Anti-terrorism, Crime and Security Bill

HL Deb 11 December 2001 vol 629 cc1271-91

5.11 p.m.

Proceedings after Third Reading resumed.

Clause 34 [Construction]:

[Amendment No. 5 not moved.]

Clause 39 [Racial or religious hatred offences: penalties]:

Lord Campbell of Alloway moved Amendment No. 6: Page 20, line 42, leave out "or religious". The noble Lord said: My Lords, this amendment is consequential upon the changed structure of Part 5, which now excludes religious hatred offences but retains religiously aggravated offences under Clause 38. This will involve a technical amendment to Section 37(3) of the Public Order Act 1986 and will require the attention of a parliamentary draftsmen in due course if that is acceptable to the Government.

If the new structure were to be acceptable to the Government, it would resolve the essence of the problem with which the House has been concerned. It was identified by the right reverend Prelate the Bishop of Birmingham on 15th October. He said that in this country Islam is generally perceived as an Asian religion. Therefore, attacks on Islam are used as a cover for incitement to religious hatred against people of Asian origin. That analysis was accepted by the noble Lord, Lord Rooker, at col. 371 of the Official Report for 15th October 2001.

If the record of enforcement of these racial hatred offences under extant law were to be increased from the 47 cases over five years to which the right reverend Prelate the Bishop of Oxford referred, there would be no need to introduce a new Bill at all. There is a hope that the Government will accept Part 5 as it stands as a fair and reasonable resolution of the problem with which we have been grappling for days, and that they will accept Part 5 as it stands with this consequential amendment and not undo the work of this House as is threatened in the newspapers. I beg to move.

Lord Monson

My Lords, when the Minister comes to reply, I wonder whether he could tell us—this is germane to the amendment—first, how many sentences of more than 18 months' imprisonment have been imposed for racial hatred offences in the 15 years since the Public Order Act 1986 came into force; and, secondly, whether the judiciary has ever complained that the current two-year maximum is too low and fetters its hands. If the answer is no then it appears that the near quadrupling of the maximum sentence to seven years is a public relations gimmick—or "spin", as we are now meant to call it—designed to give the impression of the smack of firm government.

Do the Government and, indeed, the Opposition, realise what the change to Section 17 of the 1986 Act made in what is presently Clause 36 of this Bill means? It will now be an offence to stir up hatred against any national group anywhere in the world. Thus, if this Bill had been in force exactly 60 years ago—that is, on 11th December 1941, when Britain was fighting for its life against the Axis powers—it would have been an offence, punishable by seven years' imprisonment, to stir up hatred against the Germans or Japanese. Is that what the Government intend? Surely not. Does this not show the dangers of legislating in such haste?

Lord Hylton

My Lords. I support the amendment in the name of the noble Lord, Lord Campbell of Alloway, and I hope that the Government will be able to accept it. It gives me the opportunity to return to a point that I raised in Committee concerning the level of penalties. It is proposed to increase that level by a factor of three and a half. The noble Lord, Lord Rooker, was kind enough to say in Committee that that reflected the wish of the Government to send a strong signal to the courts pointing out the gravity of this type of offence. I accept that, and that is why I withdrew some later amendments. However, a multiple of three and a half seems to be excessive. I should have thought that a multiple of two would be perfectly adequate.

Perhaps I may make one further point. I believe that from now on there will be a need to review the working of the law, both with regard to racial hatred and also, in so far as Clause 38 becomes law, in relation to religiously aggravated offences. No doubt both types of offence convey a kind of theoretical protection. But I wonder what that is really worth in practice and whether, with the benefit of a review, something better could eventually be produced.

Lord Avebury

My Lords, I am not absolutely sure that the level of maximum penalties has much of a deterrent effect when the courts seldom approach the limits which they are given under the statutes. The noble Lord, Lord Monson, will know better than I do how the law on religious hatred has been applied in Northern Ireland. He asked a question the other clay which elicited the fact that, during the currency of the religious hatred offence on the statute book in Northern Ireland since 1987, there have been four prosecutions and the maximum sentence imposed by the courts has been six months compared with the two-year maximum.

