House of Lords
Monday 11 July 2016
Prayers—read by the Lord Bishop of London.
Civil Service Fast Stream
To ask Her Majesty’s Government whether they plan to make socioeconomic diversity reflecting the nation the primary criterion for future recruitment into the Civil Service Fast Stream.
My Lords, we have no plans to make socioeconomic diversity part of the Civil Service Fast Stream selection criteria. Selection must always be based strictly on merit, which is why we anonymise applications. Any data collected will be done on a voluntary basis and used anonymously to help improve overall recruitment efforts. Diversity data would not form the basis of any individual recruitment decision.
Is my noble friend aware that his Answer is enormously welcome? Is it not true that, as far as gender equality is concerned, 54% of the fast stream are now female and therefore that dimension has been addressed? Is there not still an overriding need for the fast stream for our country to recruit young men and women, without discrimination, who have leadership qualities to take our great Civil Service forward?
I entirely agree with my noble friend. It is obviously a good day to be discussing how we appoint leaders. There is more to be done, as my noble friend rightly says, on various aspects of improving diversity, but it is crucial that we abide by the principles of Civil Service recruitment as set out in the Constitutional Reform and Governance Act 2010, namely that selection must be on merit on the basis of fair and open competition.
My Lords, in a debate on recruitment and assessment services in March 1996, I detailed the needs of the Diplomatic Service for public servants with,
“a high degree of loyalty, integrity, impartiality, stability of character, intelligence and linguistic aptitude”.—[Official Report, 8/3/1996; col. 558.]
Does the Minister agree that all these qualities are still of primary importance?
I entirely agree with the noble Lord. He obviously speaks with a great deal of experience. As the nephew of a diplomat, I am somewhat biased but I completely agree. On his final point about language skills, more needs to be done, as always. We need to make sure that we are getting the best diplomats who are not just aware of the culture of the countries to which they are posted, but are also able to speak the language. I am delighted that the Foreign Office language centre reopened in 2013 and is doing much to address this.
My Lords, will the Minister explain the purpose of collecting these data if we do not do anything with them?
First, let us see what the data say; then, if they say that there are talents in pockets of society who are not applying and we think should be applying, we will redouble our efforts to ensure we get more applications from those groups.
My Lords, I am fascinated by the noble Lord’s reply regarding the language school. Many of your Lordships will know young people who would be perfectly competent civil servants but who have failed to be admitted to the fast stream because of their inability to pass a maths exam. Is it not time that the Government looked at that?
I am sure that is the case and that we need to redouble our efforts to improve standards in maths right across the board.
My Lords, the Select Committee on Social Mobility found that many companies, particularly accountancy firms, have reverted to the model of recruiting at graduate level but also recruiting at 18 and sending everybody through to the same professional outcome. Will the Minister confirm that the apprenticeships available in the Civil Service also enable people to be in the fast stream from 18 and to go right to the top of the Civil Service from that basis, so that we do not miss the best talent that has not gone to university?
My noble friend makes an extremely good point. Apprenticeships will be key. The high-level apprenticeship talent programme aims to bring in 750 people this year, and around 18% of highers come from lower socioeconomic backgrounds. I will write to her specifically on the point about the fast stream.
Will the Minister ensure that the Cabinet Office team being put together under Oliver Robbins in the new European Union unit will be gender-balanced and representative of all our nations and regions, as well as of the population, to ensure that the interests of the whole country are central to the preparation for the Brexit negotiations?
The noble Baroness makes a good point. As the head of the Civil Service has pointed out, we are determined to make sure that we get the brightest and best to negotiate and advise on an outcome that represents the views of our entire society. I am unable to go beyond that at this precise juncture.
My Lords, will my noble friend confirm that the Government’s policy is to maintain a United Kingdom Civil Service and ensure that civil servants from the devolved Administrations are exposed to Whitehall and vice versa?
Indeed, I can confirm that, and my noble friend makes a good point about ensuring that civil servants from Scotland are exposed to Whitehall.
My Lords, I joined the foreign service in 1960 as a working-class boy from the University of Wales. There were only two women and no one from the ethnic minorities at that time. Does the noble Lord agree that our schools, because of the collapse of language teaching, are often unable to provide sufficient language competence and we need to look carefully at language potential? Such matters should never trump merit and competence.
I entirely agree with the noble Lord. We have come a long way but there is always more to be done. I concur with him about language skills.
My Lords, does the Minister agree that, as well as having competence in language skills, it is important to know about religious literacy because of the different places to which people are posted?
That is absolutely right and is key. As noble Lords said earlier, we need to ensure that diplomats have a grasp of culture, not just language.
My Lords, several Members from the Labour Benches have asked questions and we have not had anyone from the Lib Dems for a while.
My Lords, is the noble Lord aware that last week evidence emerged that staff employed in the Civil Service from black and minority ethnic communities are sometimes paid significantly less than their white counterparts? Will he assure the House that this is not the case? If he does not have the reply now, will he undertake to look into the matter and write to me?
I absolutely undertake to look into it. I do not have a reply on that specific case at the moment.
My Lords, as a member of the Official Opposition party, I ask the Minister whether he is receiving the same reports as me that morale in the Civil Service is plummeting because of the suggestion that all the best and the brightest should have the futile task over the next few years of extricating us from the European Union instead of improving our education, housing and transport and all the other important things that need doing. How will this affect recruitment to the fast stream?
I am sorry; I do not agree with what the noble Lord has said. I am interested that he is part of the Official Opposition; I wonder which is the unofficial opposition. All I would say to him is that we need to ensure we get the very best to undertake this task. However, at the same time, as he rightly says, we need to ensure that we continue to attract, and retain, the best right across the board.
Record Copies of Acts of Parliament
To ask Her Majesty’s Government what discussions have taken place to implement the undertaking given by the Paymaster General to provide funding for public Acts of Parliament to continue to be printed on vellum, following the House of Commons resolution on 20 April.
My Lords, this is a matter for Parliament. Following the debate in the other place, the Commons Administration Committee is discussing the issue this very afternoon. We will consider the next steps when it has concluded its deliberations.
I congratulate the Government on offering assistance to help preserve this very long and deeply cherished tradition, which has great practical importance since vellum lasts so much longer than paper. Should we not be particularly conscious of the strength of feeling that has been exhibited in the other place in favour of retaining vellum, especially in view of the resolution passed by both Houses of Parliament in 1849 that there should be no change without the express consent of both of them?
I am very delighted to be discussing this pressing issue today because there is not much else going on. I respect what my noble friend has to say but I gently repeat that the recording of Acts of Parliament is a matter for the two Houses. We very much hope that a way forward can be found to continue the use of vellum. If that is not the wish of this House, a way will have to be found, but, as I say, we await the outcome of the committee’s meeting this afternoon.
My Lords, I cannot really believe that that is the Government’s position. This House, through our committees, has decided to phase out the use of vellum. To reintroduce it would be hugely expensive and a complete waste of time. I hope the Government are not reversing their position on this.
I gently say again that this is a matter for both Houses. It is a matter for the committee of this House and the committee of the other House to come to some agreement on. I am delighted, though, that the Labour Party is now looking to save money; this is a great turn up for the books. As I say, this is not a matter for government. We have made an offer but it is up to the Houses to decide.
My Lords, may I, for once, cross swords with the noble Lord, Lord Hunt? Will my noble friend take very carefully into account what the other place has so very sensibly decided? Should this not have a united parliamentary response, whereby we acknowledge the supremacy of the elected House?
As I say, that is very much the position. The position is as I have just said, and we have to await the outcome of the committee this afternoon.
Does the Minister think that the letter from the noble Lord, Lord Cormack, in the Times deserves to be printed on vellum and preserved for posterity?
That is a very interesting point.
My Lords, as regards vellum being returned by the will of the elected House, regardless of how appropriate that would be in the 21st century, could not the Government possibly save money, and ensure the security of the supply of vellum, by turning over the green opposite to goats?
That is an interesting suggestion. We shall have to wait and see what the outcome of the committee is this afternoon.
To ask Her Majesty’s Government what is their policy for determining when a rail franchise has failed to provide the service required and should therefore be terminated.
My Lords, the Secretary of State for Transport has statutory powers under the Railways Act 1993 and contractual powers under the franchise agreement to penalise train operators for contravention of obligations. These powers are more fully set out in the Department for Transport’s published enforcement policy.
I am sure the Minister will not be surprised to hear that I wish to ask about Southern trains, which has failed to provide anything approaching the service stipulated in its franchise. Now it has cut services by 15%, and quite understandably the passengers are on strike today, yet the best the Government can muster is today’s long overdue but very limp statement by Claire Perry. Enough is enough. When will the Government finally step up to their responsibilities and take over this franchise? Will the Government consider devolving power over commuter services such as this one, in a structure similar to the successful London Overground?
My Lords, it does not surprise me that the noble Baroness has raised this issue, which has come up in this House recently and I have responded from the Dispatch Box. I agree with the sentiments expressed by the noble Baroness and other noble Lords: the current operation is unsatisfactory. As many noble Lords will know, the new timetable started operating this morning, reflecting a target of getting 85% of services running. As I said only last week, part of the issue is that the force majeure clause has been invoked, which does not mean that the franchise can be put on the premise that the noble Baroness suggests.
My Lords, last Wednesday, the Minister said that where Southern Rail,
“can provide evidence that cancellations are due to official or unofficial industrial action, it can claim force majeure”.
This is what it has done in respect of the current level of performance and the reduction in the number of services it operates. Does this definition of force majeure mean than long-suffering commuters can expect no compensation and the company can expect no penalties? The Minister also said last Wednesday that the Government were,
“in regular contact with the company”.—[Official Report, 6/7/16; col. 2011.]
How many times have the Government also met the organisations representing the employees, to find out what they have to say about the cause of the present poor service and cancellations, in order that the Government hear both sides of the story, at first hand, before coming to a conclusion on whether official or unofficial industrial action is the sole cause of the problem and whether responsibility for any such action rests solely at the door of one party?
As I said previously, the Government’s position is very clear. We want both parties to come to the negotiating table and find a resolution for long-suffering commuters. It is very clear what has happened. I do not accept the noble Lord’s point about not meeting. We meet regularly with all people concerned, and we have implored them to take action to ensure that we get a more effective service. As to the way forward, I think it right that we allow the two parties to come together at the negotiating table. The Government will play their part in ensuring an effective service for Southern commuters who, as I have said, have suffered for far too long.
My Lords, does my noble friend agree that it ought, at least, to be the object of a rail franchise that the day-to-day experience of the travelling public should get better over the long term? What would he say about a franchisee which, from its first moment in possession of a railway, has set out to do the exact opposite? Is there no way to set it on a right course?
There are various procedures open to the Government if the contract fails in its objectives. As I have already indicated, I take on board what my noble friend has said on the issue in respect of which the franchisee is claiming force majeure, which is part of the franchise. I assure him that the Government are looking at this very closely. There are various enforcement policy options available to the Secretary of State and we continue to monitor the position very carefully to ensure that we see an improvement in service. Prior to the early part of this year, we saw service levels rise to 83%. The noble Lord picked out the issue of industrial action and I talked about high levels of sickness leave. These have seen performance go from 83% to about 63% since May.
My Lords, as a passenger on this railway line, I believe that the Government are dissembling. The contract which has been drawn up is quite unique and provides an incentive to the railway company not to run trains if it can avoid it. Under the contract, you collect the money from the tickets and pay a substantial fee to Southern to provide the trains. I suspect that you are seeking to buy time in order that Transport for London can take this over in a year or two’s time.
My Lords, I do not agree with the noble Lord. He may well be aware that DfT has effective enforcement procedures; indeed, an enforcement advisory panel was set up specifically to review possible contraventions of franchise agreements. Perhaps we have hope, in the sense that the official who leads that panel is a gentleman called Andy Murray.
My Lords, can my noble friend explain to the House what emphasis is placed on price in awarding the franchise, as opposed to the quality of the service and the ability to deliver on that service?
With any contract awarded there is a specific procedure, and the issue of price is looked at along with the other factors that my noble friend has raised. Any franchise that is awarded has that central point—the ability to deliver. I have made it clear that the Government feel very strongly that the current unsatisfactory levels of service on that line have to be improved. There are other investments and some improvements such as new rolling stock, but that is not good enough: we need to see more improvements.
My Lords, is not one of the major problems of franchising that it is difficult to get long-term commitment to investment and training, particularly at the end of a franchise agreement? Do not the problems of the current Southern franchise derive from the exit from the previous franchise, when investment and training were lacking?
On the current franchise, the noble Lord is aware that there have been issues of training and staff turnover, and Southern and its parent company has recruited new drivers, for example. On the current dispute over the new, driver-operated trains, I assure all noble Lords that at no time has it been said that there will be any redundancies. At no time has any person been told that their job is under threat. The issue of training is part and parcel of the new offer with regard to the new driver-operated trains that are being introduced.
My Lords, the Minister did not answer the question of my noble friend Lord Rosser, which was how many meetings have there been between the Government and the trade unions, and when.
If the noble Baroness reflects on Hansard, I made it clear that the Government’s job is as a facilitator. We made it clear to both parties that they should have arbitration between them and find a resolution. The franchise is awarded to them. It is for them to come together around the table and find a resolution to this long-standing dispute.
With commuters losing their jobs as a result of this appalling dispute, has any assessment been made of the number of lost jobs?
I cannot answer my noble friend’s specific question but I am sure that he is aware of the issue of compensation, raised by the noble Lord, Lord Rosser. I believe that my right honourable friend the Prime Minister made it clear last week that there will be additional compensation, which the Government are looking at, made available to those long-suffering commuters.
Is the Minister not aware that the problem behind the situation with this franchise and others is the Government’s determination to bring about driver-only operation of trains? That, combined with the de-staffing of stations and of the railway industry in general, is not the proper way forward as far as passengers are concerned. If they were consulted, like the trade unions, that is exactly what they would tell him.
The issue of driver-operated trains has not meant, as I have said, any reduction in staff. The role of what were conductors in training supervisors means greater focus on delivering customer service. There is an issue with sickness that is contributing to the challenge and to the problems we have. The current sickness rates operating on that franchise are not just higher; they are much higher than average.
On the question raised by the noble Lord, Lord Lexden, is the Minister saying that there is the possibility of compensation for those who have lost their jobs because of frequently arriving late at work or not arriving at all as a result of this dispute? Can he be specific on that point?
I can be specific. As I said, I do not know the number of people who have fallen victim in the way that the noble Baroness and indeed my noble friend have suggested. I did make the point that additional compensation is being looked at for those commuters who have suffered. Individual cases have been put forward and they will continue to be monitored, but my right honourable friend the Prime Minister has highlighted in his statements that we are looking at additional compensation. But to be clear, on the issue of loss of jobs et cetera vis-à-vis compensation, I do not know what the situation is. Obviously, every case will be looked at on its merits.
My Lords, if ultimately there is a requirement for the Government to directly operate this franchise, is there a shadow body within government ready and available to take that up?
The policy that I referred to in my original Answer includes details of how the department can take a step-by-step approach to ensure that any enforcement action is, in the first instance, proportionate to the contravention, and explains the enforcement tools and options available to the Secretary of State in any circumstances that may subsequently arise.
Volunteering: Young People
To ask Her Majesty’s Government what steps they are taking to promote long-term, full-time volunteering among young people.
The Government are committed to ensuring that young people from all backgrounds have the opportunity to engage in meaningful social action, creating a lifelong habit and developing skills for work. We support Step Up To Serve’s #iwill campaign, which is backed by a wide coalition of organisations offering a range of opportunities, including full-time volunteering. The Cabinet Office’s pledge to the #iwill campaign is to continue to invest in social action and to share evidence and best practice.
I thank my noble friend the Minister for her reply. The National Citizen Service has been one of the Government’s most notable successes, offering tens of thousands of young people the opportunity to take part in meaningful social action projects around the UK. With a new Prime Minister possibly only days away, can my noble friend reassure the House that the Government’s commitment to the NCS programme remains undimmed and that the Bill we were promised in the Queen’s Speech will come before Parliament soon?
I can certainly say that the Government remain committed to the National Citizen Service and to introducing a Bill which will give the NCS permanence, ensure the independence of the trust and improve its accountability to Parliament, and, importantly, create a duty on schools and local authorities to promote the National Citizen Service so that more young people can have access to it.
My Lords, until very recently, I was the chairman of Bradford Teaching Hospitals NHS Foundation Trust. We had more than 5,000 staff delivering a high-quality service in these challenging times but we could not have delivered those services without the 500-plus volunteers who came in day in, day out. Many of those volunteers have been there for 20, 30 or even 40 years. But what we were increasingly missing were young people coming into the system to help—and possibly develop careers in the NHS. Could the Government could come together with NHS England and Public Health England to provide some resources to encourage young people to take up some of these volunteering posts, which are very much needed in the NHS today?
