House of Lords
Monday 27 June 2016
Prayers—read by the Lord Bishop of Chelmsford.
Death of a Former Member: Lord Mayhew of Twysden
There is no place in our society for bigotry, hatred or any form of racism, such as anti-Semitism. Higher education institutions are committed to challenging intolerance on campus. They have a clear responsibility under the Equality Act 2010 to provide a safe and inclusive environment. Universities UK has established a task force to consider further measures to address harassment on campus, and it will report in the autumn.
I thank my noble friend for her helpful Answer. Will her department consider the basis of the definition of anti-Semitism to be that proposed by Sir Eric Pickles and subsequently adopted by the UK College of Policing and the International Holocaust Remembrance Alliance? It specifies that anti-Semitism manifests itself when double standards are applied to the state of Israel, requiring of it behaviour that is not expected or demanded of other democratic nations. Will the Minister assure us that it cannot be right that British Jewish students in universities should be intimidated by overaggressive anti-Israel activity on their campuses?
My noble friend is right: the definition Eric Pickles used was the EUMC working definition, which provides a valuable description of some of the ways contemporary anti-Semitism is manifested. He is also right that it has been included in operational guidance for the police since 2014. Universities may well want to consider it. One of the issues that the Universities UK task force, which I mentioned in my previous Answer, is looking at is how better training can be undertaken for university staff to help them understand the many different forms that anti-Semitism can take.
My Lords, the president of the National Union of Students sets a deplorable example. Is the Minister aware that in the past few days a Jewish law student at the University of York has obtained £1,000 and an apology from the student union? Is it not wrong that an individual student had to take up this case himself? Although I do not know the position in the University of York, does she agree that it is often the weakness of vice-chancellors, who refuse to promote the ideas of toleration and of universities as places of understanding, that is at the root of this problem?
I thank the noble Lord for that question. I am pleased, excepting what Zachary had to go through, that he got an apology and compensation, but I entirely agree that it is unacceptable for students to have to face this. Incidents of anti-Semitism must be taken seriously and investigated swiftly. Many universities do that, but the new Universities UK task force, which I mentioned, is looking at what more can be done. It is considering a number of specific actions in relation to anti-Semitism: an improved need for data collection to ensure that incidents are recorded effectively; the importance of a complaints procedure that protects the identity of students who are fearful of coming forward; and, as mentioned, the need for better training to make sure that university staff understand the different forms that anti-Semitism can take because it is not acceptable on university campuses.
My Lords, while sympathising with members of the Jewish community who have been ill-treated, does the Minister agree that they are not alone in frequently being subjected to abuse and discriminatory behaviour in universities and elsewhere? It is the duty of the Government to ensure that all communities are equally protected against irrational hatred and abuse, particularly in today’s unpredictable and difficult times.
I agree with the noble Lord. Indeed, the Universities UK task force is looking at harassment on campus and, in particular, at what more can be done by the HE sector to prevent and respond to incidents of violence and sexual harassment against women, hate crimes generally and other forms of harassment, including anti-Semitism and Islamophobia. This task force is looking at a broad array of issues to ensure that the HE sector ensures that students can live and learn safely in a spirit of tolerance and understanding.
My Lords, in my diocese, a pro-Palestinian student body forced the University of Essex in 2013 to cancel a speech from the Israeli deputy ambassador over concerns about his safety. While, of course, fully supporting what the Government are doing in this area, how can freedom of speech and extremism be more clearly distinguished so that we can take appropriate action against racism and anti-Semitism of all forms but also maintain academic free speech?
I completely agree that freedom of speech and academic freedom are the bedrock of our higher education system. We fully support universities that show strong leadership in allowing controversial and sometimes offensive ideas to be aired, but most importantly debated, to make sure that universities are doing what they should be doing, which is robustly challenging theories and making sure that students can argue and talk down hatred that is being perpetuated.
My Lords, the life-changing referendum result indicates a nation which is less tolerant and less accepting of diversity. What dialogue is the Minister having with universities to ensure that a proper complaints procedure is in place so that anyone suffering from anti-Semitism knows exactly where they can go?
As I said in a previous answer, the Minister for Universities and Science has specifically asked the Universities UK task force to consider some specific actions. One is improved collection of data about incidents, so we can make sure we understand the scale of the problem, and another concerns the importance of a complaints procedure that protects the identity of students who are fearful of coming forward. The task force is planning to provide a range of recommendations and actions to Ministers in the autumn. Universities UK is planning a national conference post-the publication of those recommendations, in November, so that there can be a full discussion of the issues that it has found in the evidence it is collecting.
My Lords, I disclose an interest as patron of the Woolf Institute, which is devoted to improving interfaith relations, primarily between the Abrahamic faiths. I note the very clear answers that the Minister has given, for which I thank her, and note what is implicit in the questions asked by other noble Lords. But I would like to know whether she agrees that, although Universities UK plays a very important role, it is also very important that the Government should show, in a material way, that they support what others are trying to do?
I hope very much that my answers today show that the Government are taking this seriously. We asked Universities UK to set up this task force and will be listening very carefully to its recommendations. We want to see a tolerant environment where students can learn. We take the seriousness of this issue fully on board, and I hope I have shown today that the Government are indeed making it a priority.
To ask Her Majesty’s Government what assessment they have made of whether action to combat the threat of terrorism could be helped by a clearer use of language, for example by explaining the actual meaning of words such as “extremism”, “radicalisation” and “fundamentalism”.
My Lords, since 2011, we have introduced the Prevent duty and trained more than 450,000 people, including front-line workers, to spot the signs of radicalisation. We also published the counterextremism strategy last year, which explains how we are working with communities to build an understanding of the threat of extremism and the challenges that it poses.
I thank the Minister for the reply explaining the Government’s position. However, for years we have had a Prevent programme, as he mentioned, without clearly defining what we are trying to prevent. Words such as “radical”, “deradicalise”, “fundamentalist” and “extremist” are totally devoid of meaning, while the terms “political Islam” and “Islamist” are considered by many Muslims to be derogatory to Islam. Does the Minister agree that what we are really trying to prevent is the out-of-context use of religious texts that advocate the killing or ill-treatment of people of other faiths? Furthermore, does the Minister agree that to suggest that such behaviour is sanctioned by the one God of us all is the ultimate blasphemy? Finally, will the Government help Muslim leaders to present Islam in the context of today’s society?
Picking up on a couple of the noble Lord’s points, I am sure that I speak for everyone across the House when I totally agree that no true religion in any sense sanctions the kind of extremist, and indeed terrorist, activity that we see, and Islam is no exception. Indeed, we have seen Muslim leaders of every denomination condemn unequivocally such heinous actions. In his final point, the noble Lord talked about the understanding of Islam. It is very much for the Muslim community and the leaders within it to have a discourse about Islam. Islam is a religion that is practised not just in this country but by almost 1 billion people around the world, and is practised peacefully.
My Lords, the Government maintain that the programme to prevent people being drawn into violent extremism is focused not on the Muslim community but on all types of extremism, wherever it occurs. If that is the case, can the Minister tell the House why the Prevent programme is not implemented in Northern Ireland and why, as part of the programme, the Government are conducting a survey among the Muslim community only?
Taking the noble Lord’s second point, the Government are not conducting a survey with the Muslim communities only. That has been the media speculation, but it is not the case. On his first point about Northern Ireland, he mentioned Prevent, but other initiatives have been taken in Northern Ireland that deal with the quite unique circumstances on the ground there.
The Independent Reviewer of Terrorism Legislation, David Anderson QC, has previously said that elements of the Government’s Prevent programme are,
“ineffective or being applied in an insensitive or discriminatory manner”,
and that the programme could benefit from an independent review. The programme’s intention is to address all forms of terrorism and non-violent extremism. However, the climate of the last few weeks has done nothing to ease the situation that Prevent is intended to address, and unfortunately there is all-too-clear evidence that that climate is continuing in the wake of the referendum result. Do the Government now intend to carry out a full review of the Prevent strategy in the light of David Anderson’s comments?
This Government have focused, as previous Governments have, on the importance of Prevent, which has seen much success. As I said, 450,000 people have been trained. More importantly, what has it delivered? There have been more than 50,000 interventions, and 180,000 pieces of terrorism material have been removed from the internet. Of course, every strategy and policy needs to be reviewed, and the Government continue to do so. I share the noble Lord’s sentiments. In any environment, particularly the one in which we currently operate, no extremist and no person who seeks to use an opportunity should build on the fears of communities and society or target any community in Britain.
My Lords, nobody in this House is better equipped than the noble Lord to get people to understand that the present version of the Muslim religion arises largely from a dispute within that religion and that it is a gross perversion of the Muslim religion practised in the 13th and 14th centuries, for example. We should all remember that, just as we should all remember that there are very few places where one can feel safer in the face of extremism in this country than in the company of a large number of Sikhs, who have always shown by their great loyalty and understanding of this society that they have their place here.
There are many advocates across all faiths who stand up for faith, and indeed for no faith, and they do so for other faiths as well. That is the beauty of our country. I am proud of Britain. I believe that this country is the best place to be a Muslim, a Hindu, a Sikh, a Jew or a person of no faith. That is because it is based not just on tolerance but on understanding and building mutual respect, and long may that last.
Did the noble and learned Baroness give way to the noble Lord? The House was calling for the noble and learned Baroness, but if she has given way she has given way.
I thank the noble Baroness. I had not given way; I just thought it was polite to sit down. I am the chairman of the Commission on Religion and Belief in British Public Life. Across the country we have discovered the importance of talking to people with whom we do not agree. Will the Minister make sure that the Government talk to groups of whom they do not approve and who have very different views? Communication and dialogue are crucial in these matters.
I assure the noble and learned Baroness that I am often in conversation with people with whom I disagree. Going back to my earlier answer, I think that our society is based on mutual respect. That is born out of the fact that people may have contrary opinions but we sit down with them, listen to those opinions and find a solution. The Government have been instrumental in building and strengthening partnerships with all faith communities, including the Muslim community of all denominations, to meet the challenge that we currently face.
My Lords, cleaner air is a priority for this Government, and we are taking action at all levels. We are working with local government to implement a new programme of clean air zones, alongside £2 billion committed since 2011 towards cleaner transport and supporting local authority action. We have led EU action to introduce real-world driving emissions testing from 2017, and are working to agree ambitious and fair limits to reduce emissions further in future.
My Lords, the Minister will be aware that some 50,000 people a year die because of diseases connected with air pollution. Does he agree that diesel engines bear particular responsibility for these deaths? Is it not time that we stopped subsidising indirectly the use of diesel cars and had some penal taxation to discourage such vehicles? Given that we are still members of the EU, could we not approach Brussels—the Commission and the Council of Ministers—to ask for some tougher measures to deal with air pollution on a Europe-wide basis?
My Lords, the noble Lord is quite right that the effects of pollution on the health of our children and families is something that we must concentrate on. As I said in my opening Answer, we are working with local government to implement a new programme of clean air zones in Birmingham, Leeds, Southampton, Nottingham and Derby.
The noble Lord, Lord Dubs, mentioned diesel vehicles. As he will no doubt be aware, under the clean air zones we are going to be discouraging older vehicles from entering those areas. He also mentioned bringing to the attention of Brussels the issue of the relationship between diesel and pollution. I am sure that they are aware of this matter but we will take that back.
My Lords, does my noble friend agree that the UK Government were willing signatories to the EU air pollution directive and that we will remain committed to its aims and objectives? In addressing issues such as acid rain and air quality, European environmental policy has had a great impact in creating a cleaner environment in the UK.
My Lords, will the Minister ensure that the future so-called European deal will contain air quality regulations that are at least as good, if not better than, those that we currently have under the EU regulations? We cannot rely on the World Health Organization standards because they are not enforceable. Is he aware that diesel fumes are carcinogenic and that, under the regime of the last Mayor of London, London schoolchildren have been walking to school along main roads through carcinogenic air? Will he join me in calling upon the new mayor to do a great deal better?
My Lords, the noble Baroness mentioned the new Mayor of London. No doubt the House is aware that the mayor is responsible for air quality in London. We welcome the commitment of the new mayor to lead the improvement of air quality in the capital, building on plans already in place, but we also look forward to seeing his plans in more detail when publishing his consultation. The noble Baroness is quite right when she refers to, for example, children walking to school. It is right that we improve the environment so that they are not put under undue pressure from pollutants.
In 2008 I had the privilege of chairing a Select Committee on allergy. We reported that atmospheric pollution, particularly by diesel particulates, was increasing allergy-related diseases but also hindering the lung growth of small children, particularly babies and primary school children. It seems sad that we have begun to take that seriously only at this point. Will the Government undertake to work with primary schools in particular so that those schools know the level of atmospheric pollution that their children are subjected to on a daily basis, particularly when they are outside, and therefore at least can take some evasive action while the Government work to decrease the diesel particulate contamination of our air?
My Lords, as the noble Baroness will be aware, local authorities are responsible for reviewing air quality in their area, including around schools, and assessing the levels of air pollutant concentrates against the objectives set in the air quality regulations. I will take careful note of what she said and I am sure that the department will be aware of it, but I should tell the House that air quality is improving. Between 2010 and 2014, emissions of nitrogen oxides fell by 17%.
Will my noble friend confirm that the EU regulations placed an emphasis on CO2 emissions, as opposed to nitrous oxide emissions, following lobbying by the German car industry in favour of the turbodiesel engines which it had invented, and that this is an example of how Brussels is subject to lobbying which is against the public interest of the wider community?
My Lords, my noble friend touches on an area also relating to Volkswagen and refit and recall of cars. In the United Kingdom, Volkswagen will be recalling cars and doing a refit at no cost. My noble friend mentioned a number of other points, but I shall have to write to him with further information.
My Lords, first, will the Minister join me in congratulating the new Mayor of London, because he has brought forward the previous mayor’s proposals on clean air? Secondly, the noble Lord will know that the World Health Organization has said that more than 40 towns and cities in the UK have air quality pollution which is unsafe for health. Can he explain why his Government are introducing clean air zones in only five cities? Is not this a further indication of their failure to take the public health scandal seriously?
My Lords, the noble Baroness first asked whether I will congratulate the new Mayor of London and of course I will. She also mentioned the five cities already coming under the clean air zone provisions. That does not mean that other cities cannot apply to have clean air zones themselves, and I am sure that we would be able to advise on such, but the point is that we want to start with those five large cities and see what improvement can happen there.
Humanitarian Emergencies: Women’s Rights Organisations
My Lords, we recognise the critical role that women’s rights organisations play in achieving lasting transformation in the rights of women and girls. This is precisely why I announced a $1 million fund for the UN-led global acceleration instrument. My noble friend will also be aware that, since 2012, we have increased our humanitarian violence against women and girls programme sixfold, and we are proud to be contributing to the UN trust fund and to Amplify Change. I also pay tribute to my noble friend’s work in these matters.
I thank my noble friend for her Answer. I also congratulate the Government on their commitment at the World Humanitarian Summit in Istanbul to give support to women and girls during emergencies. Can she tell me whether the Government will be establishing a funding mechanism for women’s rights organisations during humanitarian emergencies, especially conflicts, to ensure that funding gets to those organisations at the grass roots—and, specifically, whether UK funding is getting through to women’s rights organisations in Syria, which are desperately trying to look after families and provide support and services to their local communities?
My Lords, my noble friend is absolutely right that we need to ensure that women’s rights organisations on the ground are properly funded and supported. Therefore, I am proud of the work that the UK is doing. We are trying to encourage our partners and other donors to step up, too, but we need to make sure that the funding is going to support those local organisations on the ground in their capacity-build to be able to respond. On that, the department is doing a lot of work.
My Lords, protection of women and girls is clearly absolutely vital, and I would like to welcome Malala and her fellow students, who are here today. Given the Minister’s responsibilities within DfID for relations with the EU, what action has she taken to ensure that in future we can work closely with the EU, which has the biggest development budget in the world, to influence it over this and other vital matters?
My Lords, the noble Baroness is of course right that we do a lot of our work through the European Union, but we also do it through a number of other large multilateral agencies and organisations. We will continue to work hard, and I am sure that in her Statement my noble friend the Leader of the House will lay out a clearer picture of what the Government will do.
My Lords, I, too, congratulate the Government on their efforts in terms of financing, but the UN Committee on the Elimination of Discrimination against Women urged that the Sendai framework, which emphasised gender issues, should be taken up by all countries. Can the Minister say what the department is doing to ensure that in disaster-prone countries women are involved in the decision-making processes to reduce risk?
The noble Lord is absolutely right that women and girls have to be part of the decision-making process. That was very much felt at the Syrian conference, where I met a number of women who told me, in their own testimonials, how powerless they felt and that they wanted meaningful engagement. The work that we have done and the announcements we made last October demonstrated our further commitments to ensuring that, wherever we have peace conferences and summits, we will have representation of those women’s voices at the table. But we have much more to do. I agree with the noble Lord that so much more needs to be done across the board, across all agencies and donor countries, to ensure that those voices are heard and that they make a meaningful contribution. I look forward to Members across this House helping us to ensure that that message continues to be loud and clear.
My Lords, are the House and the Government aware that, unfortunately, men in many Muslim countries work as barriers between Muslim women and their Koranic rights? It is therefore essential that the right help is given to the women to exercise their God-given rights—but it has to be direct, because their male colleagues would not like to accommodate them.
My Lords, we advocate very strongly strengthening the voice, choice and control of women’s and girls’ rights in all settings. The noble Baroness is right that we need to work tougher and harder to make sure that we act as strong advocates for women’s voices in countries where they are not being heard.
My Lords, I spent Friday and Saturday at the refugee camp in Calais. Can the Minister say what dialogue she has had with her French counterparts about the conditions of women and children in the camp there, given that some of them have family reunification rights to the UK?
My Lords, as the noble Baroness will be aware, we are in ongoing dialogues with all our partners. Whether in Calais or elsewhere, we need to ensure that we very much support the protection and rights of women and girls in those settings, as they will be the most prone to abuse and violence. It is therefore incumbent upon us to ensure that we, along with our partners, work hard to ensure that. However, the noble Baroness will also be aware that these issues were raised at the last conference we held in London and that all partners gave a commitment to ensure that we are able to put into place as many safeguards as we possibly can. But we do need the grand bargain, which is about bringing together the development and humanitarian pieces in a better-aligned way so that we can deal with both issues at the same time.
My Lords, I think that the noble Lord refers to another Question. I have already asked the noble Lord to take up my offer to come and see what the department is doing and talk to officials—and I extend that offer to all noble Lords who are concerned about St Helena.
Bus Services Bill [HL]
Order of Consideration Motion
That it be an instruction to the Committee of the Whole House to which the Bus Services Bill [HL] has been committed that they consider the Bill in the following order:
Clauses 1 and 2, Schedule 1, Clauses 3 to 6, Schedule 2, Clauses 7 and 8, Schedule 3, Clauses 9 to 15, Schedule 4, Clauses 16 to 26, Title.
Intellectual Property (Unjustified Threats) Bill [HL]
Bill read a second time and committed to a Special Public Bill Committee.
Investigatory Powers Bill
My Lords, in the digital age, the convergence of the internet with social media, combined with the rise of cheap but sophisticated internet-enabled devices, has given criminals, terrorists and hostile foreign states new means to attack us. Those who engage in organised crime, child sexual exploitation, drug crime and terrorism are resorting to ever-more sophisticated means to avoid detection and prosecution. As we remember today those who died in the horrific attack in Tunisia a year ago, it is worth reflecting on the way that Daesh in particular has exploited the internet and social media to distribute large quantities of often sophisticated online propaganda to radicalise and recruit large numbers of people here and in other countries.
Today’s Bill ensures that law enforcement and the security and intelligence agencies retain their crucial powers to intercept communications and obtain communications data. However, it also radically overhauls the framework in which the exercise of those powers is authorised and overseen. It creates a “double lock”, introducing for the first time judicial authorisation of the most intrusive investigative techniques, it consolidates oversight into the new strengthened office of the Investigatory Powers Commissioner and it sets a new standard for transparency and accountability in the exercise of covert powers by the state.
The Bill is the culmination of two years’ work, and it is worth detailing the lengths to which we have gone to ensure that the Bill is rigorously scrutinised. There have been three independent reviews of investigatory powers, conducted by the Intelligence and Security Committee of Parliament, the independent surveillance review panel convened by the Royal United Services Institute, and the Independent Reviewer of Terrorism Legislation, David Anderson QC. Three committees of Parliament have also examined the Bill: the Commons Science and Technology Committee, the Intelligence and Security Committee, and a Joint Committee of both Houses convened specifically to examine the draft Bill. Their reports all endorsed the principle of the Bill, and the Bill and codes of practice now reflect the vast majority of their recommendations. In total, 14 Commons Public Bill Committee sessions pored over it, with more than 800 amendments considered. Alongside this, we have published draft codes of practice, operational cases, fact sheets, memoranda and detailed responses to the reports on pre-legislative scrutiny. I am very grateful to the noble Lord, Lord Murphy, who chaired the Joint Committee, as well as to the noble Lords who served on the committees. Their work, and the debate in the other place, has strengthened the Bill that reaches us today.
This is a Bill that passed on a cross-party basis with an overwhelming majority. It will provide world-leading legislation setting out in detail the powers available to the police and the security and intelligence services. It will also provide unparalleled openness and transparency about our investigatory powers.
