced with situations that make enforcement very difficult, if not impossible. If the police suspect that I have EX-1, a synthetic imitator of real ecstasy—I hasten to add that an internet search taught me that—in my possession for my own use, the Bill does not give the power for the police to stop, search or arrest me because to possess the substance will not be a criminal offence. However, if the police suspect that I have a real ecstasy tablet in my possession, they can stop, search and arrest me because it is a controlled drug. How are the police going to know? Some will say, “They will assume that it is a controlled drug, and search and arrest you anyway”. So what if I tell the officer that I have nothing illegal on me, that the tablet is indeed a legal EX-1, that they have no grounds to search and arrest me and that if they do, I will sue them? What if the tablet turns out to be legal to possess? Where does that leave the police? What if the police officer backs off because of my assurances, but the ecstasy tablet that I have is in fact a real one? The Bill, quite clearly, has not been thought through in terms of its practical application.

At the moment, I can buy legal highs from a head shop on the high street. It is acknowledged in the briefing given by the Government on the Bill that, contrary to what the Minister said in his introduction, many of these head shops are well run, with those that manage them being very keen to comply with the law. At the very least, I can be pretty sure that what I am buying is not a dangerously addictive class A drug. If things go badly wrong once I have taken a legal high purchased from one of these head shops, someone can go back to the head shop where I bought it and at least have some idea of what I have taken, and action could be taken to ensure that others are not similarly affected.

Many people buy legal highs now. They like what they do to them, and their use is increasing. If the Bill passes, the only way they can get psychoactive substances and be sure that they are not breaking the law is to go to a local drug dealer. Many of these street dealers have no incentive to ensure the quality of the drugs that they sell, because they could just disappear overnight if things go wrong. The chances of tracing and establishing what drug I had actually been given, were things to go badly wrong, would be much lower.

These drug dealers could just as easily sell me highly addictive class A drugs, and indeed they may have a vested interest in misleading me by giving me a highly addictive class A drug instead of the legal high that I asked for; the high is likely to be greater, and if I get addicted, I could become a regular client. It would make no difference to the dealer, if he were to be caught, whether he was supplying controlled drugs or other psychoactive substances—a long term in prison would await.

We are likely to criminalise many more people as a consequence. If you order psychoactive substances online—we have heard evidence this afternoon about how Irish online sites closed down with the introduction of their legislation—the chances are that the website you are ordering from will be based abroad. Even if you are buying psychoactive substances only for your own personal use, you will be guilty of the criminal offence of importing drugs. If you buy a few tablets to share with your mates on a night out, again you will be guilty of a criminal offence. A lot more people are going to end up with a criminal record as a result of the Bill, even if their primary intention is just to consume the drugs themselves.

The genie is out of the bottle. Many people take legal highs, and they will continue to get hold of them one way or another—whether head shops disappear from the high street or not—or they will simply switch to far more dangerous controlled drugs. The reason that millions of people break the law by taking controlled drugs is that, quite rightly, they see that our drug laws lack credibility. I have never heard a discussion among young people about to go on a night out as to which class a particular drug belongs to, and therefore which drug they are going to take on that basis. The Bill, as currently drafted, as I have said, further undermines the credibility of the drug laws in this country.

We need a new approach: a health-based approach that will genuinely reduce the harm caused by drug misuse and that has credibility among those who misuse drugs, not just an approach that appears to have credibility among politicians who do not really know what they are talking about. We need a system that differentiates between the psychoactive substances that cause most harm and those that are relatively safe—at least as safe as smoking tobacco or drinking alcohol—and we should control and regulate the supply of those relatively safe substances as we do with tobacco and alcohol. To do anything else would lack credibility, particularly in the eyes of young people.

If someone is caught in possession of harmful psychoactive drugs for their own use, controlled or otherwise, and they are a social user, they should have their drugs seized and be placed on an education programme. If someone is caught in possession of harmful psychoactive drugs, controlled or otherwise, and that person is addicted, they should be placed on a rehabilitation programme. If they refuse to co-operate, they should be given a civil fine. Such an approach would be much simpler and far more effective in dealing with this problem than giving thousands of young people a criminal record that could ruin their life chances because they made stupid mistake.