We certainly want to encourage volunteering across a whole range of sectors. The Step Up To Serve #iwill campaign, which I mentioned earlier, aims to increase by 50% the number of 10 to 20 year-olds taking part in youth social action by 2020. I also assure the noble Lord that through the National Citizen Service a lot of groups are indeed working with the health service. For instance, a group built a sensory awareness garden in a Weymouth care home; in Merseyside a group raised funds for awareness of the Huntington’s Disease Association; and in Reading a group devised and ran a disability awareness campaign. There is a link-up with the health service through a number of campaigns that are going on, and we would like to see that continue.
My Lords, bearing in mind the more than 1 million young people—ethnically very diverse and from every part of the country—in Church of England schools, will the Minister authorise a direct conversation with the national society about the virtues of volunteering, with a view to joint action, a joint strategy and disseminating good practice?
First, I wish the right reverend Prelate a happy birthday. Certainly, the Government are very keen to work with as many partners as possible. We are doing this through the Step Up To Serve #iwill campaign. We are working with organisations such as City Year UK, vInspired and Volunteering Matters, and we would be happy to work with any organisation that would like to help us deliver this really important social agenda.
In order to get the most from volunteering, it is essential that employers and educational institutions recognise the skills and experience that young people acquire through high-quality social action. I wonder what consideration the Government have given to creating a legal status for voluntary service years similar to that in the United States, in order to support volunteering schemes such as those run by City Year UK, which the Minister has just mentioned.
We are very committed to ensuring that young people in particular undertake social action because we know the impact it can have. For instance, 90% of National Citizen Service participants felt more positive about people from different backgrounds; seven in 10 felt more confident about getting a job; 80% have learned something new about themselves; and 90% felt the NCS had helped them develop key skills for the future. It is obviously extremely important both personally but also to the local communities that these young people live in. Of course, a number of organisations that I have mentioned already offer a year in volunteering, so that option is available to young people if they wish to take it up.
Will the Minister look into the effect of CRB checks on volunteering? She will be aware that CRB checks are largely illusory and very often ineffective, because they check people with records but not with tendencies. The complexity of the CRB system is preventing a great many people volunteering. Queues of people want to join the Boy Scouts and Girl Guides and the lack of volunteers through the hold-up of CRB checks is having a very deleterious effect, quite unnecessarily, on the whole volunteering area. Will the Minister look into this with a view to speeding up the process?
We are very keen to try to address any barriers that we find in relation to volunteering. That and many other issues raised by organisations are on our radar so that we can make sure that organisations that want to take on volunteers, those who rely on volunteers and young people themselves can access this important area.
My Lords, we would welcome a Bill placing the National Citizen Service on a voluntary footing, but does the Minister acknowledge that the NCS needs to be properly funded and that the Bill should also include support for the work of both local authority services and key charities such as vInspired, which recruit and work with young people to help them translate their volunteering hours into job skills, employment and training?
I agree that this is an area that needs funding, which is why we have committed over £1 billion to expand the National Citizen Service programme to cover 60% of all 16 and 17 year-olds by 2021. What is most important is that all young people can access it, which is why, as a result of Government backing, it costs £50 or less to participate in NCS, but support and bursaries are available to those who cannot afford to pay, so that we can ensure that all young people are able to access the National Citizen Service.
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2016
Motion to Approve
That the draft Order laid before the House on 26 May be approved.
Considered in Grand Committee on 5 July.
Electoral Registration Pilot Scheme (England) Order 2016
Motion to Approve
That the draft Order laid before the House on 6 June be approved.
Considered in Grand Committee on 5 July.
Investigatory Powers Bill
Committee (1st Day)
Relevant documents: Pre-legislative scrutiny by the Joint Committee on the Draft Investigatory Powers Bill, Session 2015-16, 1st Report from the Joint Committee on Human Rights, 2nd Report from the Delegated Powers Committee, 3rd Report from the Constitution Committee
1: Before Clause 1, insert the following new Clause—
“Tests for the intrusion of privacy
In making decisions and taking actions under this Act a public authority must have regard to the following—(a) the rule of law,(b) necessity,(c) proportionality,(d) the need for restraint,(e) the need for effective oversight,(f) recognition of necessary secrecy,(g) the principle of minimal secrecy,(h) the need for transparency,(i) legislative clarity, and(j) multilateral collaboration.”
My Lords, my noble friend Lady Hamwee and I have put our names to Amendments 1 and 2. Parliament’s Intelligence and Security Committee have said that privacy should be at the heart of the Bill. Although the Government have made some attempt to put an overriding privacy clause at the beginning of the Bill, we feel that that does not go far enough. The noble and learned Lord, Lord Keen of Elie—in a letter to the noble Lord, Lord Rooker, dated 8 July—spells out the importance of the 10 tests for the intrusion of privacy which the RUSI panel that looked into investigatory powers came up with. Amendment 1 attempts to put those 10 tests for the intrusion of privacy in the Bill.
Although one might consider some of the principles to be obvious, such as “rule of law”, “necessity” and “proportionality”, there are other important elements of the 10 tests—in particular, “restraint”, as it should never become routine for the state to intrude on the lives of its citizens; “transparency”, as it must be evident how the law applies to the citizen if the rule of law is to be upheld; and “multilateral collaboration”, as government policy on intrusion should be capable of being harmonised with that of like-minded open and democratic Governments.
In the letter to which I have referred from the noble and learned Lord, the Government set out what I consider to be a rather optimistic view of how the Bill complies with the 10 tests. We will see, over the course of Committee, how we on these Benches do not share the noble and learned Lord’s optimism about how the Bill actually complies with them. As I said just now, we believe that the privacy aspects of the Bill need to be enhanced, in particular to increase the regard that people have to the Human Rights Act in implementing the Bill.
Section 46 of the Counter-Terrorism and Security Act 2015 provides for a Privacy and Civil Liberties Board. This is already in legislation—it just has not been enacted by the Government—and we believe that it could also strengthen the privacy elements. We support the additional safeguards for confidential journalistic sources and material. We are concerned about how wide so-called targeted interception warrants can be, going beyond simply named individuals to organisations and even groups of organisations.
We are also concerned about the whole issue of the so-called double lock. Why, in non-contentious law enforcement cases, does there need to be any involvement by the Secretary of State at all? Why is there inconsistency between intelligence services’ equipment interference warrants, where there is a double lock, and law enforcement equipment interference warrants, where the Secretary of State is not involved at all, despite equipment interference being more intrusive than interception? We are concerned about how judicial review principles, which judicial commissioners are supposed to apply to decisions of the Secretary of State, can apply if only one side of the argument is present, because the applicant for the warrant puts forward the case for the issuing of the warrant and there is nobody arguing against it.
There is judicial authorisation of interception warrants in all “Five Eyes” countries and international co-operation—as I have just indicated from the 10 principles —is extremely and increasingly important. To ensure that there is co-operation between the UK and other countries, particularly the United States, proper judicial authorisation, not simply judicial review, should be an important part of the Bill.
We support the additional safeguards to protect clients’ consultation with their lawyers. We are concerned about how warrants can be modified—in some cases significantly—without reauthorisation. In some cases, even the person who originally applied for the warrant can alter the warrant themselves. I remember, as a young constable, being a guide for the special patrol group, and we went to execute a drugs warrant in a terraced house in a row of squats. When the only thing of interest we found in the premises that we raided was a six-foot metal penguin, the officers simply changed the address on the warrant to the house next door, and then raided that one. Such alteration of warrants appears, potentially, to be allowed under this Bill.
We are concerned about the interception of communication in psychiatric hospital situations, and we need to explore the possibility of admitting intercept evidence in court, while recognising the importance of making sure that secret methods of interception are kept secret. We also need to explore the possibility of whether, in certain circumstances, the product of interception might be given in evidence.
We do not believe that the current legal ban on the Secretary of State’s admitting the existence of a warrant, let alone being held to account for authorising it, should present a blanket excuse for not being able to address Parliament on a particular warrant if she feels it necessary. One argument for having Secretaries of State authorising interception warrants is that Ministers can be held to account by Parliament, whereas judges cannot, and yet it is—under the terms of the Bill—an offence for the Secretary of State even to admit that a warrant is in existence, let alone what the content of that warrant is. We question the degree of accountability there can be in those circumstances.
For a whole range of reasons, we oppose the collection of internet connection records and their examination by law enforcement. We believe that the operational cases that the Government have published are unconvincing and that the considerable intrusion into privacy is disproportionate to the benefits to law enforcement. We believe that internet connection records are not necessary in the case of serious crime or in the case of terrorism because the security forces can help law enforcement. Those forces—MI5, MI6 and GCHQ—say that they do not require internet connection records because they can acquire the information by other means. The collection of data by internet connection records can also be easily avoided. The likely result is that serious criminals—for example, those involved in child sexual exploitation—will easily be able to avoid their internet connection records coming into the hands of law enforcement and only the data of innocent individuals and minor criminals will be collected.
Although there is some debate over what the real costs are going to be to internet service providers, it is likely to be considerable. In his summing up of the debate on Second Reading, the noble and learned Lord, Lord Keen, said that he did not know where our estimate of a billion pounds had come from, but when we come to the discussion, we will go into detail about how we arrive at that figure. As I said on Second Reading, the creation and retention of internet connection records will create vast quantities of highly sensitive personal—
My Lords, I am grateful to the noble Lord for giving way. I ask whether I have completely lost the plot here. I thought this was the first group of amendments, Amendments 1, 2 and 3. I do not understand why we are ranging over the entire Bill.
My Lords, what I am trying to demonstrate here is to counter what the noble and learned Lord, Lord Keen, said in his letter, that the Bill complied with the 10 tests put forward by RUSI. I am simply indicating where we feel that the Bill is deficient.
Moving on, we share others’ concerns that the technical capability notices and national security notices, only enforceable against UK companies, could make British products and systems more vulnerable to illegal hacking. There could be a considerable competitive disadvantage to UK companies as a result.
We are concerned about the operation of the filter. As I said at Second Reading, it creates a virtual database, and the noble and learned Lord in his summing up—
My Lords, I share the view of the noble and learned Lord. I am a simple sailor, and I am totally confused now as to exactly what the noble Lord is trying to do. Are we trying to insert an amendment, or are we having another Second Reading? The noble Lord is continually saying, “As I said at Second Reading”, but we do not do Second Reading a second time.
Unless you are a Liberal Democrat.
My Lords, I am trying to demonstrate—and in many cases, obviously, not succeeding—why the 10 tests as set out in the report are necessary, and how the Bill fails to meet those 10 tests.
As I was saying, on the filter, the noble and learned Lord, Lord Keen, in his summing up said that it did not create a database. I said in my Second Reading speech that it creates a virtual database. No doubt, we can discuss that issue when we come to it.
Overall, we feel that having the 10 tests as part of the Bill is an important safeguard for the privacy of individuals, and would place limitations on what the Government can do. I beg to move.
I speak to Amendment 3, in my name, and note my interest as a member of the Intelligence and Security Committee. A lot of the points made by the committee have already been taken on board by the Government following discussions and scrutiny in another place.
In the committee’s report on the draft Bill, we recommended that privacy protections should form the backbone of the legislation around which the exceptional powers are then built. This is absolutely crucial to the whole purpose of the Bill. Following scrutiny in another place, the Bill introduced in this House now has in Clause 2 provisions on “General duties in relation to privacy”. I hope that your Lordships welcome the inclusion of the new clause, which crucially includes the requirement that intrusive powers should be used only when the information being sought cannot be obtained by other less intrusive means.
However, the Bill still lacks a clear statement at the beginning about the right to privacy. This is the purpose of the amendment in this group in my name. We propose inserting a new subsection at the very start of the Bill, which places an individual’s right to privacy at the forefront of the legislation. I note that this amendment is similar to Amendment 2 in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, which attempts to achieve something similar, although I suggest that the amendment in my name is the more straightforward of the two options before us.
Finally, I think that this short but necessary amendment is compatible with the more detailed provisions already existing in Clauses 1 and 2.
My Lords, it is a good idea to remind ourselves at times like these that we live in a democracy, and part of what defines a democracy is that our Government do not rule us and we are not their subjects; they govern on our behalf, and with our consent. So when our Government ask us to hand over prodigious quantities of our information that reveal in detail how we live our private lives, we must take great care.
We all have something to fear from these surveillance powers, for none of us can guarantee the benevolence of future Governments. The surveillance programmes run by our Government now go far beyond anything George Orwell imagined. The more personal data are dredged up and stored, the more the risk of misuse. Now that most of us carry smartphones, government agencies and the police have unprecedented access to location information about where we are 24 hours a day, seven days a week. They can also get their hands on all the information on our phones and computers: our contacts, our diaries, our emails, our web browsing, our social networking and everything we do on the internet. Their access to our lives has expanded massively in the past 10 years. In addition, there are myriad new databases that create digital dossiers about our lives which are held by private companies and public bodies, including our banks and our doctors, and the Government have access to all of them.
In short, far from going dark, as is often claimed, the police and security services are enjoying a golden age of surveillance. If government agencies were offered the choice of current capabilities or pre-internet capabilities, they would overwhelmingly prefer their surveillance abilities today. Listen to the words of Wolfgang Schmidt, who was a lieutenant-colonel in the Stasi in Berlin. When he first learned of the extent of surveillance currently carried out on their populations by the British and American Governments, Schmidt thought carefully and then said:
“You know, for us, this would have been a dream come true”.
Some proponents of bulk surveillance tell us, “You have nothing to fear, if you have nothing to hide”. It has been said that the original maker of that claim was Joseph Goebbels. Many people’s response is simply, “I don’t have anything to hide, but I don’t have anything I feel like showing you either, and the way I live my life is none of the state’s business”.
I fully support the amendments in this group. They seek to give effect to the Intelligence and Security Committee’s—
My Lords, I am grateful to the noble Lord for giving way. We have a great number of amendments to deal with today. I respectfully ask the noble Lord to address the amendments.
That is exactly what I was just doing.
I fully support the amendments in this group. They seek to give effect to the Intelligence and Security Committee’s demand that privacy protections should form the backbone of the legislation around which these surveillance powers are built as exceptions to the privacy norm.
Clause 2 was the Government’s answer to the ISC’s demand, but it is incomplete and insufficient and needs to be seriously beefed up. The amendments in this group give full effect to the ISC’s reasonable requirement that privacy should be the backbone of the Bill by, among other things, incorporating the 10 tests devised by the Royal United Services Institute review. I commend these amendments to the House.
I, for my part, am entirely content with Amendment 3 in the name of the noble Lord, Lord Janvrin. I marginally prefer it to Amendment 2. It may be doubted whether either is strictly necessary, but let us have the simpler one. With the greatest respect, I regard Amendment 1 as entirely superfluous. It unnecessarily overcomplicates things and in large part it overlaps with other provisions in the legislation. It just is not a good idea. It is all very well to treat this legislation with some element of scepticism, but, please, not cynicism. That is the way this is approached in that context.
My Lords, following on from what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, I think that, in respect of Amendment 1, it is necessary to stand back and remember and recognise that this has got to be practical. If a public authority were presented with a list including, “the rule of law”, “necessity”, “proportionality”, “the need for restraint”, “the need for effective oversight” and statements such as “multilateral collaboration”, it would probably end up being terrified and do nothing. As the noble and learned Lord, Lord Brown, said, this is all dealt with in the Bill. It is entirely otiose.
My Lords, I thank the Minister for the response to my request at Second Reading for a view about each of the 10 tests. I am quite happy to accept these. What I resent is the fact that someone can stand up in our free Parliament and equate the present status of this country with the Stasi, where there was no rule of law, no independent judges, no independent commissioners and no free parliament. Let us have a reasonably decent debate about this.
My Lords, if I may just follow on from what the noble Lord, Lord Rooker, has said, my view, having studied these issues for a very large number of years now, is that the Bill as drafted provides ample protections against invasions of privacy. Indeed, they have that kind of specificity that the courts readily understand. I am not opposed to the amendment proposed by the noble Lord, Lord Janvrin, but I respectfully say to my noble friends that the other amendments in this group, Amendments 1 and 2, add absolutely nothing of substance. I join with the noble Lord, Lord Rooker, in saying that I regard it as outrageous to equate our situation today with Nineteen Eighty-Four. The idea that we have a “Room 101” in this country and cameras in every bedroom—which is what it says in Nineteen Eighty-Four—is completely misleading. My charitable view is that it demonstrates that my noble friend has never read Nineteen Eighty-Four.
I say to all Members of this House, including my noble friends—forgive me for taking up time, but maybe the beginning is the time to say it—let us get this Committee stage done as quickly as we possibly can and not spend our time on large numbers of otiose amendments.
My Lords, the Committee will recall that privacy protections were quite rightly a significant topic of debate as the Investigatory Powers Bill passed through the other place. To make clear the duties in relation to privacy and the associated protections and safeguards, the Government introduced a new overarching privacy clause, Clause 2, and made amendments to Clause 1. Those clauses impose statutory duties on public authorities in relation to privacy and, as drafted, already clearly underscore the right to privacy and provide the necessary balance between that right and the powers necessary to keep us safe.