I turn to the detailed provisions of the Bill. The Bill deals with a wide range of issues: privacy; targeted interception; retention of communications data; bulk powers; legislative oversight; and other technical considerations. It is important to emphasise that the Bill brings together existing powers in a clear and comprehensible way, in the process improving transparency, bolstering safeguards and strengthening oversight. It introduces just one new power—the retention of internet connection records—which I will come to presently and which I know the House will want to examine thoroughly.
I will take each area in turn. I begin with privacy. Recognition of the right to privacy is woven into the very fabric of the Bill, so Part 1 deals with the privacy protections that apply to the use of these powers, as well as the offences and penalties for their misuse. That is reflected in Clause 2, dubbed the “privacy clause”, which sets out the important principles that underpin the exercise of the Bill’s functions. On Report in the Commons, the Government supported an opposition amendment to ensure that authorisation of interception under the Bill could not be sought for the purpose of interfering with legitimate trade union activity. We will bring back amendments to ensure that this applies to all powers in the Bill.
Part 2 brings us to the use of targeted interception and is worth considering alongside Part 5, which deals with the use of targeted equipment interference. Interception in some form is used in support of the majority of MI5’s top-priority counterterrorism investigations. Between 2013 and 2014, interception capabilities played a critical role in law enforcement investigations which resulted in more than 2,200 arrests and the seizure of over 750 kilograms of heroin, 2,000 kilograms of cocaine, 140 firearms and £20 million. Equipment interference under the Police Act 1997 and the Intelligence Services Act 1994 is a vital capability for law enforcement and the agencies and, in the face of increasingly capable hostile actors, is becoming more important as a means of supplementing and, in some cases, replacing interception capabilities.
Both those powers are used to obtain the contents of communications, and so are among the most intrusive available to the state. That is why they are subject to the double lock: a Secretary of State may issue a warrant only after the decision to do so has been approved by a judicial commissioner. There was much debate in the other place about the basis on which judges will review decisions to issue warrants. The Government amended the Bill as a result of that debate. It is now clear that the judicial commissioner must give careful consideration to the matters before them and that the protection of privacy must be central to that consideration.
Parts 3 and 4 deal with the retention of, and access to, communications data. The term “communications data” does not refer to the content of a communication; it relates to when, how and where a communication was made, and by whom. The law already requires the retention of certain types of information data by communications service providers. This is vital. Some 58% of requests for communications data in child abuse investigations are for data that are more than six months old. In a Europe-wide investigation into online child sexual exploitation, of 371 suspects identified in the UK, 121 arrests or convictions were possible; of 377 suspects in Germany, which does not retain communications data, no arrests were made.
Part 4 contains the only new power in the Bill: the ability to require a telecommunications operator to retain internet connection records—ICRs. An ICR is a record of which internet service was accessed. It is not, as is sometimes supposed, a full web-browsing history. Law enforcement faces a growing capability gap. The Joint Committee that scrutinised the draft Bill agreed that ICRs are necessary to close that gap. To take an example, of 6,025 cases relating to the sharing of child abuse imagery referred to the CEOP command of the National Crime Agency, 862—that is 14%—would require the retention of ICRs to have any prospect of identifying a suspected paedophile. During consideration of Parts 3 and 4 of the Bill in the other place, the Government committed to introduce a threshold for access to internet connection records to ensure that they cannot be used to investigate trivial offences. This will complement the other rigorous safeguards restricting the circumstances under which ICRs can be accessed by public bodies. I will bring amendments to this House in the coming weeks and months to give effect to this commitment.
Parts 6 and 7 deal with the bulk powers in the Bill and the retention and use of bulk personal datasets. The powers available to the security and intelligence agencies to acquire communications and other data in bulk are vital to their work. The Government published an operational case for bulk powers alongside the Bill. As that sets out, bulk powers are used to gather large volumes of data. These data are subject to very stringent controls to filter the material and select for examination a small fraction of the material that provides intelligence on known threats and to identify new ones. None of the bulk powers in the Bill is new. The collection of large volumes of data is essential to enable the data which are not of interest to be filtered out and search criteria applied so that fragments of intelligence can be gathered and pieced together in the course of an investigation. These data may not be available by other means. The threat from terrorism and the development of technology is such that the bulk powers will inevitably become more important than ever in the future.
It is right that the safeguards and protections associated with these powers are now a matter for Parliament. However, there is more that can be done to provide the public and Parliament with reassurance that the case that stands behind these powers is clear. That is why the Government commissioned David Anderson QC, the Independent Reviewer of Terrorism Legislation, to examine the operational case for the bulk powers in the Bill. That review will conclude in time to inform this House’s consideration of the relevant clauses in Committee.
Part 8 of the Bill deals with the oversight of these powers. At its heart is the creation of a powerful new Investigatory Powers Commissioner. During the Report stage, the Government committed to strengthen the process for appointing that commissioner, so that appointments will be on the joint recommendation of the Lord Chief Justice, his or her devolved equivalents and the Lord Chancellor. We will bring back an amendment to this end. We will also ensure that the Intelligence and Security Committee can refer matters to the Investigatory Powers Commissioner for investigation on behalf of Parliament.
Part 9 of the Bill deals with other general provisions, including technical capability notices and national security notices. We have amended the Bill to ensure that these notices are now also subject to the double lock. Part 9 also provides for the Secretary of State to review the operation of the Bill after five years and to report to Parliament with his or her findings. It is my hope and expectation that the Secretary of State will be assisted in that work by a Joint Committee of Parliament and the Intelligence and Security Committee.
These are all important powers, but this Bill provides for them to be exercised only when it is necessary and proportionate to do so. It does not give free rein to public bodies to intrude upon the privacy of citizens without proper justification and authorisation. In fact, it strengthens the checks and balances applied, adds safeguards, bolsters oversight and sets out the privacy considerations which must be applied to any application to use the powers. I welcome the constructive and thoughtful debate that has characterised the passage of this Bill to date. It reflects the importance of this legislation and the need for us to get it right. I very much hope that the progress of the Bill through this House will continue in the same vein. There is a long list of Peers who wish to speak, all of whom are experienced in these matters and from whose knowledge and expertise we will undoubtedly benefit. I look forward to hearing them.
But before I conclude, it is important to say this: in the two years that have passed since this House considered the Data Retention and Investigatory Powers Act, the world has become a more dangerous place. There have been attacks in Orlando, in Paris, in Brussels, in Tunisia, in Jakarta, in Turkey and elsewhere in the world. The NSPCC reports that eight offences a day are committed against children via the internet. This month, we saw the prosecution of organised criminals seeking to smuggle into the UK more than 30 machine guns and more than 1,500 rounds of ammunition. All these events remind us of the ongoing risks faced by law enforcement and the intelligence agencies every day. The challenge of this Bill is to balance the need to give the police, the Armed Forces and the security and intelligence agencies the powers they need to keep us safe in a changing and uncertain world while ensuring that those powers are subject to strong safeguards and robust oversight. I believe this Bill strikes that balance. For that reason, I commend it to the House. I beg to move.
My Lords, the Investigatory Powers Bill seeks to address an issue that, in theory, is simple and straightforward: namely, the appropriate balance between individual privacy and collective security in the digital age. However, what make it in reality a far from simple and straightforward issue are the very different views on where that appropriate balance lies.
The vote in the referendum last Thursday to leave the European Union has, potentially at least, added to the complexity, since it has raised the question of what the implications of that decision might be for the proposals in the Bill and their effectiveness and relevance, bearing in mind the considerable co-operation with what are still, at this moment in time, our European partners over security and intelligence issues and the European arrest warrant in the fight against terrorism and serious crime. What happens if the present level of co-operation is scaled down? If it were scaled down, would it happen only from the day we left the European Union or would it start to happen earlier?
The resignation of our European commissioner does not suggest that our involvement with and influence in the European Union and European organisations will continue at the present level until the necessary negotiations on our withdrawal have been completed. I ask the Minister to make some meaningful comment on this point when he responds at the end of the debate. This question was not discussed during the passage of this Bill through the House of Commons, but it should be considered, and answers sought, in this House.
As the Minister said, the Bill was the subject of extensive pre-legislative scrutiny, including by a Joint Committee of both Houses chaired by my noble friend Lord Murphy of Torfaen. Prior to the pre-legislative scrutiny, there had been extensive scrutiny of our investigatory powers in three independent reviews, including one by David Anderson QC, the Independent Reviewer of Terrorism Legislation. His review and the other reviews stressed that legislation relating to interception and communications data needed to be consolidated and made subject to clear and robust privacy safeguards. This Bill is also intended to replace the Data Retention and Investigatory Powers Act 2014, which contains a sunset clause requiring new legislation to be passed by the end of this year.
Safety and security matter—a point brought home to us all too painfully just over a week ago when one of our much respected and much admired parliamentary colleagues, Jo Cox MP, was brutally murdered in the street in broad daylight in this country.
The current threat level for terrorism is severe. We have also seen major attacks recently in Paris, Brussels and elsewhere. The Bill, though, covers not only terrorism but other serious crimes such as people trafficking, including the trafficking of children, sexual abuse, stalking and harassment. The security and intelligence services, GCHQ, the National Crime Agency and the police must have the powers to deal with these threats in an age when those involved in terrorism and criminality are operating online with a reach and on a scale that has not existed before through exploiting the technological advances now available for their own ends.
Human rights matter, too, including the right to privacy, the right to be left alone, the right to have private data protected and the right to redress when needed. My noble friend Lady Lawrence of Clarendon, who is in her place, and her family were put under surveillance by the Metropolitan Police with no justification at all. Those whose job it is to protect us, and to whom I do not think we always give sufficient credit and thanks for what they do on our behalf, cannot be expected to carry out their responsibilities with one arm tied behind their back. Equally there have to be effective checks and there has to be public confidence among all sections of our diverse community that the arms of those who protect us are not extending into areas where there is neither the need nor the justification.
Safety and security and human rights are not mutually exclusive. The Bill has completed its passage through the Commons. The Labour Party voted for it at Third Reading in the light of both significant amendments made in the Commons to meet our Labour red lines and in the light of undertakings given by Government Ministers to address further issues of Labour concern during the Bill’s passage through this House. It is now up to the Government to deliver on those verbal undertakings, now on the record in Commons Hansard. They include a commitment to introduce a threshold for access to internet connection records so that the powers cannot be used in investigating minor crimes—which is what the Bill as presently drafted in effect permits.
On Report in the Commons, the Government Minister, in response to our argument for a general serious crime test for communications data and a higher threshold on top of that for the use of internet connection records—but one which would provide that offences such as grooming, harassment and stalking were still covered—said he was committed to doing what we were seeking, and continued:
“I do so because it is really important that we have a threshold that works, particularly on ICRs”.—[Official Report, Commons, 7/6/16; col. 1120.]
A further commitment was made in respect of the protection of journalistic sources. We have already secured amendments to the Bill providing that judicial commissioners, when considering a warrant, must give weight to the overriding public interest in a warrant being granted for the use of investigatory powers against journalists, and that they must ensure that it is in keeping with wider and more general privacy points.
However, there are still matters outstanding on this point, including the extent to which the Bill does or does not provide for the same level of protection for journalists as is currently the case under the Police and Criminal Evidence Act. There is also the question of the definition of who is and who is not a journalist now that we are in the digital world. The Government Minister in the Commons accepted that a solution needed to be found and said:
“I am happy to say that we will look at this issue with him”—
the shadow Home Secretary—
“and others in greater detail as the Bill enjoys its passage through this House and the other place”,—[Official Report, Commons, 7/6/16; col. 1117.]
with the reference to “others” including the National Union of Journalists.
There is also an outstanding issue over legal privilege. The Bill now provides that it is only in exceptional and compelling circumstances that warrants may be issued where one of the purposes is the obtaining of legally privileged communications. Questions about the provisions in the Bill have been raised by the Law Society and the Bar Council, and I understand that the Government are continuing to discuss the concerns raised with the relevant organisations. We will need to know the outcome of the discussions and whether these concerns have been resolved. This is not about preserving the special status of individuals who work in journalism or the legal profession, or indeed as parliamentarians, but about protecting the public and their ability to raise issues through these channels on a secure and confidential basis.
In the Commons, the Government also accepted in principle our amendments relating to appointments to the new Investigatory Powers Commissioner, which would increase the role of the Lord Chief Justice in making recommendations for appointment to the Prime Minister. We will also need to be satisfied that the safeguards around modifications to warrants have been strengthened sufficiently to ensure that major modifications cannot be made by the back door, thus avoiding the provisions laid down in the Bill for obtaining warrants. We are not yet satisfied that this issue has been fully resolved, although we recognise that it is not a straightforward matter and we would be willing to work with the Government on it.
A number of crucial changes to the Bill were secured in the Commons through the approach we, as the Official Opposition, adopted. First, on the powers in the Bill which enable information to be retained in bulk form, the Government accepted our argument that there should be an independent review of the operational case for such powers. These are actually powers which, for the most part, are currently available and being exercised at present, but not on a statutory footing with safeguards. The investigation will be carried out by David Anderson QC, the Independent Reviewer of Terrorism Legislation, and will consider the necessity of the powers and whether the same result could have been achieved through alternative means. He will conclude his work before the relevant clauses in the Bill are reached in this House. This was a fundamental concession as far as we were concerned. While it clearly depends on what conclusions David Anderson reaches, it is quite likely that the findings of his review will prove to be the major issue.
Secondly, we pressed for and achieved an overarching privacy clause in the Bill against which the use of the exceptional powers in the Bill will have to be justified. We believe that it is vital to have this in the Bill so that privacy considerations are at its heart. Thirdly, we secured a provision that makes it clear that legitimate trade union activities are not a sufficient reason for powers under the Bill to be exercised. Fourthly, on judicial oversight of decisions to approve warrants for the exercise of powers under the Bill by the Home Secretary, a judicial commissioner will have to consider necessity and proportionality, and balance that against the overarching privacy clause. The judicial commissioner will not just be scrutinising the process. Fifthly, progress was made on providing protection for whistleblowers when giving information to the Investigatory Powers Commissioner.
The Joint Committee on the draft Bill called for protection for members of the intelligence services who raise concerns about the misuse of investigatory powers with the Investigatory Powers Commissioner. The Bill provides for an individual to be able to give information on a voluntary basis to the commissioner without that individual committing a criminal offence or incurring a civil liability. However, the Solicitor General in the Commons agreed on Report to make it absolutely clear in the Bill that whistleblowers can make disclosures to the IPC without fear of prosecution. The Bill also now provides greater protection over access to medical records, which can be retained and accessed only in “exceptional and compelling circumstances”.
I have not referred to all the changes to the Bill secured in the Commons, or to all the undertakings given by the Government in respect of amendments to the Bill tabled in this House. What has been achieved, though, is an indication that, thanks to the persistence, determination and constructive work of the Official Opposition and others, and the willingness of the Government to listen, there are now much stronger safeguards in the Bill protecting people’s privacy and their human rights than existed in the original Bill or exist under current legislation.
That does not mean that the Bill is perfect—I am sure we will all want to listen to areas of continuing concern that may well be expressed both inside and outside this Chamber as we consider the Bill in detail. Clearly, our position on the Bill has changed since it started its passage through the Commons. We are looking, though, to make further progress during debates on the Bill in this House and, in particular, to hold the Government to the outstanding commitments and undertaking they gave in the Commons and on which the House will expect to be updated as we go through the Bill.
My Lords, this is a very complex Bill dealing with very technical matters in places, but we should not be intimidated by that. Nor should we simply say that we must give the police and the security services all the powers they ask for without scrutiny.
It is the responsibility of the police and the security services to ask government for the powers they believe they need in order to be effective. It is our responsibility—the responsibility of Parliament—to balance those requests against the tests of necessity and proportionality. There will always be a tendency for politicians to accede to the demands of the agencies of the state; should crime rise or terrorist acts be perpetrated, politicians could not be blamed if they had given the police and the security services everything they said they needed. Yet this has not always been the case. When the then Labour Government pressed the case put forward by the police for 90 days’ detention of terrorist suspects without charge, Parliament refused. The security services did not ask for such a power. Arguably, it was reasonable to turn down a power that would assist in the prosecution of offenders, provided that it did not affect the security services’ ability to prevent terrorist activity. Yet in this Bill, we face a similar demand from law enforcement for a draconian power that the security services say they do not need.
The Liberal Democrats recognise the vital role the police and the security services play in keeping us safe. We also recognise the need for trust between state agencies and the public, not least to ensure the flow of community intelligence—even more vital as the terrorist threat changes in nature and criminals become more sophisticated. In order to be effective, the police and the security services need to have powers to carry out surveillance, including the interception of communications, the retention and acquisition of communications data and equipment interference. This will involve intrusion into people’s privacy, but unless there is no other practical means of achieving the objective, intrusion into innocent people’s privacy should not be allowed, other than in exceptional circumstances, and even then it should be subject to the highest levels of oversight. Innocent people’s privacy should not otherwise be put at risk, let alone intruded into. Internet connection records—the only virgin territory in the Bill—are going to intrude into innocent people’s privacy.
I do not believe that anyone in this House believes that we do not have a right to privacy, but perhaps I should declare a personal interest in this area, in the example I am about to give. What about 25 years ago, when I was married to my wife, Mary, but I believed I was gay? Should I have been able to keep that situation private? What if someone today was in that position and wanted to research using the internet to get some help and guidance, for fear of talking to anyone and letting the cat out of the bag, like me in those days? This Bill requires internet service providers to record every website that everyone in the UK visits, to store that data for 12 months and to reveal those details to the police without a warrant if they suspect someone of crime. If someone alleged that I roller-skated into a shop, indecently assaulted someone and roller-skated out again—apparently, one of the allegations made against Sir Cliff Richard—details of every website I had visited in the past 12 months could be handed over to the police without a warrant if we allow this Bill to pass as it stands.
It is not too much of a stretch to think that someone might make an allegation against me, as a reasonably high-profile individual, so it would be not too far a stretch to think that I had better not seek confidential advice on the internet, in case it became public. How could it become public? Homophobia has been encountered in the police service, as has unauthorised disclosure of confidential information. “If you have nothing to hide, you have nothing to fear” is not the same as “If you have done nothing wrong, you have nothing to worry about”. Even if the police were to be trusted completely, massive pools—oceans—of data in the custody of private companies such as TalkTalk, one of the internet service providers that will be asked to store such data, would be sitting ducks for hackers, criminals, blackmailers and hostile foreign powers. For example, information that I frequently visited the Age UK and NatWest websites might make me a target for fraudsters trying to trick me into revealing my account details online by claiming to be from the bank, or they might even turn up at my front door, believing me to be frail and easily conned or overpowered.
The RUSI panel set up by Nick Clegg when he was Deputy Prime Minister set out 10 tests for the intrusion of privacy. It is those 10 tests on which our opposition to parts of the Bill is based. Not only should the Bill be measured against the 10 tests, but Liberal Democrat opposition to the Bill should also be measured against them. One of the tests is that there must be transparency: how the law applies to the citizen must be evident. How many people in the UK know that 12 months of their web history—albeit the website that they are looking at rather than any further pages on that website—will be kept in case the police want to see it, as a result of this Bill’s provisions?
The intrusion must be necessary in that there are no other practical means of achieving the objective. The security services MI5, MI6 and GCHQ say that they do not need internet connection records because they can get the information they need by other means.
The intrusion must be proportionate to the advantages gained, not just in cost and resources but also through a judgment that the degree of intrusion is matched by the seriousness of the harm prevented. Internet service providers reckon that this will cost more than £1 billion in set-up costs alone. The measure may not provide the police with the website someone has visited because it is so easy to conceal it. It will not give the police any information about whether, or with whom, someone was communicating without making further inquiry of other companies such as Facebook, because almost all online communication is encrypted. If a serious crime is involved—the Minister listed a range of serious crimes that the Bill is intended to cover, including child sexual exploitation and terrorism—the security services, which do not need internet connection records, are duty bound to assist the police with their inquiries. We therefore need some convincing that internet connection records are both necessary and proportionate.
There are other issues. We believe that the double lock should be only a single lock in the case of law enforcement warrants which need go nowhere near a Secretary of State if there is no political sensitivity, and that there should be a real double lock where there is political sensitivity, not just the application of judicial review principles to the decision of the Secretary of State. How can there be a judicial review process where only one side of the case is presented to the judicial commissioner? Equipment interference is potentially more intrusive than interception and yet law enforcement equipment interference warrants go nowhere near a Secretary of State under the Bill as drafted, whereas security services equipment interference warrants require a Secretary of State’s signature.
The oversight arrangements have a few wrinkles as well. How are we supposed to have faith in the independence of judicial commissioners appointed by the Prime Minister—not necessarily the current Prime Minister—including the Investigatory Powers Commissioner being appointed by the Prime Minister? How can the same body authorise warrants and then audit their issue?
Not only do we support many aspects of this Bill, but the Liberal Democrats when in government called for such a Bill. However, aspects of the Bill cause us grave concern and the Government and law enforcement agencies have failed to convince us of their necessity and proportionality. The “request filter”, for example, conjures up the spectre of a virtual national database, where government can bring together every piece of available personal data held on an individual into one place. In addition, technical capability notices and national security notices have the potential to inflict serious competitive disadvantage on UK suppliers.
