Counter-Terrorism and Security Bill

Lord West of Spithead Excerpts

Monday 26th January 2015 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, the noble and learned Lord, Lord Brown, has moved his amendment with his customary cogency and clarity, and I agree with him and with the remarks that have just been made by the noble Baroness, Lady Kennedy. Over the years I have had the opportunity to visit people who were subject to relocation orders under the control orders regime. I have seen that, in some cases, the relocation was accepted with good grace; in other cases, however, particularly those where children were involved, it caused great disturbance and much resentment. I have also taken the trouble to read all the judgments in the relocation cases that went before the courts under the control orders regime. My instinct is the same as that of the judges who heard those cases. If you read the judgments, although the judges were not required to do so, I think in every single case—from memory at least—they applied the standard that is set out in this amendment for completeness and in order to make it clear that they approved of the relocation in the circumstances of the case.

I agree with the comments that have been made, that we should be extremely reluctant to order people to relocate, because of the disturbance that it causes to their family and because they are very dislocated as a consequence of that relocation. As a general proposition, all restrictive measures under counterterrorism legislation should be exercised only when there is a clear necessity to do so, and the balance of probabilities is a good test. With those comments in mind, I hope that the Minister will at least accept the principles behind the noble and learned Lord’s amendment, whether it be probing or otherwise—it is the principle that counts.

[Lord West of Spithead (Lab)]

My Lords, I would like to strongly support the amendment by the noble and learned Lord, Lord Brown. These measures are things that you only do in very, very special circumstances and under very controlled conditions, but the removal of them from the old control orders regime—we realise now—was a mistake and an error. I absolutely think that we have to put these measures in place to ensure that people are protected in these circumstances.

[Lord Hope of Craighead (CB)]

My Lords, I wish to add just a small point in support of what my noble and learned friend Lord Brown of Eaton-under-Heywood has said, and that is to stress the word “legitimacy” which he used in the course of his address. It is crucial that this particular system should not be open to challenges in the court to any extent; one must try to the maximum to minimise the risk of challenges. This is a very difficult area, as shown by these cases to which the noble Lord, Lord Carlile, just referred. It is the interaction between Article 3 of the Convention on Human Rights, which deals with detention, and Article 8, which deals with respect for the family life of everyone. Where you get these human rights in play, it opens up the possibility of arguments being raised by way of challenge to orders of this kind.

The strength of the amendment which is being suggested is that it cuts back the open door—if I might put it this way—to challenges, and limits them in the most sensitive of all areas, which is the kind of relocation to which the noble and learned Lord has drawn attention. It is right that this is not a probing amendment. It is actually a very important point to try to secure these TPIMs in a way that makes them robust enough to stand up against possible challenges which, if the amendment was not made, would be very likely to come.

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[Lord Blair of Boughton (CB)]

My Lords, I placed my name in support of Amendment 79 with those of the noble Lords, Lord King of Bridgwater, Lord Carlile of Berriew, and Lord West of Spithead. I echo what the noble Lord, Lord King, has said. I am not a party politician but this issue is far beyond politics. I put my name down in order to place in the records of the House the significance of communications data to the police and security services, which are now specifically mentioned in subsection (6) of the new clause proposed in Amendment 87. Those three agencies and the police are the agencies—the only ones—to which this communications data section will now apply.

Those agencies’ needs must be understood. They have been subject to a great deal of obfuscation, both witting and unwitting. The police and the security services are not asking for new powers. Rather, they are asking for the retention of what they already have but are now losing. They need the ability to determine, in specified circumstances, which telephone or other device has been used where, when, and to communicate with whom. This is an investigative tool of equal significance to DNA and fingerprinting, but changing technology is eroding that ability.

This is not the first time we have faced such a threat. I first met the noble Baroness, Lady Manningham-Buller, in the early 1990s, and we were then discussing the fact that mobile telephones were appearing and were destroying the ability of the police and the security services to carry out lawful interception. Fortunately, that technology was overcome and new measures were brought in—and that is what people in these services are asking for now. The situation is that mobile telephones and the internet are merging. All the different apps for phones mentioned by the noble Lord, Lord King, along with all the other services, are increasingly being used across the internet via something I now know more about than I ever wanted to—a system known as VoIP, the Voice over Internet Protocol. This makes all those transmissions untraceable. I will not specify them, but they are being used in methodologies that Members of this House will be using most days. They are already changing things and we are losing our technological edge on terrorists and criminals.

We are not asking, as I heard a senior politician say on the radio recently, to listen to or to read every message, phone call and visit to an internet site by every person in Britain. A moment’s thought would show that that is completely and utterly impossible. We want to retain for one year data about where and when a particular device has been used, and to communicate with what. If suspicion emerges about a device or its user, that data can be interrogated.