Amendment 1, moved by the noble Lord, Lord Paddick, seeks to add a new clause which would list the 10 tests proposed by the Independent Surveillance Review panel, convened by the Royal United Services Institute, or RUSI. At Second Reading in your Lordships’ House, the noble Lord, Lord Rooker, asked whether the Bill complies with those tests. My noble and learned friend Lord Keen confirmed that it does and undertook to set out precisely how it satisfies the RUSI tests. He then duly wrote to the noble Lord and has placed copies of the correspondence in the Library. Accordingly, and in particular in the light of the noble Lord’s helpful comments a minute ago, I hope noble Lords will accept that the Bill does indeed satisfy those tests. I recognise the desire of the noble Lord, Lord Paddick, to set the scene, as it were, for our forthcoming Committee debates, and while I agree with the principle and spirit of the proposed new clause, I do not consider that it adds anything to what the Bill already contains. I am confident that the Bill as it stands meets each test.
On the amendments proposed to Clause 1, it is worth re-emphasising that Clause 1 provides an overview of the Bill and sets out the duties relating to privacy and the robust protections applied to the use of investigatory powers. This provides the context for the revised Bill and the accompanying codes of practice, which make clear the strong privacy safeguards that apply to the use of the powers contained in the Bill. The Bill ensures that the security and intelligence agencies and law enforcement continue to have the powers they need to keep us safe—and no more. Amendment 2 is therefore not required; Clause 1 provides a suitable and sufficient overview of the Bill and the privacy protections, so the proposed new text is not merited.
I listened with care to the noble Lord, Lord Strasburger. The Government and law enforcement are clear about the value and importance of accessing internet connection records, in particular, to prevent and detect crime and keep the public safe. I did not hear the noble Lord refer to that imperative, although it has been recognised during the passage of the Bill, including by noble Lords at Second Reading. The Joint Committee that scrutinised the Bill considered this issue in detail and concluded that,
“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.
On Amendment 3, I begin by thanking again the Intelligence and Security Committee for its diligent and valuable contributions to the Bill. We very much welcome its ongoing input to this debate. As I am sure the Committee will be aware, in its report on the draft Bill published last year, the Intelligence and Security Committee of Parliament called for the inclusion in the Bill of an overarching clause dealing with privacy protections. That call was echoed by the Opposition and the Scottish National Party in Public Bill Committee. Following those discussions, the Government introduced the new comprehensive overarching privacy clause in the Bill, which was widely welcomed on Report in the other place.
I agree fully with the spirit of the ISC’s amendment but do not consider that it is needed. The new overarching privacy clause and amendments made to Clause 1 not only achieve what the ISC’s amendment seeks to achieve but go much further; rather than signalling the importance of privacy, the amended Part 1 now creates a statutory obligation to have regard to the public interest in privacy. The privacy clause serves to make clear what was always the case: privacy is at the heart of this vital piece of legislation. Therefore, with great respect to the noble Lord, Lord Janvrin, I cannot see that his amendment, well-intentioned as it is, adds value to what is already in the text.
I hope these remarks are helpful and that, while doubtless the noble Lord, Lord Paddick, will reserve the right to return to individual issues, he will nevertheless be content to withdraw his amendments at this stage.
My Lords, before my noble friend responds, having heard the discussion across the Chamber, I am satisfied by the explanation offered by the noble Earl. For this reason, respectfully, to be overspecific about principles that support the whole concept of privacy runs the risk of inclusio unius est exclusio alterius: that is, by being too specific, you prevent the opportunity to look at wider considerations. That may be rather a technical view to take at this stage but it also underlines the points that have been made already about the general thrust of this legislation, which has innovated to an extent that would not have been thought possible even five years ago.
My Lords, I am very grateful for the comments from noble Lords from around the Chamber, and particularly to the Minister. As we go through the Bill, we will, at each power, indicate how we believe the provisions do not match the 10 tests in the way the noble and learned Lord set out in his letter. However, we can leave that until we reach those sections of the Bill. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated that, of the three amendments, Amendment 3 in the name of the noble Lord, Lord Janvrin, would be the best to include. If it was necessary, we would be very happy to support Amendment 3.
If I may, I will speak––with some trepidation––in defence of my noble friend Lord Strasburger. There are people in the UK who have the sorts of concerns that he has articulated and it is very important that, during our discussions in the House, we seek every opportunity to reassure people who hold those views, however outlandish some Members of the Committee might consider them. At this stage, however, I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Clause 1: Overview of Act
Amendments 2 and 3 not moved.
4: Clause 1, page 2, line 11, leave out “misfeasance” and insert “misconduct”
My Lords, I shall speak first to the government amendment. Clause 1 refers to those offences found elsewhere in the law that provide protections for privacy or safeguards against the misuse of these powers. This amendment simply corrects a minor error in the drafting; the Bill currently refers to the,
“common law offence of misfeasance in public office”.
That offence is more correctly referred to as misconduct in public office. This amendment simply reflects the usual name for the offence in common law, and will prevent confusion with the distinct civil cause of action, which is usually referred to as misfeasance in public office.
I rise to speak to Amendment 15 in this group, again on behalf of the Intelligence and Security Committee. It is crucial when this House is being asked to approve intrusive powers for the state that we all have a clear understanding as to how any misuse of those powers will be dealt with. These are exceptional powers, capable of revealing the most sensitive and detailed information about private lives. The Bill already includes offences related to the unauthorised interception and misuse of communications data, and there are other relevant offences mentioned in other legislation relating to data protection or computer misuse, for example. However, the Intelligence and Security Committee has concluded that these offences, scattered across numerous Acts of Parliament as they are, are insufficient and lack clarity. There would, therefore, be considerable benefit in setting out a single offence in one single place in this Bill alongside the intrusive powers we wish to regulate.
Your Lordships will note that we have sought to include wording in this amendment relating to wilful and reckless misuse of intrusive powers. We are not seeking to make minor, accidental mistakes criminal offences; we are focusing on the most egregious abuses of investigatory powers. There have been arguments that the creation of a new overarching offence for misuse of powers would add confusion in the law, duplicate existing offences and create a “chilling effect” for those using these powers in the agencies. Neither of these arguments is particularly compelling.
First, far from adding to confusion in legislation, it is self-evident that putting a single offence for misuse in one place should simplify legislation in this area, as it avoids the need to look for offences scattered throughout the legislative corpus and the common law. Potential duplicate offences can be dealt with easily, as has already been done in Clause 231, which amends the Wireless Telegraphy Act. The clause effectively says that an offence under the Wireless Telegraphy Act which is also an offence under the Investigatory Powers Bill should be dealt with preferentially under the Investigatory Powers Bill.
Secondly, the argument that an overarching offence would have a “chilling effect” on agency staff seems exaggerated. If a certain action constitutes a criminal offence anyway, it seems highly unlikely that an agency staff member would act differently depending on where and when the legislation appeared. If agency staff are engaging in activities that are on the edge of lawfulness, it is quite right that they should be given grounds to pause for thought, at least to the extent that they take internal legal advice if they wish to continue their work. The amendment would therefore be a simplification of the law and provide suitable penalties for serious transgressions.
My Lords, Amendment 17 in my name would provide for a statutory public interest defence for the offence set out in Clause 3. Clause 3 effectively reproduces the RIPA Section 1 criminal offence of phone hacking, of which the Prime Minister’s director of communications, Andy Coulson—among others—was convicted when he was editor of the News of the World.
I invite the House to support the amendment in this group proposed by the noble Baroness, Lady Hollins, which provides access to justice for victims of phone hacking and incentivises the adoption of the Leveson reforms which the Government have stalled on. But there is another matter which must be considered and which my amendment addresses—the absence of a statutory public interest defence for voicemail interception or any other type of breach of Clause 3.
Let us consider a situation where suspected serious wrongdoing is being investigated by a journalist or NGO and that journalist or NGO has no faith that the police will adequately investigate the matter; for example, a case of police corruption or, more practically, a case where the police have failed to investigate a case such as that of Jimmy Savile. In such circumstances, if the journalist or NGO intercepted voicemail messages which showed the corruption or illegality, and then exposed it, that person should have a defence that he or she can rely on.
Amendment 17 provides for this. The CPS can of course choose not to prosecute under the public interest arm of the “threshold test for prosecutors”, but that is not good enough. Prosecutors make their decisions on the public interest element after reviewing a file of evidence produced for them by the police and after an investigation which addresses the separate question of whether there is enough evidence to pass the first, evidential arm of the threshold test. Such a police investigation could last for months, if not years, and will involve interviews under caution, search warrants and perhaps arrest. That is a real disincentive to investigative journalism.
If there is a statutory public interest defence, the police will be able to see at an early stage that however much evidence they gather to prove that the act took place, or indeed even in the case of an admission, they will not be able to defeat the defence if the facts are clearly made out and their investigations will be curtailed. The benefit of a public interest defence therefore is not so much that it will allow investigators in the public interest to be acquitted at trial, or even that the CPS will choose not to prosecute on the evidential arm before even having to consider the public interest, but that the police will abandon investigations where the public defence is clearly made out in the facts. That will have the benefit of removing the chilling effect of potential police investigations and possible prosecution from investigative journalists who we rely on on these occasions to root out wrongdoing. Perhaps I may invite the Minister to engage in a constructive discussion about whether a narrow but valuable defence can be crafted. After all, noble Lords will be aware that there is a statutory public interest defence in Section 55 of the Data Protection Act, a provision that in Clause 1 of this Bill the Government are relying on as adequately protecting our privacy.
The investigative journalist Nick Davies of the Guardian exposed the hacking scandal. Had he had to intercept voicemail messages between Andy Coulson and one of the several convicted news editors who served under him in order to bring the story to our attention, that would have been in the public interest. It would not have been right that in the absence of a public interest defence which the police knew was valid, he had been arrested and questioned by the very police force whose failures he uncovered. That is why this amendment is so important and I commend it to your Lordships.
My Lords, my noble friend Lady Hamwee and I have Amendments 16, 20, 21, 22 and 84 in this group.
Amendment 16 concerns the offence of unlawful interception, but in the Bill as drafted that applies only to public telecommunications systems, private telecommunications systems and public postal services. It does not apply to private postal services. Examples of those could be the postal services used by the legal profession such as Legal Post and DX. Can the Minister inform the Committee why private postal services are not included in that provision?
Amendment 20 relates to the provision that,
“Conduct which has lawful authority for the purposes of this Act … is to be treated as lawful for all other purposes”.
Presumably, this provision is to avoid the problem we have had in the past where, while interception or equipment interference was allowed under one piece of legislation, it was an offence under the Computer Misuse Act 1990. Presumably, that is why this provision has been included, but surely it should apply to existing legislation—and it should state that it should apply to existing legislation—not to legislation in the future.
Amendment 21 is again about any other conduct under the Bill being treated,
“as lawful for all purposes”.
Surely this should not be as broad as that. It should be restricted to what is lawful only for the purposes of this Bill.
Amendment 22 concerns the service of monetary penalty notices. Paragraph 4(4)(g) of Schedule 1 allows for an oral hearing before the commissioner, but the amendment would add that the person who applies for and is granted an oral hearing before the commissioner can be legally represented.
Returning to something that I referred to in my opening remarks, Amendment 84 is about restrictions on unauthorised disclosures which as written would prevent the Secretary of State from disclosing the existence and contents of a warrant. The amendment would allow the Secretary of State to disclose the existence and details of a warrant if she felt it was necessary in order for Parliament to carry out its functions. As I mentioned before, I do not see how the argument can be made that the Secretary of State should be involved in the authorising of warrants because she can be held to account, when she is not able, under the terms of the Bill as drafted, even to admit that such a warrant exists.
My Lords, I gave evidence to the Leveson inquiry about the press intrusion suffered by my family and I am going to speak to Amendments 18 and 246 in my name.
In Section 1(3) of the Regulation of Investigatory Powers Act 2000, there was a statutory tort for interception of communications. This has not been recodified in the Bill, presumably because the common law has proven to be a sufficient basis for legal actions against those who hack communications. The effect of subsection (1) in my Amendment 18 is to reinstate that tort. The effect of subsections (2) to (5) in my amendment are then to provide access to justice for victims of phone hacking—the criminal offence recodified in subsection (1). It will enable them to sue, without cost risk to themselves, those newspapers which have invaded their privacy but are refusing to guarantee low-cost arbitration.
I hope that this amendment will encourage the Government to bring into effect law already passed by this House and the House of Commons in Section 40 of the Crime and Courts Act 2013. Amendment 18 replicates Section 40 of that Act in a limited way for claims made by victims of the interception of private communications—phone hacking—because only these claims are in the scope of this Bill. The consequential amendment to Clause 243 would have the effect of automatically commencing the provision immediately after Royal Assent to prevent government non-commencement, as has happened with Section 40. Of course, if the Government commence Section 40 forthwith, this amendment will be withdrawn. If the Government do not, this amendment would have the same effect as that law, at least for victims of phone hacking.
I am very grateful to noble Lords from across the House who are supporting these amendments, and for briefings and drafting assistance from Hacked Off, through which I have been introduced to many other victims of press abuse. I remind noble Lords that Lord Justice Leveson’s inquiry found that voluntary newspaper self-regulation by the Press Complaints Commission had failed appallingly and urged Parliament and the Government to ensure that any new regulator set up by the press would be accredited by an independent recognition panel to assure its independence and effectiveness. The idea was, and Parliament agreed, that the newspapers would have to join such a regulator and not be allowed to set up another version of the PCC. The terms of Section 40 of the Crime and Courts Act were agreed, somewhat reluctantly, by the Government to avoid defeat in both Houses in March 2013.
Section 40 was part of the cross-party agreement which included the royal charter, and was signed by the Prime Minister and the leaders of the Labour and Liberal Democrat parties. As a result of this agreement, the noble Lord, Lord Skidelsky, withdrew his amendment to the Enterprise Bill in March 2013 which would have implemented the Leveson-recommended recognition panel by statute. Ben Bradshaw MP and Simon Hughes MP similarly withdrew their amendments to the Crime and Courts Bill, which would have brought in a stronger and faster version of Section 40.
Section 40 provides protection from court costs in libel, harassment and privacy cases involving newspapers and has three policy aims. The first is to guarantee access to justice for claimants in libel and privacy cases against non-Leveson-regulated newspapers. The second is to protect investigative and public interest journalism at newspapers from court costs and thus from so-called “libel chill”. The third incentivises non-Leveson-regulated newspapers to join a Leveson-style self-regulator which has been accredited as independent and effective.
Section 40 would have to be commenced in the usual way provided in all Bills,
“on a day appointed by the Secretary of State”.
It was agreed, cross-party, that commencement of Section 40 would be well before the exemplary damages provision in Sections 34 to 39. Those sections, on exemplary damages, were to come into effect one year after the royal charter Press Recognition Panel had been set up, which should have been in November last year. This makes Section 40 well overdue. Ministers made multiple explicit commitments on the Floor of both Houses to bring in Section 40—I have a list of 25 such commitments. However, last October the Secretary of State announced at a meeting of newspaper editors, that he was “not minded” to commence the statute. Since then, despite being asked on a number of occasions, the Secretary of State has apparently failed to point to any precedent for such non-commencement of part of an Act of Parliament.
The largest part of the press industry has set up the Press Complaints Commission mark 2, called IPSO. By its own admission, it fails to meet the majority of Leveson’s recommendations. There is, however, a Leveson-compliant regulator called Impress, which is seeking recognition by the royal charter-established, independent Press Recognition Panel. Impress is likely to be recognised over the summer. But the absence of Section 40 being brought into effect has severely compromised the ability of Impress to attract members because such members do not gain the promised costs advantages of joining. The non-commencement of Section 40 means that the three benefits or incentives that I have described will not be available to them. This still means that there will be no access to justice for press abuse victims suing IPSO newspaper members, no cost protection for newspaper members of Impress and no incentive for IPSO members to join Impress or to require IPSO to become accredited.
Non-commencement changes government policy, breaks the cross-party agreement and betrays victims of press abuse. My amendments will not be put to a vote in Committee, but I intend to bring them back on Report unless the Government commence Section 40, as Parliament expected to happen last year. I commend my amendment to the Committee.
My Lords, I support my noble friend’s amendment. She set out extremely clearly what is at stake and we should remember that at the other end of violations of privacy there are people who have their privacy severely intruded upon. The intruders are not the security services or a public authority but privately owned newspapers.
There is a rumour abroad that in some way Sir Brian Leveson’s recommendations were a challenge, an affront and an abridgment to freedom of the press. That is a mistaken view of the matter. Freedom of the press is not freedom to intrude in other people’s privacy. On the contrary, it is freedom not just within the law—we are talking about changing the law—but where victims have reasonable redress. At present, that is not the case because the heavy costs and risks fall on victims—even a worthy case may fail in the courts—and because, on the other hand, perpetrators have no incentive to apologise or be accurate. There has been a great deal of concern about the extreme inadequacy of the complaints procedures that IPSO has devised. I say that with hesitation because I suspect that they cannot really count as complaints procedures, given that violations are rarely reported adequately and lead to no consequences.