Bulk collection of innocent people’s communications is highly controversial and requires the closest scrutiny. But there will not be a call for a blanket ban on bulk collection from this Bench no matter the cost in lives and loss of security; we will take a reasoned and practical approach to these issues. Nor will noble Lords hear the term “snoopers’ charter” from this Bench, other than to condemn it as an inaccurate cliché. There is much to commend the Bill, but there are serious issues that must be addressed.
My Lords, I welcome the Bill. The authorities need up-to-date powers to obtain information to address the real dangers that we all face from terrorism and serious crime. The existing law has simply not kept pace with technological developments. The Government, with the support of the Labour Opposition, have included provisions to protect personal privacy against unnecessary intrusion and to ensure judicial control of access to personal information. The adequacy of these safeguards will need to be carefully considered by your Lordships.
One matter that will require particularly careful consideration in Committee and on Report is the protection of legal professional privilege—LPP—which is the right of clients to maintain the confidentiality of what they tell their lawyers in private. This subject was mentioned by the noble Lord, Lord Rosser, and I will concentrate on it in today’s debate. In 2002, the noble and learned Lord, Lord Hoffman, explained for your Lordships’ Appellate Committee that LPP is,
“a fundamental human right long established in the common law”.
The reason for that is that, unless a client knows that the solicitor and counsel will not disclose what they have been told in confidence, the client will simply not be prepared to speak honestly and openly when seeking legal advice. LPP is, therefore, fundamental to the rule of law.
It is important to emphasise that these rights belong to and benefit the client; they are not privileges for lawyers. There is a so-called iniquity exception to LPP. As Peter Carter QC for the Bar Council told the Joint Committee of both Houses on the Bill, LPP does not apply if, for example, the client seeks advice from a lawyer,
“on where the best place is to stash his stolen loot”.
Clauses 27, 106, 143 and 179 provide some piecemeal protection for LPP in some contexts. Schedule 7 requires the Secretary of State to issue a code of practice which addresses LPP. These matters were discussed in the other place and, on Report on 6 June, the Solicitor-General, Robert Buckland, said that the Government would be working with the Bar Council and the Law Society to consider introducing, in your Lordships’ House, amendments which would,
“recognise the overwhelming public importance of the preservation of legal professional privilege”.—[Official Report, Commons, 6/6/16; col. 950.]
I suggest that the way forward is as follows. First, as recommended by the Joint Committee, in paragraph 537 of its report,
“provision for the protection of Legal Professional Privilege (LPP) in relation to all categories of acquisition and interference addressed in the Bill should be included on the face of the Bill and not solely in a code of practice”.
The Joint Committee rightly accepted the evidence from Colin Passmore of Simmons & Simmons for the Law Society on this point.
Secondly, the Bill must require prior judicial authorisation for the targeting of discussions with a lawyer or if the authorities have reason to believe that they will be intruding on legal advice. Of course, if there is extreme urgency, judicial authorisation needs to be obtained as soon as possible after the event.
Thirdly, the test that the authorities need to meet to satisfy a judge to give authorisation where there is an intrusion in relation to LPP must be a high one. The test should be exceptional and compelling circumstances: that is the criterion set out in Clauses 27 and 106 and it was discussed by the Joint Committee, and those circumstances should indicate a probable cause for believing that the iniquity exception applies. I say probable cause because the authorities cannot know whether the iniquity exception applies unless and until they listen in and examine the results.
My fourth principle for the way forward is that after the authorities have obtained privileged information by listening in or otherwise intruding on legal discussions, they should be prohibited from retaining the fruits of it unless they obtain judicial authorisation that it is within the scope of the iniquity exception.
Much more difficult is that my understanding is that the Government also want to allow the authorities to listen in to legal advice and to use privileged information where there is no reason to think that the iniquity exception applies—that is, that these are perfectly proper legal discussions, with the lawyer giving advice to the client, but there is reason to believe that the surveillance may provide or has provided information of vital importance to preventing serious crime or tracking dangerous people. This is much more problematic. The difficulty is that to allow the authorities access to genuinely privileged information would inevitably mean that clients could no longer be guaranteed confidentiality by their lawyers. This would inevitably deter clients from speaking frankly to their lawyers and therefore undermine the rule of law. Given the fundamental importance of LPP, the Government will need to present a very strong case indeed in Committee and on Report if they seek to persuade noble Lords that such powers are necessary.
My Lords, I listened with great interest to the noble Lord, Lord Pannick, on LPP and I was absolutely fascinated by that comment about lawyers being told by their clients where the loot was hidden. What a much more exciting job being a lawyer must be than I had appreciated.
I join other noble Lords in welcoming the Bill. I heard the comments about the Bill having been rushed but if ever there was a Bill that had never been rushed, we have it here today. My noble friend the Minister made the point extremely well in his absolutely excellent introductory speech to this Second Reading. Has any other Bill ever had the scrutiny of three Joint Committees and three independent reviews? Given some of its important provisions, there are those of us in this House who wish to see the Bill moving much faster than the timetable we are presently enjoying. We obviously know that we have to have it finished by the end of the year.
My worry about the Bill and the question I will raise, following previous legislation, concerns the challenge to keep up with new technology. I stand here as an avowed ignoramus on many of these amazing technologies, such as WhatsApp, Snapchat, Twitter and Facebook. I see that the latest route that has been used by terrorists is the chat network on PlayStation. That will give Sony a few thoughts about how it organises its business in future and about the requirements that the Bill may impose on it. Without any question, the challenge is that while it might seem to be an amusing paradise for geeks, we know that there is a very dark side to this and that it offers a huge range of opportunities for some very sinister elements, be they terrorists, organised criminals, paedophiles or child abusers. All forms of evil can thrive and operate within this. We have known for some time the use that ISIS—the so-called Islamic State—has made of WhatsApp and the incredibly efficient communication that it has given it. When one hears surprise news that ISIS has attacked some town which people previously thought was safe, one knows that that has been achieved because it has very good communications through the new systems of technology which we are trying to keep up with.
It is against that background that we realise the incredible challenge that the police and intelligence agencies have. The Minister referred to the scale of the threat, which takes so many different forms. I have often talked in this House about how terrorism has changed since the time I was in Northern Ireland. We did not have suicide bombers in Northern Ireland. The challenge they pose to new systems of security is very real. While we have suicide bombers, we also have the willingness to engage in appalling massacres of innocent civilians. We know that some of the very evil people who exist in the world at present no longer have any interest in war crimes, Geneva conventions or anything else.
My noble friend referred to the anniversary yesterday of perfectly innocent people being mown down on a beach in Tunisia. We know that we have every finger crossed in this country against the risk that we could face at any time. In those situations, static guards, sentries and armed police have a role to play, but the core of so much of this is intelligence. If we are to be successful against this, we need access to intelligence. I was very interested to see that in 95% of prosecutions of organised crime, communications data have been vital; and that bulk powers have been significant in every counterterrorism investigation in the seven plots that there have been in the past 10 years, and vital to detecting 95% of the cyberattacks that we have faced in this country. I was not previously aware that 90% of our military operations have been conducted successfully without casualties by access to information under the systems that we are discussing today.
I warmly welcome the last comment of the noble Lord, Lord Paddick. I was about to attack him for the phrase “snoopers’ charter”, but he managed to get out in time. Part of the problem with the Bill is that people often do not understand the importance of what is happening, because the intelligence agencies in particular and the police are very inhibited in what they can say about why some of this information is so vital to the defence and security of our country, as too often that runs the risk of revealing methods or techniques that it is vital to protect in the interests of the security of our country. It is still cited as a “snoopers’ charter” by some, but that is a cheap, silly and dangerous remark. It is insulting to the police and our intelligence agencies to use such a phrase. As borne out by the comments Dominic Grieve, the current chairman of the ISC, made in another place on this Bill, we know the high sense of responsibility that is generally shown by our intelligence agencies and the police. Of course there can be mistakes, and there are occasions when people do not live up to those high standards, but to suggest that in general the organisations do not seek to observe scrupulously the proper use of these powers is grossly irresponsible.
We will certainly seek proper scrutiny of the legislation as it goes through. The noble Lord leading for the Opposition referred to the substantial changes made in the Commons and the number of important undertakings that have been made which will have to be put into effect here. I welcome that. It is a question of proportionality and of achieving that proper balance between protecting public security and legitimate privacy. It has been claimed that the Bill is a world first in the scale and range of what it seeks to achieve. I could not help being amused today by the comments of Mr Edward Snowden, who finds that the Russians are operating some pretty intrusive activities, and without all the provisions that exist in this legislation, as far as I am aware. I welcome the dual lock that is being introduced, which is important.
I end simply with one comment. As we go through the Bill, I shall look at whether it has the flexibility to cope with the accelerating pace of technical change. We have to make sure that it remains effective as the years go forward. We know that the speed with which new technologies, systems and techniques are coming in poses a major challenge to our agencies. It is our duty as legislators to provide for the introduction of properly scrutinised and properly protective regulations, under which the agencies can protect our country and at the same time properly respect the privacy of its citizens.
My Lords, I rise to support the Bill. I was going to wholeheartedly commend the present Home Secretary for being prepared to listen and respond, but I fear it might do her chances of becoming leader of the Conservative Party enormous harm. She has the great merit of having taken responsibility in her life, and acted responsibly and shown a gravitas which others certainly do not.
I reinforce the point made by my noble friend from the Front Bench. We are, at this moment, in a more insecure and uncertain landscape than we have been for some considerable time. It is at moments just like this when your Lordships’ House provides the stability needed, and the accumulated experience and wisdom, to ensure that we get things right. I have not always thought so. Back in 2001, when I was piloting the then Anti-terrorism, Crime and Security Bill through the two Houses of Parliament on the back of the terrible attack on 11 September 2001, I often went home extremely aggrieved at amendments that your Lordships’ House had passed. However, I came in due course to respect the work that was done in this House, the wisdom that was brought to bear—not least by those with substantial judicial experience—and the ability to find solutions to agreed problems that were better than the ones we had set out in the first place in the Bill. So I come here to speak with some humility this afternoon.
While, as has been explained, much has already been done to improve the original draft of the Bill, I hope that we can speed its passage and ensure that the final touches are put to what is a very important piece of legislation. It obviously combines what was agreed in the past, which, not least in the Telecommunications Act 1984, reinforced what was not necessarily understood publicly. It ensures that there is a right of review, proper openness and scrutiny.
I can be brief because I have had the privilege of giving both written and oral evidence to the Intelligence and Security Committee and to the Joint Committee chaired by my noble friend Lord Murphy. I agree with what has already been said: much has been achieved by having a draft Bill and being prepared to listen to people. I shall make just two or three comments.
I reinforce what the noble Lord, Lord King, said: we are living in an era of enormous technical change. What is happening now through the world wide web and through cyber is completely different from anything that we experienced even 25 years ago, and we need to take account of that. The noble Lord, Lord Paddick, spoke movingly of what might have intruded on him had we been dealing with a circumstance such as the one that he outlined in his private life. It is important that we recognise those personal details but we should also take a 60-year step back and understand how far we have come in terms of privacy and individual rights. Do noble Lords remember the trunk calls that had to be routed through the local exchange? When I was a child, we had party lines with our neighbours, and there was a standing joke that they all knew precisely what we were doing and when we were doing it.
It is also true that we have come a long way in understanding the importance of having the right oversight. I was privileged to ask the noble Lord, Lord Carlile, to take on that initial role many years ago. Eyebrows were raised on my side of the House that I had asked a Liberal Democrat to oversee what I was up to in the Home Office. At the time, it was felt that I was quite a draconian Home Secretary, but we were dealing with extraordinarily difficult times. At such times challenging and difficult measures have to be taken but there always has to be the proportionality that has been spoken about—the balance between security and prevention on the one hand and individual liberty and privacy on the other. I know a thing or two about privacy and intrusion into people’s private lives and those of the people around them, not from the state—although who knows?—but from private interests intent on commercial gain. Therefore, I am wholeheartedly in favour of protecting the privacy of the innocent and ensuring that people’s private lives are respected, but the most important responsibility of any Government is protecting their people and ensuring that those who would use democracy to abuse liberty and privacy are counterweighted and acted against.
During the passage of the Bill in the weeks ahead I hope that we can deal with those outstanding items, but I also hope that we can do so with an understanding that our main responsibility to the British people when the threat level is severe is ensuring, in this moment of instability, that we provide the necessary powers to the intelligence and security community and the counterterrorism police, although we expect them to respond in kind. We also need to ensure that we build confidence among the British people that we know what we are doing and are doing it on their behalf.
My Lords, I, too, welcome the Bill and congratulate the Home Secretary on the good intentions behind it. I have been calling for reform in this area for four years. To start with, I was ridiculed by some Members of this House and patronised by Ministers. But then, in July 2014, the Government finally admitted that RIPA and the other elderly Acts that make up the patchwork of legislation governing this area needed to be replaced by a single new Bill, which is what we have here. But, even with the useful amendments passed by the Commons, as it stands the Bill is very far from fit for purpose, and we in this House have much work to do to knock it into shape.
Two new clauses were added in the other place in response to the ISC’s call for a backbone of privacy to be included in the Bill. But the new clauses do not cut the mustard for the chair of the ISC, who has called for them to be clearer about the right of citizens to privacy. There needs to be much better protection in the Bill, as we have already heard, for privileged communications such as those between lawyers and their clients, journalists and their sources and MPs and their constituents. On warrant authorisation, I have sat through endless evidence and debates on the Joint Scrutiny Committee and I have yet to hear a single convincing reason as to why a Minister needs to be involved in day-to-day police warrantry, as the Bill currently provides.
The next topic is the bulk surveillance powers that indiscriminately collect everyone’s private data. They are currently under review by David Anderson QC. When a similar review was undertaken in the USA, the bulk powers were found to have made no serious contribution to detecting and preventing crime, and were discontinued. We must ask ourselves why the UK should travel in the opposite direction.
The only new power in the Bill, as has already been said, concerns internet connection records, which are highly intrusive, difficult and expensive to implement and of no interest whatever to the security services. They were abandoned in 2014 in Denmark, the only country that has tried to do this before, because they failed to deliver the expected benefits. It is my view that ICRs need to be deleted from the Bill. The request filter appears to be a classic wolf in sheep’s clothing, and it will need careful examination before it can be allowed to remain in the Bill.
Finally, the threat to encryption needs to be removed from the Bill. Strong encryption, as the Government have recognised in this House, is vital to our personal security and the integrity of our finance and commerce sectors. The Government are fond of calling the Bill “world-leading”. That is true in some respects, but not necessarily in ways that we would want to celebrate. If it were enacted unchanged, innocent UK citizens would not be far behind their North Korean and Chinese counterparts in a contest to be the most spied-on population in the world. The powers in the Bill are very broad and very intrusive—more so than any of our democratic allies’ powers
One of the praiseworthy aspects of the Bill is that for the first time it offers Parliament the opportunity to consider five major surveillance powers that have been in use, without Parliament’s knowledge or consent, for many years. It is good that these powers have at last crawled out of their dark cave in the Home Office and into the sunlight of scrutiny, but should we not be asking ourselves how the Home Office could be so contemptuous of Parliament as to believe that it was entitled to create new and highly intrusive surveillance powers without bothering itself with the tiresome niceties of parliamentary democracy? It would be good if the Minister could explain to the House how it came to be that obscure clauses in 30 year-old Acts were used to manufacture these powers and wilfully conceal them from Parliament. Perhaps he could also confirm that there are no other hidden surveillance powers of which Parliament is still unaware.
The lesson we must learn from this disgraceful behaviour over many years is that the Home Office cannot be trusted to comply with the will of Parliament. That means that we must take great care to not leave any further what I call “buffet clauses” or “help-yourself provisions” in the Bill for clever Home Office lawyers to exploit for their own purposes. Your Lordships should know that there are plenty of such loopholes still lurking in the Bill, and we will need to dig them out and deal with them.
It is important to understand the context of the Bill in relation to the various threats to life that we face as a nation. I wonder how many noble Lords know how many people died in the UK in the past decade as a result of terrorism. The answer is that it is far fewer than the 110,000 who died because they were admitted to hospital at the weekend, if you believe the Health Secretary; far fewer than the 95,000 who died in London alone due to air pollution; fewer than the 5,500 who were murdered; fewer than the 1,000 women who were killed by their partners; and even fewer than the 300 people who died accidentally in their bath in the past decade. The number of people who died in the UK in the past decade due to terrorism was in fact three—or perhaps four if you include the murder of Jo Cox MP, which we do not yet know was a terrorist incident.
Of course, we must not forget that each and every one of those deaths was a total tragedy and a continuing nightmare for the friends and families of those victims, but many of us are old enough to remember what it was like in the 1970s, when terrorists took 49 lives in mainland UK, or the 1980s, when it was 307, or even the first decade of this century, when it was 56. My point is that, contrary to what some people assert, the risk of death from terrorism is not as high as it was 30 or 40 years ago and the risk of dying from more mundane causes, even an accident in your bath, is currently—
I have no idea, is the answer to that question.
My point is that, contrary to what some people assert, the risk of death from terrorism is not as high as it was 30 or 40 years ago, so we must take care not to surrender the freedoms that our parents and grandparents fought to protect in the Second World War on the basis of alleged unprecedented threats.
Since the noble Lord has no idea, I will give just one example, occurring and culminating on 6 August 2006: the attempt to bring down seven airliners—which, were it not for the powers in the Bill, would have resulted in 2,300 deaths on one day alone.
Sometimes, possibly well-meant attempts to improve our safety by treating every citizen as a suspect and collecting everyone’s private data could have the unintended consequence of making us less safe. I am thinking of bulk surveillance powers, which some experts say risk hiding data about the bad guys under a tsunami of personal and private data about the 99% of us who will never be terrorists or paedophiles. Furthermore, by storing 12 months of our internet activity at our service providers to derive a debatable security benefit, we would be exposing all internet users to the entirely new and self-inflicted risk of the theft of that very revealing data by thieves, blackmailers and foreign spooks. There is plenty of experience of cyberthefts to tell us that our personal data will be stolen, whatever bland assurances we get from the Government that they will not.
So the Bill has the potential to be a good one, but it is not yet there and we have much work to do to get it there. I look forward to working with my colleagues on these Benches to achieve that—and, importantly, I hope also to work with noble Lords on the Labour, Cross-Bench and Government Benches to make the Bill fit for purpose and the best it can be.
I will do exactly that.
The events of the last few days have demonstrated how volatile our politics have become and how quickly ruthless politicians can replace more moderate leaders. That means that we must be even more careful about what powers we give the Government to spy on us. Make no mistake—this is not an exaggeration—as it is currently drafted, and in the hands of an extreme Government, the Investigatory Powers Bill would be a toolkit for tyranny. The powers in it and the data that would be collected on all of us would be a grave threat to our freedom and our democracy if exploited by those who would oppress us.
My Lords, it is certainly an interesting piece of scheduling for me to follow immediately after the noble Lord, Lord Strasburger. I have much respect for him but I have to say—I do not think I am alone—that I do not agree with almost anything he has just said.
I have been involved in conversations about the kinds of powers with which the Bill is concerned since the turn of the century and even before. I lived with the current legislation—principally the Regulation of Investigatory Powers Act, RIPA—and I have watched its relevance to modern conditions slowly shrivel. This is not surprising, because the world has changed and is changing with ever more speed. The digital age is a singularity: a change on the scale of the invention of printing and the Industrial Revolution.
The powers in the Bill are needed. As I have said before in the House, one of the first instructions from the senior investigating officer in cases of murder and terrorism is to find and check the relevant telephone records. David Anderson, the Independent Reviewer of Terrorism Legislation, has noted that almost all terrorist trials depend for a successful conviction on that kind of evidence. However, what has to be recognised is that new technologies are rendering that kind of evidence simply unavailable. In addition, even if that was not the case, which it is, young people—and I am afraid they will include some future terrorists and murderers—simply do not use as telephones what we at our average age believe to be telephones. They use WhatsApp, Snapchat and all the other things that the noble Lord, Lord King, mentioned, which use the internet as the means of communication over what is known as VoIP—voice over internet protocol. Without the Bill, the abilities of the UK police to protect our people will sharply diminish. As the noble Lord, Lord Rosser, said, that particularly grave position will be made worse if we lose European co-operation on intelligence sharing.
It is said that the defence of the realm is the most important duty of the state. The protection of individual citizens is the next most important duty of the state. Before finishing, I will just turn to the speech of the noble Lord, Lord Paddick. The noble Lord had a distinguished career as a senior police officer. However, while I admire his integrity and his openness about his own personal circumstances, I simply do not believe that any police officer experienced in surveillance, terrorism or organised crime would agree with what he said. We have recently heard a little too much running down of experts. I agree completely with the opening statement of the Minister, in which he made clear what experts in this area have said. To ignore their advice would make this country less safe.
Outcome of the EU Referendum
My Lords, with the leave of the House, it may be helpful if I make a brief business statement regarding our proceedings this afternoon and in the coming days. My noble friend the Leader will now repeat the Prime Minister’s Statement on the outcome of the EU referendum. Following discussions in the usual channels, we have made provision for 40 minutes of Back-Bench questions. I have also agreed to consider further extensions if at the end of 40 minutes there is still a significant number of Members wishing to ask questions.