It is time that we started treating those who misuse drugs as victims of drug dealers rather than as criminals. It is time that we confronted the fact that criminalising young people for possessing substances only as harmful—or less harmful—than alcohol or tobacco lacks credibility.

[Lord Tunnicliffe (Lab)]

For the avoidance of doubt, is the noble Lord saying that the Liberal Democrats so oppose the essence of the Bill that they will either vote against it or propose wrecking amendments?

[Lord Paddick]

My Lords, we do not propose to wreck the Bill. Clearly, we cannot allow head shops to continue operating as they do now—purporting to sell substances that are harmless when they are far from harmless, or trying to get around the law by saying in very small print on the back of the substances that they are not fit for human consumption. However, the dangers in the Bill as drafted are to make the drug laws even more of a laughing stock than they are currently.

Clandestine Migrants

Lord Paddick Excerpts

Monday 8th June 2015 Lords Chamber

[Lord Paddick (LD)]

I thank the Minister for repeating the Statement. Does he agree that proper management of the EU’s external border is the key to solving these issues, and that the UK is in a far better position within the EU to influence member states than it would be if it were outside the European Union? The Minister also mentioned the Dublin regulation and the fact that more than 12,000 illegal immigrants who claimed asylum initially in other EU states had been deported from the UK as a result of that regulation. Will he tell the House whether that regulation would still apply if the UK were no longer a member of the European Union?

[Lord Bates]

The noble Lord is absolutely right that the work of FRONTEX in securing the borders of Europe is vital. We believe that it could be doing a better job, but we are co-operating with the agency at the present time—I believe that members of the police, the National Crime Agency and Border Force are working very closely with FRONTEX. One of the areas in which we would like to see it perform better is in taking fingerprint data as soon as people come into the European Union area. That would help in tracking them down.

The noble Lord is correct to say that this is a growing European problem. We are seeing a significant increase in the numbers of migrants coming into the EU—around 600,000. It is a European problem, but it goes beyond Europe’s borders. We are sure that our partnership in working together with other European countries—as we have done in this case with the Dutch, and as we are doing with the juxtaposed controls with the French—is an integral element of being able to tackle this going forward.

Police and Crime Commissioners

Lord Paddick Excerpts

Wednesday 3rd June 2015 Lords Chamber

[Lord Bates]

The noble Lord is absolutely right. Of course, he tempts me with one of those wonderful spinning balls to the off stump, and I wonder whether I ought to play it. The Government have made their position absolutely clear on voting rights for people who have fallen foul of the laws of this country and have been imprisoned for that purpose. We believe that there should be no change in that purpose.

[Lord Paddick (LD)]

My Lords, according to Police Professional magazine, the Home Secretary is so fed up with police and crime commissioners setting performance targets that she has asked the head of the Police Superintendents’ Association to conduct a review. Can the Minister please tell the House if police and crime commissioners cannot be trusted with performance-managing the police, what is the point of having them at all?

Queen’s Speech

Lord Paddick Excerpts

Tuesday 2nd June 2015 Lords Chamber

[Lord Paddick (LD)]

My Lords, before I start my speech today, I want to say a few words about Charles Kennedy. Many on these Benches knew Charles very well and his loss is being felt acutely by Liberal Democrats across the country. Our thoughts are with his family at this time. As many others have said, Charles was an extraordinary communicator. His passion for social justice and Liberal Democrat values inspired not only those on these Benches but people of all parties and of none, not least because of his principled stand against the Iraq war.

For him to die so young is a loss not just to the Liberal Democrats but to political life across the board. He will be sadly missed. I am told by colleagues who were here at the time that during the late night ping-pong on control orders during the passage of the then Prevention of Terrorism Bill, Charles appeared at 5 am to tell weary Lib Dem Peers to keep up the good fight on what was one of the biggest battles on the protection of civil liberties of the new Labour years. Remembering his commitment to protecting rights and civil liberties is perhaps the most fitting tribute as we discuss these issues today.

I intend to concentrate on some of the home affairs issues outlined in the Queen’s Speech. My colleagues will cover other aspects. One of the first Bills that this House will be asked to consider is the Psychoactive Substances Bill, which will outlaw not just specific so-called legal highs but anything and everything that has a mind-altering effect unless it is specifically listed as being exempt or is covered by other legislation such as the Misuse of Drugs Act.