I ventured to draw attention to that the other day—perhaps it was yesterday; I lose track of the time as we discuss this Bill every day—because it seemed to me that it gave the lie to people who alleged at that time that having an offence of religious hatred on the statute book would lead to many frivolous or unfounded prosecutions. It certainly has not done so in Northern Ireland. However, in the context of the current discussion, I have doubts about whether increasing the penalties when the courts have not even nearly approached using the existing penalties would have much of a deterrent effect.

Lord Dixon-Smith

My Lords, I rise to give general support to the amendment proposed by my noble friend and to comment in particular on the interesting point raised by the noble Lord, Lord Monson. Of course, when one examines the Crime and Disorder Act 1998, which is relevant to our discussions today, I believe that one must conclude that the Bill did not contemplate a wartime situation. I suspect that in such a situation it would be difficult to apply the Act as drafted. It is also worth noting that in that Act some of the racially aggravated assaults carry penalties of up to 14 years' imprisonment. Therefore, long sentences are envisaged in that area.

Lord Rooker

My Lords, I admit that until the short speeches we have just heard I was not entirely clear about the purpose of the amendment. If there is to be argument about the penalty increase from two years to seven years, frankly, that is a different ball game. I do not think that that was debated either in Committee or on Report.

If the issue is trying to strike out any reference in the Bill to religious hatred rather than seeking to argue that there should be a difference in sentencing between two elements of the same offence, I can reassure the noble Lord, Lord Campbell, that should the provisions in what was Clause 39 (the offence of incitement to religious hatred) not be included in the Bill on Royal Assent, the reference in what is now Clause 39 (incitement penalties) will be removed as a primary change. It will be like renumbering the pages. An amendment will not be needed for that to be done. It will be taken out automatically.

Other noble Lords raised the issue of the increase in maximum penalty from two years to seven years. I understand that in 1998—I do not have the details of the case; it was not in Northern Ireland but in England—the judiciary complained that two years was too low. I shall write to the noble Lord with details of the sentences in the particular issue he raised. We want to send a signal; there is no question of that. It is not for me to criticise the judiciary and the sentences passed within the range provided. Maximum sentences are not always used. Discretion is given to the courts. We believe that it is entirely sensible that, as is the case in Northern Ireland, if there is to be an offence of inciting religious or racial hatred, the penalty for the offence under either of those elements should be the same and should be set at seven years. We must accept that legislation for the crime of religious hatred already exists. I shall write to noble Lords. A fair point was raised about how much the penalty is used. I understand that there were complaints from the judiciary two or three years ago.

As regards Clause 36, I have nothing to add to what was said, if anything was said, during the passage of the Bill. I do not recall this matter ever being raised. Therefore, I understood that to have the consent of the whole House.

Lord Monson

My Lords, before the Minister sits down, does he realise that one good reason for not having disproportionately long maximum sentences is that they seem unfair to the man or woman in the street? Therefore, juries may be reluctant to convict in such cases.

Lord Rooker

My Lords, for obvious reasons, because of the time I spent in the other place, I have never served on a jury. All I can say is that that is up to juries and the courts. The courts are given discretion. It is up to them to use it.

Lord Campbell of Alloway

My Lords, I shall be brief. I thank all noble Lords who have spoken on this matter. In particular, I thank the noble Lord, Lord Rooker, who assures the House, as I had hoped, that these matters will be taken into account automatically by the parliamentary draftsman if the structure of the Bill remains as it is when it comes back to us from another place. For that, I am grateful. I assure the noble Lord, Lord Rooker, that it was not my purpose to question the seven years' maximum sentence. If I have a purpose I table it in an amendment. In a curious way, although it is excessive, I support the seven years' maximum penalty because it is a maximum. I cannot imagine it being imposed by any sane judge or magistrates unless there is a serious situation—at times there are—which warrants it, and it serves as an effective deterrent. That is why I have not questioned it.