I reassure noble Lords, however, that this will be the first of several occasions for the House to take stock of recent events. There is a European Council meeting later this week, and we intend to arrange a full debate next week—probably on Tuesday, in lieu of the Second Reading of the Policing and Crime Bill, which will be rescheduled to a later date.
My Lords, with the leave of the House, I will now repeat the Statement given by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“With permission, Mr Speaker, I would like to make a Statement on the result of the EU referendum.
Last week saw one of the biggest democratic exercises in our history, with over 33 million people from England, Scotland, Wales, Northern Ireland and Gibraltar all having their say. We should be proud of our parliamentary democracy. However, it is right that, when we consider questions of this magnitude, we do not just leave it to politicians but rather listen directly to the people. That is why Members from across this House voted for a referendum by a margin of almost 6:1.
Let me set out for the House what this vote means, the steps we are taking immediately to stabilise the UK economy, the preparatory work for the negotiation to leave the EU, our plans for fully engaging the devolved Administrations, and the next steps at tomorrow’s European Council.
The British people have voted to leave the European Union. It is not the result that I wanted nor the outcome that I believe is best for the country I love, but there can be no doubt about the result.
Of course, I do not take back what I said about the risks: it is going to be difficult. We have already seen that there are going to be adjustments within our economy, complex constitutional issues and a challenging new negotiation to undertake with Europe. However, I am clear, and the Cabinet agreed this morning, that the decision must be accepted and the process of implementing the decision in the best possible way must now begin.
At the same time, we have a fundamental responsibility to bring our country together. In the past few days, we have seen despicable graffiti daubed on a Polish community centre and verbal abuse hurled against individuals because they are members of ethnic minorities. Let us remember that these people have come here and made a wonderful contribution to our country. We will not stand for hate crime or these kinds of attacks. They must be stamped out.
We can reassure European citizens living here and Brits living in European countries that there will be no immediate changes in their circumstances. Neither will there be any initial change in the way that our people can travel, in the way that our goods can move, or in the way that our services can be sold.
The deal we negotiated at the European Council in February will now be discarded and a new negotiation to leave the EU will begin under a new Prime Minister.
Turning to our economy, it is clear that markets are volatile and there are some companies considering their investments. We know that this is going to be far from plain sailing. However, we should take confidence from the fact that Britain is ready to confront what the future holds for us from a position of strength.
As a result of our long-term plan, we have today one of the strongest major advanced economies in the world and we are well placed to face the challenges ahead. We have low, stable inflation. The employment rate remains the highest that it has ever been. The budget deficit is down from 11% of national income and forecast to be below 3% this year. The financial system is also substantially more resilient than it was six years ago, with capital requirements for the largest banks now 10 times higher than before the banking crisis.
The markets may not have been expecting the referendum result but, as the Chancellor set out this morning, the Treasury, the Bank of England and our other financial authorities have spent the last few months putting in place robust contingency plans.
As the Governor of the Bank of England said on Friday, the Bank’s stress tests have shown that UK institutions have enough capital and liquidity reserves to withstand a scenario more severe than the country currently faces. The Bank can make available £250 billion of additional funds if it needs to support banks and markets. In the coming days, the Treasury, the Bank of England and the Financial Conduct Authority will continue to be in very close contact. They have contingency plans in place to maintain financial stability and they will not hesitate to take further measures if required.
Turning to preparations for negotiating our exit from the EU, the Cabinet met this morning and agreed the creation of a new EU unit in Whitehall. This will bring together officials and policy expertise from across the Cabinet Office, the Treasury, the Foreign Office and the Department for Business. Clearly, this will be the most complex and most important task that the British Civil Service has undertaken in decades, so the new unit will sit at the heart of government and be led and staffed by the best and brightest from across our Civil Service. It will report to the whole Cabinet on delivering the outcome of the referendum, advise on transitional issues and explore objectively options for our future relationship with Europe and the rest of the world from outside the EU. It will be responsible for ensuring that the new Prime Minister has the best possible advice from the moment of their arrival.
I know that colleagues on all sides of the House will want to contribute to how we prepare and execute the new negotiation to leave the EU, and my right honourable friend the Chancellor of the Duchy of Lancaster will listen to all views and representations and make sure that they are fully put into this exercise. He will be playing no part in the leadership election.
Turning to the devolved Administrations, we must ensure that the interests of all parts of our United Kingdom are protected and advanced. So as we prepare for a new negotiation with the European Union, we will fully involve the Scottish, Welsh and Northern Ireland Governments. We will also consult Gibraltar, the Crown dependencies, the overseas territories and all regional centres of power, including the London Assembly. I have spoken to the First Ministers of Scotland and Wales, as well as the First and Deputy First Ministers in Northern Ireland, and the Taoiseach, and our officials will be working intensively together over the coming weeks to bring our devolved Administrations into the process for determining the decisions that need to be taken. While all the key decisions will have to wait for the arrival of the new Prime Minister, there is a lot of work that can be started now; for instance, the British and Irish Governments will begin meeting this week to work through the challenges relating to the common border area.
Tomorrow I will attend the European Council. In the past few days I have spoken to Chancellor Merkel, President Hollande and a number of other European leaders. We have discussed the need to prepare for the negotiations, in particular the fact that the British Government will not be triggering Article 50 at this stage. Before we do that, we need to determine the kind of relationship we want with the EU. That is rightly something for the next Prime Minister and their Cabinet to decide. I have also made this point to the Presidents of the European Council and the European Commission, and I will make this clear again at the European Council tomorrow.
This is our sovereign decision and it will be for Britain—and Britain alone—to take. Tomorrow is also an opportunity to make this point: Britain is leaving the European Union but we will not turn our back on Europe or on the rest of the world. The nature of the relationship we secure with the EU will be determined by the next Government but I think everyone is agreed that we will want the strongest possible economic links with our European neighbours, as well as with our close friends in North America and the Commonwealth, and important partners such as India and China. I am also sure that, whatever the precise nature of our future relationship, we will want to continue with a great deal of our extensive security co-operation and to do all we can to influence decisions that will affect the prosperity and safety of our people here at home.
This negotiation will require strong, determined and committed leadership and, as I have said, I think the country requires a new Prime Minister and Cabinet to take it in this direction. This is not a decision I have taken lightly but I am absolutely convinced that it is in the national interest. Although leaving the EU was not the path I recommended, I am the first to praise our incredible strengths as a country. As we proceed with implementing this decision and facing the challenges it will undoubtedly bring, I believe we should hold fast to a vision of Britain that wants to be respected abroad, tolerant at home, engaged in the world and working with our international partners to advance the prosperity and security of our nation for generations to come. I have fought for these things every day of my political life and I will continue to do so. I commend this Statement to the House”.
My Lords, that concludes the Statement.
On my own behalf and as Leader of this House, I believe there is a particular role for the House of Lords in this period as we deliver on the clear instruction of the British people. We can provide stability by lending our experience, knowledge and expertise to the challenges we face, and add something different to the House of Commons in helping to make this decision work for Britain. Our EU Committee and its sub-committees are well placed to assist the House. As my noble friend the Chief Whip has already indicated, we will facilitate a debate in government time next week which will provide a further opportunity for the views of noble Lords to be heard.
My Lords, I thank the noble Baroness for repeating the Statement and for her additional comments at the end. They are welcome and concur with our own views.
These past few days have been the most difficult and uncertain that we have faced for more than a generation. Despite the massive turnout, whatever one’s views on the referendum, there can be no pride or joy in a result that has divided this country across regions, the age divide and ethnicity, and in so many other ways. With such a narrow result, we must find a way to work together.
During the campaign we were shocked and devastated that our much-loved and highly regarded Member of Parliament Jo Cox was murdered by a man who later gave his name as “Death to traitors, Britain first”. There can be no pride in a campaign that saw political debate sink to a new low.
The leave campaign told us that £350 million a day was being sent to Europe that would be available for the NHS. Within hours of the result that was being retracted as a “mistake”. However, it was never true and is not the only promise now being denied.
We have to understand why concerns are raised about immigration. However, throughout the campaign, the way in which immigration and asylum seekers were demonised to persuade people to vote leave was utterly shameful. I welcome the fact that Nigel Farage’s poster of fleeing Syrian refugees was condemned across the political spectrum and I welcome the comments in the Statement on hate crime.
However, we have to look to ourselves. Is there anything in our words and actions that could have led us to the position where anyone would consider that such a poster was acceptable and legitimate campaigning? When the Prime Minister referred in Parliament to migrants as a “swarm”, did he consider beforehand the possible consequences? During the London mayoral campaign, when Theresa May and Michael Gove spoke of security and terrorism, and then attacked Sadiq Khan as a risk, did they ever consider that such comments were reasonable and responsible?
I concur with the noble Baroness’s comments and welcome them. As she said, we are all dismayed at the reports over the last few days of targeted attacks on a Polish community and protests outside mosques. There has been an increase in casual and deeply unpleasant racism. We have heard of schoolchildren saying that they are worried about their future and, perhaps the lowest of the low, people wearing t-shirts with slogans such as “We won. Go home”. That is the price we are now paying for the tone of the political debate over the past few months.
We need to heal our country and our politics. We need to encourage and provide hope, not hate, but that will not be easy. Our country is desperate for the political leadership that is so sadly lacking at present. The Prime Minister, who said he would see us through the negotiations, is resigning, the Chancellor was invisible for days, and we face three more months of Tory party internal warfare before there is a leader who will even attempt to deal seriously with this crisis. That is shameful. I am not making a cheap party-political point; there are serious issues here.
Wait and see, because I do not absolve my party leadership from this either. There is a serious issue about the quality of political leadership in our country as a whole. My party is also dealing with internal political problems, largely due to fallout from this result, and our country is crying out for strong, decent, decisive, caring and competent leadership from both Government and Opposition. Our country is entitled to demand such leadership from us at such a challenging time.
So what can we do? Individually and as a House as a whole, we have a responsibility. I believe—the noble Baroness emphasised this point as well—that we have the expertise, judgment and experience in this House to assist and lead in finding a way through. The role of your Lordships’ House in working through the referendum decision and in examining the detail will be essential. As we have already shown, the tone in which we conduct our debates and our deliberations must stay as it is, and we should show the way in being measured and honest.
Our excellent European Union Committee, chaired by the noble Lord, Lord Boswell, has already considered and reported on the process and difficulties of withdrawal, referred to by Sir David Edward, a leading—or probably the leading—expert in EU law as the,
“long-term ghastliness of the legal complications”,
which he described as “unimaginable”. However, we have to imagine them and to work through them.
There are many questions not yet answered and many may not have even been considered, so I shall ask the noble Baroness just three which I think are the most urgent. Today, we are debating the Investigatory Powers Bill. Obviously, the practical implications of such legislation are linked to our co-operation with other EU countries. Given that we shall at some point disengage and have to create a new, separate framework for those countries, what consideration has been given to this and are a rethink and further consideration required?
Secondly, the legislative programme cannot just be business as usual. Paragraph 67 of the EU Committee report states that the Government would need to enact in law everything that they wanted to keep in law which had come from treaties or a directive. Clearly, this cannot be done overnight, but our relationship with the EU is deteriorating by the hour and there is real urgency here. Have the Government considered a timescale for such legislation and will it mean a new Queen’s Speech, so that the legislative programme can be withdrawn?
Thirdly, the Statement referred to the devolved Administrations, but there was more about the role of the Civil Service than about the role of Parliament. Parliamentary oversight of the negotiations will be essential and, clearly, we will want to play our part in scrutiny and policy formulation. Can the noble Baroness give an assurance not just on debates but on parliamentary oversight of negotiations?
These past weeks have been challenging. That so many people took part and voted shows real interest and engagement, yet with such a binary choice it was harder to make the case for the complexities of what was involved and what could follow. Many who voted still wonder and worry whether they have made the right decision. There is no route map for what comes next. There is no long-term certainty for our economy or our society, and it is at times such as this that we have to rise to the challenge and ensure that what unites us is bigger, better and stronger than what divides us.
My Lords, I, too, thank the Leader of the House for repeating the Prime Minister’s Statement and welcome the words she added in respect of what your Lordships’ House may be able to contribute. I declare my interest as a Britain Stronger In Europe board member.
As a democrat, I respect the outcome of Thursday’s referendum, but—I suspect like many colleagues across the House—I am profoundly saddened by the result. I have a deep anxiety about what the future holds for our country. I am worried about the divisions that have been laid bare across the country during this campaign and echo many of the concerns expressed by the noble Baroness, Lady Smith of Basildon, about the tone of much of the debate and the campaigning. I am fearful for what this means for our outward-looking and tolerant country as well as for the future integrity of the United Kingdom. Many on these Benches are angry that notwithstanding his fine words in the Statement about his vision for Britain, this Prime Minister put party interest before national interest, complacently believing that he could win a referendum primarily designed to settle internal Tory divisions.
The European Union is an institution to which we have belonged and contributed for the past four decades. It has delivered peace, promoted equality, kept us safe and opened the doors of opportunity, but it will no longer be a part of Britain’s future. I think too that the leave campaigners do not appear to have any plausible strategy. We have already seen that they are backtracking on many of the promises they made during the campaign. So the result will change not only the very fabric of our country, it will change Europe and our relationship with the wider international community. Regrettably, the United Kingdom has on many occasions failed to provide leadership in the European Union. As a result, the people of this country have seen Governments play a half-hearted role at best. There has been a failure domestically to make the positive case for the European Union and the benefits it brings. In some ways, therefore, it is not unsurprising that when faced with years of the EU being blamed for everything that is wrong in this country, a majority of people voted to leave.
But I fear that we are only just beginning to realise the adverse impact the vote will have. Since Friday morning we have seen the value of sterling plummet. Some £120 billion was wiped off the markets in the first 10 minutes of trading on Friday, while this morning sterling slipped another 2.6% against the dollar and the pound is at a 31-year low. Surely the leaders of the leave campaign owe it to us to tell us what they think is negotiable with other members of the European Union, what is not negotiable in spite of their many promises, and what the likely consequences will be for the British economy. I welcome the fact that the Chancellor of the Exchequer and the Governor of the Bank of England have tried to steady the markets this morning, but fundamentally it is the uncertainty of the United Kingdom’s position which will continue to cause nervousness in the economy. Businesses and the markets like certainty, but certainty would appear to be the last thing we have in the wake of the referendum.
I have a number of questions for the noble Baroness. Can she indicate what the present Government would wish to achieve in negotiations with the European Union? Do they believe that we should seek complete access for the United Kingdom to the single market? Do the Government even have a view? Given that younger voters overwhelmingly voted to remain in, what hope can the noble Baroness and the Conservative Party offer future generations that they will have the same access to jobs across Europe as previous generations?
Of course it is not just the economy that is uncertain, but the very fabric of our constitution. Article 50 states:
“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”.
I think that the House will be interested to know what the Government’s view is as to what our own constitutional requirements are. Are they an Act of Parliament, a resolution of the House of Commons, a resolution of both Houses or an executive decision by Members? That is an important question for the noble Baroness to answer.
Scotland and Northern Ireland both voted strongly to remain in the European Union and the Secretary of State for Scotland has said that, if the people of Scotland ultimately determine that they want a second Scottish independence referendum, there will be one. Can the noble Baroness confirm that that is the position of the United Kingdom Government? Does it mean that if the Scottish Parliament asks for a further referendum, the Government will bring forward an order under Section 30 of the Scotland Act 1998 to transfer the necessary powers for a referendum to take place?
Northern Ireland as we know shares a land border with another EU country. Thousands of people cross it every day in both directions visiting friends and family, while the economy of Northern Ireland relies heavily on the European Union as a pull factor for internal investment, and directly in the form of research and development grants and peace grants. Can the noble Baroness set out the Government’s understanding of the operation of the common travel area where one country is an EU member and the other country is not? Can she also say something about mandate—the mandate of a future Prime Minister elected not by the country but by members of the Conservative Party, and what that means in terms of taking back control?
The leave campaigners have now admitted that they cannot do much to reduce immigration, so we need a serious and informed public debate about the long-term challenge of immigration. However, the anti-immigration rhetoric we have seen during the campaign has encouraged a surge of right-wing resentment. Perhaps the noble Baroness will wish to elaborate more on what the Government intend to do to tackle that. Finally, although I very much respect the decision of the noble Lord, Lord Hill of Oareford, to resign his position as a European Union Commissioner, we are still members of the European Union. Can she give an indication of the timescale for Britain to nominate another EU Commissioner so that we do not actually have an empty seat at the table?
We on these Benches firmly believe that it is in the United Kingdom’s best interest to stay as closely engaged in European networks of co-operation and joint operation as possible. We will continue to make the case for Britain’s future with Europe and to fight for an open, optimistic, hopeful, diverse and tolerant United Kingdom.
My Lords, as always I am grateful to the noble Baroness and the noble and learned Lord for their responses and I will seek to provide answers to some of the questions they have put forward this afternoon. I must start by saying that the British people have decided that we should leave the European Union and our priority now must be making this decision work for everybody in the UK, whatever side of the debate we were on. I am proud that this Government promised a referendum and delivered it and that we trusted the people with this very important decision. I voted and campaigned for remain, but a decision has been made, it is a clear one and it is very important that we get on now with implementing that decision and doing so in a successful way for the benefit of everybody who lives here.
I turn to some of the comments and questions put forward by the noble Baroness and the noble and learned Lord. As the noble Baroness knows, I was very shocked, like everybody else, by the death of Jo Cox. On the points she made about racism and some of the things that have been said and done in recent times, I do not want to debate again the way the campaigns were conducted, but I want to make some important points. The first is that whatever the result of this referendum and our decision to leave the European Union, this country has not given up on its values. We are still the United Kingdom and our values remain exactly as they were. I would condemn anybody who used the result of this referendum as an opportunity to promote racism. If there is any evidence of that, we should all work together to stamp it out. I certainly urge anybody who has experienced any kind of hate crime or racism to alert the police to that straightaway and to know that they do so with the full support of every decent person who lives in this country.
The noble Baroness referred to the role of this House and to political leadership in this country. As I said in my initial remarks as I concluded the Prime Minister’s Statement, this House has an important role to play. It is important for us to demonstrate our value to the democratic process by offering something that is a bit different from the House of Commons. One of the ways I hope we are able to achieve this, through our debates over the next few weeks as we consider the way forward on leaving the European Union, is that we are a little less political than the other House. That is one thing that is important about us, for which we attract a lot of positive response.
On the noble Baroness’s question about our current legislative programme—she referred to the Investigatory Powers Bill—the Government were elected on our manifesto commitments. We have a clear mandate and an important legislative programme that we have to continue to deliver. The Investigatory Powers Bill is one of the very important pieces of legislation that will safeguard the security and safety of people here in the United Kingdom. As for the impact on any of our legislation, we are in the European Union until we are out of the European Union and we have not yet triggered the Article 50 process that will put that process in train. We must very much continue with our programme and we have a mandate for that programme from the election of only one year ago.
The noble Baroness asked about the devolved Administrations and the role of Parliament in overseeing the process over the coming weeks and months. The noble and learned Lord also asked about Parliament’s role and what opportunity it will have to contribute to the decisions before final exit is made. It is too early for me to say what that might be, but as I hope I have indicated, I see it as an important part of the process that Parliament has a serious opportunity in this House to debate and express its views, and there is a role for our European Union Committee and its sub-committees to play in this process.
The noble and learned Lord asked about a couple of things in addition to the topics that the noble Baroness raised, the main one being Scotland and Northern Ireland. The people of Scotland made a very clear decision only two years ago that Scotland should remain in the United Kingdom. The Prime Minister has made it clear today—I very much echo the point—that in the way we proceed from here, we must work closely with the devolved Administrations. We will continue to do that, because we want to ensure that the way we exit from the European Union is to the benefit of all parts of the United Kingdom and all its people, so our constructive discussions will be a very big part of how we move forward from here.
My Lords, is it not deeply unfortunate that an inevitable side-effect of this referendum result is that we have lost an outstanding Prime Minister who has given long service to this country and had more to give? Although it was his decision to hold an in/out referendum, we should remind the noble and learned Lord, Lord Wallace, that not long ago, in the general election of 2010, that was the policy of the Liberal Democrats as well, so they should not be too condemnatory about that. But will my noble friend broaden the thoughts rightly expressed in the Statement about bringing the country together to include the need for the economic and foreign policies pursued by a country leaving the European Union to be able to command the support of the millions of people who voted to remain in the European Union? Will that not be an essential attribute of a re-formed Cabinet and of a new Prime Minister?
My noble friend is absolutely right and I join him in paying great tribute to David Cameron as Prime Minister: it has been an honour for me to serve in his Government and his Cabinet. He is a remarkable man in the way he carries out his responsibilities as Prime Minister.
My noble friend said that we must ensure that the way we proceed from here commands the support of everybody in the United Kingdom, especially those who did not vote for us to exit. That is absolutely essential, and the next Prime Minister and his Government must give absolute priority to it.
My Lords, although I quite understand people complaining about the campaign, we are where we are, and the priority surely should be to try to give some political stability, and through that financial and other stability, at a time when, for all their personal qualities, it is obvious that the present Prime Minister and his opposite number across the Dispatch Box are completely lacking in authority on the subject of Europe.