I believe that an authoritarian approach, where blanket laws prohibit everything unless the Government allow it, sets a potentially dangerous precedent. The Bill is well meaning, with the current practice of selling so-called legal highs on the high street, one molecule different from a banned substance, in packets marked “not fit for human consumption”, is a nonsense. But we must ask ourselves, what is the purpose of this Bill? If the purpose, as it surely should be, is to prevent harm, the misuse of drugs should be treated as a health issue and not a criminal one.

We have seen from our experience with those drugs already classified as illegal that making dealing in those substances a criminal offence simply pushes the trade underground into the hands of criminals where there is even less control over quality, active ingredients and who can purchase them, all of which significantly increases the potential for harm. There should at least be consistency and some basis in science. If the Government are to exempt mind-altering substances on the basis of relative harm, as they intend to do with alcohol and tobacco, should they not also look at exempting substances currently covered by the Misuse of Drugs Act, and at synthetic mind-altering substances that are clinically proven to be less harmful than alcohol and tobacco? Surely licensing, regulation, education and treatment are the positive ways forward, rather than criminalising even more of our young people. This Bill would simply add to the confusion surrounding the attempts to protect people from the harm caused by misusing drugs and push pleasure-seekers into the hands of criminals.

We will also be presented with a new investigatory powers Bill. We only recently reconsidered the draft communications data Bill when another attempt was made to introduce it as an amendment to a counterterrorism Bill before this House. We had a long and informed debate on the issues and we decided that we were content with the reviews that are currently under way by the Independent Reviewer of Terrorism Legislation and others. I argued then, and I will continue to argue, that the powers the Government seek to convey on the police and the security services would seriously impinge on individual rights to privacy while failing to deliver what the police and the security services actually need.

In short, terrorists are using internet-based encrypted methods of communication that cannot be deciphered without the support and co-operation of those providing the services, most of whom are based beyond British jurisdiction. Currently, international co-operation and agreement enable the police and the security services to present their evidence to overseas service providers, who, if convinced by that evidence, voluntarily give up the information. International co-operation and agreement are the way forward, not giving the police and security services blanket access to our private data. At the same time as the Government seek to erode personal privacy with their new investigatory powers Bill, they could also diminish citizens’ ability to take action against the agencies of the state for infringing such rights were the Human Rights Act to be repealed.

There has been much discussion and coverage of the European Union Referendum Bill. To date, the focus has almost exclusively been on the negative impact on the economy, not only of leaving the EU but of the damage caused by the uncertainty over a referendum that could result in the UK’s exit. What need to be brought to the fore—as the right honourable Kenneth Clarke MP did at the weekend in an interview on the BBC’s “Sunday Politics”—are the significant European-wide crime-fighting initiatives that are currently in place, ranging from serious and organised cybercrime to the abuse of children and human trafficking, all of which could also be placed in jeopardy by our leaving the European Union.

We then have the extremism Bill, the need for which was trailed by the Prime Minster during the election campaign, when he said:

“For too long, we have been a passively tolerant society, saying to our citizens: as long as you obey the law, we will leave you alone”.

As far as policing is concerned, if the Government intend to inflict further cuts on the police service, we will have seriously to reconsider the whole basis on which British policing is based: policing by consent. I hope that the Government do not sleepwalk into undermining that principle.

Overall, the Government have all the hallmarks of an authoritarian, anti-libertarian, inward-looking Administration who would rather peddle crowd-pleasing, superficial, nationalistic policies than seek genuine solutions to the real problems facing this country and its people. I hope to be proved wrong. I am justifiably proud of what the Liberal Democrats achieved in the last coalition Government and I intend to be equally proud of what the Liberal Democrats will do now that we are freed from the shackles of coalition. In an election poster, the Liberal Democrats were portrayed as an iron fist in a velvet glove. My Lords, the gloves are off.

Counter-Terrorism and Security Bill

Lord Paddick Excerpts

Monday 2nd February 2015 Lords Chamber

[Lord Howard of Lympne]

My Lords, it is always a pleasure to follow my noble friend Lord Blencathra, with whom I worked so closely and for so long in government. I am afraid that on this occasion I have to disagree with the contents of his speech. It seems to me that the answer to the points that he made was given by the noble Lord, Lord West, during his intervention. These amendments are not meant to be the last word on the provisions that the final Bill should contain; they are meant to give the other place an opportunity to reconsider these matters.