I thank the noble Lords, Lord Hylton, Lord Avebury and Lord Monson, for their contributions. I fully understand their reservations, which no doubt will be taken into account. I also thank my noble friend Lord Dixon-Smith for the trouble he has taken to make such a well informed contribution to this small debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 78 [Prohibition of disclosures in relation to nuclear security]:

[Amendment No. 7 not moved]

Lord McNally moved Amendment No. 8: Page 40, line 16, at end insert— (2A) In proceedings for an offence under this section it is a defence for the accused to show that the public interest in disclosure of the information relating to the transportation of nuclear material outweighs the public interest in not prejudicing the security of that material. The noble Lord said: My Lords, Amendment No. 7 was not moved in an attempt to show the Minister that we are approaching this matter with, to use his favourite word, proportionality. In looking after the nuclear industry, it is important to recognise the threat posed by international terrorism, either by direct attack on nuclear installations or by attempts from terrorists to gain access to nuclear material.

The dilemma is that there is a continuing national debate about the role of nuclear power and its peaceful use in our energy mix. It seems to many that the Bill as drafted could restrict genuine debate about the nuclear industry. It could also restrict the public from having legitimate information about the nuclear industry. Amendment No. 8 attempts to get right the balance in terms of public interest. It also attempts to recognise that there may be times when the public interest in being aware of various developments outweighs the security powers given in the Bill. This is simply a public interest defence written into the Bill. In terms of joined-up government, the amendment also raises the question of how much the Bill restricts and prevents the public having access to information to which they will have a right when the Freedom of Information Act comes into force in January 2005.

On consideration, we felt that Amendment No. 7, which we have not moved, tilted the balance between security and the right to know in the wrong direction. However, we remain convinced that Amendment No. 8 is one which the Government could accept in the genuine public interest of having an informed debate about the future of the nuclear industry.

The Lord Bishop of Portsmouth

My Lords, this is a reasonable amendment. It is certainly in line with the atmosphere of freedom of information. These Benches support it.

Earl Russell

My Lords, I declare an interest since I live within about 100 yards of a route regularly used by a train carrying nuclear matter. This is an exceptionally well-drafted amendment. Indeed, it is one of the best drafted amendments in the Bill. It raises a difficult test, but that is because it is the real test. It is the test of what we actually need to know before we disclose information about the transport of nuclear material.

I share my noble friend's concern about access to nuclear material and his concern about the risk. But there is also the concern, sometimes misplaced—I have been assured by expert opinion that in my own case it was largely misplaced—about the safety of people living near a line where nuclear material is transported. But those matters should be balanced against each other. It is a necessity. If we do not try to balance them against each other, sooner or later, there will be a situation where public protests will force us to do so. So why not do it voluntarily before we have to?

5.30 p.m.

Lord Avebury

My Lords, there have been two cases in the Russian Federation, one of which I mentioned the other day—that of Grigory Pasko—and the other one is that of Alexsandr Nikitin, in which this very issue has been brought before the courts. Chronologically, the first of the cases, Alexsandr Nikitin, a former captain in the Soviet Navy published a report through Bellona in Norway concerning nuclear materials which were stored in the Kola Peninsula in the North West of Russia.

Mr Nikitin showed from his researches that vast quantities of surplus reactors and redundant nuclear material were stored in the Kola Peninsula without proper safeguards as to the dissemination of radioactivity and radioactive material which might arise from the lack of care devoted to its retention. Mr Nikitin was charged with very serious offences in the Russian courts.

Now there is another case which has arisen in relation to the Soviet Pacific Fleet of a similar nature. Both Captain Nikitin and Mr Pasko pleaded in their defence that the public interest of disclosure was an important factor in releasing the information, although they denied that they had breached any security rules.

It is impossible to underestimate the importance of the first case—that of the Kola Peninsula—because if this material was released into the ocean or the atmosphere it could have immense consequences, not only for the whole of Europe but for the world as a whole. Most people thought that Captain Nikitin had performed an important and invaluable public service in making sure that this information got into the public domain.

I am horrified to think that a prosecution could now take place in the United Kingdom of someone who genuinely wanted to blow the whistle on some practice that was unsafe and was harmful, not just to the people of the United Kingdom but perhaps far wider than that. The Irish are an obvious example because they at present are in dispute with us over the release of radioactive material into the Irish Sea. People who genuinely believe that what they are doing in releasing information is for the benefit not just of Britain but of the whole of mankind could be prosecuted. I hope that the Minister accepts my noble friend's amendment.