I therefore want to ask one specific question that concerns the reassurances that nothing much will change in the short term and Article 50 has not been operated. What overtures were made to the British commissioner to persuade him not to resign with immediate effect, particularly given the crucial area of finance and financial services over which he had responsibility? I quite understand his personal position but can the Government assure me that they made every conceivable effort to make sure that the United Kingdom commissioner in charge of finances would be in place for the next few months? If they did not do that, it was another huge omission.
I am grateful to the noble Lord for giving me an opportunity to say how much I admire my noble friend Lord Hill, as my predecessor in this role and also for the work that he has done as a commissioner. He set out his reasons for deciding to step down from his role and the Commission decided to move his responsibilities to another commissioner.
Financial stability is clearly being given huge priority within government. We have heard from the Governor of the Bank and from what the Chancellor said this morning all the steps that have been taken so far to provide stability to the financial markets, and their readiness to go further, should that be necessary. But we must not forget that the reason we are in a strong position to deal with this situation is the progress that we have made over the last few years in ensuring that we have a strong economy and can deal with this situation. I absolutely acknowledge that the situation is uncertain, but we can deal with it.
My Lords, I, too, welcome the Leader of the House’s repeating of the Statement and the personal postscript that she added in relation to the role of this House, and specifically of the EU Select Committee which I have the honour to chair. Will she therefore confirm to the House that at all stages, however long it takes, in the complex process of withdrawal and the development of a future relationship with the European Union, it is essential—perhaps more than it ever has been before and, to be frank, more than was evidenced during the process of the Prime Minister’s now aborted renegotiation bid over the last 12 months—that both Houses of Parliament should be informed and enabled so that they may make a full and constructive contribution to the discussion of these crucial issues? Frankly, this is a moment of crisis. In the interests of both this country and, we should not forget, its immediate neighbours and their economies, too, must not an opportunity be provided to enable the collective wisdom and experience of this House to be heard?
My Lords, I certainly acknowledge—as the noble Lord noted—that there is a huge amount of expertise and knowledge in this House that will make a strong contribution to the process. I am not in a position to provide the detail for which he asked. However, I will pick up on an important point that he made: while we have a big task in front of us in negotiating our exit and a new relationship with the European Union, we have strong bilateral relations with other member states within the European Union and, indeed, other countries around the world. We must continue with those relations, and continue to strengthen them, during this process.
My Lords, some commentators have said that the result of the referendum was a resounding victory for Brexit. I am not sure that I see it that way: 52 to 48 is, to my mind, a rather narrow victory. Where there is no overwhelming consensus, there is an overwhelming need to take account of the views of others. Nobody likes a bad winner. There has been too much hyperbole and spite in this debate. Yes, one side did win, the result is clear and we have to act on it. Those who advocated leave obviously need to take the lead in the negotiations that will take place. But we urgently need the sort of wise leadership that can build consensus. We need some sort of national Government—a coalition of good will where we can work together.
I serve the diocese of Chelmsford, which is, “east London in and Essex out”. Yesterday I spoke to a head teacher who said that the children were frightened when they went to school on Friday and that she had seen an increase in race hatred and intolerance. What plans are there to address the lack of unity in our nation and to counter the fear and race hatred that is on the rise? Can we ensure that those who lost this vote, as well as those who won, can be part of the planning going forward?
The right reverend Prelate’s remarks covered a large amount of ground. Although I said that we could, perhaps, do with a little less politics in this House than in the other place, I would not go quite as far as his proposal for the future. But he makes an important point about us avoiding becoming a divided nation as a result of the referendum. All of us who are involved in politics, or business, or who have other positions of authority and responsibility, have to properly understand what people feel when they express their views. During the campaign and over the last few months, I was interested in comments about people no longer wanting or respecting experts. I do not agree with that analysis but people want to feel, more than they do now, that experts understand why they feel the way they do. People may not feel they have benefited from the turnaround of the economy, or have felt left out of many of the advances we have made over the last 10, 20 or 30 years. As we proceed, we all have a responsibility to keep trying to reassure them that we understand why they feel the way they do and why they voted the way they did. We must now make sure, in the way that we implement the country’s decision, that we bring everyone along with us and that everybody in this country feels that they have a proper opportunity to fulfil their potential.
My Lords, I am very much concerned about some of the complacency that I am currently hearing from the Government. Since the noble Baroness the Leader of the House and others on the Conservative Benches have the opportunity for direct conversation with the collection of MPs, one of whom will be our future Prime Minister, would they convey this? The City is already making its decisions, as are major businesses. Most of them started planning for the contingency of leave months ago. Over the weekend, we have heard very clearly, and the CBI have confirmed, that many major firms have put on a hiring freeze. Others are now reassuring their shareholders that they have plans in place to be able to move significant parts of their operations to continental Europe or Ireland. If they do not hear a clear commitment, a cast-iron guarantee, in a matter of days—possibly weeks, but certainly not months—from that group from which the Prime Minister will come, that we will remain wholly in the single market, the decisions will become irreversible. Many already are and the remainder and many more will happen. Complacency is not safe.
I reject the noble Baroness’s description of this Government as complacent. What has been evident over the last few days in what was said by the Chancellor this morning, by the Prime Minister today and by the Governor of the Bank of England on Friday is that there are measures in place to provide some stability within the markets. The noble Baroness is of course right that businesses will take decisions now that could affect people. We need, through a range of methods, to make sure that we project to the world outside that Britain is in a strong position to weather this period of uncertainty arising from the referendum decision. We can do that, and do it with confidence, because of the steps that we have taken over the last few years to strengthen our economy and to make sure that we are ready for whatever decision that followed. I also say to the noble Baroness and to the House that we remain a member of the G7 and of the G20, and through those kind of forums we have an opportunity to project that very strong and confident message as well.
My Lords, as one of the minority in your Lordships’ House who warmly welcomes the decision that the people made in the referendum, I also warmly welcome the statesmanlike Statement of the Prime Minister today, which my noble friend repeated. May I suggest, too, that the campaign is over and that we are now in a new phase, and that it would be no bad thing if the campaigning organisations on both sides should shut up shop? I speak as somebody who took a prominent part in one of them. What has happened was implicit in the Prime Minister’s speech: the people have spoken and it is now for the Government to implement wisely the decision of the people.
In that context, I welcome the Prime Minister’s decision to involve the brightest and the best in the Civil Service in charting the way ahead. I believe that there is a great way ahead. Nobody should be put off by financial market volatility—I knew quite a lot of that when I was Chancellor. Financial markets are by their nature volatile. What matters are the economic fundamentals, which are good now and can get even better if we pursue a sensible policy. I regret the fact that the Treasury for a moment morphed into the office for budget irresponsibility but the Treasury can play a great part. I warmly welcome the approach that was charted in the Statement. Does my noble friend agree that the campaigning organisations should now shut up shop on both sides?
I certainly agree with my noble friend that the campaign is over. The public have spoken and we now all have a responsibility to implement that decision—and, as I have said, in a way which means that it is successful and in the best interests of this country. As my noble friend says, it is right that we are using the brightest and most talented civil servants to that end. Indeed, I am sure that we will draw upon a wide range of expertise outside Whitehall as well.
My Lords, for the next two years the United Kingdom is entitled to have a commissioner in Brussels during a time when vital national interests will be considered by the Commission and the other EU institutions. Will the noble Baroness inform the House when that vacancy is going to be filled?
I am grateful to the noble Lord for that direct question but, unfortunately, I am not in a position to answer it in a direct way. At some point, I hope very much that I will be able to come back to him and make that information more widely available.
My Lords, will the noble Baroness confirm that the UK’s departure from the EU will not become final until our negotiations over the next two years are complete? Since the terms of our departure will only be known then, will it not be the duty of the Government to give the people a chance to take an informed view on those terms before the UK’s departure becomes final?
It sounds as if the noble Lord is trying to suggest a second referendum at a later point. This has been a once-in-a-generation decision. The people of this country have been clear. When we trigger Article 50 the clock on the two-year process will start. The Prime Minister has not triggered it now because he believes that it is right that when going into that process the Government are clear on what kind of relationship they want with the European Union in future. That is why he is not doing so himself but is leaving it to his successor.
My Lords, like the noble Lord, Lord Lawson, I welcome the creation of an EU unit in Whitehall, although one wonders why it did not exist already—I think that in some incarnations, it did. In particular, the idea of bringing together policy expertise is welcome. What provision is there for cross-party and non-party involvement in setting the mandate for those civil servants? After all, Vote Leave was a cross-party thing—it even had a Liberal Democrat on its board—and the remain campaign was also cross-party. Surely in the national interest the new Prime Minister should be looking across the spectrum to get the best input so that whatever deal we get really is the best for the whole of the United Kingdom and not just something that narrow parties can bring about?
Clearly the campaigns for leave and remain were cross-party, but there is one party in government. It was elected last year and this elected Government will have the responsibility, albeit very much, as I have already indicated, wanting to draw on expertise and knowledge from a range of different sources, of deciding what precisely they are going to seek to negotiate with Europe in terms of our future relationship.
My Lords, although in the next few weeks or even months we are obviously in a period of very painful adjustment—that is perfectly obvious—does my noble friend agree that it ought to be perfectly possible to achieve practical and constructive relations with all our European neighbours in the near future? I say that not just because it is a desirable thing for us to do but because the European Union itself is undergoing enormous changes and challenges at this moment and we are required to have a very constructive voice, whatever our status under the treaties. Does my noble friend agree that that approach will at least reassure our many friends all around the world and enable us to contribute to the continuing development of a strong Commonwealth network which will be a great support for us in future?
My noble friend is absolutely right. In addition to our relationships with other countries via those established institutions, whether they are the European Union, the Commonwealth, which we are absolutely still part of, the G7 or the G20, we will continue to build and strengthen our relations with other countries.
My Lords, the Prime Minister made a very dignified statement on the steps of No. 10 last Friday. He again made a dignified Statement today in the other place. He is a decent and honourable man. Would it therefore not be very sad if future historians were to see his legacy as having made a very powerful statement against referendums a few years ago and then changing his mind because of a will-o’-the-wisp, illusive attempt to find party unity, a legacy which led to Britain leaving the European Union and, potentially, breaking up our own United Kingdom itself?
I am grateful to the noble Lord for the positive comments that he has made about the Prime Minister, but I am afraid I disagree with him about everything else that he has said. We were very clear in our manifesto that we wanted to provide the British people with an opportunity to decide on membership of the European Union. As I have already said, I am very proud that we gave people this opportunity and delivered on that clear commitment. We have arrived at a point that, as I was trying to suggest earlier, has been a long time coming. This is not about party unity, this is about giving people the opportunity to decide on something very significant. The people have decided they want change, and we have to respect that. It is not what I campaigned for, but they have decided. We are going to implement that decision, which is the right thing for us to concentrate on now.
My Lords, would the Leader of the House agree that the timing of the triggering of Article 50 ought to be a relatively trivial and technical decision? It is entirely reasonable for the Government to say that they do not wish to do it until there is a new Prime Minister and a new Government in place. That is a reasonable point of view. But it would not be reasonable to start using it as a negotiating card and turning it into a bone of contention with those with whom we are going to have to negotiate constructively if we are to get a good outcome. I hope that she can agree that that is indeed the best way forward. The noble and learned Lord and the noble Lord, Lord Mandelson, raised the matter of the appointment of a British commissioner. The noble Baroness says that she will come back on that when she has an answer, but could she not register that it would be completely improper, under the terms of the treaty, for there to be no British commissioner for a period that could exceed two years? That really is not tolerable, either for us or for the Commission itself.
On the noble Lord’s first point, as I have said, it was a very clear decision by the Prime Minister that Article 50 should be triggered by his successor at the point at which they are clear on the kind of relationship that we are seeking with Europe. It has been reassuring that many other European leaders and senior figures within the European Union have acknowledged that we are right to consider this properly before we trigger Article 50.
My Lords, does the Minister not agree that Parliament is the constitutional sovereign power of the United Kingdom and that, consequently, referenda should be seen as advisory in nature? The nations of the United Kingdom did not vote in the same way in support of leaving. The United Kingdom Government have the presidency of the EU in the second half of next year and could therefore put forward procedures for reconsidering the structure of the European Union then.
My Lords, I gently point out that this is an unelected House and that the people have spoken. Instead of identifying threats, we should cheer up and identify the huge opportunities that are now available for Britain outside the European Union. I welcome the Prime Minister’s Statement and, in particular, the express promise to work with the devolved Administrations. In meetings with the First Minister of Scotland, can it be gently pointed out to her that she campaigned across the United Kingdom on a question that was decided by the United Kingdom? There was no Scottish question on the ballot paper; it was a United Kingdom question. As such, she and everyone in the United Kingdom should now do everything they can to advance Britain’s interests and not undermine them by seeking to do side deals in Brussels, which will make it more difficult for us to get the best deal for the whole of the United Kingdom.
My noble friend is right that this decision applies to the United Kingdom as a whole. I very much note the points that he makes but, as I have already stressed, in our involvement with the devolved Parliament and Assemblies we will seek to make sure that the outcome benefits everybody in all parts of the United Kingdom. We will engage in a way that is not just constructive but very positive, because that will be in the interests of the Scottish people.
On that very point about the people of Scotland and the way that they voted last week, it is important for your Lordships’ House to note that there was not just a small difference between the vote in Scotland and the vote in England and Wales; every single local authority area in Scotland voted overwhelmingly to remain in the European Union. That creates a significant difference between Scotland and England and Wales—not Northern Ireland, obviously—which has to be reflected in the discussions over the next two years. I welcome the fact that the First Minister of Scotland showed leadership over the weekend and said clearly that her number one objective in these discussions will be not to seek independence for Scotland or a second independence referendum but to secure Scotland’s relationship with the rest of the European Union. I should like an assurance from the Government that they will contribute positively to that discussion over the coming months and ensure that the First Minister has a role in the discussions in Brussels, not just in Whitehall.
I cannot give the noble Lord the assurance that he is looking for because it is just too early to be able to provide that kind of information. I understand the point that he makes about the difference of view in Scotland but the same can be said for the people of London; it was not just Scotland where a majority voted to remain. I come back to what I have already said: we are now seeking to implement a decision that was taken as the United Kingdom, and that is where we must focus our attention. However, that does not in any way diminish the Prime Minister’s commitment to involve all parts of the United Kingdom in the process—and that includes the London mayor and the London Assembly.
My Lords, I am afraid that I do not find myself in sympathy with the views expressed by the noble Lord, Lord Lawson; I find myself rather closer to the point of view expressed by the noble Lord, Lord Butler. Does the noble Baroness the Leader of the House not agree that those in the leave campaign won the referendum on an essentially fraudulent prospectus? They said that we could continue to trade with the EU on very similar terms without having to accept freedom of movement. They said that there would be no adverse economic consequences, but we are already beginning to see them. They made completely unrealistic promises as to what could be done with the resources saved from our EU contribution—and, most glaringly of all, with breath-taking cynicism and within hours of victory they were maintaining that they never said that Brexit would enable them to reduce the level of immigration.
Moreover, it is clear that the leaders of the leave campaign have absolutely no plan as to the way forward. In these circumstances, and notwithstanding claims of democracy, does the noble Baroness not agree that the legitimacy of the referendum result is substantially undermined and that there is a very strong case for a second referendum on a more precisely focused question—something that nearly 4 million people have already signed a petition in support of?
I am afraid that I do not agree with the noble Lord. I am not going to comment on the different campaign teams and their campaigns. In my view, the people who voted to leave the European Union last Thursday knew that they wanted to leave the European Union. Their decision may have been motivated by a range of different things, but suggesting that they did not know what they wanted and that we should therefore somehow now seek another referendum to ask them, “Are you sure?”, is not the right way for us to go from here. I think that the right thing for us to do now is to focus on implementing that decision and to do so in a way that brings success and opportunity to the people of this country. We should make sure that it delivers a future that is good for everybody in this country.
My Lords, we are a parliamentary democracy in which Parliament is meant to be supreme. The leave campaign focused on restoring the powers of Parliament as one of its aims. Can the Leader of the House tell the House whether, before triggering Article 50 of the treaty, the Government will seek the approval of both Houses? If not, what do the Government envisage to be the role of Parliament? Will they rely purely on prerogative powers like a medieval king or will they involve our supreme legislature before taking the decision?
My Lords, does my noble friend accept that an enormous responsibility lies on the shoulders of the members of the Conservative Party in this country? They will be choosing not only a leader of the party but effectively a Prime Minister. Therefore, is it not crucial that they take into account the qualities of those who may be on offer, bearing in mind that we need a steadying hand on the tiller and someone who has the gift of statesmanship, and that the gifts of demagogy are not necessarily the same as the attributes of statesmanship?
My Lords, is my noble friend aware that on Friday morning I woke not only with a song in my heart but with the words of the “Magnificat”—
“He hath put down the mighty from their seat and hath exalted the humble and the meek”—
in my heart, as we had won the referendum? Can she tell me whether the British Commissioner, whoever may be appointed, is allowed by the terms of his oath of office to pursue the British interest as opposed to the interest of the EU? I thought that the oath was very clear on that matter. Am I wrong about that?
My Lords, as my noble friend the Chief Whip indicated at the start of this Statement, while we must respect the fact that there are a number of noble Lords who are down to speak at Second Reading of the Investigatory Powers Bill, so I do not want us to go on for too long, I can see that there are still at least four noble Lords seeking to ask a question. I am very happy, even though the clock will go beyond 40 minutes, to finish answering the questions of those noble Lords who have already indicated that they wish to ask one.
My Lords, I am deeply grateful. Will the noble Baroness give an undertaking to the effect that before even contemplating activating the machinery of Article 50, the Government will first of all take into account the solemn voice of the two legislatures, and that failing to do so would be to abrogate and render nugatory the whole concept of parliamentary sovereignty? It is extremely sad and ironic that in the light of the European Union Act 2011 it is necessary for there to be a referendum and a parliamentary resolution before there can be any acquiescence to change. Indeed, it would be very strange that an act so existential as leaving the Union could take place without a parliamentary decision.
My Lords, our constitutional role in this House is to scrutinise legislation and say to those in power, “Pause, reflect and vote again”. It is not a popular role, and I know that I will not be popular saying it here today. None the less, the House of Lords should ask those with power—in this case, the British people—to do the same thing that we ask the Government to do all the time: pause, reflect and vote again. They can vote the same way if they want—the Government do that all the time, don’t they?—but let us bear in mind that the British people were asked if they wanted the UK to remain or leave the EU. They were not asked if they wanted to break up the UK. Given that that is just one of the disastrous likely consequences, it is only fair that they should have that opportunity. In light of the petition, will the Government consider setting up a Joint Committee with the Commons simply to weigh the arguments for and against a second referendum, which may be at the end of the two-year process? If the answer is no, what happens if the online petition gets more than 17 million British signatories?
The noble Baroness raises an interesting point. I really do not have much to add to what I have already said. On the contribution of this House to our deliberations, I have set out how that should at least start. The people’s decision is clear on this matter.
My Lords, the noble Lord, Lord Reid of Cardowan, said that we are where we are. He is quite right. Where we are is a country divided socially, economically and politically, where the very future of the United Kingdom is now at stake and with at least two years of economic uncertainty ahead. Is it not a bit rich that those who are responsible for creating these circumstances, apart from congratulating themselves, seem to want to take no involvement or interest in implementing the very decision for which they are responsible?
I am not sure that is quite how I would consider the situation. Clearly what has happened is that this Government believed that the UK should remain in the European Union, and we campaigned for Britain to do so. A decision has been made by the people to leave. The Prime Minister has accepted that decision and said that it has to be for his successor to implement it. That will be the way that we move from here.
My Lords, the decision that was taken last week has been widely described as democratic. However, it is not what we in this country have understood to be democracy—at any rate, since the time of Edmund Burke. We believe in a representative system of parliamentary democracy where Members of Parliament are elected as representatives, not as delegates, and therefore can take into account all the arguments and not be misled by the kind of misleading propaganda and lies that we have had in this referendum, which has shown very clearly what the disadvantages of a referendum are.
The fundamental problem with a referendum is that it is the dictatorship of the majority—in this case, a very small majority. It is therefore crucial now that our parliamentary system, in the light of what has been said but taking into account the divisions that are so apparent in society, does all that it can to ensure that the implementation of the result of the referendum takes into account the whole range of opinion across the electorate, not simply of those who happen, by a really rather small majority, to have won the debate.
My noble friend is right that in moving from here it will be essential that we do so in a way that unites all parts of the country, particularly those who voted a different way.
There is a point about parliamentary democracy that I have not already made: as I have said, this was in our manifesto. We passed an Act of Parliament to bring forward the referendum, and that piece of legislation went through both Houses. We debated the terms of the referendum. This Parliament decided those terms and they were the ones that applied. We must remember that. We have all contributed to the way in which the rules were set and the way that the people of this country then exercised their democratic right to vote in the referendum.
My Lords, surely the point well made by the noble Lord, Lord Low, about a dishonest prospectus cannot be honestly contested on the facts. The Daily Telegraph itself wrote this morning:
“The Leave campaign misled the nation about the full risks of Brexit and what can be achieved without collateral damage to the economy and the unity of”,
the UK. In those circumstances, and very much following on from what the noble Lord, Lord Higgins, just said, is it not the responsibility of Parliament to ensure that before we pass a line of legislation on this matter, we assure ourselves that the Government have plans in place that are viable, coherent and genuinely in the national interest and do not have any hidden costs attached to them?