I want to point out the reason for our insertion of the words “serious crime”, because this is not just a terrorist matter. Let me give two examples of capabilities that are now disappearing. A teenager goes missing in Sussex. She has had episodes of self-harm and she was last seen heading towards Beachy Head. All teenagers, whether or not they are capable of self-harm, are likely to have their phone with them. That phone will locate the child—but in a few years’ time, it will not. I cite the example of a dead body found in a field with signs of violence. One of the first things that the senior investigating officer will say is, “Get me the phone data”. What he or she wants to know is which phone has been carried across that field in the past few days. Which phone has been within a few hundred yards of the site of where the body was found? That information is what the police need in order to be able to identify the murderers by the technology that betrays them. At the moment, we can do it in most cases, but we are gradually losing that capability.

I turn to an actual case. Noble Lords will remember the terrorist attack on Glasgow airport. It had been preceded two days before by an attempted atrocity in central London, at the Tiger Tiger nightclub. The Metropolitan Police were 20 minutes behind the bomber when he reached Glasgow airport—and the way they did that was through tracing the phones.

The noble Lord, Lord West, recently mentioned the phrase “snoopers’ charter”, and referred to it as sanctimonious claptrap; I agree with him. In this amendment we have limited those who could exercise this kind of power to the security services and the police when investigating or preventing serious crime. They are not snoopers but lifesavers. Perhaps I may add to what the noble Lord, Lord King, said. I could usefully put before noble Lords how the Home Secretary finished her Statement to the House of Commons:

“It is too soon to say for certain, but it is highly probable that communications data were used in the Paris attacks to locate the suspects and establish the links between the two attacks”.

Given my professional background, I, along with my colleague and noble friend Lord Condon, can say, “Almost certainly”. The Home Secretary went on to say:

“Quite simply, if we want the police and the security services to protect the public and save lives, they need this capability”—[Official Report, Commons, 14/1/15; col. 871.]

I agree.

[Lord West of Spithead]

My Lords, my name is also on this amendment in support of the noble Lord, Lord King, along with those of the noble Lords, Lord Carlile and Lord Blair. I will mention some history as well, which is important because of the time lags and time. In 2009, when I was Minister for Security and Counter-Terrorism, I was made aware that changes to communications technology meant that a record of communications information would no longer be held by the communications service providers and that technology was changing the type of data that were available. This information was held purely as it was needed for the companies’ billing procedures—that is why they kept it—and, as such, was available for use by properly authorised state officials, in particular for prosecution of serious crimes and in terrorism cases. New technologies and methods of communication meant that firms were beginning to, and going to, charge differently.

Over time, communications material, which, as has already been said, was used to help to gain convictions in over 95% of serious criminal cases, was going to be lost—a very serious and irrevocable loss that would impact on the security and safety of our nation and our people. To try to ensure such information would be kept, and to access these new technologies, we started to draft a new communications data Bill. There was then an election, the coalition came into power, and the coalition drafted a new Communications Data Bill which was passed to Parliament for pre-scrutiny, as has been mentioned by the noble Lord, Lord King. It had many flaws and underwent considerable redrafting —the noble Lord, Lord Blencathra, will, I am sure, talk about this later—to ensure that there were sufficient safeguards and so on. Indeed, the Home Office, as the noble Lord, Lord King, has mentioned, did a considerable amount of work to rectify all the faults with that Bill. Subsequently, for political reasons, it was kicked into touch. We find ourselves today, some six years—not two and a half years—after we started to try to draft legislation that would ensure no loss of what we already had, having done nothing but expend a great deal of hot air. Week by week we are losing the ability we once had; for example, to place a criminal close to the scene of a crime on a certain day, as has just been mentioned by the noble Lord, Lord Blair.

The Prime Minister and the Home Secretary have both said in the past few weeks that this legislation is needed urgently—and they are right. So why is nothing happening? Well, yes, there are reviews going on, not least by the Government’s Independent Reviewer of Terrorism Legislation, Mr Anderson, and that is very sensible. But perhaps as a nation we should move more expeditiously on such a crucial matter.

One of the great strengths of this House is that it contains globally admired experts on almost every issue under the sun, and it can also act as a conscience for the elected Chamber in the other place. The noble Lords, Lord King, Lord Carlile and Lord Blair, are acknowledged experts in this field and clearly their advice has to be taken very seriously. They have identified this window of opportunity to rectify the growing shortfall in our ability to prosecute crime, whether criminal or terrorist. Do we really want murderers, people traffickers, serious organised crime and terrorists to be able to communicate and plot out of the reach of our law enforcement agencies? Do we want them to be able to avoid detection and prosecution in a way that they have not been able to in the past? The answer, surely, has to be no.

That does not mean that there do not have to be sufficient safeguards; for example, to ensure data that are properly looked after, as the communications providers have indeed always had to do, and to decide how long such data need to be held for. In addition, we need to investigate the costs because companies will be keeping data they no longer require for themselves so will want to charge us—they will probably want to overcharge us—for the privilege. The Government should be very hard-nosed on this point.