Lord Monson

My Lords, I agree with the noble Earl, Lord Russell, that this is a balanced and well drafted amendment. For what it is worth, I wholeheartedly support it.

Lord Rooker

My Lords, the noble Lord, Lord McNally, stumped me again by not moving Amendment No. 7. Yesterday, these were Amendments Nos. 103A and 103B. I had a nice combined speaking note for both. I decided that because I had marked them up that I did not want to be given fresh copies because I would have to do all that work again. Therefore, I have yesterday's notes. I have gone through them. The clause numbers have changed as well. That does not help matters. But that is my responsibility. I shall not get sucked into dealing with Amendment No. 7 but will concentrate on Amendment No. 8. If I need to refer back to the other issues I shall.

This issue should not be a problem for noble Lords. The amendment is well drafted. I am not arguing about that. It simply says that, it is a defence for the accused to show that the public interest in disclosure of the information relating to the transportation of nuclear material outweighs the public interest in not prejudicing the security or that material". It is essential to protect detailed information about routes and time schedules and the nature of the material being transported until the movement begins. Currently, it is an offence that applies only to companies. The reason that these clauses are worded in this way is to relate them to individuals. It is important that we ensure security. If there is disclosure of information in advance of the movements, I do not see how that can be in defence of the public interest. Therefore, it goes against the objectives of the clause.

I invite noble Lords to continue reading because Clause 80 provides that a prosecution can be instituted only by or with the consent of the Attorney-General. The Attorney-General is able to weigh up the public interest in considering whether any prosecution should be brought.

I want to make another point. I refer to Clause 78 of the Bill. That states that an offence would be committed only if there is deliberate or reckless disclosure of information that prejudices security. Whether an offence has been committed will depend on the facts of the case. That is for the courts to assess.

I point out that there is a great deal of information on nuclear transport that has no security implications. This is not in any way intended to be an attack on monitoring by environmental groups on where nuclear matter is moved around the country. People standing and observing on bridges and railway lines can hardly be prejudicing security because they are collecting public information. The same applies to the disclosure of information already in the public domain. The dissemination of that information is very unlikely to fall within the offence here.

Lord Lester of Herne Hill

My Lords, I am grateful. Does the Minister therefore agree that the offence in Clause 78(1) would have to be read narrowly to conform to the right of free expression under Article 10 of the European human rights convention read with Section 3 of the Human Rights Act? Therefore, if there is a compelling public interest in disclosure that would have to be taken into account by way of defence.

Lord Rooker

My Lords, I assume that that would be the case. Clause 78(1) states that the disclosure is,

1. "(a) with the intention of prejudicing that security; or
2. (b) being reckless as to whether the disclosure might prejudice that security".

That is powerful language, in which a defence can be mounted, as I have explained.

We are talking about protecting advance information on the transport of nuclear materials and the details of the security measures which apply to specific shipments. That disclosure would be prejudicial to security. There is no question about that. So it is disclosure, not monitoring of that type of information, that is of concern. Sometimes nuclear material, even waste material, must be moved around the country. It cannot always be left where it is. There are different levels of waste and nuclear material. A correspondent often said to one of my right honourable friends as he defended the industry, "You should have it all in your backyard". Drigg, where all the hospital nuclear waste goes, is in the Copeland constituency of my right honourable friend. It is in his backyard.

The X-ray departments of hospitals in this country could not function if the disposal of low level waste could not be accommodated. That is not the central issue here.

As far as I know, over the past 30 years within the UK our transport arrangements have been in conformity with the International Atomic Energy Agency's standards. There have not been any incidents here involving serious injury or death or significant harm to the environment. The fact is that we are not after environmental monitoring. We are after advance notification of movements and shipments, where security could be put at risk.

Lord Lester of Herne Hill

My Lords, I am not sure that the Minister appreciates the force of my question. Perhaps I may I explain it and see whether he agrees with me. The prohibition on disclosure relates to nuclear security. It is therefore a restriction on free expression. Under the European convention it must be no more than is necessary in a democratic society—it must be proportionate. Does he agree that, in any event, Clause 78 must be read subject to the Human Rights Act 1998, so the principle of proportionality must apply to the offence?