My Lords, I was never in favour of joining the Common Market, and I have always wished to withdraw from the European Union so that we could govern ourselves. I rejoice at the instruction that the people have given us. If those people who are calling for a second referendum had won the existing one, I wonder if they would still be calling for another referendum. I very much doubt it.
I want to ask the noble Baroness a couple of questions. First, is it not necessary first of all to repeal the European Communities Act 1972, as amended? Secondly, if we remain in the single market, will we not still be obliged to agree to free movement of people and will not all of British industry be subject to the rules and laws of the single market?
As for as the legal process for exiting the European Union, triggering Article 50 is the only legal process for us to follow. It will clearly be led by another Prime Minister, but I am sure that we as a nation will want to do it responsibly. The noble Lord asks about the repeal of the 1972 Act. That would not occur at this stage, because it would be contrary to our wanting to exit from the European Union in a responsible manner. As for his question about the single market, yes, my understanding is that if we were to remain in the single market, it would require free movement of people.
My Lords, I have been trying to get on my feet for a few years. As we conclude on the Statement today, as my noble friend the Leader noted, every major elected politician in the other place has said that, while they may not like the result, it must be respected and it must be implemented. Will she therefore caution some of my noble friends and all noble Lords that if we wish to unite the nation after this, this unelected House must not seek to thwart the will of the people by going into endless negotiations on or amendments to the minutiae of any legislation, which would be seen as a direct attempt to sabotage the will of the people?
My Lords, do the Government agree that it would help to calm the markets and help our informal and later formal negotiations if our negotiators show now and clearly that they understand the difference between the single market and free trade? They should explain that we are in an irresistible position to maintain our free trade, which is what our businesses really need, because there are more than 2 million jobs, principally in Germany and France, making and selling things to us than we have making and selling things to them. That applies particularly to the motor trade, where we have been threatened with a 10% tariff, but for every car we sell them they sell us 2.4 cars and they own 64% of our domestic market. Can we make the distinction between the single market and free trade and decide that it is free trade we want to keep, so that it is the French and German industries that will keep their politicians in Brussels and elsewhere under control in this vital area?
The noble Lord is taking us into a stage which we are not currently at in asking about what we might want to negotiate, so that is something on which I cannot offer any detailed comment at this time.
I am very grateful to everybody, and I think we are about to move on to the next business.
Investigatory Powers Bill
Second Reading (Continued)
My Lords, I return to the subject of the Investigatory Powers Bill. I support the Bill, which I believe to be strongly in the national interest. The threats against which we need this legal base for our collective protection are, sadly, of indefinite duration and, as other noble Lords have said, the situation is getting more complex, difficult and dangerous and we need the protection of the law behind us. Having said that, at the same time it is very welcome that the legislation will include further protections and safeguards that do not exist at present. That gives reassurance and helps produce the balance that we need in legislation for the future. Finally, it is important to remember that we need to get the Bill through as we have a statute on the books only until the end of the year.
The current Bill is the product of pre-legislative consultation and scrutiny in the other place, with plenty of debate and amendment. It has undoubtedly been improved for that. We should take notice of the fact that a great deal of work has been done there. It is, I think, well balanced and been made more proportionate in the course of that debate and a lot of progress has been made on contentious issues. While the House should give it the serious scrutiny that it deserves, which is one of our jobs, I hope that we can refrain from reopening issues where the other place has already done a good job. We do not need a degree of perfectionism that simply rewrites legislation in a slightly different way when the result we have already attained is good.
The Government have accepted an overarching statement of the privacy protections. That is very important and in the Bill. They have also either given or promised protections for sensitive data sources, Members of Parliament, journalistic sources, legally privileged materials and trade union activities. All of those add to the credibility of the Bill and clearly delineate where the powers apply and where exceptions have to be treated with great care.
There is also the increase in the double lock on forms of warrant, and I believe that any Home Secretary would be putting him or herself in considerable jeopardy were he or she to try to ignore the factual review of the judicial commissioner, so one really cannot argue that the power of the judicial commissioner that has already been put in place is inadequate.
My noble friend has indicated that more government amendments will be introduced as a result of debate in the other place, and our debates here will be made a good deal easier by that welcome development. We should pay tribute to the quality of debate in the other House that has led us to be able to advance the Bill in this House at an early stage.
Many noble Lords have rightly said that the Bill mostly brings together existing powers in one place, but there are some new ones, and one of them is access to internet connection records—so-called ICRs—including, as others have said, in relation to VoIP. The Government describe that power as crucial and I very strongly agree. It is necessary for us to have this technical capability. It is also an example of where previous legislation on the statute book was out of date because of technical developments. The point made by other noble Lords about the need to have legislation that enables us to deal with future technical development is important. Future-proofing is difficult; it is not easily done; but we should not pass legislation that prevents us coping with new situations. Taking a sensible stance on future-proofing is important.
I am sure that we will debate the ICR legislation carefully, and it is right that we should do so. There is the question of the authorisation regime and whether it is tight enough, and we need to know exactly what data can legitimately be regarded as forming an ICR. These are all issues that we need to look at. Among other things, service providers need to know precisely what they have to store. An important point is also to have clarity in the Bill itself over what constitutes third-party data.
I have had plenty of lobbying letters, as I am sure other noble Lords have, which raise some important issues that we will want to look at. Some of the points I have had have certainly been overegged, but in the letters I have had the service providers have generally taken a very intelligent and constructive interest in the Bill. Most of them say they welcome it, and very often they propose quite sensible ideas. Quite a lot of it focuses on whether it is right and adequate simply to have some of these safeguards spelt out in a code of practice or whether they should be in the Bill. In general I tend towards wanting to put the safeguards in the Bill.
I will say just a word about bulk powers. There is widespread questioning of why the British Government consider these powers so essential when other Governments do not think them necessary. We need to look at that carefully. My noble friend Lord King gave us some of the reasons why the Government may well be right. One does not have to believe in the erroneous assertion that collection of bulk material constitutes bulk surveillance—it does not. On the other hand, we need to be cautious about collecting a vast amount of data, which covers large numbers of individuals who are not necessarily involved. However, we do not live in a world where prior intelligence is so good that it is obvious that we can totally dispense with bulk collection in favour of targeted collection. The point is obvious. For me, the question is much more about how many categories of bulk collection are justified in the national interest. The Government have provided an operational case, and I look forward to the view and the assessment that Mr David Anderson will put forward in his forthcoming report, which will be very important to the House.
Finally, I will address something that has not been mentioned in the debate so far, which is the question of information that is outside the jurisdiction of the United Kingdom but which the agencies may need. It is quite possible—in fact, I would say that it was quite probable—that quite a lot of cases will involve data located outside the UK jurisdiction. Once the Bill has been agreed, it will give a considerable degree of confidence in UK standards of authorisation, transparency and oversight of data collection, and will lay a good base for international agreements with like-minded Governments, which would permit UK requests to be directly made to companies rather than through Governments in different jurisdictions. That will be an advance on having to rely on mutual legal assistance agreements. On this issue, I hope that we will build in the Bill a base for the international agreements that have been proposed by Sir Nigel Sheinwald as a way forward, as that will be a constructive and rapid way forward to getting the kind of information the agencies need. It is no good the agencies asking for something which turns up three months later after a legal haggle instead of being able to get at it in a timely way.
This is important legislation, and I hope that, notwithstanding the turbulence in our national politics that we have just been discussing, we will be able to apply ourselves and get it on to the statute book in good time.
My Lords, I first congratulate the many people who have worked so hard to ensure that the Bill is nearly fit for purpose. Interception of communications and civil liberty are uncomfortable bedfellows but we are within a hair’s breadth of a sensible compromise. Indeed, I believe—unlike the noble Lord, Lord Strasburger—that this will be a benchmark for security legislation globally. Certainly, on talking with my old counterparts in a number of countries, I found that they also feel the same.
We live in a more dangerous world than at any time in my 50 years on the active list, notwithstanding the Cold War. It is more unstable and more dangerous. We must not forget that all the numerous terrorist plots thwarted in the UK over the last 10 years—the seven referred to by the noble Lord, Lord King, were only last year, and there were 10 while I was a Minister, so the number is a lot greater than that—were initially discovered by intercept. Intercept has kept our people safe. We clearly cannot allow terrorists, such as Daesh, serious organised crime syndicates, murderers, paedophiles and so on to exchange information, plan and operate, safe in the knowledge that law enforcement is unable to monitor or get at their activities.
I also hope—as was mentioned by the noble Lord, Lord Paddick, and the noble Lord, Lord King—that the politically loaded and seriously misleading phrase “snoopers’ charter” has been removed from our lexicon. I pay tribute to those of our security services and agencies who work tirelessly to protect our people. I have worked cheek by jowl with them over many years, and they are basically ordinary British men and women doing an extraordinary job. They are not some Stalinist or Gestapo group intent on oppressing our people. My only complaint is that too many of those at GCHQ are Guardian readers and seem to dress rather casually. Too many people in the civil liberties field see them as fascist bogeymen: they are not.
The lead-up to this Bill has been tortuous but it is needed urgently, and there was an overwhelming requirement to replace the outdated legislation and ensure the correct safeguards for our civil liberties.
What is absolutely clear is that the Bill is certainly not part of a “dangerously rushed parliamentary process”, which is what Amnesty International has said. It is the result of highly detailed scrutiny, over a very prolonged period—I suggest that it has taken longer than two years in its various guises. That was not least as a result, as was mentioned by the Minister, of the report by David Anderson, A Question of Trust; the detailed work of the Joint Committee on the Draft Investigatory Powers Bill; the independent surveillance review from RUSI; the ISC study; the work of the Science and Technology Committee; and so on.
The Bill has been pored over in the other place and the Government are to be congratulated on their willingness to accept so many necessary amendments. There are still a number of areas where the Government have promised changes, and we need to wait and see what they come up with. Those include, as has been mentioned, issues that relate to protecting journalists and source confidentiality, and, as the noble Lord, Lord Pannick, mentioned, lawyer-client confidentiality.
The web is transnational and knows no boundaries. Therefore, I ask the Minister whether we are moving towards a more predictable, transparent, usable and coherent legal framework for providers overseas, as was endorsed by David Anderson QC, the Independent Reviewer of Terrorism Legislation; by Sir Stanley Burnton, the Interception Commissioner; and by Nigel Sheinwald in the study that the Prime Minister asked him to do.
I also have concerns about clarity over compliance costs, where I believe businesses will be unable to make the necessary financial planning for storing internet connection records.
From all my experience in this area, I know that equipment interference is absolutely crucial to law enforcement and our security. We need to be very wary and very careful of constraining our agencies too much in this area.
I have concerns also about authorisation and the double lock in certain circumstances, particularly political issues to do with some sort of monitoring overseas. I will be interested to see how that develops over the next few months as we debate this.
Lastly, I know from personal experience how crucial to our people’s safety bulk collection is, primarily for terrorist purposes. I await David Anderson’s review of all bulk powers with great interest, but hope that he will not try to constrain that too much. It is not about prying on all those data; it is about getting the key little points that enable us to get after the people who wish to do us harm and kill us.
We still have a way to go, but I look forward to hearing the debate in this Chamber over the next few months. We have a lot of people who know a lot about these issues. My initial impression is that this is a timely, valuable and necessary piece of legislation, which gives us the powers we need. It is infinitely better than the flawed legislation that it is replacing.
I, too, like the noble Lord, Lord West of Spithead, and others, welcome this Bill as a significant step towards providing a much-needed clear and transparent basis for the investigatory powers used by the security and intelligence services and law enforcement authorities. I also welcome the safeguards that it contains, some of which need to be strengthened. We must await the expert assistance of David Anderson’s report on the key issue of bulk powers. David Anderson is about the last person left in this country that I really trust on some of these issues.
I am grateful for briefing from the Law Societies of all four corners of the UK, the Bar Council of England and Wales, the Chartered Institute of Legal Executives and the NGOs, Liberty and Justice. I shall talk mainly about legal professional privilege, an issue raised some years ago by my noble friend Lady Hamwee.
It is essential that there is a powerful independent body able to ensure that the vital powers of the state and its agents are not misused. David Anderson QC, the wise and manifestly independent reviewer of terrorism, wrote in his report, A Question of Trust:
“Trust in powerful institutions depends not only on those institutions behaving themselves (though that is an essential prerequisite), but on there being mechanisms to verify that they have done so. Such mechanisms are particularly challenging to achieve in the national security field, where potential conflicts between state power and civil liberties are acute, suspicion rife and yet information tightly rationed”.
The Government’s simplification of the oversight system in the Investigatory Powers Commission is welcome. The commission should have the resources needed to improve transparency, efficiency and public trust in the vital work of the security and intelligence services. The commission needs to be properly funded and have the services of an amicus on difficult warrant applications. It is in the interests of public trust and confidence that the judicial commissioners are appointed by the Prime Minister on the recommendation of an independent appointments committee established by the Commissioner for Public Appointments. I hope that the Minister, who, I am delighted to mention, is a member of my chambers, as is the noble Lord, Lord Pannick—it is a curious, triangular situation—will be able to reply positively to these suggestions.
I turn to legal professional privilege, which has been spoken about powerfully by the noble Lords, Lord Rosser, Lord Pannick and Lord Paddick. It is a constitutional right inherent in the rule of law, which protects the individual’s right to consult a legal adviser in absolute confidence, knowing there is no risk that information will become known to a third party without the client’s clear authority. It is the right to speak safely with a lawyer, and it has been protected by our common law—and I dare say in Scotland, too—since at least the 16th century.
The mere prospect of surveillance creates the risk of a chilling effect on openness of communications with a lawyer. The accuracy of legal advice is an immediate and obvious casualty, but so is the rule of law. Without being able to discuss candidly, defending lawyers might not know about important defences open to a client. Courts may adjudicate cases on a misleading or incomplete basis. When people cannot speak safely with their lawyers, it is not only individual privacy that is affected but the administration of justice as a whole.
There is a danger of miscarriages of justice for individuals in litigation with the state. The Government may respond that there will be no unfair advantage when they monitor individuals’ meetings with lawyers, because they can maintain a Chinese wall between spies and prosecutors. But that was not the finding of the Court of Appeal in 2011, when it struck down the convictions of 20 environmental protestors whose conversations with a lawyer had been monitored by an undercover police officer, Mark Kennedy. Nor was it the finding of the Investigatory Powers Tribunal in April last year, when it ordered GCHQ to destroy illegally intercepted communications between a Libyan rendition victim, Abdel Belhaj, and his lawyer. In mishandling those data, GCHQ rightly admitted that it had broken its own rules and had broken the law.
Prohibiting the targeting of legally privileged communications does not impair the ability to bring dishonest lawyers to justice. Legal privilege attaches only to communications between lawyer and client genuinely aimed at obtaining legal advice. If the consultation is a cover for a conversation whose true aim is to further a criminal purpose, it is not protected. The Bill should forbid deliberately targeting legally privileged communications.
This may be an unnecessary academic, technical point, but I still think it worth mentioning. Reference has been made to an iniquity exception, but it is more accurately described as a constraint on the scope of the privilege. For example, Section 10(2) of the Police and Criminal Evidence Act 1984 states:
“Items held with the intention of furthering a criminal purpose are not items subject to legal privilege”.
That, I think, is the correct approach.
When compelling evidence suggests that the privilege is being abused, a judicial commissioner should be required to authorise covert information-gathering. There should be no grant or modification of a warrant likely to capture privileged communication unless there is prior judicial approval. This protection is written into the Bill in respect of journalists’ sources—see Clause 73. Legal professional privilege needs equal protection. There is also a need for safeguards to ensure that any legally privileged communications intercepted accidentally or incidentally are immediately destroyed.
Like the Joint Committee on Human Rights, I recognise the value of thematic warrants, but the Bill’s provisions concerning the possible subject matter of targeted interception and targeted equipment interference warrants are too broadly drafted. As the JCHR recommends—and I agree with it—the Bill should be amended to circumscribe the possible subject matter of warrants in the way recommended by the Independent Reviewer of Terrorism Legislation. That will ensure that the description in the warrant is sufficiently specific to enable the person unknown, but who is the subject of it, to be identified and to prevent the possibility of large numbers of people being potentially within the scope of a vaguely worded warrant. One is reminded, for those who are interested in history, of the kind of Entick v Carrington problems that were raised in the 18th century.
The JCHR has said that,
“the power to make major modifications to warrants for targeted interception, without judicial approval, is so wide as to give rise to real concern that the requirement of judicial authorisation can be circumvented, thereby undermining that important safeguard against arbitrariness”.
I agree with the JCHR that major modifications to warrants should require approval by a judicial commissioner.
The independent reviewer has said that he knows of no other country in which the Secretary of State holds responsibility for authorising police warrants; judicial authorisation is sufficient. The Home Secretary signs some 1,600 warrants each year, not including national security warrants. If the requirement of her direct approval for police warrants were removed from the Bill, she would have 70% fewer warrants to approve, giving her more time to focus on vital national security interests. That makes good sense.
As I said at the outset, I welcome the Bill and hope that it will be significantly improved, as suggested by my noble friend Lord Paddick and others in the debate. I look forward to the Minister’s response.
My Lords, it is a great pleasure to follow the noble Lord, Lord Lester of Herne Hill. It brings back the arguments we used to have about the powers of the intelligence agencies on dog walks around Brockwell Park—which, incidentally, is not my personal estate. He was then counsel in the Spycatcher case; I was about to be Cabinet Secretary. He did not trust me then and since he says now that David Anderson is the only person he does trust, that situation clearly has not changed.
When I last spoke in the House, on the Motion of the Leader of the Opposition about the powers of Parliament and of this House, I was critical of much of the legislation introduced into Parliament. I do not withdraw that but I do not make those criticisms of this Bill. On the contrary, like others who have spoken, I commend the way in which the Government have brought forward the Bill and the way in which it was debated and scrutinised in the other place.
The Government published a draft of this Bill in the autumn. Despite the fact that preparation of it had been informed by authoritative reports from the Independent Reviewer of Terrorism Legislation, the Intelligence and Security Committee of Parliament and RUSI, the Government produced it when it was, frankly, still in the course of preparation. It was just being baked. But that was a thoroughly good thing to do because it could then be considered by a joint pre-legislative committee—on which I had the privilege of serving, under the noble Lord, Lord Murphy—by the Intelligence and Security Committee and by the House of Commons Science and Technology Committee. That enabled a large number of changes to be made and improvements to be introduced before the Bill was brought before Parliament. At the same time, the Government undertook widespread consultation with interested parties outside Parliament, including the communications service providers, which were able to give evidence to the parliamentary committees. So there was a very transparent method of preparing this Bill, which was necessary in view of its complexity.
I have read in full the debates in Committee, on Report and at Third Reading in another place. Without being patronising, I think that they show the House of Commons at its best. There were no less than 16 Committee hearings. The Government responded constructively to the Opposition and, as has been said, introduced many amendments to respond to their points. As a result, it is remarkable that the Official Opposition did not vote against the Government in a single Division.
Of course, many matters were left over for this House, and I will come on to those, but I would also like to say—seeing as I am to be followed by the noble Marquess, Lord Lothian, who is a member of the Intelligence and Security Committee—that the scrutiny has shown the strength of the mechanisms that Parliament has for considering issues of this sort. In addition to the specialist committees that I have referred to, the Intelligence and Security Committee is able to operate within the ring of secrecy around these highly classified issues, and has shown itself capable of reassuring Parliament in some areas but also of proposing additional safeguards in other areas where oversight of the intelligence agencies needs reinforcement. That has been a very valuable contribution.
None the less, as others have said, there is much work for your Lordships’ House to do. There are important issues in the Bill that still need to be determined. Part of the Government’s response to criticisms raised in the other place was to promise further consideration in your Lordships’ House. That covered such important issues as protection of legal privilege, on which the noble Lord, Lord Lester of Herne Hill, and other noble Lords spoke; further protection of journalistic freedom; the definition of crimes for which access to communications data is justified; and the whole issue of the operational case for bulk powers. On top of that, although clearly the Home Office has made much progress in discussions with communications providers about the definition of internet connection records, questions remain about both the effectiveness of those and the cost of collecting them. We must remember that hanging over the whole issue is the case brought in the European court by David Davis MP and Tom Watson MP about the retention of communications data, in which there may well be further developments during the passage of the Bill.
The intention is that this House should start Committee before the Summer Recess but not complete it. That makes sense because by the end of the Recess we can expect to have David Anderson’s report on the operational case for bulk powers, which will be central to considering Parts 6 and 7 of the Bill. This is a very difficult but very important Bill. I hope that this House can maintain the very thorough but also very co-operative and constructive tone of the scrutiny that has taken place on it so far.
My Lords, I am sure the whole House is relieved to hear of this new-found friendship between their two noble Lordships. It is always a pleasure to follow the noble Lord, Lord Butler of Brockwell. He and I served together on the Intelligence and Security Committee in the last Parliament.