We need this protection for individuals and private lives, and it fits naturally into this Bill.
My Lords, I support the amendments in the name of the noble Baroness, Lady Hollins. We should remember the agreement signed in 2015 with the full support of Parliament, and its three pillars: there should be a body to regulate complaints against the press that is based on Lord Leveson’s recommendations; it should not be compulsory for the press to sign up to those recommendations, but there should be certain disincentives to not signing up, such as in the treatment of case costs by the courts; and there should be a back-stop in the form of a royal charter for such a body in order to make sure that there was no backsliding.
If we are honest and look at those agreed aims of Parliament, how are we doing? We are doing badly. We have one regulator, Impress, which, as the noble Baroness said, is compliant and marching towards a seal of approval, but has no serious clients. We have another in IPSO, which falls far short—I emphasise “far short”—of the requirements of Leveson. It is dependent on those who regulate it, with its structure, rules, code, membership and funding all controlled by those it seeks to regulate. It does not provide assured redress for members of the public who have been mistreated, because its arbitration scheme is voluntary. It is confined, like its predecessors, to mediation, not regulation, and its procedures make it hard, if not impossible, to envisage that it would ever impose a big fine on a member. I do not want to impose on the patience of the Committee by going into great detail on any of these. However, I do not blame the chair of IPSO, Alan Moses, who has fought vigorously for a compliant IPSO; I blame the clients.
Having said that, there is still hope. The Government’s own Press Recognition Panel has to report to Parliament, perhaps in September, about how things are going, and it is bound to say that they are going nowhere. I invest more hope still in the fact that Sir Joe Pilling, a former head of the Northern Ireland department, has been commissioned by IPSO to look into its workings. We had a good example of the work of former heads of the Northern Ireland department in the report of John Chilcot last week, and I believe that Sir Joe Pilling is another good man who can do a good job.
However, just at this moment when things hang in the balance, the Government have chosen to take their foot off the pedal. It never occurred to Parliament for a single second—I was present during the debates, as were many noble Lords—that the damages sanctions would not be brought into force. To be fair, John Whittingdale has not said that he will not bring them into force, but that he is not currently minded to bring them into force. While that is his position—while it is thought that the organisation will get away without these incentives coming into force—the chances of fundamental change to IPSO that is greatly required are such as to compete adversely with those of a snowball in hell.
The IPSO non-compliant press is basing itself on the argument it has run throughout—that the suggested royal charter is a tool which could lead to parliamentary and political interference with the press. I happen to think that claim is far-fetched, but believes it. However, that is very much a side issue. The central issue is not the royal charter but whether we are to have a Leveson-compliant regulatory body or are we to have IPSO slipping back over time, as its various predecessors did, into complete impotence and ineffectiveness? In the absence of the sanctions envisaged by both Houses and all parties in Parliament, the whole dreadful saga that led to Leveson is destined, in time, to repeat itself, leaving ruined lives in its wake.
My Lords, I should disclose an interest as having been appointed some years ago now as chairman of the management and standards committee established by News Corp, following the revelation of the phone hacking scandal.
I want to say a few words about Amendment 17 in the name of the noble Lord, Lord Strasburger. I respectfully suggest caution as regards whether such an amendment should be approved by the Committee. In my experience—and I have had quite a lot of it—looking at many of the cases arising out of that scandal, journalists tend to be not very good at distinguishing between the public interest and matters which they believe will be of interest to the public. There is quite a fundamental distinction, but one which, regrettably, in my experience is not really appreciated by journalists, even the best of them. It may not be a very wise manoeuvre to introduce this defence into the Bill, as it would encourage journalists to hope that they might secure the benefit of that defence and would thereby be justified in conducting essentially voicemail hacking activity. In my view—and experience confirms this—these cases are mostly about trying to get hold of a story, often a sleazy one, which is wholly intrusive into private lives and little or nothing to do with the public interest. I would be inclined to oppose that amendment if it is pursued.
My Lords, I will not detain the Committee long. I support the amendments in the names of my noble friends Lord Paddick and Lady Hamwee and I will speak briefly to the amendment in the name of the noble Baroness, Lady Hollins.
During the coalition, I was involved in the discussions which led to the royal charter and the other commitments made by all the party leaders and the coalition Government. It is important either that the Government commence the relevant parts of the Act or, as the noble Baroness has indicated, that this amendment should proceed to a Division when the Bill comes back on Report. The Secretary of State’s failure to commence the relevant sections of the Act is an utter betrayal of the commitments which were made at the time by all parties, including the Prime Minister. Most importantly, it is an utter betrayal of the many victims of phone hacking and other invasions of privacy who were to be protected by the royal charter and the Act. I hope that the Government will think very carefully about this. Perhaps the Prime Minister, before he leaves office, will stand up and ensure that the commitments which he made personally are implemented.
My Lords, I will speak very briefly on Amendment 16, to which I added my name, which has already been dealt with by the noble Lord, Lord Paddick. Should the Government accept the logic of that amendment, they might also want to look at Clause 4(8)(b)(i), which ought also to be amended to include “a private postal service”. Like the noble Lord, Lord Grabiner, I think the amendment in the name of the noble Lord, Lord Strasburger, sounds like a carte blanche for allowing private phone hacking. The noble Lord came up with better words than I could when he spoke about thinking that “public interest” and of “interest to the public” were the same. I would be very alarmed at the idea of allowing phone hacking by private bodies, simply because they thought it might be in the public interest.
The more substantial issue in this group is dealt with in Amendments 18 and 246—I refer to them as the Leveson amendments. The Labour Party has an interest in Amendment 18. Our names are not on it but our former leader, my right honourable friend Ed Miliband, was, along with the current Prime Minister, one of the signatories to the deal which has already been described and which led to amendments being withdrawn in this House and in the Commons. Failing to implement Parliament’s decision on this matter is a shameful disregard for the law on the part of the Government. The Act was passed in good faith and the Government should have implemented it, in accordance with the wishes of this House and the other place. Non-commencement is an unacceptable device to undermine legislation which has been passed.
Amendment 18 seeks gently to encourage the Government to bring into effect the law already passed, and we hope they will agree to do that. I will not rehearse the case that has been made so well already. However, it is remarkable that, as we consider a Bill on investigatory powers that sets out clearly and openly what the state and its agencies can do regarding hacking—the limits, the safeguards and the penalties for exceeding the law—private and unaccountable profit-making bodies such as the press continue to get away with things our spooks rightly would not be able to. The Government should not undermine Parliament by failing to commence Section 40 and we hope that, today, they will show their willingness to act now.
Before the noble Baroness sits down, can I point out that I share entirely her concerns and those of her noble friend about journalists confusing the public interest with the interest of the public? If there were any such amendment along the lines that I suggested, it would have to be drafted so narrowly that that confusion could not exist.
My Lords, I begin with Amendment 15, which raises the issue of creating a new criminal offence. This was initially discussed in the other place at earlier stages of the Bill’s passage.
In the other place the Government made it clear that each of the powers in the Bill is already subject to one or more civil penalties or criminal offences for misuse. Part 1 has always contained a number of privacy protections that are central to the Bill, and it now makes clear the existing offences and sanctions that apply in respect of the different powers, such as the offences that relate to the unlawful interception or unlawful obtaining of communications data. In addition to the strict safeguards that are explicit in Part 1 of the Bill, there are a number of other additional offences that exist elsewhere in statute but apply equally to any misuse of the powers.
In response to the concerns raised in the other place and with sympathy for the Intelligence and Security Committee’s desire for clarity, the Government listened carefully and tabled amendments that now more explicitly refer to the relevant offences set out in other statutes, such as the Computer Misuse Act 1990, which applies to equipment interference, and the Data Protection Act 1998. These put beyond doubt the penalties that would apply in the event of deliberate wrongdoing by a member of a public authority.
On the basis that there are existing offences that apply to every power in the Bill, the Government are reluctant to introduce a new criminal offence that would lead to confusion, as it would overlap or duplicate those set out elsewhere. Perhaps more simply, it would be unnecessary. The powers in the Bill are varied, each with their own distinct regimes. If we sought, as was suggested by the noble Lord, Lord Janvrin, to create one offence to fit them all, it would either be too broad and catch too much, or by being too narrow actually miss something and result in a less effective sanction. It could also lead to a lack of legal clarity and potentially hamper the effective enforcement of existing offences. The point is that one size does not always fit all.
There is a further concern. The heads of the three intelligence agencies have written to the Home Secretary and to the ISC outlining their very real concerns about the inadvertent operational impact this proposal may have. The officers working within our intelligence agencies are entirely committed to the mission of keeping the country safe. They are professional and ethical in the way in which they conduct their work. We recognise the concerns raised about potential misuse of investigatory powers, but the creation of a new offence may unnecessarily inhibit agency staff and limit their ability to operate with confidence and at pace against the numerous threats we face.
We do not disagree that intelligence officers who are exercising these most sensitive and intrusive powers should consider their actions carefully before using them, but I have seen no evidence that the dedicated men and women of our security and intelligence agencies give such matters anything less than the most careful consideration. I can quite easily see that Parliament’s creating a new offence that appears to be targeted solely and squarely at our intelligence agencies could have a detrimental impact on the confidence, morale and willingness of those persons to carry out the often dangerous yet vital work we ask them to do on our behalf. Moreover, the Government are clear that if anyone in a public authority were to act contrary to their obligations under the Bill, the matter would be taken extremely seriously. The current commissioners already ensure that they investigate and report publicly on the very infrequent cases of errors which involve serious misuse. In appropriate cases disciplinary action may be taken, up to and including dismissal, or civil or criminal liability incurred.
When these points are considered collectively, I hope noble Lords will agree that this puts beyond doubt the severe penalties that would apply in the event of deliberate wrongdoing by a member of a public authority. A new criminal offence is therefore wholly unnecessary and potentially confusing, and would adversely affect the operation of the agencies.
Amendment 16 seeks to extend the criminal offence of unlawful interception to “private” postal services. This is aimed at capturing those services which cater to more specialist clients; for example, companies that provide services to banks or lawyers. The noble Lord, Lord Paddick, referred to DX as an example of such a company. I understand the reason for the amendment and support the principle that the offence should apply to this type of company. However, these companies are already caught by the existing provision. The Bill describes a “public postal service” as one that,
“is offered or provided to the public, or a substantial section of the public”.
This includes companies that specialise in providing services to bespoke sectors, such as the legal profession or banks.
Moving on to Amendment 17, in the name of the noble Lord, Lord Strasburger, Clause 3 sets out the offence of unlawful interception. This is a vital safeguard that relates to one of the most sensitive powers provided for in the Bill. It underpins the protections for privacy that are fundamental to the Bill. I am afraid I cannot accept an amendment which would limit or even undermine that safeguard. The amendment would limit the offence by setting out circumstances in which it would not apply; for example, it provides a public interest defence to the offence. It would not be appropriate to allow someone to intercept the communications of another—without lawful authority—because that person takes the subjective view that it would be in the public interest. I note and agree with the observations of the noble Lord, Lord Grabiner, and the noble Baroness, Lady Hayter, in this regard. It would not be right to reduce this strong safeguard, which exists to protect individuals.
I should have come in on Amendment 16, but before the Minister moves on, the issue of the private postal service was raised by the Minister’s Scottish legal colleagues, who wrote to us. They felt that the definition of “public postal service” did not include DX. I wonder if he will agree to write to me so that the legal position is clarified, since it was good Scottish lawyers who raised the issue.
I am obliged to the noble Baroness. It was raised by Scottish colleagues—Scottish colleagues with whom I do not agree—but I am quite happy to undertake to write to her. I should say it was raised by the Scottish Law Society, not the Scottish Bar.
Amendments 18 and 246 were spoken to very clearly by the noble Baronesses, Lady Hollins and Lady O’Neill, and the noble Lords, Lord Lipsey and Lord Oates. While I am quite happy to write on the matter of press regulation and the commencement of Section 40, press regulation is not the purpose of the Bill. I have to make that clear in this context because while I understand the points that are being made, they do not arise directly in the context of these amendments.
Moreover, the relevant amendments are not considered necessary. There is already a criminal offence where unlawful interception takes place on a public or private telecommunications system or a public postal service. There is also a cause of action which applies in a limited set of circumstances, where the criminal offence does not apply. Where there is an allegation that unlawful interception has taken place on behalf of a public authority, a person may seek recourse through the Investigatory Powers Tribunal, which has the power to provide redress, including awarding damages.
Where the conduct relates to an individual who does not belong to a public authority, there are other causes of action which may be applicable. I may have misunderstood the noble Baroness that the tort which currently exists in the Regulation of Investigatory Powers Act 2000—allowing an individual to take action against a person who has the right to control the use or operation of a private telecommunications system and who intercepts a communication on that system—has been added to the Bill by way of Clause 8, and that happened after the debate on the Bill in the other place. In these circumstances, we are not prepared to accept the amendments.
Turning to Amendments 20 and 21, Clauses 6(2) and 6(3) are important because they provide that where a public authority, or a telecommunications operator, is acting in accordance with a warrant properly obtained under the Bill, or the provisions of Clauses 42 to 50, they can be sure that they are not breaking any other law or required to obtain additional authorisations. This legal certainty is vital for those engaged in the essential work of keeping us safe.
The first amendment seeks to provide that future legislation could make that conduct unlawful for certain purposes. I understand the principle the noble Lords seek to achieve but I do not believe it is necessary. Nothing in the Bill prevents Parliament amending the legislation at a future date to make any of the activity unlawful or provide that some additional authorisation is required.
The second amendment seeks to amend subsection (3). The purpose of this subsection is to make clear that conduct undertaken in accordance with a warrant or which is authorised by any of Clauses 42 to 50 is to be treated as lawful. This is vital in providing companies with reassurance that by complying with a warrant they will not be acting unlawfully in relation to their regulatory obligations or other legislation. The effect of this amendment would be to provide that the conduct is lawful only for the purposes of the Bill. My concern, were we to accept this amendment, would be that we would remove the legal certainty that the companies and agencies rely on to do their job and to keep us safe. We therefore do not accept the amendment.
Amendment 84 relates to exceptions from the duty not to make unauthorised disclosures about warrants. It is absolutely right that the Secretary of State should be accountable to Parliament, even for the most sensitive decisions concerning the most sensitive powers. But when it comes to such matters, which necessarily must remain secret, it is absolutely right that Parliament provides a mechanism for the Secretary of State to be held to account, while at the same time doing nothing to jeopardise national security. That is the very reason for the existence of the Intelligence and Security Committee of Parliament.
To put beyond doubt that the Secretary of State is, and will continue to be, accountable to Parliament through the ISC for decisions relating to warrants, the Government amended Clause 54 and Clause 123 to make clear that the Secretary of State may disclose matters relating to warrants to the ISC. This will allow the ISC to carry out its statutory functions in holding the Government to account, while maintaining our security. It is right for the ISC to carry out this function and it would not be appropriate for disclosure to be made to Parliament as a whole. To do so would breach the long-standing principle of successive Governments to neither confirm nor deny matters relating to intelligence and security and could risk jeopardising our national security. Accordingly, I invite the noble Lords not to press their amendments.
Can the Minister clarify whether it is not then an offence for the Secretary of State to disclose the existence or content of a warrant to the ISC? That is not our understanding of the Bill.
It may be then that we have to agree to disagree. It is my understanding of the Bill and it is our position that the Secretary of State is entitled to make disclosure to the ISC for the purposes of answering to the ISC in this context.
Amendment 4 agreed.
My Lords, I will now repeat a Statement.
“Mr Speaker, the question of how to involve parliamentary discussion around triggering Article 50 has two distinct facets, one legal and the other democratic.
To take the legal considerations first, I am sure everyone will be aware of the debate around whether invoking Article 50 can be done through the royal prerogative, which would not legally require parliamentary approval, or would require an Act of Parliament because it leads, ultimately, to repeal of the European Communities Act 1972.
I will leave the lawyers to their—doubtless—very enjoyable and highly paid disputes, and apart from observing that there are court cases already planned or under way on this issue, so the judge may reach a different view, would simply remark that government lawyers believe it is a royal prerogative issue.
But I hope everyone here will agree that democratic principles should rightly trump legal formalities. The Prime Minister has already said that Parliament will have a role, and it is clearly right that a decision as momentous as this one must be fully debated and discussed in Parliament.
Clearly, the precise format and timing of those debates and discussions will need to be agreed through the normal parliamentary channels. As everyone will understand, I cannot offer any more details today because those discussions have not happened yet. But I will venture a modest prediction in that I strongly doubt they will be confined to a single debate or a single occasion.
There will be many important issues about the timing and the substance of different facets of the negotiations which the Government, the Opposition, the Backbench Business Committee and, I dare say, even you Mr Speaker will feel are important to discussions. But for the details of which topics, on what dates, and the specific wording of the Motions, we shall have to wait and see”.