Lord Rooker

My Lords, that may be so. As noble Lords know, I cannot understand all this because I am not a lawyer, only a humble engineer who, once upon a time, made things that people find useful rather than destroying their reputations.

The Lord Bishop of Portsmouth

My Lords, at the risk of pulling the Minister's leg, is being an engineer better than a lawyer in his present situation?

Lord Rooker

My Lords, as I said, we make things; lawyers destroy people's reputations. I am not winding noble Lords up. I have taken an agnostic view in the past, but the fact is that this country's engineering skills are incredibly good, and we lead internationally in many such fields. We take an active part in discussions to improve the level of nuclear safety in areas of the world where improvements are needed.

The clause does not prevent disclosure of other information relevant to the nuclear industry—whether relating to safety, health or other such matters where people may feel it important to whistle-blow. We are committed to being as open as possible on nuclear policy. Inherent, sometimes unnecessary secrecy has caused difficulties in the past. If we are open and mature, we can take people with us.

I hope that I can answer the noble Lord, Lord Lester of Herne Hill. By definition, the provision is subject to human rights requirements. Obviously, there must be a balance of recklessness. Someone must decide in the first place whether the action is sufficiently reckless to prejudice security. I reiterate that it will not cover environmental monitoring or whistle-blowing on health and safety matters. It is about giving advance notice of transport movements that leaves them open to attack.

I reiterate that prosecutions will occur only by or with the consent of the Attorney-General. That is an important safeguard.

Lord McNally

My Lords, I know that the noble Lord, Lord Rooker, has been on this Bill for a long time, but he has just missed a great opportunity. The person who made the jibe about his being an engineer was the noble Lord, Lord Rees-Mogg, in The Times. He is a journalist. There was a marvellous opportunity to unite the lawyers and the engineers in a joint condemnation of the journalists—a real missed opportunity.

Our motivation in moving the amendment was to ensure that the clause would not be used to stifle genuine debate on the future of the nuclear industry or to stop genuine monitoring of the kind of issues that the Minister referred to in his closing remarks. I hope that there will be enough in his clarification to reassure interested groups. In that spirit, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Clause 80 [Part 8: supplementary]:

Lord Dixon-Smith moved Amendment No. 9: Page 42, line 3, at end insert—

1. "(d) any person illegally resident in the United Kingdom. Or
2. "(e) any person resident in the United Kingdom and seeking United Kingdom citizenship."

The noble Lord said: My Lords, the amendment arises from a debate during the third day of debate in Committee, at col. 682, when the noble Lord, Lord Sainsbury of Turville, was answering our questions. My noble friend Lord Elton questioned the term "a United Kingdom person", asking who or what was such a person. The noble Lord, Lord Sainsbury of Turville, subsequently wrote, as he had undertaken to do, to define who or what is a United Kingdom person and what is the Government's policy. As a result of that letter, I conclude that we need to consider a gap.

Clause 79 gives the Secretary of State power by regulation to create an offence of trading or giving away information abroad about either fissile material or nuclear information for UK persons. In other words, if any of us get hold of nuclear information and trade it abroad, we can properly be charged with an offence.

So the question of who is a United Kingdom person is relevant. The description is carefully provided by the Government in Clause 80. It states: 'United Kingdom person' means a United Kingdom national. a Scottish partnership or a body incorporated under the law of any part of the United Kingdom … For this purpose a United Kingdom national is an individual who is … a British citizen, a British Dependent Territories citizen"— and so on a person who under the British Nationality Act 1981 … is a British subject; or … a British protected person within the meaning of that Act". Our little amendment goes slightly further. Within our country we have people who may hope to become United Kingdom citizens. The last thing that they would want to do is to acknowledge as their place of residence the country that they came from. We also know that we have a large number of illegal immigrants. I say that we know; we do not know, but everyone makes the pretty good guess that we have.

I mention that the Bill is an anti-terrorism Bill. That is in its title—until we have amended it, perhaps. We must consider possibilities. It is an unfortunate and frightening fact that the events of September 11th were described in a good book in fiction about a decade ago. There is the awful possibility that it was read by both the security services in the United States and by Osama bin Laden or his minions. The inspiration for that dreadful crime could well have come from what was supposedly an innocent work of fiction.