I am particularly pleased to take part in this Second Reading debate today, not least because the ISC—on which, along with the noble Lord, Lord Janvrin, I have the honour to represent your Lordships’ House—has over the past three years published two reports on investigatory powers. At the end of the last Parliament, the Intelligence and Security Committee, including the noble Lords, Lord Butler of Brockwell and Lord Campbell of Pittenweem, produced a substantial report entitled Privacy and Security: A Modern and Transparent Legal Framework. It covered in detail the gamut of the intrusive powers available to our security and intelligence agencies, and concluded that existing legislation was “unnecessarily complicated”, outdated and lacked transparency. It needed to be replaced by a modern, transparent legal framework fit for the internet age. Since that report, as well as the ones mentioned by the noble Lord, Lord Butler of Brockwell, from the Independent Reviewer of Terrorism Legislation and RUSI, the Government introduced the draft Investigatory Powers Bill. This was the subject of the ISC’s second report, which made many specific recommendations towards improving the Bill, especially in those areas relating to certain investigatory powers where the legal authorisations were opaque and the safeguards, in our view, insufficient.
This Bill is a significant step forward in clarity, transparency and enhanced safeguards. For the first time, it provides an explicit statutory footing and authorisation procedure for bulk personal datasets, equipment interference and bulk acquisition of communications data. Where authorisations and procedures already existed under RIPA, these have now, thankfully, been set out more clearly in this Bill. They will also now, under the Bill, be subject to the additional protection of judicial commissioner approval.
I readily acknowledge that the Government have engaged constructively with the ISC throughout the passage of this Bill. Several of our recommendations on the draft Bill were incorporated during its passage in the other place. We have also, helpfully and reassuringly, been provided with additional classified evidence regarding other matters raised in our report, most notably on the use of bulk equipment interference and the need for economic well-being as a ground for interception.
On the crucial operational purposes, which regulate the examination of material collected using bulk powers, we suggested that there was insufficient detail in the Bill as to how they would be regulated and managed. The Government have now committed themselves to include further detail on this which I look forward to seeing during the following stages of the Bill.
On bulk personal datasets, the Government have confirmed that they will introduce amendments adding extra safeguards where these contain sensitive data. Already, following changes in the other place, there are now welcome restrictions on the use of powers to investigate legitimate trade union activities and greater restrictions on bulk personal datasets containing medical records. These are welcome.
However, we continue to press for additional restrictions on the use of these powers in relation to sensitive personal data. I hope that we will in due course see government amendments to implement these additional protections.
Turning to thematic interception and equipment interference warrants which concerned the noble Lord, Lord Lester of Herne Hill, they also concern us in that we feel they can be drawn very widely, potentially catching a large number of people in a single warrant. These concerns have still not been completely met by the Government but the Home Secretary has told my committee that she is considering what more can be done to provide further assurance about how these thematic warrants will operate. Again, we look forward to seeing that.
The ISC still has concerns about provisions for criminal offences in relation to the misuse of powers. The Bill refers to already existing offences apparently necessary to avoid a confusing overlap. However, for the misuse of certain powers, the only criminal offence would be misconduct in public office, which, in my view certainly and in the view of others, is an old common law offence which prosecutors are often reluctant to pursue. For other abuses, the only criminal penalties would be fines under the Data Protection Act and the Wireless Telegraphy Act, almost certainly not sufficient for the most egregious cases of misuse.
This Bill has been introduced to this House in clearly better shape than when it was originally published, and for that I congratulate the Government. However, there are further improvements which can and should be made, hopefully by government amendments at the forthcoming stages of the consideration of the Bill.
At stake is the difficult balance between an individual’s right to privacy and society’s need for national security. There will, I fear, never be total consensus on that balance. While the ISC has consistently concluded that the agencies’ operational techniques are justified, we have equally been insistent on the right constraints being placed on their use. I hope that with the further revision to the Bill which will take place in this House, we will get these constraints right, without undermining the agencies’ vital work to keep us safe. That is the balance we seek to achieve. This Bill has the potential to achieve it.
My Lords, it is a pleasure to follow the noble Marquess. His political path and mine have crossed on a number of occasions over the years, particularly when I had the great privilege of chairing the ISC, of which he was then a member—and still is, of course.
A number of noble Lords have said during the course of the debate—and will continue so to say—that we live in a much more dangerous world, that technologies have developed enormously over the last number of years and, of course, that the security services need new tools to deal with the new world. I pay tribute to the security services in all that they do.
Another theme that has emerged over the last number of hours, and will continue so to do, is the balance that we must have between, on the one hand, the security of the country and, on the other hand, the liberty of the citizen. Certainly I recall, when I was the Northern Ireland Secretary, that every time I had to sign a warrant for intercept—I had to do so many times—I realised that I was depriving someone of their liberty. Sometimes they needed to be deprived of their liberty, but it was in my mind all the time that I was doing a serious thing.
It is certainly the case that since the draft Bill, as it then was, was introduced in November of last year there have been a great number of changes to it. As chairman of the Joint Committee of both Houses on the Bill, I pay tribute to those Members of this House—some of whom have already spoken and some of whom will be speaking in this debate—and the other place who took part in the deliberations of the Joint Committee. I also pay tribute to Mr Duncan Sagar and his parliamentary team, who were absolutely first class in the advice that they gave us, and to the two special advisers, Martin Hoskins and Professor Peter Sommer.
It has been mentioned that some people think the Bill did not receive or is not receiving sufficient scrutiny. I reject that. The Joint Committee worked for over two and a half months, sometimes meeting three times a week. We received 1,500 pages of written evidence and interviewed 59 witnesses. At the end of all that, the committee made 87 specific recommendations to government to improve the draft Bill, the vast number of which were agreed by the Government. The recommendations included the need for codes of practice on internet connection records, on equipment interference and on bulk personal databases; a further role for the ISC; urgent warrants to be reviewed not after five but after two days; the need for the Government to justify bulk powers; and, perhaps most interestingly, that at the end of five years both Houses of Parliament would review how the legislation has worked.
After scrutiny by the Joint Committee the Bill went to the other place, and my noble friend Lord Rosser and others mentioned the changes that were made to it in the House of Commons. When I started my life as a politician a million years ago, changes to Bills were very rare. One would go to a standing committee for up to three months and it was likely one or two amendments would be accepted. I am glad to say that the Government have not taken that attitude with regard to this Bill. I pay tribute to Sir Keir Starmer, who led for the Opposition in the House of Commons, and to Mr John Hayes, the Minister for Security, both of whom worked well together in the House of Commons both in Committee and on Report.
There were substantial changes made to the Bill, as we have already heard, on issues such as legitimate trade union activities, access to medical records, how privacy should be built into the Bill as a substantial issue, and the independent review into bulk powers under David Anderson QC. All those necessary changes were made on the Floor of the House of Commons or in Committee as a consequence of both Front Benches sensibly talking to each other.
Now, further work has to be done. I think that your Lordships’ House is the place where detailed scrutiny can take place because of the expertise, the experience and the background of many of your Lordships who are not only speaking today but undoubtedly will speak in Committee and at other stages of the Bill.
We still need to look at some issues. The professions have been mentioned already by a number of your Lordships, with reference made to lawyers and to journalists. There is still work to be done on that. We look forward to David Anderson’s review, because that will give this House the opportunity to see what he says and to look further into the question of warrants. Thematic warrants, referred to by the noble Marquess, are important, too.
So there is plenty of work to be done on the Bill, but it is a Bill that is necessary for the security of our people. It needs to strike that essential balance between the liberty of the citizen and the security of the country. It is a much better Bill today than when it was introduced in November last year and I look forward to taking part in the deliberations before and after the Recess.
My Lords, one of the most well-worm clichés in politics is that the devil is in the detail. On this occasion, I venture to suggest that it is more than apposite, because I cannot remember legislation in my time either in the other place or here which contained so many detailed provisions. I have the misfortune to disagree with several of my noble friends on these details, but I happen to believe that the fundamental principles which underlie the Bill—of necessity, proportionality and legality—are ones that the whole House would readily accept.
I was struck by a statement made by the Home Secretary at Third Reading in the other place. She said—and I paraphrase slightly—that the duty of government is to protect its citizens and the duty of Parliament is to hold the Government to account for the way in which they exercise that protection. These cannot be absolute values; they are essentially relative. The extent to which one may be emphasised at the expense of the other will always be a decision of fine judgment. It will always be a decision which has to be taken in prevailing circumstances. The kind of legislation introduced in the United Kingdom Parliament in either the First or the Second World War reflected what was thought to be of particular urgency, but we must be clear that what may be proportionate or necessary at one time may not be proportionate or necessary at another.
It is well accepted that the Bill must provide a proper framework with which the judgments to which I have referred can be made, but I thought that the noble Lord, Lord King, who is no longer in his place, made a very sound point about the pace of change. One difficulty about the pace of change is that it is not constant but is always accelerating. When we consider that the iPhone, or rather—I had better be careful that I do not advertise—the mobile phone that we all carry in our pockets now contains a capacity far beyond that of the computers that used to occupy a whole room in the 1960s, it illustrates just how much capability has improved and been changed, and the extent therefore to which legislation has, so far as possible, to keep pace with it.
I am persuaded that this Bill generally provides a proper framework—but, as we have already heard, more amendments have to be made. In the other place, the willingness of both sides of the House to enter into dialogue and discussion helped to produce a Bill which is perhaps not as divisive as it might have been, but has none the less left for your Lordships a variety of issues of importance which will be aired for the first time only during consideration in Committee.
On the double lock, it is still argued by some that approval should be by judge alone. With that conclusion, I respectfully disagree. Parallels with other jurisdictions are dangerous. Sometimes reference is made to what happens in the United States, but it is important to remember that judges in the United States are elected or appointed not just because of their legal ability but because of their political affiliation. That is true in the Supreme Court—hence the controversy which surrounds the choice that Barack Obama may have about the appointment to a vacancy on the Supreme Court Bench.
I am thoroughly convinced that judicial review, or the application of its principles, is more than appropriate. Judicial review is a well-established process both in the common law and in the law of Scotland. Judges are well used to applying its principles and the law, as the Advocate-General will certainly be aware, has developed considerably since the case which gave rise to the Wednesbury principle was decided many generations ago.
My belief that the initiation of approval should rest with the Home Secretary seems entirely justified because there will be occasions when the mere granting of a warrant will have political implications. That may be so particularly if there is any question of activity authorised by a warrant taking place abroad. In those situations, the decision being of a political nature, I feel that no judge would be enthusiastic about the proposition that they and they alone should have responsibility for these matters—it would be entirely inimical to the approach that judges take in our system.
I understand the motive behind the amendment made in the other place which provides that the judicial commissioner has to take particular care to apply the general provisions on privacy which are now a centrepiece of the Bill. I suspect that that is an unnecessary belt when there were already adequate braces, because I cannot imagine any judicial commissioner worth his or her salt who would not, in interpreting a particular section of the Act, take account of all the rest of the terms of the Act—indeed, it is a fundamental principle of statutory interpretation.
As I have said already, the Government have shown remarkable willingness to accept and adopt proposals for amendments, particularly in relation to the activities of journalists and the relationship between lawyers and their clients.
I will finish by saying a word about bulk powers, which have been and remain controversial. I began by thinking that the jury was out, but it would be more correct to say that the independent reviewer, David Anderson, is out and we will have to wait for his report—but I think that there is confidence on all sides of the House in his ability to bring proper forensic application to these issues and to provide a report which will be of great assistance.
The powers that we are talking about already exist; they are not new powers. David Anderson’s review will provide a safeguard as to whether it is appropriate to continue with them, but, rather as the chairman of the ISC, Dominic Grieve, said in the other place, there is strong and general acceptance that the powers are necessary and proportionate. Without straining the metaphor too much, people say that it is like looking for a needle in a haystack, but you must first have access to the haystack before you have any opportunity of looking for the needle. I commend the Bill.
My Lords, as the noble Marquess, Lord Lothian, has mentioned, I am a member of the Intelligence and Security Committee. It is slightly daunting to follow four very senior members, either past or present, of that committee as I am a relative newcomer. I join them and other noble Lords, many of whom have direct experience of intelligence, security and law enforcement matters, in welcoming the Bill before us. It covers ground that is of real and utmost importance in terms of national security and the prevention of serious crime while touching on crucial issues of personal privacy in a digital context, which has been referred to many times; it is not only complex, but very fast-moving. We are also up against a deadline set by the sunset clause in the RIPA Act 2004.
I join others who have spoken, including in particular the noble Lord, Lord Butler, in acknowledging the vast amount of work orchestrated by the Government that has gone into the preparation of the Bill before us. It has been the subject of numerous reports, to which a number of speakers have referred, including two from the Intelligence and Security Committee. This work has led to the Bill now progressing through Parliament with intensive scrutiny, as was referred to in the other place. There is one further external review being done by David Anderson QC of the operational case for the intelligence agencies to have access to bulk investigatory powers. In the last Parliament the ISC considered bulk interception in great detail and was satisfied that that capability was justified, subject to robust safeguards and oversight. Furthermore the current ISC, again after considering a great deal of classified evidence on this subject, reached a similar conclusion for bulk equipment interference, the bulk acquisition of communications data and bulk personal datasets. I look forward to David Anderson’s review as an invaluable contribution to further consideration of these bulk powers by this House.
Your Lordships will be aware that a significant number of improvements have been made to the Bill in the other place, including extra safeguards, improved oversight mechanisms and stronger privacy protections. A number of these improvements were made on the recommendation of the ISC and we are extremely grateful for the co-operation shown and helpful approach taken by the Government throughout. That said, as the noble Marquess, Lord Lothian, mentioned, there are still a few aspects of the Bill on which my ISC colleagues have concerns or questions, and I should like to reinforce two of those, both of which have already been mentioned.
The first is the issue of restrictions on the use of class warrants for the retention and examination of the most sensitive personal information within bulk personal datasets. Noble Lords will be aware that the ISC tabled amendments in the Commons that would have restricted this power where a significant amount of the data would be sensitive. We looked to the Data Protection Act 1998 to determine what Parliament had already defined as being the most sensitive personal data. It is the use of generic class warrants in relation to that sensitive data that we have questioned. Our understanding is that the Government have accepted that in principle, but it would be interesting if the Minister could indicate whether he intends to bring forward amendments on this point in Committee.
The second aspect has already been referred to by the noble Marquess, Lord Lothian. It refers to offences for the misuse of investigatory powers contained in the Bill which are scattered throughout various pieces of legislation and common law. While in some cases there are severe penalties for abusing those powers, in other cases, as has been mentioned, the penalty can be described as little more than a reprimand or a moderate fine. Such penalties may be suitable for dealing with honest mistakes or more minor instances of negligence, but there may be a point where the malicious and wilful abuse of intrusive powers could be dealt with more consistently with the use of more severe criminal penalties than are currently available.
Finally, I shall raise a point referred to by the noble Baroness, Lady Neville-Jones, and the noble Lord, Lord West. It is some 18 months after the ISC’s Report on the Intelligence Relating to the Murder of Fusilier Lee Rigby, but it still seems unclear whether the extraterritorial nature of warrants asserted by the Bill will be honoured by communications companies based overseas. The ISC recommended in the Fusilier Lee Rigby report that access to communications held by overseas-based providers, particularly those in the United States, was a very significant security problem, so I would be grateful if the Minister could comment on the progress of negotiations on that matter, in particular with the Government of the United States.
As your Lordships scrutinise the Bill over the coming weeks, whatever views may be expressed regarding its specific provisions, we should not lose sight of what this new Bill as a whole achieves, as many speakers have already mentioned. In particular it makes significant improvements in terms of transparency by avowing certain intrusive powers for the first time, including equipment interference, bulk acquisition and bulk personal datasets. While the use of those powers previously was legal, they were shrouded in secrecy and obscured behind some fairly impenetrable legal language. Having these powers set out on the face of the Bill is a considerable improvement. We should also welcome the role of the judicial commissioners as an extremely significant safeguard, and while we may debate the detail of their role, once again I urge noble Lords to acknowledge this very welcome additional reassurance.
Based on the recommendations of the ISC, David Anderson and RUSI among others, the Government have recognised the need for a new, modern and transparent legal framework for this crucial and complex area. The Bill is a huge improvement on the legislation it will replace. I look forward to further discussions in your Lordships’ House as we scrutinise it in the weeks to come.
My Lords, I draw attention to my entry in the register of interests. Perhaps I may join other noble Lords in welcoming the legislation and take up the point just made by the noble Lord, Lord Janvrin. We now have a much more modern piece of legislation and a more transparent one that will allow law enforcement agencies, security agencies and the judiciary to look more coherently at the necessary activities of safeguarding the well-being of citizens.
I listened with interest to the noble Lord, Lord Strasburger, but I have to say that the greatest human and civil right of all is the right to life. The biggest problem we face at the moment was drawn to our attention by the noble Earl, Lord Howe, at the beginning of the debate when he referred to the fact that we are having to deal with increasingly capable international actors who are prosecuting terrorism against not only us but internationally as well. My noble friend Lord Blunkett also referred to the fact that the cyberthreat is the greatest threat we face at the moment, not least because it is so very difficult to police—it can take place not just in the boondocks of Syria but in the back streets of Glasgow, London and Manchester as well. We need the protection that this kind of legislation can give us. Yes, it has had a very deep scrutiny, and not just in the other place. I do not remember a piece of legislation that has gone through so many iterations, with different committees of this House and elsewhere. That, in itself, is a very significant check and balance on the powers contained in the Bill.
I do not expect the Minister to provide it this evening, but as we go into Committee there are some areas where we need greater clarification. Sir Nigel Sheinwald, for example, looked at the international implication of parts of the legislation and it seems that only one of the powers has come up in terms of his conclusions in relation to international scrutiny. I may have misread this, but I would welcome clarification from the Minister about how we ensure that this legislation is internationally compliant and that, with our allies, we are able to work within a framework of legislation that does not hinder anyone; it will increasingly be in that area that we will need to share information, not least because of the events of last week. It would be very useful to have some detail on what evidence there is of how compliant this legislation would be with EU regulation; we have to be able to convince people who are no longer our partners of the request for information and for action that will be contained within the powers in the Bill.
I said that we are dealing with increasingly capable international actors. We are also dealing, as noble Lords have mentioned, with an extremely rapidly growing technological capability, both legal and illegal. I would welcome some reassurance from the Minister on the flexibility that is contained within the Bill to enable a response to changing international circumstances and changing technology. The one thing many of us have learned from the most recent cyberthreat is that the threat quite often comes not from organised entities but from clever individuals, some of whom are still at school but who can pose a cyberthreat. It is very important that we have the flexibility and capability to deal with that.
Another area that has been referred to, not least by the noble Lord, Lord Campbell of Pittenweem, is the protection of privilege. We heard a very eloquent speech by the noble Lord, Lord Pannick, about legal professional privilege. The area of Members of Parliament is a significant one but there is also the area of journalists. In the old days it used to be quite easy to define who a journalist was, not least because they would have to carry a National Union of Journalists card—I speak as an ex-journalist. However, nowadays many people portray themselves as journalists because they write a blog that maybe 10 people read. We need to deal with the issue of the protection of sources, because serious journalists get serious information from sources. Journalists themselves have to do a degree of policing, because there has been irresponsible behaviour by journalists in the past and the profession must raise standards. But we will cease to have the kind of free press that is important to our society if we are not in a position to give a guarantee of protection of sources to journalists in appropriate circumstances.
I am very much looking forward to the detail of the rest of the Bill. The issue of bulk powers is a fascinating one. I am no expert; I am neither a lawyer nor a member of the Intelligence and Security Committee. I, like everybody else, am concerned about my personal privacy. I am sure that noble Lords are much too exalted to spend their time shopping online, but I do, and Google and Amazon know more about me than my husband does. We sacrifice our privacy every day. Agencies outside the security services are collecting our data and we turn a blind eye to it. This is a means of collecting data that can save people’s lives, not just help them to get a nicer pair of shoes. It is important that we recognise the importance of it and balance it against the need for privacy.
I congratulate the Government on bringing the Bill before the House. It is a modern take on legislation that in the past has lacked transparency and been complex, and I look forward to its early passage on to the statute book.
My Lords, I declare my membership of the Royal United Services Institute’s independent surveillance review, whose report A Democratic Licence to Operate was published last year. Open societies possess huge, enduring and, we hope, ultimately prevailing advantages over closed ones, yet open societies throw up special torments of their own—what one might call duelling desirables. This Bill lies classically in that territory, because it attempts to reconcile two duties to protect; the protection of our people from those who wish them and their institutions harm, and the protection of our people against state power, which involves a loss of liberty that trenches on the private conduct of their lives. John Stuart Mill caught this perpetual dilemma in the mid-19th century in his celebrated work On Liberty, when he wrote,
“the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection”.
More recently, my colleague on the RUSI review, Sir David Omand, said:
“Without security you cannot protect human rights”,
a point made by other noble Lords during the course of this debate.
There is a third element; the technical race between the protectors and the would-be harmers, the collection of pre-emptive intelligence which, in its modern form, has been with us since the early months of the Great War. I have with me a copy of the single-page, handwritten minute penned by the First Lord of the Admiralty, Winston Churchill, and countersigned by Jackie Fisher, the First Sea Lord, on 8 November 1914, instructing that all the decoded signals intercepts of the Imperial German Navy, current and past, should be kept in a locked box, in Churchill’s words,
“in order to penetrate the German mind”.