My Lords, I thank the Minister for repeating that Answer to an Urgent Question. Last week, we had two days of debate and a QSD on the referendum outcome in which we sought to better understand what will happen next. The result of the referendum is of course clear and must be respected, but as we heard in the other place, it is about not if but how the will of the people is delivered. Whatever version of Brexit we eventually end up with, surely Parliament must be totally engaged in the determination.
Last week, the Minister said that it is for the next Prime Minister to decide when to trigger Article 50 and start the formal and legal process of leaving the EU. We now know who, but when will we know how? The question for all noble Lords in this House is about the process of parliamentary engagement before the triggering of Article 50. What is the Minister’s estimate for meeting the commitment to consult the devolved powers? It will be a lengthy consultation process, bearing in mind the risks, but will it also involve the wider community, including employers and trade unions? If the principle is that Parliament will be engaged, will the Minister please give us more details about what that precisely means?
The noble Lord asks a number of questions, including some that were posed, as he quite rightly said, to my noble friend Lady Anelay last week during the debate. I can of course advance the position somewhat from the answer that she gave last week, in that we know, as the noble Lord said, who the next Prime Minister is—and I understand that she will become the Prime Minister on Wednesday evening. There is at least some progress there, which I am sure will provide some confidence that the process will be decided rather sooner than might have been the position had there been a contested election for the Conservative leadership.
As to his question in respect of the devolved nations, I know that there have already been preliminary discussions with the various parts of the United Kingdom and their representative Assemblies and Parliament. That will continue, and he is quite right that Brexit, however it finally comes into being, should involve all of the United Kingdom and as many parts—and representative parts of the United Kingdom—as possible.
As to the question of Parliament’s involvement, I fear I can go no further than my noble friend did. It is the Government’s view—as I indicated in the Statement—that the prerogative power does not require parliamentary involvement, but the current Prime Minister made it clear that Parliament will be involved. How and when Parliament will be involved will be a question for the new Prime Minister when she has considered the best way forward.
My Lords, I thank the Minister for his responses. He seemed to make rather a joke of “enjoyable and highly paid” disputes among the lawyers, but surely it is much bigger than that. For a referendum which was fought largely on the issue of parliamentary sovereignty, and on such a major issue as the terms on which this country is supposed to leave the EU, surely it is inconceivable that a decision to trigger Article 50 should not be taken on the basis of a parliamentary decision. After all, Article 50 says that it is up to British constitutional requirements. So this is not about legal formalities; this is fundamentally about democratic principles. We need clarity in a time of huge turbulence. We need to know the evidential basis on which the negotiations will be conducted. We need to know the timing, before and after negotiations, for triggering Article 50. This is about the national interest, not about the convenience of the Conservative Party. I think that we deserve greater respect for Parliament on this decision.
There is no lack of respect for Parliament; quite the contrary. As to the comment that I appeared to make a joke, the noble Baroness will appreciate that I was simply reading out the Statement that was in the House of Commons. If noble Lords found it amusing, that was a matter for them, not any intention on my part. As to the question of sovereignty, there is a distinction drawn by the noble Lord, Lord Norton, as the noble Baroness may remember, between parliamentary sovereignty and political sovereignty in the Diceyean sense. The Government took the view that it is plainly desirable that Parliament should be involved. Whether there is a strict requirement in law may be a matter that courts will decide in due course.
My Lords, I am sure we all wish the present Prime Minister well in the next phase of his interesting career, whatever he may choose that to be. Does my noble friend recall that the present Prime Minister made it absolutely clear that, in his view, Article 50 should be triggered without delay following the referendum result? Surely that is sensible given that delay, and the consequent uncertainty, can only be bad for British business and the British economy. Does he not agree that the same applies to the negotiations themselves? They should not take too long, and they can be speeded up by avoiding the nonsense of seeking some special trade agreement with the European Union, which it is clearly not prepared to give—for reasons I fully understand—although it might string us along. Finally, will he not also agree that the same thing applies to the rest of the paraphernalia of the negotiations, which I have not got time to go into now? We need to concentrate on how we are going to conduct ourselves after the Brexit. That is what is most important.
As for the question of speed, of course, once we trigger the Article 50 process, there is a period of two years which follows—
Not necessarily; up to two years.
Up to two years is the maximum, as my noble friend quite rightly says. It will be a matter for those conducting the negotiation as to the appropriate speed, although speed should not be the dominant factor. What should be the dominant factor is the best deal that we can obtain for this country. Simply trying to accelerate the process might, depending on how the negotiations continue, be the enemy of that result. We should leave it to the new Prime Minister and those negotiating with her to obtain the best deal for the United Kingdom.
My Lords, in principle, I welcome very much the Minister’s statement that political realities trump whatever other legalities. There is an argument here, and I advanced a certain view on the prerogative in last week’s debate on the subject, but I am glad that political realities are now paramount, as they are in the convention of going to war, which was advanced by the late Lord Mayhew and myself as former Attorney-Generals. Indeed, the convention has now been established, in respect of Iraq and Syria, so that matters of such importance can no longer be invoked for the royal prerogative and that the consent of Parliament is required.
I noted that the noble and learned Lord made that point during the debate on the EU referendum last week, and of course he is right. I hope that I have reflected what this House and indeed the House of Commons would expect by way of parliamentary involvement. Clearly this House, as well as the House of Commons, has much to offer.
My Lords, will the Minister be so kind as to confirm that, until such time as Article 50 is triggered, nothing of any legal consequence occurs at all, and it does not lie in the gift of the other 27 members of the European Union to take any action at all to seek to force the British Government into that position?
The noble Lord is perfectly correct, as a matter of law. Of course, there will be a question of what is expedient, in terms of the timetable, and whether pressure would be put on the Government. But he is absolutely right on the legal position.
I thank the noble Lord for being the third Minister now to say very clearly that Parliament will have a role to play in the Article 50 process. Can he confirm that the role that Parliament plays will be a matter for discussion between the usual channels and that we will be able to have a debate on the real merits of what is proposed so that a proper democratic judgment can be made by Parliament on these matters?
I cannot, of course, anticipate precisely what the new Prime Minister will decide; if and when she decides on a particular course, I am sure that the way in which parliamentary involvement takes place will include the usual channels.
Prisons: Staff Safety
My Lords, I now wish to repeat a Statement on prison safety. The Statement is as follows.
“A central duty of the Ministry of Justice is security in our prisons. It is imperative that the dedicated professionals who work in our prisons are kept safe. It is also critical that we safeguard the welfare of those in custody who are in the state’s care. It is of profound concern to me that serious assaults against staff in prison have been on the rise recently, particularly in the last 12 months, when there have been 625 incidents.
Those who work in our prisons are idealistic public servants who run the risk of assault and abuse every day but continue in their jobs because they are driven by a noble cause: they want to reform and rehabilitate offenders. Our prisons depend on a network of professionals, including teachers, chaplains, volunteer members of independent monitoring boards and probation officers. But above all our prisons rely on the selfless and courageous work of our prison staff.
I know that members of the Prison Officers’ Association want action to be taken to make their work safer. I understand their frustrations and I am determined to help. Violence in prisons has increased over recent years for a number of reasons. The nature of the offenders currently in custody is one factor; younger offenders who have been involved in gang-related activities pose a particular concern. Another factor is the widespread availability of new psychoactive substances, or NPS, synthetically manufactured drugs, which are more difficult to detect than traditional cannabis and opiates. The former Chief Inspector of Prisons has said that new psychoactive substances are now the most serious threat to the safety and security of our jails. NPS consumption and, indeed, violence in prison are also often a consequence of prisoners’ boredom, frustration and a lack of faith in the future. All of these factors must be, and are being, faced honestly.
There is no single solution to the problem we face, but we are taking significant steps to reform our prisons. To take account of our changing prison population, more than 2,800 new prison officers have been recruited since January 2015, a net increase of 530. To keep them safer, we are deploying body-worn cameras as additional protection for staff. In May, we outlawed new psychoactive substances and dramatically reduced the opportunities for easy profits to be made from their trade. In June, I allocated an extra £10 million in new funding for prison safety, and the money has gone to the governors of those prisons with the biggest safety challenges.
All these steps will, I believe, help improve safety but there are two more critical points to make. First, I stress that my department’s door will be open to staff and their representatives to ensure we work collaboratively together to improve conditions for all in our prisons. Secondly, it is because I have seen for myself how important it is to change our prisons for the better that I have initiated a major reform programme. We will be replacing ageing and ineffective prisons with new establishments designed to foster rehabilitation. We will give governors greater scope to design regimes that encourage purposeful activity and make prisons calmer and more orderly places, and we will ensure that prisoners are more effectively incentivised to turn their lives around. As we press ahead with this reform programme, I am confident we can ensure that our prisons can become what they should always be: safe and secure places of redemption and rehabilitation”.
My Lords, that concludes the Statement.
The Question asked in the House of Commons related to the safety of staff in prisons following walk-outs and protests last week by between 5,000 and 6,000 officers protesting about the rising tide of violence threatening both staff and prisoners. Assaults on prison officers reached 5,500 last year, an increase of 36%, while last year there were 32,000 incidents of self-harm, up by 74% since 2010, a shockingly high number given that the prison population is around 85,000. There were 100 suicides in 2015-16.
Is it not clear that our prisons are both chronically overcrowded and dangerously understaffed? The Howard League for Penal Reform has chronicled the deteriorating position in a worrying number of prisons. In Lewes, for example, 50% of its 640 inmates were being locked in their cells during the working day, some of them for as much as 23 hours a day. In February, staff at Wetherby young offender institution refused to let 300 prisoners out of their cells for a day because of rising violence. We recently had a Statement on the dreadful conditions in Wandsworth prison in which assurances, albeit of a rather vague character, were given about rectifying the situation revealed in a television programme. The Lord Chancellor talks a good game about improving conditions and replacing old and unsuitable prisons, but then he is the Lord Chancellor who set out on the road to his political Damascus in support of Boris Johnson, only to recant and discover at the very last minute that if Boris was the answer he had been asking the wrong question for weeks.
When will the Lord Chancellor, or whoever succeeds him—I rather hope it might be the noble Lord, Lord Faulks—recognise that the crisis in our prisons cannot sensibly be tackled without a significant reduction in the number of prisoners and a significant increase in the number of properly trained staff with adequate support in relation to issues of mental health? Will he now revisit his decision to spend just £10 million to increase safety, approximating to around all of £125 per head of the prison population, which is not of course, a static number?
Is it not time for another high-powered review of the state of the service, along the lines of the inquiry into Strangeways conducted by the noble and learned Lord, Lord Woolf, 26 years ago, but extended to the entire custodial system?
I am grateful to the noble Lord for his thorough criticism and the questions that he raises about the state of our prisons and the safety of staff and indeed of other prisoners. We freely acknowledge that there is a problem and that we have to do something about it. It is not a problem that is easily solved and, as the Statement indicated, there are a number of factors. There is an increase in the number of violent offenders in our prisons. Substantial problems have been caused as a result of the use of psychoactive substances. It is clearly far less than desirable that prisoners should be locked in their cells for long periods and not engaged in purposeful activity. The Secretary of State clearly wants to involve as many people as possible and as many organisations as possible in trying to improve the situation. That was why he invited the BBC into Wormwood Scrubs to see the conditions there.
There has been new funding of £10 million for prison safety, allocated as appropriate, and that will be supplemented by £2.9 million from existing budgets so that a significant number of governors—those facing the greatest challenges—will have an opportunity to improve safety levels. There is also £1.3 billion, which the Secretary of State secured from the Chancellor of the Exchequer, to modernise the prison estate. That will be a long-term project, but one which the Secretary of State is most anxious to help with.
My Lords, our prisons are overcrowded and understaffed, with the result that prisons are now less safe and less secure than ever before. Does the Minister accept that the root cause of the problem, as has just been mentioned, is the unacceptably high level of the prison population? This makes some of our prisons almost unmanageable. Now that Mr Gove has fewer things on his mind, could we have clarity about how he intends to reduce the numbers so that the prisons’ objective of rehabilitation is met?
The noble Lord, whose interest in these matters is well understood and appreciated by the House, points to the prison population. Of course, the number of people in prison is a result of decisions by judges, passing sentences that they consider appropriate for those particular offences. In my experience, judges do not send an offender to prison unless no other appropriate means of dealing with the offender can be found.
The number of people in prison clearly presents challenges to the staff. But there are other factors, as I have already indicated, which can cause this escalation of violence. We have a widespread strategy under the violence reduction project to deal with this, including the use of body-worn cameras, a violence diagnostic tool and a number of other different efforts to try to identify where pressure points are in terms of violence and how best to combat them.
My Lords, I again emphasise the importance of meaningful out-of-cell activity and the provision of appropriate courses so that prisoners who are there for indeterminate sentences can satisfy the criteria for their release.
My noble friend makes a good point. Indeed, the Secretary of State has placed and will place increasing emphasis on education, as well as courses that enable prisoners to acquire practical skills which will be of particular help outside. We very much welcome the involvement of a number of employers employing prisoners while they are still in prison, which then leads to their employment afterwards. But my noble friend is quite right.
My Lords, I refer to one sentence in the Statement on the number of staff being recruited. It says that 2,800 new officers have been recruited and mentions a net increase of 530. I ask the Minister, 530 from what? If it is an increase of only 530, this shows that the number of staff must have been run down disastrously before 2015, because this is a negligible increase.
I cannot, from the Dispatch Box, give the noble Lord a detailed account of why people left the Prison Service. Of course, he is right that that indicates that quite a number of them did leave, perhaps for reasons of retirement or simply a change in their job satisfaction. But I will endeavour to give him a more detailed analysis of those numbers.
The Minister has recognised that the present numbers are a barrier to the Government achieving the rehabilitation objectives. However, will they not remain high if we continue to regard the length of a prison sentence as the only measure of the seriousness of an offence and until we put sufficient resources into alternative punishments?
With great respect to the noble Lord, that is a little unfair. The judges will of course determine the length of the sentence by reference to a whole host of factors: the seriousness of the offence, the history of the offender, and the best way both to protect society but also to rehabilitate. I know that judges always consider alternatives and that sentencing prisoners to prison will only be the last resort; very often judges will say, “I will sentence you to the least possible sentence that I am permitted”. Therefore the judges do not, as it were, oversentence.
My Lords, I happen to know someone who is in prison at the moment, so I will pick up on, as the Minister put it, the frustration of being locked in a cell for 23 hours a day. What will be done about that?
Clearly, the prison governor at each prison will have to focus his or her attention on that. As the noble and learned Baroness will know, more autonomy will be given to prison governors, and one of the main objectives of that is to ensure that, so far as possible, prisoners have a greater time out of their cell engaged in purposeful activity or on courses or otherwise, not simply locked up in their cell.
My Lords, some years ago I had the opportunity to serve on the Home Office prison education committee, and I was always impressed by the content and variety of the courses on offer. However, it was said at the time that it was very difficult to get people to the courses because there were too few prison staff to get them there, and because they could not guarantee the security of the teachers, who largely came in from the further education sector, given that the nature of the crimes for which people were imprisoned included more violent crimes. I hope the Minister will forgive me if I say that, although that was many years ago, essentially we are being provided with the same account now. It does not seem that we have moved on enormously. Can he describe some of the initiatives that will reflect the intention to increase the amount of prison education and the rehabilitation that goes with it?
The noble Lord is of course right that the challenges are not entirely new and that the logistics of ensuring that prisoners are taken to courses and to facilities where they can obtain education will always be a challenge, particularly with a large prison population. There was a report by Dame Sally Coates into the education of prisoners. That they should be given education is clearly very much at the heart of the advantage we believe can be obtained by rehabilitation, and it will be up to prison governors in a particular prison to ensure that this happens. They will be judged by the delivery of this education. By giving greater autonomy to prison governors it will be much less easy for them simply to say, “This is all too difficult”.
My Lords, is my noble friend satisfied—
My Lords, we should move on to the next Statement.
NATO Warsaw Summit
My Lords, with the leave of the House, I shall now repeat a Statement made earlier today by my right honourable friend the Secretary of State for Defence on the NATO Warsaw summit. The Statement is as follows.
“With permission, Mr Speaker, I would like to make a statement on the NATO summit held in Warsaw last Friday and Saturday. The 2015 strategic defence and security review reaffirmed NATO’s position at the heart of UK defence and security. The UK remains a leader within the alliance, with the second largest defence budget after the US and the largest in Europe. The range of challenges the alliance faces, including Daesh, migration and Russian belligerence, meant that this summit was of huge importance for Euro-Atlantic security. The overwhelming message from Warsaw was one of strength and unity. We believe the summit has delivered an alliance that is more capable and projects stability beyond our borders based on institutional adaptation and stronger partnerships, which collectively protect our citizens and defend Europe.
I will address each of these issues briefly. At the Wales summit in 2014, NATO agreed its Readiness Action Plan to ensure that the alliance can respond swiftly and strongly to new challenges. The UK is at the forefront of these efforts: our Typhoons are currently conducting Baltic air policing missions from Estonia; our ships are making a significant contribution to NATO’s naval forces; and we will lead NATO’s quick-reaction “spearhead force”, the Very High Readiness Joint Task Force in 2017, with 3,000 UK ground troops ready to deploy within days.