We must then consider the two groups of people in this country that I mentioned, who are either living illegally under cover as United Kingdom citizens or are seeking to become United Kingdom citizens. It is not inconceivable that they could go abroad to trade in nuclear information or in fissile material and then return here. They would then be in a privileged position, because even if we subsequently traced that criminal action, under British law, because they were not United Kingdom citizens, they could not be charged with the offence.

That is an unsatisfactory situation. While I am prepared to accept that the wording of the amendment may not be wholly satisfactory, I invite the Government to take on board that serious issue and see if they cannot find some way to resolve it before the Bill's proceedings are completed. I beg to move.

Lord Rooker

My Lords, the amendment seeks to extend the category of people who can commit these offences. I want to make it clear that anyone who commits an offence within the UK under the provisions of this part will be caught by it whether or not he or she is a UK citizen. Therefore, the first paragraph of the amendment is not necessary. I realise that when one looks at the drafting that might not appear to be the case and I am seeking more advice—

Lord Dixon-Smith

My Lords, I am not concerned with anyone who commits the offences within the United Kingdom. That is not the difficulty. The problem is with the person who travels abroad and commits the offences, but on return to this country is not so chargeable.

Lord Rooker

My Lords, I am sorry; I have mislaid my copy of the amendment. Someone illegally resident in the UK will be caught by this part.

Clause 80 provides that the offences in Clauses 78 and 79 can be committed outside the UK but only when they are committed by "a United Kingdom person" as defined in the Bill. We fully admit that that is a limitation provision. It reflects the policy of exercising extra-territorial jurisdiction very sparingly indeed. We assert such jurisdiction only in respect of "UK nationals", or a similar definition, in justified cases; for example, where we are required to do so under international obligations or where the crime committed is considered to be particularly serious, as in this case.

Any further extension of jurisdiction to those other than UK nationals has been limited to the few areas where there is international consensus and where there are treaties on the matter; for example, international rules and conditions exist in respect of hijacking and piracy. We do not believe that the right conditions are in place for taking the approach proposed in respect of offences under Clauses 78 and 79. For the reasons I have given, we do not intend to seek a further extension of jurisdiction.

The situation is hypothetical and I take the noble Lord's point about the planning taking years. However, I humbly point out that I have made that point more than once from this Dispatch Box as the Bill has been going through the House. I have tried to persuade noble Lords not to make some of the technical adjustments to the Bill which they have then made.

Lord Dixon-Smith

My Lords, I should say, "Touché", but we submit that we have not changed the substance of the Bill. We have sought to remove the extraneous matter from it and by and large that is what we have done.

The Minister does not surprise me with his answer. However, I am bound to say that he does disappoint me. It strikes me as somewhat paradoxical that a genuine UK resident could be at a disadvantage compared with someone who might be living here illegally. I agree that we are dealing entirely with hypothetical situations and we must all hope that they remain hypothetical. Perhaps none of us will know the answer to that.

I should have preferred to hear the Minister say that he could consider this little local difficulty. He has not chosen to do so but I do not intend to press the amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 102 [Codes and agreements about the retention of communications data]:

Lord Rooker moved Amendment No. 10: Page 62, line 27, leave out subsections (3) to (5) The noble Lord said: My Lords, I rise to move Amendment No. 10 and to speak to the other amendments grouped with it. I shall be brief because we debated the matter last Thursday when I promised to bring forward an amendment to introduce parliamentary approval of the voluntary data retention codes of practice. It will provide a further safeguard to ensure that data protection and human rights legislation is complied with. Together with the duty to consult the Information Commissioner and the industry, it will, I hope, ensure that an appropriate balance is struck between security and civil liberties.

The practical effect of the amendment is to split the process of drawing up the code of practice into two stages. First, there will be a consultation with the parties directly involved: the service providers, the law enforcement agencies and the Information Commissioner. That will lead to the publication of a draft code. The next stage is a period of public consultation when comments will be welcomed from any quarter, irrespective of whether people were consulted in the first place. Following that consultation, the code will be laid before Parliament for approval by the affirmative resolution procedure.