To this day, GCHQ regards this little slip of paper as its founding document, which led, in both world wars, to a British signals intelligence capacity on an industrial scale which was crucial to the outcomes to both conflicts.
I am, of course, aware that total wars create different conditions from the spectrum of state and the multiplicity of non-state threats we face today in our own age of anxiety. The RUSI panel was acutely aware of this and of the prospect of leaping technologies, to which I referred a moment ago. As a result, we came up with 10 tests, some of which the noble Lord, Lord Paddick, mentioned earlier, which should be applied in open societies whenever the John Stuart Mill dilemma presents itself anew. I deeply hope that the Minister will be able to accept those 10 tests this evening on behalf of the Government. They are, very briefly, as follows. The first is:
“Rule of law: All intrusion into privacy must be in accordance with law through processes that can be meaningfully assessed against clear and open legislation, and only for purposes laid down by law”.
That is our business this evening. Secondly, there is necessity and, thirdly, proportionality. Fourthly:
“Restraint: It should never become routine for the state to intrude into the lives”,
of the Queen’s subjects. The state must always and everywhere be a reluctant intruder. Fifthly, there must be effective oversight, with arrangements for the independent investigation of complaints. Sixthly, there must be a “recognition of necessary secrecy”. The secret state should be treated as a needed protector of the open society:
“It cannot be more than minimally transparent”,
to be effective, but it must be accountable to Parliament. Seventhly, the necessary secrecy, however, must be kept to the absolute minimum. Eighthly, transparency: how the law applies to the citizen must be clear and comprehensible. Ninthly, this presupposes legislative clarity, which, of course, is part of our job. Finally, UK Government policy on intrusion should as far as possible be “harmonised” with that of other “like-minded” open societies.
In my judgment, the Bill genuinely seeks to meet those tests, but I shall be listening very carefully to the arguments, especially on legal professional privilege. I take very seriously what other noble Lords have said, and what the Law Society and other liberty and justice-related bodies have said about the crucial ability of individuals to consult their legal advisers in confidence. As a former journalist, I shall take an interest in the degree to which journalists and the confidentiality of their sources are drawn into the Bill.
When I was operational, in the old days of the very old technology—just telephone tapping and a leak inquiry—I used to quite enjoy it, as long as I knew there was a leak inquiry, which I often did. I would plug the phone in on Whit Mondays to “Dial-A-Recipe” or the Test score, just to throw them off the scent. It was a trivial, adolescent thing to do, but those were the days of simplicity, when such things were possible.
The secret parts of the state and the law enforcement agencies wish for and need a new licence to operate in a world of shifting perils and surging technologies. Let us craft one that reconciles as closely as any Parliament can the two duties to protect with which an open society must always wrestle, because only Parliament can set the dials for the work of our secret services.
My Lords, it is humbling to follow so many noble Lords this evening who, if it is not too back-handed a compliment to say it these days, are such experts in this subject. Let me declare my more prosaic interest as the chief executive of TalkTalk, the communications service provider.
Debating the balance between liberty and security is not new. What has changed is the methods people use to threaten our security and to express their freedom. It will not come as a surprise to hear that I think that the internet is a wonderful tool, but just as it can accentuate what is good about the world, it can also accentuate the bad. There is a growing body of psychological evidence that the internet amplifies human behaviour. People shout online in a way they would never do to someone’s face, and the internet can connect criminals globally in a way that would be inconceivable in the physical world. The internet did not invent child abuse, terrorism or organised crime, but left unchecked it does allow those crimes to be committed on a much grander scale. Any child abuse is clearly horrific, but the internet takes those crimes to a global audience and allows those criminals to monetise it globally.
We know that ungoverned spaces in the physical world become havens for criminality. The same is true online. I am passionate about the opportunity the digital world can bring for this country—even more so after the events of the last week or so. I see the opportunity for Britain to be a brilliant digital nation, but we need a civilised digital world where the rule of law is clearly established by Parliament, where our law enforcement agencies have clearly articulated powers to act in the digital space, and where there is robust and transparent monitoring of those agencies by the judiciary and Parliament. That is why I am pleased to support the Bill and to play a part in what is clearly a very important debate.
As my noble friend the Minister said, the vast majority of the Bill covers powers that already exist under various disparate Bills. As DRIPA expires, the Government are right to take the opportunity to consolidate those powers into a single Bill, creating simplicity and the very transparency that is one of the ways to ensure that we maintain the right balance between freedom and security.
As a number of noble Lords have said, the Bill also needs to keep pace with technological changes, and I would like to focus my remarks on the most significant new power in it: the use of internet connection records. Whereas once, criminals communicated by phone, like everyone else they are increasingly moving online. For criminals—in fact, for all of us—the boundaries between the digital and the physical world are very porous, but our current legal framework still treats them very differently. Knowing what website someone visits is just the modern equivalent of knowing who they called. Knowing what IP address they are using, I would argue, is very similar to knowing which phone line they are calling from. Yet at present, we create a false legal distinction that artificially handicaps law enforcement agencies by denying them digital powers equivalent to those they have in the voice telephony world.
From my experience, it is right that police can access communications data. In just the first six months of 2016, nearly three-quarters—72%—of National Crime Agency comms data applications to TalkTalk related to child sexual exploitation. But child abusers definitely do not just use their phones to make calls. The next biggest category, 16%, concerned threats to life. How many of these cases would be resolved, how many lives saved, by extending access to internet connection records as opposed to voice calls only? That is why I welcome the inclusion of internet connection records, and why I believe that access to them is proportionate in a digital world. That does not mean, however, that we should just wave this legislation through. The digital world amplifies all behaviour, good and bad, so it is undoubtedly important that we scrutinise very carefully how these new powers can be used and their use monitored.
I will not even attempt to opine on the legal checks and balances proposed in this legislation. I am not a lawyer—I run a business—and I bow to the considerable legal expertise in this House and the other place on how best to ensure sufficient oversight, so that the various agencies that could access this data do so only when appropriate, and to ensure that individual freedom to roam the internet legally is well protected. But as the great legal minds in this Chamber begin that debate, I would like to add a little practical context on both the feasibility and the associated costs of storing and using internet connection records.
In principle, it is feasible for communication service providers to store internet connection records. It is, however, a non-trivial task, and the Government will have to work closely with them for some time to ensure it is achieved in a proportionate, practical and cost-effective way. Different businesses’ networks are configured in different ways, so the flexibility the Bill allows for different approaches is a practical and pragmatic way forward. The combination of obligations on the Home Office to consider the practical implications and costs on businesses before issuing a data retention notice, including the new privacy clause that places an obligation to consider the security of data storage systems, sets out clear safeguards that prevent this legislation being implemented in a way that is unreasonable for businesses, or that places unachievable obligations on industry.
A number of domestic communication service providers, including my own, have questioned the Home Office’s cost estimates. While I think it is fair to say that concerns remain about these estimates, I was reassured by the clear commitment from the Home Office that its figures are an estimate based on its expected implementation and do not in any way represent a cap or a budget. The Home Secretary was explicit in the other place that government would cover the costs incurred in the industry, and colleagues of mine across the sector will hope that my noble friend the Minister can reiterate that today.
Let me be clear: there is more work to do. The Government need to work closely with all providers likely to be affected by the legislation in order to understand what these obligations may look like for each provider and how much they will cost. But this is to be expected with new obligations, and the Bill as drafted provides the industry with the right safeguards that businesses need.
This is a hugely important debate. The moral, legal and social scaffolding for the digital world does not yet fully exist. I am a firm believer that the UK is better placed than any nation in the world to take advantage of the digital revolution and, just as we did with the Industrial Revolution, we need to ensure that the digital world is a civilised world where there is the rule of law; where Parliament has set out how we as a society balance individual freedom with security; where we do not tolerate unpoliced no-go areas; and where British liberal democracy flourishes.
I believe that this is an important Bill that helps us in that journey, a Bill that gives the UK the legal framework needed to protect our citizens without infringing on the innovation and creativity that we love about the online world. I am pleased to support it.
My Lords, it is clear that technological developments have greatly enhanced the capacity of Governments, companies and citizens to know more about individuals and undertake surveillance, interception and data collection. As such, the internet has become the front line in the contemporary debate about privacy and security. Such developments, though, as many have said, have created new avenues for serious crime by individuals, gangs and nations on an international basis. This Bill is part of our—I stress “our”—attempt to square the circle between the needs of security and privacy. It is a Bill I welcome and support.
I served on the RUSI Independent Surveillance Review. Our report, A Democratic Licence to Operate, showed that we need not abandon the values that are most important to us as citizens in order to protect our society. Current legislation providing the basis for the interception of communications is less than 20 years old, but it predates Google, Facebook and Twitter, so we are right to refresh and update the tools of the state. The threat is clear. First, international organised crime knows no boundaries. Secondly, information and communications technology spans borders, but Governments must be able to protect their sovereign territory. We have to meet a challenge: in an open society the secret part of the state has to remain secret to protect the openness, but it has to be regulated. The state should always be reluctant to invade the privacy of its citizens, and those who do this vital work should do so with a feeling of unease.
The RUSI panel set out the 10 tests, which I shall come to—I will not repeat what the noble Lord, Lord Hennessy, said—which legislation and government should meet. First, I will refer to the private sector. Google, Facebook, Microsoft, Twitter and other internet companies continue to lobby on this Bill. They could never have started up their commercial, profit-making businesses in autocratic societies such as Russia, Iran or China, to name just three. Our open, democratic system, based on the rule of law, which enabled them to start up and operate, is under threat. As such, they should not demand no-go areas for regulated law enforcement officers who seek out serious organised criminals. Law-enforcement agencies should never be in the position of not being able to seek, or ask about, information. This is not the same as having a back door into the servers of companies.
I sincerely hope that as the Bill proceeds—we have a way to go yet—we will explain that we do not conduct mass surveillance in the UK. Indeed, it is not done in the USA. Collection of bulk data, most of which are never even read, does not constitute mass surveillance. In general, I prefer Ministers to be involved in the warrants that are required for interception and surveillance. There is a degree of accountability that I think is an important aspect. But I do appreciate that this is not enough. There has to be a judicial role and oversight has to be strengthened. Indeed, I would want to be convinced that we have oversight of the oversight. We must always ask, “Who watches the watchers?”. The Bill attempts to do this. I note that the Government will bring forward amendments that were promised following the debates in the Commons.
It is amazing what is already being done but is never reported. Among our evidence sessions the RUSI panel held a round table with the Information Commissioner, the Intelligence Services Commissioner, the Interception of Communications Commissioner, the Surveillance Commissioner and the Chief Surveillance Inspector. I do not think that any of their published reports make the bestseller lists but they are there for us—parliamentarians and Select Committees—to read and question. That is absolutely crucial.
Unfortunately, however, in the past some public authorities have used powers which many believe they should not even have had access to. When RIPA 2000 went through, nobody raised the prospect of local authorities using it in respect of rubbish collection or access to school places. That has been stopped but it gave the whole thing a very bad, nasty taste. The powers in the Bill should be limited to the most serious issues affecting our society, with very strict rules about the process to be used.
Let us not beat about the bush or sugar-coat the issue: the Bill is about intrusion into privacy. The public have to be convinced that all the actions are legal and are the right actions to take on behalf of the public. This is not easy when some aspects must remain secret. The RUSI panel declared the 10 tests which Parliament, government and the public should apply when considering the conditions under which the police and intelligence and security agencies can intrude upon the privacy of the citizen. They are set out on pages 104 and 105 of our report. The noble Lord, Lord Hennessy, listed the 10 tests. Between now and Committee, will the Minister provide a very short paper on how the Government think that the Bill meets the 10 tests? That will save a lot of time in Committee, because otherwise we will have debates for hours. They are legitimate tests to which the Government should respond. The panel spent a lot of time working on this issue. Such a response would not be too difficult and would considerably ease the Bill’s passage.
The Bill itself is a democratic licence from Parliament to government. The report’s title is correct: it is a licence to intrude but it is a democratic licence based on regulation and oversight. The Government’s role is to protect the nation, its citizens, our way of life and the values we live by. Our tolerance must not be abused by intolerance that seeks our destruction. We have to be careful that we do not allow our tolerance to lead to our own destruction. But, as the RUSI report shows, and as was backed up by other reports, we can maintain the values that are most important to us as citizens in order to protect our society. This Bill makes a very important contribution to this aim.
My Lords, I start by acknowledging the value of the work of our security services and its contribution to the security, prosperity and maintenance of freedom in our country.
During the five years that I worked closely with them, I found the security services to be well led by men and women who were clearly sensitive to the need to find an appropriate balance between security and liberty and thought deeply about these issues. In particular, I acknowledge the work of GCHQ, which is likely to be more impacted than most by this Bill. It is an extraordinarily important national asset and extremely well led by its director Robert Hannigan. He and his senior team seem sensitive to public concern and eager to find a legal framework that wins public confidence for their work.
I believe that it was a mistake for the Government to connive at a situation where some security programmes, such as Operation Tempora, the GCHQ programme, stretched the legal authorisation scheme then in force under RIPA to breaking point. So I welcome this present Bill as a serious attempt to create a framework of law in which the security services can do what is necessary to protect us, but within the context of a respect for civil liberties that is appropriately robust.
I want to address three areas. First, noble Lords have already spoken about future-proofing. This was a growing problem with RIPA. The speed of technological advance is quite extraordinary. The provisions that will be debated in detail by your Lordships’ House need to stand the test of time into at least the medium term, and should be judged against their capacity to do that.
Secondly, I encourage noble Lords to be realistic about the capacity of internet connection records to lay bare the most intimate details of a person’s life. This is not like telephone data; wholesale retention for 12 months means allowing access to more than raw data. It allows access to people’s lifestyles, beliefs, sexual practices, health and perfectly legal secrets. So we should consider this part of the Bill with that reality closely in mind. For my part, having seen the importance of communications data to serious criminal prosecutions—almost every serious criminal prosecution that was brought when I was chief prosecutor relied on data of this sort—I am inclined to support the clauses which refer to internet connection data. However, in debating these matters, we should recognise the significant concern outside Parliament in so far as this part of the Bill is concerned.
Thirdly, I will deal with protections against abuse. Foremost among these are the judicial commissioners. As someone who has been calling for a judicial role in the area of security practice for very many years, I strongly welcome the proposals in the Bill for judicial commissioners. There is a question as to whether they should be operating a judicial review test or a merit-based one. Some, including the noble Lord, Lord Campbell, say that it is for a politician to judge the merits and that a Secretary of State should be overturned only if his or her authorisation is irrational or unlawful. Others argue that a judicial confirmation of the merits would be an important protection against political abuse of these highly intrusive powers. I am inclined to agree, subject to debate, that security decisions are for the Minister and the lawfulness of the process is for a judge.
In making my final point about the judicial commissioners, I make clear that I yield to no one in my admiration for our retired judges. But it is very important that the judicial commissioners have, within their number, a majority who are active judges, adjudicating routinely, with full public confidence, in other areas of the law at the highest levels. This would encourage and underline a public view that the commissioners are independent and worthy of public confidence in their work. Let us have as many senior, working judges as possible among the judicial commissioners. In that way, we will avoid any hint or suggestion—however undeserved—that they are a club that can be won over by one side or another. Public confidence in the process of authorisation can only be enhanced if we ensure a majority of working judges within that important body of people.
My Lords, like the noble Baroness, Lady Harding, I shall focus on crime rather than security. I support the Bill because it will reduce the number of victims of crime. Evidence of location obtained from use of a mobile device can be vital in a rape case, in domestic violence, or where, say, an older man has absconded with a young girl. These are all real examples. The powers defined in the Bill are limited, targeted and proportionate, and the safeguards convincing. However, while welcoming the Bill, I wish only that it went further.
It is a commonplace now to assert that crime is reducing, but I strongly suspect that it is not. Rather, crime is migrating from the physical to the digital world where it mostly remains unrecorded and undetected. The internet offers enormous advantages to the organised, persistent offender. Would-be criminals can readily hide their identity. They can troll and threaten anonymously. They can cast a million flies on the water with a phishing email soliciting PIN codes and account details from the unsuspecting. Paedophiles can operate with impunity in the secure bastion of the dark web. Thousands of credit card details can be purchased in that evil digital marketplace, too, stolen in skilful raids which take advantage of weaknesses in the cyberdefences of major corporations. Anarchists can and do mount denial-of-service attacks on institutions, powered unknowingly by malware secreted onto the computers of thousands of innocent users.
Most attacks are hidden and unreported, but we all recall the attack on TalkTalk, about which the noble Baroness, Lady Harding, has spoken, and which reportedly cost the company £60 million. Last year, malware was lodged within the systems of the Bangladesh Bank, and its internal processes observed over time. Earlier this year, during a public holiday, instructions were given by fraudsters to transfer just under $1 billion out of the bank. This was thwarted because, as is so often the case—we see it in phishing emails which reach the House of Lords—the fraudsters misspelled a word in the order, and the fraud was spotted by Deutsche Bank, though not before $80 million was lost and remains unrecovered.
Until recently, I was chairman of PayPal Europe, where I witnessed at first hand the gigantic scale of online fraud. Much of it is cross-frontier; barely any is investigated by law enforcement agencies, and little is prosecuted. I read a wonderful book recently, by an American historian, about Tombstone, Arizona, in the 19th century, when the discovery of a silver lode created a town virtually overnight in a part of the frontier that had been lawless. The internet is still a wild, untamed frontier with a plenitude of outlaws; and a latter-day Wyatt Earp is yet to emerge to bring us law and order. We do not know the full cost to the UK economy, and others, of online fraud but, from my own experience, I suspect that it runs into tens of billions. During my 10 years at PayPal, I saw multiple attempts to persuade Governments to tackle fraud, and they came to naught. I note that the estimable Sir Nigel Sheinwald has recommended that the UK should lead the way in developing agreements to foster global co-operation in fighting cybercrime. I concur, but at the same time note the terrible irony of that statement as our country prepares to leave the best possible stage for mounting and winning that argument in exchange for a bit-part role.
Although the Bill is a welcome, if small, step towards taking law enforcement further into the digital universe, I urge the Minister to bring due focus and energy, and proportionate measures within government, to fighting the full and value-destructive extent of crime committed by digital means.
My Lords, I could not agree more with the noble Lord, Lord Birt. The Government are inviting us to walk down the digital street, but it is a street which would have frightened Dickens. The Bill misses opportunities to do something about that. The information which the Government are giving themselves access to in the Bill would enable them to help us, as ordinary citizens, to deal with the tide of three-card-trick salesmen, conmen and pimps that assails us every day on the internet. However, there are no proposals in the Bill to do anything, which is quite astonishing. Of course, it is not astonishing because it is a Home Office Bill. We have had this before: noble Lords on the Benches opposite will remember when they tried to get us to take identity cards. That failed because it was a Home Office Bill; there was nothing in it for the ordinary citizen. All the advantages for the ordinary citizen that might have come from an identity card system were neglected. There was nothing there; it was just, “we want to control you”. Yet, as others have pointed out, we readily accept an enormous exchange of information and control with the likes of Google and Facebook because they offer us something in exchange.
The Home Office will have to get a grip on this. How are we to deal with open borders, post-Brexit? Presumably we will still have visa-free travel with Europe, as is proposed for Canada and other countries. It would be very odd to introduce visas, so we are going to need some kind of identity system so we can catch up on people after they have got in. This is about the only way one could police a border in Ireland, let alone one with Scotland. We really have to change the Home Office to an organisation which thinks of us as citizens as well as thinking of itself as a controller of citizens. It would be excellent if the Bill could start to do that by making sure that the Home Office at least has the power to use all the information it is gathering to start reducing the level of crime described by the noble Lord, Lord Birt. I also agree very much with the noble Lord and others on the need for international collaboration. That has to be the way forward. I do not share with him and the provisional Opposition opposite—I do not think that, after today’s meeting, I can call them the Official Opposition any more—the feeling that disconnecting from Europe will slow this down. This will be an international thing that does not care for other structures: a community that all nations committed to democracy will join, whether or not they are part of any individual organisation.
I have worries, too, that the Bill has not really addressed the question of speed. There are circumstances where the Government need quick access to information. In the course of the London riots, it was really noticeable how slow official processes were in catching up with information as to what was going on but communication service companies have those capabilities. They will perform checks online in real time if someone proposes to do a financial transaction. That is routine but you need access to and collaboration with the computing power that communication service providers have to make good use of it. You cannot seek to have a second-hand flow of information and hope to build government systems that will do the deed in real time, enabling you to get on top of the flow of information taking place among people in the middle of a civil disturbance. In the course of the Bill, we have to look at how to enable the Government to collaborate with the communication service providers when speed becomes of the essence and to make sure that we are not putting any obstacles to doing so in their way.
However, I share some of the concerns about the ICR and what we are creating with the request filter. We are producing a resource there that Francis Urquhart would have loved to have his fingers on: absolute knowledge of everyone’s private life. We would have to be so clear that what we are doing will not be abused and is not open to abuse. To have a system which can be accessed without warrant or proper record of what has been done—without proper supervision of those records—really opens us up to abuses of power and of position, in a way we should not do. I am very encouraged by the quality of the debate. This House is clearly full of people who understand these problems a great deal better than I do, so I am confident that we will do something about it. We should take this seriously and I look forward to Committee to do just that.