To demonstrate allies’ solidarity, determination, and the ability to act in response to any aggression, Warsaw builds on the Wales commitments by delivering enhanced forward presence in Estonia, Latvia, Lithuania, and Poland, and I am proud that the UK is taking a leading role in this. Canada. Germany, the United States and the UK will each deliver a framework battalion. These will be defensive in nature but combat capable. The UK force will be located in Estonia with two UK companies, a headquarters element and equipment, including armoured vehicles, Javelin anti-tank guided missiles and mortars. Denmark and France have said they will provide troops to the UK battalion. In addition, we will also deploy a company group to Poland. These actions are in response to actions by Russia; NATO’s approach is based on balancing dialogue and strong defence. Dialogue is right where it is in our interests to deliver hard messages, promote transparency, and build understanding to reduce risks of miscalculation.
Credible alliance defence and deterrence depends on NATO’s ability to adapt to 21st-century threats through nuclear and conventional forces. The summit recognised the important contribution the UK’s independent nuclear deterrent makes to the overall security of the alliance, so I am pleased that the House will have the opportunity to vote to endorse its renewal next Monday. Initiatives on cyber and hybrid warfare, among others, will give the alliance the capabilities it needs to respond quickly and effectively. However, modern capabilities require appropriate funding, and here good progress has been made against the defence investment pledge—a key commitment from Wales. Following this Government’s decision to spend 2% of GDP on defence and increase the defence budget in each year of this Parliament, cuts to defence spending across the alliance have halted, with 20 allies now increasing defence spending, and eight committing in national plans to reaching the 2%.
Delivering the best for our country means maximising the talent in our Armed Forces. The Prime Minister has accepted the recommendation of the Chief of the General Staff to open up ground close combat roles to women. NATO’s role in preventing conflict and tackling problems at source has become ever more important, as threats to alliance security grow out of instability in fragile or weak states. NATO’s Defence Capacity Building Initiative, first announced in Wales, is a powerful tool in projecting stability and the UK continues to provide significant support to Georgia, Iraq, and Jordan. Building on this, allies agreed that NATO will conduct training and capacity-building inside Iraq. In Afghanistan, local forces are taking responsibility for providing security across their country. Our long-term commitment, as part of NATO’s Resolute Support Mission, is crucial; in 2017 we will increase our current troop contribution of 450 by 10%, to help build the capacity of the Afghan security institutions.
The summit also reiterated its support for our European partners, including Ukraine and Georgia. I was delighted that Montenegro attended the summit as an observer—a clear sign that NATO’s “open door policy” is helping to spread stability. However, the scale of Europe’s security challenges means NATO must work with a range of partners to counter them. This summit sent a strong message of NATO’s willingness to build strong relationships with other international institutions. I welcome the joint declaration by the NATO Secretary-General and the Presidents of the European Council and the European Commission on NATO-EU co-operation. We continue to support a closer relationship between NATO and the EU to avoid unnecessary duplication.
Our strong message to our allies and partners was that the result of the referendum on EU membership will have no impact on any of the UK’s NATO commitments and it remains the cornerstone of our defence policy. The UK will be leaving the EU, but we are not reducing our commitment to European security; we are not turning our back on Europe or the rest of the world.
HMS “Mersey” will deploy to the Aegean from late July to continue our support to NATO’s efforts to counter illegal migration in the Aegean. We will also provide a second ship, RFA “Mounts Bay” to the EU’s Operation Sophia in the central Mediterranean. NATO has agreed in principle to provide surveillance and reconnaissance support to this operation. It is a UK priority for NATO to do more against Daesh. NATO AWACS will now support the counter-Daesh coalition. In addition to our own assistance to the GNA, we will consider what NATO can do in Libya; for example, through capacity-building of the Libyan coastguard.
It is our firm view that the Warsaw summit successfully demonstrated that the alliance has the capability, will and intent to respond to the range of threats and issues that it may face. It also showed that Britain is stepping up its leading role in the alliance by deploying more forces to NATO’s eastern borders, to NATO’s support to Afghanistan and in countering illegal migration. With that strong UK leadership, Warsaw will be remembered for the concrete steps that were taken to deliver a strong and unified alliance that remains the cornerstone of European defence and security. I commend this Statement to the House”.
My Lords, that concludes the Statement, but, as it made clear, Motions will be put to the House of Commons on Monday next week. I hope that it is helpful at this point for me to inform your Lordships that the usual channels have agreed to set aside time on Wednesday this week for a debate on a Take Note Motion so that the views of this House can inform the debate in another place on the nuclear deterrent. The speakers list for the debate has already been opened by the Government Whips’ Office.
I thank the Minister for repeating the Statement on a summit that was of considerable significance. Paragraph 40 of the summit communiqué makes it clear that NATO is determined to show its commitment to our partners in the Baltic states and Poland by establishing an enhanced forward presence to demonstrate unambiguously as part of our overall posture,
“allies’ solidarity, determination, and the ability to act”,
by triggering an immediate allied response to aggression.
I was at NATO headquarters at the end of May and found that our partner representatives from the Baltic states and Poland who met me and my colleagues wanted to be reassured of our support. Every desire was expressed by the people whom I met to maintain and encourage the friendliest relations with their neighbour Russia, but there was an underlying nervous tension following the annexation of Crimea and the incursions in Ukraine. They also expressed worries about the potential Russian build-up in and around the enclave of Kaliningrad.
The Warsaw summit agreed that British forces will from next year be part of an enhanced forward presence with 500 troops in Estonia and 150 in Poland. We are also committed to training 4,000 Ukrainian troops by March next year. There will be consequences as a result of NATO taking this decision and we must be prepared for that.
The summit took place in Warsaw where 25 years ago almost to the day the Warsaw Pact was officially dissolved. The Russians of course will clearly be sensitive, very sensitive indeed, about NATO’s decision. What assessment have the Government made of the expected Russian response? My NATO briefings highlighted the importance of the NATO-Russia Council which was established in 2002 in Rome. Following Russian military intervention in Ukraine, NATO suspended all practical co-operation with Russia and the council ceased to meet, although channels of communication were still maintained. It was agreed only in early April this year to convene a formal meeting of the council and that meeting, the first in two years, took place on 20 April. I understand that the council will meet again in two days’ time, on Wednesday. Can the Minister confirm that NATO’s decision will be discussed at that meeting?
As last weekend’s summit took place, we in Britain were digesting the Chilcot report on the Iraq war, which we will be debating tomorrow. Sir John Chilcot’s report makes much about the process of taking the decision to commit to war in Iraq; paragraph 410 of the Executive Summary states that,
“a cabinet committee or a more structured process might have identified some of the wider implications and risks associated with the deployment of military forces to Iraq”.
Can the noble Earl say whether that did in fact happen before Britain decided to commit troops to this NATO deployment? My noble friend Lady Smith of Basildon, in response to the Chilcot Statement last week, suggested the creation of an ad hoc Cabinet committee to consider matters in such circumstances in the future. Will the Government consider this idea?
Now that we are heading for exit from the European Union, will Britain continue to oppose an idea favoured by some in France and Germany of the creation of a European army? Will we use our leading role in NATO to resist this notion? There is concern in Germany, which I certainly found in my meetings with representatives of other NATO partners, about our decision to withdraw our troops from Germany. Do we still intend to press ahead with this? Can the Minister also say something about the programme of training activity planned for our forces deployed in Estonia and Poland? I am aware of concern at all levels that our deployed forces could be cooped up in a barracks deep in a forest with nothing much to do.
The Statement reaffirms that the Government are accepting advice from the Chief of the General Staff that women are capable of engaging in close combat roles, and we welcome that. NATO’s defence capacity-building role, first enunciated at the Wales summit, continues to provide significant support to Georgia, Iraq and Jordan. The deployment of HMS “Mersey” in July to the Aegean will underpin our support for NATO’s efforts to counter illegal migration. All these decisions are welcome and underline Britain’s continued commitment to NATO as the lasting bulwark of our defence. As the party which helped to create NATO when in government in 1949, we on these Benches are proud of an organisation which is a defender of our freedoms and way of life, and in an uncertain world a source of security for many around the globe.
My Lords, noble Lords on these Benches welcome the Statement and I echo some of the words of the noble Lord, Lord Touhig. We welcome the commitments made to the Baltic states and to Poland, but would ask the Government what thought has been given to the situation with Russia and its possible reactions. Clearly the commitment to NATO is welcome, especially at a time of such global and regional geopolitical uncertainties, and therefore the commitment to our colleagues in the Baltic states and Poland, as well as an increased role in countering illegal migration, are both important.
The Statement by the Prime Minister and the communiqué refer to the UK’s nuclear deterrent and the fact that the UK’s and France’s nuclear deterrents have a deterrent role of their own. I do not wish to pre-empt the debate we will have on Wednesday prior to the Motion to be debated next Monday in the other place, but can the noble Earl give us some reassurance regarding defence expenditure? Assuming a decision is taken to approve a successor on Monday, that will be a considerable defence commitment. Both the NATO summit and the Prime Minister’s Statement recommit us to spending 2% of GDP on defence, a commitment made at the Wales summit in 2014 and affirmed by the Government after the general election last year. However, if there is a recession, either as a result of the decision taken on 23 June to leave the European Union or the actual fact of Brexit, 2% of a smaller GDP would presumably mean less money going to defence. Has money been set aside and are there contingencies to ensure that, if there were a recession, we would still be able to meet our commitments on F35, the aircraft carriers and a successor, if that decision is taken?
Further to that, while it is clearly welcome that the Government do not envisage any reduction in the UK’s commitment to European security in the light of the decision to leave the European Union, how will that commitment be played out? Will it be solely through the multilateral framework of NATO or might the Government consider—I realise that the Minister may not be able to give us an answer pending Wednesday evening—continuing links with the common security and defence policy of the European Union? How far does the UK envisage ongoing links with the EU and how far does it envisage bilateral links, particularly with France but also with the Netherlands? Clearly, the ongoing British commitment to European security is important, but an indication of how we envisage that going forward would be welcome.
I am grateful to the noble Lord, Lord Touhig, and to the noble Baroness, Lady Smith, for their comments and questions. They both asked about our approach towards Russia and the likely Russian reaction to the communiqué. Our objectives in respect of Russia are clearly to protect UK interests and those of our allies and partners; to uphold the rules-based international order in the face of Russian challenges; to engage with Russia on global security issues and key areas of shared interests; to promote our values, including the rule of law and human rights; and to build stronger links between the British and Russian people more widely. I commend the communiqué to noble Lords. It sets out very clearly why NATO has felt it necessary to commit to an enhanced forward presence. This is in the face of Russian actions over the past two or three years that fly in the face of the agreements and understandings that we have had with them and that obtain internationally. NATO collectively and the allies individually are clear that the alliance does not seek confrontation and poses no threat to Russia—those are its words—but will not compromise on the principles on which NATO and security in Europe and north America rest.
The NATO-Russia council meeting this Wednesday will discuss a range of issues. Its timing was deliberately set post the summit to continue the dialogue from a position of strength, given the decisions taken at Warsaw.
The noble Lord, Lord Touhig, asked a number of questions in the wake of the Chilcot report, in particular, whether a Cabinet Committee had considered current and proposed NATO deployments. The National Security Council considered the UK’s approach to Warsaw and our ongoing commitment to NATO activities. Because the National Security Council is a sub-committee of the Cabinet, it is rather better than an ad hoc committee, because it is a permanent standing committee that, as I explained last week, meets every week and constantly reviews those issues which bear upon the UK’s security.
The noble Lord asked about the long-running issue of an EU army. I take this opportunity to emphasise that, while the UK remains a full member of the EU until such time as we leave it, UK forces will not be part of an EU army. In no circumstances could Brussels, in any case, direct deployment of UK forces without the specific agreement of the UK Government. That agreement will not be forthcoming. Defence is entirely a national competence and if an EU army were to be proposed, it would be subject to national veto.
The noble Lord also asked about draw-down of UK forces from Germany. I can confirm that it continues and will continue as planned.
The noble Baroness, Lady Smith, asked about defence expenditure. She is right to say that the 2% commitment relates to the size of our GDP. Were that to diminish, it would have a bearing on our budget but I remind her that aligned with and joined to that 2% commitment was another commitment that the defence budget would increase year by year in real terms by 0.5%. We have committed to spend £178 billion on equipment over the next 10 years, and that commitment stands.
The noble Baroness also asked about the relationship between NATO and the EU in the defence arena. As she would expect, in the medium term we will maintain our existing commitments to common security and defence operations and missions, and consider further requests from the EU. We will continue to lead the EU battlegroup from July to December this year. Whatever happens, the Government remain firmly committed to leading the way in working with the international community to tackle the migration crisis. In fact, the Prime Minister recently announced the deployment of RFA “Mounts Bay” to the central Mediterranean to help stem the flow of weapons to terrorists, particularly Daesh, in Libya. This is in addition to HMS “Enterprise”, which is already on task. No one can be in any doubt that we are committed to EU operations or about the strength of that commitment.
I did not answer the noble Lord, Lord Touhig, on what exactly our troops will be doing. First, as regards the proposals for Estonia, our forces are expected to participate in a demanding training and exercise programme alongside Estonian regular reservists and other allied forces based in the region. The deployment will also provide new training opportunities in heavily wooded areas and colder climates. The battalion will be maintained at a high state of readiness so that it is able to react immediately to a crisis or incident. Far from our Armed Forces personnel being confined to barracks, I hope that gives a flavour of the action-oriented agenda facing them.
In Poland, where, as the noble Lord is well aware, building a strong relationship is very much a priority for us, the deployment of the company group will enable UK and Polish forces to train, fight alongside each other, foster a greater understanding of their respective capabilities of the UK and Poland’s and increase interoperability, which the noble Lord will recognise is important. We will also work alongside the forces of other NATO allies in Poland, including the United States, which will provide a NATO-enhanced forward presence framework battalion in Poland. This deployment will also provide capability enhancement opportunities under the UK-US German-led TACET initiative. Many advantages therefore flow from this announcement.
Does my noble friend accept that this evidence of renewed NATO determination is welcome indeed and has little or nothing to do with our relations under various EU treaties, and whether we are in or out of them? However, does he also accept that in the 21st century, in addition to armaments and deployment build-up, one needs to win not merely the battles but the narrative? In this case the narrative is very much to get home to the Russian people that they would do far better in co-operation with the democracies and global networks which are now shaping our future all over the world than in a constant state of hostility and pointless belligerence. Surely that is the message to get home. I very much welcome the additional comments that these positive points will be put strongly to the Russians in the NATO-Russia Council, and hope they will realise that they could have better leadership and a better life if they follow that latter course.
My noble friend is absolutely right. The meeting on 13 July this week is the continuation of political dialogue as agreed by NATO Heads of State and Government. At the same time, we are clear that there will be no return to business as usual until Russia again respects international law. Engagement through dialogue is important. It is right that we have that dialogue. It is in our interests to engage on subjects in a hard-headed, clear-sighted way, but that does not mean a return to the kind of co-operation that existed before Russia’s illegal annexation of the Crimea and the destabilising activity in which it has been engaged in Ukraine.
Given our responsibilities under the Budapest Memorandum, what advice did our representative at the summit give to President Poroshenko of Ukraine? Were there contacts with the Turkish Government in which it became possible to make clear that, despite the insults to Turkey which emerged in the referendum campaign, including from a Ministry of Defence Minister, we still regard it as an extremely valuable ally?
My Lords, on the latter point, we have most certainly taken every opportunity to reassure Turkey that it is a very valued member of the NATO alliance, and it is important that we continue to do that. NATO has been united in support for Ukraine throughout the crisis period. Meetings of the NATO-Ukraine Commission, most recently at Warsaw, provide political support. Capability and capacity support is delivered through Ukraine’s participation in NATO exercises and through dedicated NATO trust funds, and the UK is co-leading one of these trust funds. We like to think—and I believe it is right to claim—that we have a leading role. We have consistently argued for a strong response to Russia’s actions and continue to be fully supportive of the Normandy format process.
My Lords, this conference has been very good news, particularly the nuclear aspects, not least because of Putin’s doctrine of de-escalation—which, extraordinarily, in fact means using nuclear weapons. The Government are to be congratulated on, at long last, agreeing to have a vote in the other place on replacing the four Vanguard class submarines. My question is not to do with money, but I have to say that, although one talks the talk, there is insufficient money in defence. The House of Commons Defence Committee has spotted that. The desperate shortage of money is shown not least in the lack in the number of ships. Should there be an escalation for another reason, none of the ships we are deploying to the Med are capable of looking after themselves, because they are not those types of ships. However, that is not my question. My question relates to Ukraine. It is absolutely right that we are reinforcing the Baltics and Poland—they are part of NATO; that is the right sort of message—but we must not delude ourselves: the Russians are terrified of NATO. We know that they are wrong to be terrified, but that does not mean that that is not their perception. We have sent people into Ukraine. Was there discussion about NATO being involved in Ukraine? If there was, I believe that it would be very destabilising.