The same process will apply to any subsequent revisions, including any necessary transitional arrangements for moving from the initial code to later versions. For clarity of drafting, the first clause of this part of the Bill, covering the voluntary scheme, has been split into two. The proposed amendment sets out the principles of the voluntary provisions in one clause and the mechanism for setting it up in a second. I believe that that goes a considerable way to meeting the points which were raised during our debate a week ago and I therefore hope that noble Lords will support the amendment. I beg to move.

Lord Lester of Herne Hill

My Lords, I support the amendments, but I want to draw the attention of the House to the fact that, as frequently in the recent past, legislation is being enacted which will not work as noble Lords believe that it will if all that they read are the words in the Bill. That is because the words in Clause 102 and in the proposed code must be read in accordance with the Human Rights Act. I am beginning to feel a little guilty about continually mentioning the Human Rights Act—

Lord Pearson of Rannoch

Hear, hear!

Lord Lester of Herne Hill

My Lords, I am pleased that the noble Lord, Lord Pearson of Rannoch, is being entirely consistent in his opposition to anything which smacks of Europe, even when it concerns the fundamental rights and freedoms of British citizens and others in this country. I want to make the point because it is important. I remember making it in connection with the data protection legislation and a series of other measures.

I shall begin at the beginning. On 4th December (at col. 791 of the Official Report) the Minister properly made it clear that the code of practice and the agreement would not be drafted in a way that was incompatible with data protection or human rights legislation. Quite properly, he repeated that statement today.

Let us look at Clause 102, in the context of which the code and the proposed code are to be made. Clause 102(6) states: A code of practice or agreement … may contain any such provision as appears to the Secretary of State to be necessary … for the purpose of safeguarding national security; or … for the purposes of prevention or detection of crime", and so forth. Clause 102(8) states that a code of practice and so forth, would be likely to prejudice national security", and so forth. Clause 103(1) gives the power to the Minister to give directions about the retention of communications data consequential on what is in the codes and so forth.

The problem is that none of that language is the same as Article 8(2) of the European Convention on Human Rights, which is the exception clause to the fundamental right to respect for personal privacy; nor is it the same as what appears in the data protection principles. The difference is that it does not use the test of necessity/proportionality—which is the key test, the fair balance test—to decide whether keeping communication data in the way that is empowered under this part of the Bill is necessary in a democratic society. Accordingly, it will be left to judges, administrators and Ministers, under Section 3 of the Human Rights Act, to give effect to Clauses 102 and 103 and to the draft code so far as possible in a way compatible with the right to personal privacy and the test of necessity. Similarly, Ministers and any other public authority will be required under Section 6 of the Human Rights Act to act in a way compatible with Article 8 of the convention—the right to personal privacy.

In the end, if there is a dispute about any of this by anyone who is made subject to requirements—the communication providers, for example—the judges will have to take this language, both in the draft code which becomes the code and in Sections 102 and 103, and read them in a way which is compatible with the right to personal privacy.

I very much regret that governments keep on, in spite of the Human Rights Act, using wide language as in, for example, Clauses 102 and 103. I am sure that they will do the same in the code, in a way that will lead to incompatibility with the European human rights convention and with data protection principles. It would be much better if the test that was used in legislation was the test of necessity/proportionality without this much looser language.

Although I agree with the amendment, which is designed to enhance consultation and accords with undertakings already given, I am sorry to have to say that, unless the code itself is drafted in a way which is compatible with data protection principles and the Human Rights Act, judges will have to fit it all together in due course. Lawyers will have to be paid almost as much as engineers might receive in similar circumstances, and the lawyers will have to come to the rescue of the engineers of this Bill because the engineers will have failed in their design project and its execution. I have great respect for engineers—as much respect as I know the noble Lord has for lawyers.

6.00 p.m.

The Lord Bishop of Portsmouth

My Lords, following what the noble Lord, Lord Lester, said, in spite of what I said earlier I have great respect for engineers, as the son of an architect, and also for lawyers. However, I am neither a lawyer nor an engineer but a simple soul.