I am afraid that I was unable to be present at the debate in Committee, but I was able to listen to an exchange on the radio a few mornings ago between the noble Lord, Lord West, and the noble Lord, Lord Paddick. I found the arguments put forward during that exchange by the noble Lord, Lord West, wholly persuasive. That is why I came along this afternoon ready to support the amendment in his name and in the names of his co-sponsors. I have to confess to your Lordships that my determination to do so was reinforced in some measure by the belief—it is still not clear to me to what extent it was well founded—that the Conservative limb of the coalition was anxious to proceed with these proposals but were being prevented from doing so only by the pesky Lib Dems—I am so sorry, by my noble friends who sit on the Liberal Democrat Benches. That remains not entirely clear.

It seems to me that the case made by the four noble Lords who have sponsored this amendment is very compelling. It is clear from what my noble friend Lord King has said that we cannot take the matter further today and that, sadly, this legislation will not be put on the statute book before the general election. However, I join with those who have urged the Government and both of the major parties that might form the Government after that election to proceed with these measures with all possible haste.

[Lord Paddick (LD)]

My Lords, to address the comments made by my noble friend Lord King of Bridgwater and other noble Lords, in my opinion there is no doubt that we all face a very serious threat of terrorism. There is also no doubt at all that, because of the way that technology has moved on, there is a gap that means that the police and the security services cannot now get the information on mobile phone communication that they used to, due to changes in the way that people communicate via the internet. The first issue is: where does the balance lie between measures that would close that gap and the freedoms and civil liberties that we all enjoy? The second is: how do we fill that gap technologically?

Noble Lords will be pleased to hear that I have done some homework over the weekend. Obviously, I am not a technology expert, but this is what I have been told by technology experts. I am very grateful to the noble Lord, Lord Blair, for saying that he has no issue with people who argue on the basis of principle. One of the effects of these amendments, as my noble friend Lord Blencathra alluded to, would be to require communications service providers to store 12 months of web logs—the history of every website visited by everyone who uses the internet in the UK. The Joint Committee that my noble friend Lord Blencathra chaired said that this has considerable implications for the privacy of everybody who lives in this country and who uses the internet. I am sure that that is immediately obvious to noble Lords across the House.

What has not been mentioned is what I have learnt since we were in Committee. When people use web-based means of communication such as WhatsApp—according to my noble friend Lord King of Bridgwater, ISIL is one of the groups that uses this means of communicating —Facebook Messenger or any others, all these communications are encrypted. The vital data that the police and the security services need are held on servers that are mainly in the United States of America. Even if these amendments were agreed to, and even if these web logs were kept, there are serious doubts as to whether the American companies would comply with the UK legislation.

Another aspect of these amendments, and of the draft data communications Bill, would require United Kingdom communications service providers to skim off the encrypted data transmitted to and from the secure servers in the United States, in case the Americans decided that they were not going to play ball. This would cost in excess of £1 billion, and it is unlikely that the UK-based communications service providers would do so. Because of the levels of encryption, and because companies such as Facebook are constantly reviewing their encryption and making it more and more difficult to decipher, even if that data were captured there is serious doubt that the UK communications service providers would be able to make head or tail of it. Plus, they would not be able to decide what part of that encrypted data was the content of messages or Facebook pages and how much was simply who sent the message to whom, from where and at what time—that is what these amendments and what the draft data communications Bill was about. The noble Lord, Lord West of Spithead, talked at length about intercept evidence. These amendments and the draft data communications Bill have nothing to do with interception. They are about only what is on the envelope of the message, if you like, not its contents.

So what do we do? Obviously, something has to be done to try to get that data. That is why the coalition Government have appointed Sir Nigel Sheinwald as special envoy on international data sharing to sit down with the US Government and US companies to identify ways to overcome legal jurisdictions so that we can tackle crime and terrorism without compromising the privacy of the law-abiding majority. This is not a situation where these servers in the United States are beyond our reach. In 2013, US companies processed around 30,000 requests for “envelope” data from UK authorities. There is already consultation and collaboration and it is producing results.