My Lords, there is no question of NATO ground troops being sent to Ukraine. On the other hand, the NATO Council was very clear that there is a role for NATO alliance members to support Ukraine in training in particular, and that is a major commitment of ours. Clearly, we would not wish to do anything that would serve to escalate the tensions that exist in Ukraine. We are encouraging both Ukraine and Russia to support the Minsk process and adhere to the commitments given at Minsk. Nothing that would escalate the violence that we have seen in eastern Ukraine should be contemplated.
My Lords, may I take the Minister back to the issue of withdrawal from Germany, raised earlier by the noble Lord, Lord Touhig? The principle of forward deployment for practical and demonstrative purposes has been well illustrated by what is going to happen in Estonia and other areas of the Baltic. However, although I have been supportive for many years of withdrawing the Army from Germany, is there not a case for looking again at leaving one of our armoured infantry brigades in the well-found garrison of Paderborn and Sennelager, and saving ourselves the capital expenditure of building a third armoured infantry garrison around Salisbury Plain? This would also demonstrate, in the post-Brexit environment we find ourselves in, that we are willing to remain physically present in Germany with about 2,500 of our troops. I think it is worth looking at again, and I urge the Minister to take that thought back to the Ministry of Defence and think about it again.
My Lords, I am grateful to the noble Lord. I will gladly do that. In fact, I can tell him that these matters are under continual review, as he would expect. There is undoubtedly a value to the idea of British troops remaining in Germany to a certain level, able to train alongside our German partners. However, I am not in a position at the moment to give him definite news on that front. What I can say, though, is that the bulk of UK forces will be withdrawn as planned. We believe that that is the right thing to do at this juncture, but we do not rule out keeping a contingent in Germany for the kinds of purposes that the noble Lord suggests.
My Lords, the noble Lord, Lord West, remarked that our defence expenditure is extremely strapped for cash. In view of this, and the fact that the efforts we are putting into both Finland and Poland are a substantial aid to the economies and welfare of those countries, would it not be sensible that at least part of that expenditure should be debited against our overseas aid bill, which is now running at the enormous sum of 0.7% of GNP?
My noble friend makes a very creative suggestion about government accounting. I will ensure that his point is logged in the appropriate quarter.
My Lords, given the situation with Russia, is my noble friend aware whether relations between Greece and Russia were discussed, particularly given the reports—which I understand to be true—that Greece has recently signed an armaments deal with Russia whereby it will be making Kalashnikovs in one place or another?
I am afraid I am not aware of discussions specifically relating to the relationship between Greece and Russia. If I am able to find out particulars on that theme, I will gladly write to my noble friend.
My Lords, the Minister has announced a very important commitment to the Baltic states. Can he assure the House that the Governments of all three of these states are behaving entirely as we would wish in respect of their Russian-speaking citizens and people of Russian nationality living within those states? Can he be sure that they are not giving any justifiable cause or excuse to Mr Putin to act, and that they are behaving in a way that is completely consistent with the principles of the European Union?
My Lords, there is a delicate balance to be struck here. We do not wish to provoke Russia into responding inappropriately to these deployments. On the other hand, we do ourselves need to react to the actions of Russia, as was laid out at the 2014 Wales summit, which delivered an effective and united response to Russia’s illegal annexation of the Crimea and its actions in eastern Ukraine. The measures taken at the summit will, we believe, provide further reassurance and deter Russian aggression. They are proportionate and defensive in nature. In saying those things, I recognise my noble friend’s appropriate concern that we ensure that the Baltic states in particular are being measured and reasonable towards the Russian-speaking element of their populations. This move is not designed to provoke those people any more than it is to provoke Russia itself.
Investigatory Powers Bill
Committee (1st Day) (Continued)
Clause 1, as amended, agreed.
Clause 2: General duties in relation to privacy
5: Clause 2, page 2, line 35, leave out from “authority” to end of line 46 and insert “takes any decision or undertakes any action under this Act.”
My Lords, we come now to the general duties in relation to privacy, which at least two noble Lords have referred to as the backbone of the Bill. I acknowledge, from these Benches, how much progress has been made with this issue and how welcome Clause 2 is. However, that does not deter us from being ambitious to pursue it to what we might see as perfection.
Amendment 5 would provide that any decision or action undertaken under the Act by a public authority should be subject to Clause 2. If it is not to apply, the Government should explain and justify that non-application to the Committee. I appreciate that this clause has a rather different genesis from most of the Bill. I hope it does not sound arrogant—it is certainly not meant to—if I say that it is an exceptionally well and helpfully drafted Bill. It has more definitions in it, more easily found, than any other Bill that I can recall. Most of it is extremely clear, but I have a problem with some of the content and drafting of this clause. This may be because it has come together through a different route, because of the input from debate in the Commons and outside.
If amended by Amendment 5, Clause 2(1) would not be specific about where the duty applies. I ought to give an example, although this might not be a very good one because a telecoms operator is not a public authority. It occurred to me that although an operator would have a duty to comply with a notice, under Clause 62, they should not have to make the assessment in the way the clause requires. Even if that is a bad example, we could be told that Clause 2(3) would apply to that and that it is not relevant. I will come back to that, but one should say so. Clause 63, the next one on from the one that I picked as an example, is about the filter. I struggle to see whether that comes within Clause 2(1)(d). It should. My overall question is whether Clause 2 is as stiff a backbone as it can be.
Amendments 6 and 8 deal with a provision to which the noble Lord, Lord Janvrin, has referred, which is whether what is sought to be achieved could reasonably be done by “other less intrusive means”. My amendments would make that provision stand alone, not subject to the discretionary “have regard to” which introduces Clause 2(2). This is particularly important in connection to privileged communications, and indeed it came up in a meeting with the noble and learned Lord, Lord Keen, on Thursday, which, when we were assured in the context of legally privileged material that if a less intrusive means could be used it would be, was very helpful. This was what made me think about “have regard to”. My noble friend Lord Lester used the term “rubbery” of “have regard to”. In previous incarnations of this reference to “less intrusive means” there has been an absolute rather than a discretionary requirement, so I would be grateful for help on this, about which I feel particularly strongly.
Amendments 7, 10 and 11 are about the hierarchy, if one can say that there is a hierarchy within Clause 2, of which considerations are subject to what. Those taking decisions might welcome having some scope for consideration, but if the clause is circular—there have been times when I have thought that it is—it is our job to straighten it out. Clause 2(2) is subject to Clause 2(3). Clause 2(3)(a) says that the duties apply in so far as,
“they are relevant in the particular context”.
I cannot quite decide if those words are necessary. If a duty is not relevant, does one have to say so? Also, in particular, does “relevant” introduce an element of judgment, which would weaken the application of this?
Clause 2(3)(b) says that the duties “are subject to” particular considerations listed in Clause 2(4). Clause 2(4) takes precedence over Clause 2(2)—or does it? In addition Clause 2(4) suggests that there are considerations that are not listed. Given the importance of this clause I think that this should be addressed. To the extent that noble Lords have managed to follow that—I am not entirely sure that I did throughout—I hope that I have at least demonstrated that we think that there are potential problems in the construction of the clause.
Amendments 9 and 13 would make the Human Rights Act overarching. I might be told that because it falls within Clause 2(3)(b), to which Clause 2(2) is subject, it is not necessary to separate it out. If that is so, it reinforces the arguments that I have just made on the previous clutch of amendments. We might be told that not everything in the legislation is absolute and that certain rights are qualified, but my amendment would not affect that. I am really after clarity and certainty. The Human Rights Act is so important in this context that it should be expressed as applying in its own terms and not be demoted to being a particular consideration.
Amendment 12 is on “economic well-being”, which has been qualified elsewhere in the Bill to provide that it applies,
“so far as the interests of economic well-being are relevant to the interests of national security”.
I wondered about the significance of there being no such qualification at this point, particularly as the reference to national security is at the top of the tree in Clause 2(4)(a), so it is obviously extremely important—I do not deny the importance of national security. In terms of the drafting of the clause, does it override—meaning reduce or nullify—qualifications elsewhere? I would be grateful for help on that.
Amendment 14 would provide for bringing into force regulations to establish the Privacy and Civil Liberties Board, which was a part of the Counter-Terrorism and Security Act. My noble friend Lord Strasburger will speak particularly to this.
My points on “less intrusive means” and the Human Rights Act are the most important of a number that I think very important. Other noble Lords will have had more direct experience than I have of hearing or reading words such as “Parliament clearly intended” or “Parliament must have intended”. I do not quite know what we intend on this clause. It has rightly been welcomed for acknowledging the need for safeguards right up front and spelled out clearly. It would be a real shame if we did not get it absolutely right. I beg to move.
I reinforce what the noble Baroness has said with regard to Clause 2(4). The first line—
“The other considerations, may, in particular, include”—
means in effect that the criteria and considerations set out are open-ended. While the public authority may have regard to any of the considerations set out in Clause 2(4), it can also have regard to any other considerations that it deems fit. That seems a very unsatisfactory state of affairs.
My Lords, I put my name to a couple of these amendments and I would like to speak to them. Under our constitutional arrangements, the Human Rights Act is the next best thing that we have to a constitutional guarantee of fundamental rights and freedoms. The Minister has rightly put his name on the front of the Bill, stating that in his opinion it is compatible with the convention rights. I have put my name to these amendments to seek to make sure that what the Minister has put on the face of the Bill becomes transparently clear in the statute when it is enacted.
Article 8 of the convention, which guarantees the right to personal privacy, indicates that any exception must be provided by law—that is to say, satisfy legal certainty—and by the principle of proportionality, and that any interference must be necessary and no more than necessary to safeguard other compelling public interests. The problem with the Bill as drafted is that it does not go quite far enough to ensure full compliance with the Human Rights Act and with Article 8 of the convention. That is why the amendments in the name of my noble friend Lady Hamwee are needed, in my view. First, it is important not merely to have regard to but to make sure that there is full compliance with the principle of proportionality. That is what these amendments seek. Secondly, without repeating what has already been said, it is very important that the obligations on public authorities—for example, not to use the powers listed in Clause (2)(1)—are no more than what,
“could reasonably be achieved by other less intrusive means”.
That is classic principle-of-proportionality language.
I very much hope that in one way or another the Government will come to accept these amendments or something very similar to them so that we can make sure that lawyers like me are not able to go to court to challenge all of this under the Human Rights Act, but that Parliament gets the statute clear to put beyond doubt the application of the principles of legal certainty and proportionality, which is what these amendments are designed to do.
I will say just a word about Amendment 14, not because I want to make an elaborate statement about it but because, as I said at Second Reading, it is very important that we have a board or commission with the requisite powers. I will come to that in later debates on the Bill.
My Lords, I will speak briefly to Amendment 14. We have already heard at length that, in its report on the Bill, the ISC called for a “backbone” of privacy to be inserted into it. The Home Office’s initial response was to add one word to the next version of the Bill: it inserted “privacy” into the title of Part 1 so that “General protections” became “General privacy protections”—nothing else changed. Later, under some pressure in the Commons, Clause 2 came into being, which goes some way, but not all the way, to inserting the privacy protections that we on this side of the Committee feel are needed.
This episode suggests to me that no one in the Government has a brief to speak up for privacy and civil liberties when legislation is being formulated. Presumably, that is why the Home Secretary included Section 46 in the Counter-Terrorism and Security Act 2015, giving her the power to establish the Privacy and Civil Liberties Board. The only problem is that she has not commenced this power and the vacuum in privacy protection advocacy in government is still there.
Amendment 14 would force the Home Secretary’s hand so that she must get on with it—actually, to be more precise, her successor must get on with it because she probably has bigger fish to fry as of Wednesday. For now, this is simply a probing amendment. If it were brought back on Report, it would probably need some improvement in terms of the board’s scope and powers. The American version of this, the Privacy and Civil Liberties Oversight Board, has been very successful with a much wider brief. For now, I will be content to hear the Government’s response to the amendment as it stands.
Before I sit down, I will say a couple of words regarding the friendly fire that has been coming from behind me during this debate—rather ungraciously, I might say—from the noble Lord, Lord Carlile. He queried whether I had read Nineteen Eighty-Four and knew about its description of CCTV in every bedroom. I have, actually, but I suspect that he has not been doing his reading on security matters because, if he had, he would know about Project Optic Nerve, in which GCHQ intercepted 1 million Yahoo! users’ webcams, which effectively put state cameras into 1 million bedrooms.
My Lords, I am not going to enter into an argument with my noble friend about the activities of GCHQ, particularly when they have been misdescribed so fully, but I will say one or two things about the merits of the amendments before us, particularly Amendment 6.
I agree with what my noble friend Lord Lester of Herne Hill said about this group of amendments, including Amendment 6, for the reasons he gave. It would be helpful if the noble and learned Lord, Lord Keen, could explain to the Committee the difference between Amendment 6 and the intention of the Government as set out in Clause 2(2)(a). If the intention of the Government is to do what my noble friend Lord Lester described, I respectfully suggest that the adoption of the wording in Amendment 6 would be more useful and more certain and, above all, as my noble friend said, would avoid unnecessary disputes about the meaning of and compliance with Article 8 in the courts.
Unfortunately, I disagree again with my noble friends about Amendment 14. I am not against a Privacy and Civil Liberties Board if the Government wish to create one. Indeed, I would rather support the creation of a board which had an overarching view of privacy and civil liberties. The board that was created in the 2015 Act is most certainly not a Privacy and Civil Liberties Board. It is a board that was intended to have some kind of oversight of interception, surveillance and other matters, and was a construct agreed as a compromise because of the nature of government at that time. I am afraid it is a glass half-full. Therefore, I urge the Government not to adopt that Privacy and Civil Liberties Board.
It is also worth saying that we have come an awfully long way in the protection of the public against unlawful intrusion by the state into their private affairs since the enactment of the Privacy and Civil Liberties Board provision, which has not been brought into force. The safeguards included in this Bill as a result of the work of my successor as independent reviewer, David Anderson, and of the Intelligence and Security Committee and the RUSI panel mean that we have a much fuller raft of protections in the Bill. In my view, they are far more beneficial and provide a great deal more than was ever going to be provided by this form of the Privacy and Civil Liberties Board. I respectfully suggest to Ministers that this amendment is entirely unnecessary.
However, I emphasise that there are genuine concerns about potential breaches of privacy and civil liberties. They are concerns about what the public sector can do and they should also be concerns about what the private sector already does. Any of us who subscribe to online groceries, books, music or other similar consumer opportunities on the internet, as I confess I do—I frequently stream music in my car from my mobile phone—probably do not realise how much we have allowed our privacy to be trespassed upon by the so-called privacy policies of large internet service providers. If we are to have a Privacy and Civil Liberties Board, let us do the whole job, not just a bit of it.
My Lords, I will follow up the noble Lord’s point about what the public sign up to in the private sector—of course, the private sector has lobbied against part of the Bill because it has a vested commercial interest. If you sign up to PayPal, you have signed up to 36,275 words of terms and conditions. Who reads them? “Hamlet” is 30,066 words. If you sign up to Apple iTunes, you are signing up to 19,972 words of conditions; longer than “Macbeth” at 18,110 words. It goes on: Facebook’s has 11,195 words. You tick the box—that is all you do—and give these companies access to your information. These companies would never have been able to start in other societies without the rule of law—we all know that. They can only operate in open, democratic societies. You sign away all kinds of things. We know there was a test at one time when someone changed the terms and conditions to an agreement to give away their firstborn and people ticked the boxes, because they did not read them.
I was more concerned during my time on the RUSI surveillance panel. The private sector amassed information, even though there was a legitimacy to it, because people had given it to them. They give the Government information as well—driving licences and everything else—but the fact is that we can regulate and control what the Government do much better than we can regulate and control what the private sector does, which is exactly the point the noble Lord was making.
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining the purpose of this group of amendments. I am particularly glad that Amendment 5 gives us the opportunity to look carefully at the intention of subsection (1) in the privacy clause. Perhaps I could just clarify.
Clause 2(1) lists in some detail the functions that a public authority may discharge under the Bill that may result in an interference with an individual’s privacy or impose an obligation on a telecommunications operator. The clause as drafted makes clear that, when taking such a decision, a public authority—including the Secretary of State and the judicial commissioner—must have regard to the principles set out at Clause 2(2).
The effect of the clause is perhaps not far removed from the intention of the amendment, but I would argue that the current drafting has the benefit of providing clarity. I was grateful for the complimentary remarks about the clarity of the drafting of the Bill overall that the noble Baroness was kind enough to make. The drafting of this part of the clause makes clear that the privacy clause bites in every situation in which a public authority takes a decision or action to which privacy considerations are relevant. I hope that those comments will encourage the noble Baroness to withdraw the amendment.
I am sympathetic to the spirit behind Amendments 6 and 8, which seek to prohibit the authorisation of powers in the Bill if less intrusive means are available. I hope I can provide some comfort to the noble Baroness and the noble Lord, Lord Carlile, by directing them towards the statutory codes of practice which we have published in draft alongside the Bill for the Committee to consider. For example, paragraph 4.7 of the draft interception code of practice states:
“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.