Much has been, and will be, said about individual privacy but, as the European human rights legislation points out, privacy is not an absolute right. There is much emotive claptrap using words such as “snooper”. It is, in that context, interesting to note that the judges at the tribunal looking into the allegation that GCHQ is involved in mass surveillance have just reported and were all absolutely clear in their judgment that there is no “mass” but rather only highly “targeted” surveillance properly authorised. Indeed, as the noble Lord, Lord King, mentioned, the data we are looking at here are not the contents of the letter, but what I would call the outside of the envelope. To be quite honest, the people we should be really worried about looking inside the envelope are various private companies, firms and ne’er-do-wells—not the Government.

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[Lord West of Spithead]

I am interested in why the noble Lord believes there is no opportunity for us now, within this two-month period, to actually utilise the work that the committee has already so admirably done, and the work that has been done in the Home Office, so that it can be incorporated into a sensible new Bill that covers all these worries?

[Lord Blencathra]

If the Home Office were to come along with a whole range of those clauses as proposed in our Select Committee report, I would be the first to commend them and to propose them. In the political climate coming up to the election, it may not be possible to produce those clauses and get the consent of both Houses of Parliament. There may be time, but there is severe political difficulty in trying to bounce those new clauses on an unsuspecting public or legislature at this stage.

I congratulate my noble friend on some other key issues in his proposed new clause. He is right to dump all those extraneous public bodies which our committee was very concerned about. The Home Secretary repeatedly says, and rightly so, that she needs the data Bill to tackle terrorism, paedophilia and serious crime. That is the mantra. The committee agreed, but there should not be 600-odd public authorities in the Bill which are allowed to use some of the powers. They do not have the full powers of MI5 and M16—of course not—but it tarnishes the importance of the big players getting access to data if local councils are in there. Of course local councils say that serious crime is involved. They say that fly-tipping is not just someone chucking an old mattress over the hedge of a farmer’s field because gangs are making millions from it, so it is serious crime and local councils want to be in there. I say that they should use other measures rather than a Bill which has constantly been touted as dealing with paedophiles, terrorists and serious crime. In that case, the organisation which is responsible for putting the little lion on British eggs should not be included either. It is: it made a case to be included because apparently, if it is done improperly or wrongly, the EU may cut off £20 million of our funds, and therefore it is serious crime. A distinction has to be made between serious crime related to gun running, people trafficking and big money and the rest of crime.

My noble friend has included the police and the two security services. My committee recommended that we should include the National Crime Agency, HMRC, which also does a lot of work on this, the United Kingdom Border Agency—or whatever we call it now—and the FSA, whatever that is called now too. Those big bodies make up 99% of all requests for data. The other 1% are all the extraneous other bodies.

The committee also made some other very important recommendations which touched on many other aspects of my noble friend’s proposed new clauses. The committee believed that the SPOC—single point of contact—system is far better than anyone ever expected. Nearly all of us on the Joint Committee felt that we could not have the SPOC system as it would be one policeman going up to another and saying, “Hey, Sarge, sign this on the nod and we’ll get access to data”. When the committee visited the Metropolitan Police, we were delighted—perhaps I should have said amazed first—to find that the system was exceptionally good and exceptionally well run and should be no cause for concern. The police, being the police, of course invented a computer program. No one officer can move on to the next stage to authorise the collection of data until all the boxes have been filled in—not ticked, but filled in. Then another policeman has to review it. In some ways, we should have guessed that the inevitable bureaucracy of the police would come up with a system which was pretty fool-proof and pretty safe. In fact, the committee recommended that the police system was so good that the other extraneous organisations should go through the police and the system should go out to tender. I hope the Met would get it. If the Met got that tender, it would be running a rather good SPOC system in the rest of the country. I hope that placates the noble Lords, Lord Blair and Lord Condon, because I am opposed to some of the rest of the proposed new clauses.

If we go ahead with my noble friend’s proposed new clauses, I am very concerned that we will hit a huge storm of criticism that we are introducing the snoopers’ charter by the back door.

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Nevertheless, I have some caution about the amendments and I shall explain why. My first note of caution is that we should not imagine that this solves the problem. This is a very specific, small part of the technical challenge that we face in the new digital era in which we are living. This provides one part, but the most important element, as has been reflected in some of the public statements by members of the intelligence services in recent months, is to do with internet services which are not provided through traditional telecommunications, but are provided in other ways; the data and the legal jurisdiction are held not in this country but overseas. It is over the interception of those that many of the problems arise. Even if we were to accept these proposals, it would plug one particular gap among a very significant number of gaps.

[Lord West of Spithead]

It is important to note that it does fill part of the gap. I know, having been a Minister for three years, that in the security world the agencies always say we need so-and-so and then they say, actually we need this and we need that. Yes, we do need to do these things with the various servers and providers abroad, but this is also an important part.

[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—

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[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.