These amendments are disproportionate, are likely to cost billions of pounds and certainly cannot be implemented immediately. Almost all communications service providers in the UK do not currently keep this data and have no storage capacity and capability to store it. That would be a long-term project; nothing of use would come out of it in the six months that my noble friend Lord King of Bridgwater talked about as a stop-gap measure. These amendments are likely to jeopardise the collaboration that we already have with the Americans, which is serving the police and the security services reasonably well.

Mention has been made of a debate that the noble Lord, Lord West of Spithead, and I had on BBC Radio 4 at the weekend on “Week in Westminster”. During that programme, the noble Lord said that the amendments tabled last week were too broad and that, if it had come to a vote last week, he certainly would not have voted for them. As these amendments have been changed hardly at all since last week, I assume that the noble Lord, Lord West, will not vote for his own amendments.

[Lord West of Spithead]

Having shared that with only 11 million people, I am shocked that the noble Lord should do so in here.

Counter-Terrorism and Security Bill

Lord Paddick Excerpts

Monday 26th January 2015 Lords Chamber

[Lord Evans of Weardale]

I accept that this is a very important element, but it is not the answer to everything.

My second note of caution is that we need to maintain public confidence as we go down this route. That is as important for law enforcement as it is for counterterrorism. The noble Lord, Lord Blencathra, referred to the masses who are concerned about the snoopers’ charter. I have to say that the polling evidence I have seen does not necessarily demonstrate that the masses are enormously concerned about this issue. On the whole, the masses seem to be more concerned about their security than about the human rights issues that some people focus on. Nevertheless, there is an issue of public confidence and I do not wish to diminish that.

Despite those notes of caution, I support the amendment. I support it because it is, as the noble Lord, Lord Carlile, said, a restricted measure, not a blanket measure. I support it because it is drafted with a sunset clause, so that we are filling, as it were, a legislative gap until the totality of the issues can be properly considered in the light of the subsequent publication of various reviews that are under way. I think that it will fill a gap for that period. It seems to me to be a useful, rather than a hugely expansive measure, and one which has appropriate safeguards, so I support it.

[Lord Paddick (LD)]

My Lords, I am not speaking here on a party-political, but on a personal basis. I want to tell noble Lords, first, about my personal experience of terrorism. It is not first-hand, either in terms of being a member of Special Branch or the security services, or having seen the aftermath of what took place directly. However, part of my role in the Metropolitan Police following the 7 July bombings was to talk to officers who had had to go down on to the tracks where terrorists had exploded these bombs and bring out the victims of those terrible atrocities. I know what we are talking about here in terms of terrorism and I use the Underground system every day.

In our earlier discussion on Amendment 75 and internal exile, as some put it, noble and learned Lords, in particular, as well as other noble Lords, emphasised the need for legitimacy. The noble and learned Lord, Lord Hope of Craighead, talked about the European Convention on Human Rights and the right to a private and family life. My concern is that the introduction of these amendments in this way may not be seen as legitimate by many people outside this place. A process has been set in motion. There is a process for reviewing RIPA, for example, and the whole landscape of the intelligence services. That process is in place.

The other issue that noble Lords—and, indeed, two who tabled this amendment—talked about in relation to internal exile is the danger of alienation and resentment. This follows the comments by my noble friend Lady Warsi in yesterday’s Observer about how engagement is essential. We need to engage with communities, not create alienation and resentment. My fear is that the way in which these amendments are drafted is likely to cause exactly that negative effect. My noble friend Lord King, in his opening remarks, said that we are facing a very serious situation. That is common ground. As I have said, I know from personal experience the sorts of dangers that we are facing. However, there is no common ground, I suggest, about the best way to deal with that serious issue.

There has been a lot of talk this afternoon about events in Paris. My understanding is that the information and intelligence that security services got was through mobile telephone communication between the two groups of terrorists which co-ordinated their attacks by that means. There is nothing in these amendments that would give the security services or the police the powers to identify that sort of communication. It exists already. Every day, not only the police and the security services, but other agencies specified in the amendments also have the power, as we speak, to identify who called who on a mobile phone, where and when. So despite all this talk about Paris and how the attacks could have been prevented, these amendments would not appear, on the facts as I know them, to make any difference to the situation.