The codes will be submitted to Parliament for approval, and a failure to abide by them will be considered a breach by the Investigatory Powers Commissioner. I hope that that reassurance provides enough ammunition for the noble Baroness to withdraw her amendment.
I do not want to prolong the debate, but does the Minister not think that it might be preferable to put these words in the Bill rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty.
I am grateful to the noble Lord for seeding that thought in my mind and I am glad to take it away and consider it between now and Report.
Amendment 7 also relates to Clause 2, which provides a statutory requirement that public authorities must consider all three of the privacy duties listed in subsection (2). It is not an exclusive list—there are other important principles that public authorities will have regard to—but it does make clear the principles that sit at the heart of this Bill and that underpin the exercise of functions under the Bill. And it is of course the case that the judicial commissioner will look to see whether these principles have been satisfied—when, for example, he or she reviews a Secretary of State’s decision to issue a warrant.
The noble Baroness expressed some concern about the phrase “have regard to”. In bringing forward the privacy clause, the Government responded to concerns raised by the Intelligence and Security Committee of Parliament as well as by the Opposition and the Scottish National Party in the other place. The language of “have regard to” is drawn from amendments tabled by the Opposition and the SNP in Committee. It reflects the language of Clause 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which was held up by those parties in Committee as an exemplar of how such a clause might operate. That is the basis on which we have included that particular form of words. In short, while I am sympathetic to the concern raised in this area—
I am grateful to the noble Earl. Those precedents do not amount to what is really needed, which is full compliance with Article 8 of the convention and the Human Rights Act. In my opinion—it is no more than my opinion—the words do not satisfy that, whatever the precedents relied on may be in amendments tabled in other Bills. It is no use saying “have regard to”; it is necessary to ensure that what is in A, B and C happens in practice. “Have regard to” is rubbery and illusive and will not pass muster under the Human Rights Act or the convention, in my opinion.
My Lords, I can do no other than have particular regard to the noble Lord’s advice. I shall gladly reflect on what he has said. It is a rash Minister who does not take account of advice from the noble Lord.
May I press my noble friend more on this point? With regard to subsection (3), there is a test of relevance. Subject to the test of relevance, it seems to me that, under subsection (4), the public authority can in effect have regard to any consideration it deems fit. Is that correct?
As I have said, it is not intended to be an exclusive list. There are, of course, factors that may well be relevant and a public authority will wish to have regard to that are not included in the list. We did not intend the list to be exclusive. However, I am grateful to my noble friend and, once again, I will take advice on whether the wording quite fits the intent.
The House has a proud tradition of respect for human rights. The Human Rights Act is referred to in Clauses 1 and 2. It is the Government’s view that those references make it absolutely explicit that the obligations and protections in that Act apply to the exercise of functions under the Bill. While I am sympathetic to the intention behind Amendments 9 and 13 and I listened with care to the noble Lord, Lord Lester, as I always do, I do not think the amendments are necessary. Public bodies are already required to act in accordance with the Human Rights Act 1998. Our position is aligned. The Human Rights Act is not an optional consideration when exercising the investigatory powers in the Bill. The Government consider it unnecessary to restate the position for that reason. Furthermore, we do not want to cast doubt in other places in statute where it is not restated, as that may serve actually to undermine the strong standing of the Act and the rights contained within it.
Turning to Amendment 10, I do not believe there is a divergence in principle here; this is merely a matter of drafting. The clause sets out that a public authority must have regard to certain considerations, and that duty is subject to the need to have regard to other considerations that exist elsewhere in the law. It would be superfluous to state that public authorities must have regard to things that they already must have regard to. For example, a warrant can be issued only where it is necessary and proportionate, and this is explicit in the relevant parts of the Bill. Equally, the need to comply with the Human Rights Act is encompassed within that Act: it does not need to be restated here. I hope that provides some reassurance and that the noble Baroness will, on that basis, choose not to press this amendment.
On Amendment 11, Clause 2(2) sets out the principles that public authorities must have regard to when exercising certain functions under the Bill. It is not an exhaustive list, and subsection (4) sets out some of the other factors that may be taken into consideration. Again, I emphasise that subsection (4) does not contain an exhaustive list. There will be other principles outside this list that public authorities will need to have regard to, and we should not cast doubt over that, as the amendment would.
My noble friend Lord Hailsham questioned the use of the word “may” as opposed to “must”. The use of “may” in subsection (4) should not be taken to imply that it is optional for public authorities to have regard to the principles listed in that subsection. The law requires, for example, that public authorities must always comply with their obligations under the Human Rights Act.
There are of course some factors listed at subsection (4) that will not be relevant in all circumstances: for example, it may not be meaningful, when modifying a national security warrant, to have regard to the public interest in the prevention of serious crime. But, to be clear, the use of the word “may” does not absolve public authorities from their wider obligations under this Bill or any other legislation.
I turn now to Amendment 12. Economic well-being is of course one of the statutory purposes of the security and intelligence agencies, and the reference to it in Clause 2 is intended to reflect that—nothing more. When powers under the Bill are authorised in the interests of the economic well-being of the United Kingdom, there must be a link to national security. The language at Clause 2 does not alter or undermine that; it simply reflects the statutory purposes of the agencies. As drafted, Clause 2 provides clarity and consistency with existing legislation. Given the specific limitations elsewhere in the Bill, any amendment to Clause 2 along the proposed lines is unnecessary.
Amendment 14 is the final one in this group. Your Lordships’ Committee is in no doubt of the importance of the office of the Independent Reviewer of Terrorism Legislation. David Anderson QC, who has occupied the role since February 2011 and whom both my right honourable friend the Home Secretary and I hold in the highest regard, does an excellent job of reviewing key counterterrorism statutes. His independent oversight and recommendations help us to ensure that our counterterrorism legislation is fair, effective and proportionate, and that it strikes an appropriate balance in the face of the very real and serious threat we face from terrorism.
Following the passage of the Counter-Terrorism and Security Act 2015, the Government undertook a consultation on whether David Anderson would benefit in his role from the support of a privacy and civil liberties oversight board. Having been informed by a public consultation on the board’s establishment, by David Anderson’s own recommendations on this matter and by the need to ensure the best value for public money, the Government decided that they could most effectively support the reviewer in discharging his statutory functions by instead providing him with specialist legal assistance in the form that he recommended in his July 2014 annual report.
David Anderson therefore announced on 31 March this year the appointment of three specialist advisers to support his work, funded by the Government out of an additional budget provided to him for this purpose. The advisers were personally selected by David Anderson, and each of them works on specific tasks in support of his independent reviewer functions to help increase the range and depth of the work. They have the necessary security clearances to access sensitive material, are entirely independent of government and are highly qualified and distinguished, with the right mix of terrorism law and human rights experience to enable them to provide the specialist support required.
David Anderson has welcomed this approach, which we consider the best way of ensuring that his vital role is properly supported. I was grateful to the noble Lord, Lord Carlile, for what he said in relation to this amendment, which we consider to be unnecessary as its purpose has been achieved by other means. I respectfully invite the noble Baroness not to press it.
I promise not to speak again on any amendments until we reach those covering legal professional privilege, as I do not intend to be even more of a human rights bore than I am at the moment. However, before the Minister sits down, since he has the great advantage of not being a lawyer, may I explain why the Government need to think again about the language that is being used currently?
The problem is that any mismatch between the wording of the Bill and the convention or the Human Rights Act would lead, necessarily, to a legal challenge, which would go probably all the way to the Supreme Court. At the end of the day, the court will say that it cannot do much about it, because the Act is clear, but that it will give a declaration of incompatibility. That will then cause the Government of the day to have to decide what to do about the language—whether they amend it or let it go to Strasbourg.
I want to avoid all that. Every time I see something in the Bill that seems to me to be a mismatch—for example the part which suggests that there are other unspecified relevant circumstances, which seems to violate the principle of legal certainty—I think, “Oh dear, this is going to lead to litigation and to a challenge”. I am begging the Government to make absolutely sure that the language of the Bill as it leaves this House cannot be challenged as being a mismatch with the European convention and the Human Rights Act.
The problem with the Human Rights Act is that it allows those challenges, quite rightly, to be made, along with declarations of incompatibility. That is why I really hope, when the Bill comes to Report, we can have language which, if not identical to these amendments, will achieve that objective.
My Lords, I am grateful to the noble Lord for expressing his expert opinion so clearly. I can undertake only to study carefully what he has said between now and Report. Clearly, the Bill has been drafted by expert hands, but I am the first to say that there is no monopoly of wisdom on the Government’s side, and I am sure we need to taker full account of what he said.
My Lords, one of the things that we are saying is that because the Bill has a mixed heritage, it is perhaps not as clear as it could be and does not have the benefit of the expert work to which my noble friend referred. I am clearly going to have to read very carefully what has been said, but I want to make a few comments now.
First, I am grateful to the noble Viscount, but I do not think what he was saying was quite as the noble Earl put it with regard to the word “may”. We need to come back both to the “may” and the “other considerations” in particular and to the relationship between the subsections. That fact that the list in subsection (4) is not exclusive makes the matter even more difficult.
I obviously do not want to go over all the ground again. With regard to the privacy and civil liberties board, it was of course a construct—a compromise—but my noble friend Lord Strasburger’s point about somebody having the responsibility to make sure that privacy and civil liberties are right at the top, immovably in the agendas that the Government may have, is an important one. I, for one, would welcome something more than was in the Act.
I agree that listing where the duty bites does help clarity and transparency, but I had a difficulty in being completely certain that it bites on everything that I think it should; the filter in Clause 63 was my example. If the filter is part of granting, approving—obviously not—or cancelling an authorisation, that is fine, but it should be clear. I am afraid I am not hugely persuaded by a code of practice, since it is not primary legislation. In fact, I think the Minister said that we should have regard to it. If it provides that these matters are absolute, rather than discretionary, then the codes of practice will not be consistent with the primary legislation, and that will be a bad thing.
I come back to whether this clause has been invented here, or wherever it has been invented. I will offer to supply the hot towels for everybody—I might even provide cake—but this is a provision that would benefit from further discussion. I certainly do not offer not to bring it back on Report—I might if we can get to somewhere that satisfies all of those who are clearly concerned before then—but for the moment, I beg leave to withdraw the amendment.
Amendment 5 withdrawn.
Amendments 6 to 13 not moved.
Clause 2 agreed.
Amendments 14 and 15 not moved.
Clause 3: Offence of unlawful interception
Amendments 16 and 17 not moved.
Clause 3 agreed.
Amendment 18 not moved.
Clause 4: Definition of “interception” etc.
19: Clause 4, page 4, line 23, leave out “, at a relevant time,”
My Lords, my noble friend Lady Hamwee and I have Amendments 19 and 66 in this group. The relevant part of Clause 4 that we are talking about here deals with the definition of “interception”. Clause 4(1)(b) talks about interception being,
“to make any content of the communication available, at a relevant time”.
It is the expression “at a relevant time” that we wish to probe. Clause 4(4) describes “relevant time” as being during transmission, or before or after transmission. For us, that begs the question: what does “relevant time” therefore mean? Why does it have to be stated that “relevant time” is necessary, bearing in mind that it seems to cover every time before, during and after transmission?
I turn to Amendment 66. Clause 42(1) talks about interception being effectively lawful if both,
“the sender and the intended recipient … have each consented”.
This amendment simply suggests that that consent should perhaps be in writing. I beg to move.
My Lords, I would like to raise two points, if I may, about Amendment 66. I entirely agree with the suggestion that the consent should be in writing, and I would rather hope that the Minister will give us some reasons why it should not be, because on the face of it, it is an extremely sensible suggestion. As we all know, there is sometimes a certain degree of opaqueness regarding what people have or have not done. Looking at Clause 42, to which Amendment 66 applies, I have some difficulty in understanding the relationship between subsections (1) and (2). I am not sure why subsection (2) is there, given the language contained within subsection (1). Perhaps my noble friend can help us on that.
My Lords, I wish to speak briefly to Amendment 68, which is in my name and that of my noble friend Lord Rosser. Clause 45(1)(a) permits interception by a Revenue & Customs officer under Section 105 of the Postal Services Act 2000. That is the provision that contains the power to open postal items, so that is clear enough. However, Clause 45(1)(b) permits interceptions by, again, a Revenue & Customs officer under the same Section 105 “and another enactment”. It is the phrase “and another enactment” that I am not quite clear about. If Section 105 is sufficient, why add the words “and another enactment”? If it calls on some other law in order to legitimise this activity, should that not be detailed in the clause? Amendment 68 therefore proposes deleting the second arm—the “and another enactment” bit—unless the Minister can make some sense of it for me.
My Lords, let me turn first to Amendment 19. Clause 4 defines interception. It provides greater clarity in relation to the activity that constitutes interception than is currently the case under the Regulation of Investigatory Powers Act 2000—RIPA—and responds to calls from a number of quarters that such clarity is necessary. “Relevant time” is defined in Clause 4(4) to make clear that the interception offence can be committed at any time while the communication is being transmitted, or while the communication is being stored. Under RIPA, it is an offence to intercept a communication in the course of its transmission by means of a public telecommunications system. There had in the past been some uncertainty as to the scope of the offence; for example, whether a voicemail message stored by a telecommunications system was still in the course of its transmission, and therefore whether to access it without lawful authority would engage the offence of unlawful interception. The revised definition of interception in Clause 4 is intended to make clear that messages stored in or by the telecommunications system are caught within the definition of interception, and therefore cannot be accessed without lawful authority. This puts beyond doubt, for example, that so-called phone hacking constitutes unlawful interception.
If the Bill were amended in the manner suggested, it would, I believe, undermine the strong safeguards that the Bill provides for the protection of private communications. It would cast doubt over whether access to stored communications without lawful authority would engage the criminal offence, and it would be less clear when a public authority required a warrant to intercept communications.
Amendment 66 is not necessary and would be very difficult to implement in practice. Clause 42 simply makes clear that where both parties to a communication have consented to the communication being made available to a third party, this does not constitute unlawful interception. The Bill already requires that consent must be given in such instances for it to be lawful. On the example of a telephone call, plainly it would not be practical to write to an individual seeking their consent before continuing with that call. I hope that the noble Lord will not press that amendment.
I turn to Amendment 68. Clause 45 relates to the power of HM Revenue & Customs to inspect postal items to ensure that contraband or illegal items are not being imported or exported from the country. This clause is vital in countering terrorism and preventing and detecting serious and organised crime. RIPA was amended by the Policing and Crime Act 2009 to put beyond doubt that the protections from interception afforded to postal communications in RIPA did not restrict this vital Revenue & Customs power to check international postal traffic. This clause simply maintains this position. I hope that I have been able to provide some reassurance as to why this provision is necessary.
Government Amendment 69 is included in this group, as an amendment to Clause 46, which concerns the interception of communications by Ofcom. The clause authorises Ofcom to intercept communications and obtain information about the sender, recipient or intended recipient of a communication for the purpose of granting wireless telegraphy licences, or for the prevention or detection of anything which constitutes interference with wireless telegraphy. This clause brings into the Bill authorisation to undertake action which is currently provided for by the Wireless Telegraphy Act 2006. The amendment that the Government have proposed is minor and technical in nature and simply clarifies that the definition of interception in Clause 46 is the same as the definition in Clause 4.
Could I press my noble friend a little more on Amendment 66? Of course I understand that there will be circumstances when written consent cannot be made, but there will be many other circumstances when it can be obtained. I note, for example, that it involves the consent of both parties. That suggests that it happens some time before the interception takes place. I should have thought it perfectly possible to have a proviso that the consent should in general be forthcoming and evidenced in writing, but that there should be a disapplication in urgent situations. In dealing with that matter, can my noble friend help me as to why we have subsection (2) as well as subsection (1) of Clause 42?
My Lords, I am very sorry to have to disagree with my noble friend about the consent in writing, which would be likely to result in completely impractical situations. It is not clear what real advantage would be gained. In any case, most of the time, prior consent in writing would simply not be an option. Taking the example again of a telephone call, it is difficult to see how the normal transaction of business would not be completely impeded if we insisted on this provision.
I shall endeavour to respond to my noble friend about his question on subsections (1) and (2). I do not have a ready interpretation to give him now but, if I can during the proceedings, I shall do so.
The language is pretty clear. Subsection (1) of Clause 42 suggests that consent of both is required, while subsection (2) refers to the consent of the recipient alone.
The noble Lord has expressed it very well, and I defer to his excellent interpretation.
Could the Minister write on the amendment to Clause 45(1)? I was absolutely not suggesting by the amendment that the right would be lost for Customs & Revenue to intervene—it was about whether it needed to be under both Section 105 and, as it says,
“that section and another enactment”.
It was the clarity of the words “and another enactment” that I was asking about. I would be quite content to have a letter to clarify that point.
I shall gladly write to the noble Baroness on that point. I can also say, for the benefit of the Committee, that I shall look into the drafting of Clause 45, including the reference to other enactments.