Terrorists may be adept at using technology, as my noble friend Lord King said, but my understanding is that a lot of terrorists, particular the sort responsible for recent attacks—whether we are talking about the tragic death of Lee Rigby or about Paris—are using very old technology. The problem, as my noble friend Lord King rightly said, is getting good intelligence. That is about developing links with the Muslim community and with communities where the extreme right wing operates, and gaining their trust and confidence in order to get that intelligence.

[Lord West of Spithead]

Does the noble Lord not agree that in, I think I am right in saying, 100% of all the cases where we have stopped a terrorist plot in this country, it has been intelligence via the web or by some SIGINT means that has enabled us to identify the group in order to then carry out action?

[Lord Paddick]

My understanding is that that is absolutely not the case. There were numerous cases—though it may be going back some years to Irish republican terrorism—where most of the plots were foiled because of intelligence from communities, not because of anything that was intercepted. I understand that the situation is changing, but the noble Lord was not correct when he said that in 100% of cases of terrorism that were thwarted in this country it was as a result of intelligence interception of that kind.

[Lord West of Spithead]

If I may say so, it was the case during my three years as a Minister. It was very different, of course, from the time of the IRA, which we had completely and thoroughly penetrated.

[Baroness Neville-Jones (Con)]

My Lords—

[Lord Paddick]

I am sorry, but I have not yet finished, noble Lords will be alarmed to hear.

Noble Lords have said that there is a gap in the capability of the security services and the police in terms of getting similar intelligence that they get from cell site analysis at the moment using mobile phones. My understanding is that the emergency legislation that this House passed towards the end of last year and the measures contained in this Bill, unamended, help to bridge that gap. Intelligence on who is communicating with whom at what time and where can be secured using the IP address provisions contained in the Bill, without the proposed amendments. I am not technically advanced enough to say whether that is the case; perhaps the Minister will be able to tell us whether, or to what extent, the gap that has been identified by other noble Lords will be filled by the Bill as it stands.

The noble Lord, Lord Blair of Boughton, talked about the significance of communications data. Again, my understanding is that the legislation, as put forward by the Government, is designed to fill that gap.

The noble Lord, Lord West of Spithead, then spoke about how the draft Communications Data Bill was kicked into touch for political reasons. If the noble Lord means a balance being achieved between human rights—the right to privacy and a private life—and the powers being given to the security services and the police, I would say that that is an absolutely legitimate political reason.

On mass surveillance, if we are talking about internet service providers retaining web logs and information about every website visited by every individual based in the UK, so that the information can subsequently be accessed in a targeted way by the police and the security services, are we saying, if we accept these amendments, that that can be done simply by the security services or the police providing some legitimate reason why they want to access that information—without any judicial intervention or a judge deciding that there is a legitimate reason to access that data? Are we saying that that is what we want and accept?

People have made fun of the fact that the security services are not going to access where people have done their online shopping. But who in this House believed, when they passed the Regulation of Investigatory Powers Act, that the police would use that power to establish the identity of confidential press sources? If we pass this very broad legislation, how can we say that there will not be some reason found in the future for the police or the security services to use the legislation in a way we never intended for it to be used?

If noble Lords think that I am being party political, that is a matter for them. I was a police officer for 30 years. I encountered terrorism on a second-hand, rather than first-hand, basis. Unless we have the right balance between rights to privacy and powers for the police and security services, large swathes of communities in this country will no longer co-operate with the police and the security services. That will be an even greater loss of intelligence than any gap that currently exists in the powers of the police and the security services.

[Baroness Neville-Jones]

My Lords, the House faces three choices. The first would be not to accept these amendments and not replace them with anything else—in other words, do nothing. I think that the “do nothing” option is the worst that we could possibly follow. In the current situation it is not possible to argue that we do not face growing danger as a result of declining capability against the background of a growing threat. It seems to me that we have a duty to respond to that. I think it a pity that the Government have not brought forward their own amendments on this, but they have not done so yet. I believe that doing something is what this House ought to do. I commend those who have brought forward these amendments.

The other two options are: follow these amendments and vote them into law—it would then be important to accompany them with a sunset clause—or wait for the Government to bring forward something else. That choice depends on the Government’s intentions. It would be preferable for us to be able to vote on something more refined and which incorporated more of the work done by the Joint Committee. I have not been privy to any of the legislation as redrafted. The draft data communications legislation has remained with its poor reputation as a result of the Government not having indicated what they might do to refine the powers therein.