I ask a genuine question, which is whether the deletion of Sections 3 to 5 amounts to going back on concessions made earlier.

The Earl of Northesk

My Lords, I thank the Minister for honouring the commitment he gave the House at Report stage. It will come as no surprise, I am sure, that we on these Benches support the amendments.

Of course I bow to the superior expertise of the noble Lord, Lord Lester, but it may be that subjecting the code of practice on data retention to affirmative resolution will offer a form of safeguard that it will operate within existing human rights and data protection legislation. I am grateful to the Minister for having so readily taken on board the anxiety of many on this point in Committee.

In this context it is worth repeating that the amendments address specific concerns raised by the Joint Committee on Human Rights and the Delegated Powers and Deregulation Committee. I hope that the Minister will forgive me if I take this opportunity to seek clarification of one or two points.

First, the tail end of subsection (1) of the new clause states: the Secretary of State may incorporate in the code finally issued any modifications made by him to the draft after its publication. In effect, there is a distinction to be drawn between the draft code and its final version, as possibly modified by the Secretary of State. My difficulty here is that with this provision it is possible that the draft code would become toothless. As I read it, the Secretary of State could modify a published code at will and without consultation. I hope the Minister can offer me some comfort on that point.

It may be carping, but I also note that in the case of a revised code the Secretary of State's requirement to consult is watered down to exclude any CSPs who would be unaffected. I can understand the motivation behind this, particularly from the perspectives of flexibility and speed, but the initial code implies consultation with all CSPs whether or not they would be affected. Why this discrepancy?

I move to a more general point which I should perhaps have emphasised more forcefully before now. What is the Government's best estimate of the gestation period of the code of practice? I may have this wrong but my understanding is that the Information Commissioner has been working for over a year now on the code of practice arising out of the Lawful Business Practice Regulations that deal with e-mail monitoring in the workplace. Is it to be expected that the data retention code will experience a similar timescale in terms of preparation?

I am bound to make the point that if this is indeed the case the sense of urgency that the Minister insists should be attached to Part II is somewhat undermined. I look forward to the Minister's replies on these points. In the mean time, we on these Benches welcome these amendments.

Lord Rooker

My Lords, I apologise to the noble Lord, Lord Kingsland. for this, but I do not recognise words that he quoted, either from the Bill as reprinted overnight or, indeed, Amendment No. 4. I will take advice on that, but he used words that I cannot locate. I accept that he understands that we have gone a considerable distance.

The right reverend Prelate asks me right at the end of our proceedings whether there is anything hidden in this government concession. That is a word I have tried to avoid throughout the past eight days because it is used in a pejorative way and suggests that I am covering something up and trying to slip something through. The answer is no, we are not. This is wholly positive. The Home Secretary has willingly embraced the discussions in this House by noble Lords, lawyers and all, and we have listened. In this case what we have done is to re-write Clause 102. We have taken a chunk out of Clause 102(3), (4) and (5), and we have set up a different procedure. That is why we have entitled it "Procedures for the code of practice". Where those are revised and re-issued they will go through the same process.

I say to the noble Lord, Lord Lester, that towards the end of his short speech he used words to suggest that if the code were written to conform to data protection principles and human rights legislation then judges would have some precision. That is exactly what we propose to do. I take his point about the annoyance that government Bills do not reflect the language of the human rights legislation, but we have said that we will draw up the code of practice so that it conforms to data protection principles and human rights legislation. If we did not do that, under a voluntary arrangement someone would be for the high jump because there would be complaints, I am absolutely certain.

I repeat that we want to work voluntarily with industry and the Information Commissioner and everybody involved. We do not want to breach privacy. We are not looking to intrude on people's conversations; we do not want records kept of what they say on the telephone. That is not what we are about. We are not asking data providers to collect new information beyond that which they already collect, so there is no new burden. What we are asking them to do is to save it for longer. The code of practice will deal with that and make it accessible.

If there are points made by the noble Lord, Lord Kingsland, which I have misunderstood I will happily drop him a note, but I am the good guy here on this amendment, and that is the way I should like to leave it.

Lord Lester of Herne Hill

My Lords, not only is the Minister the good guy on this amendment, but he has just demonstrated that in all respects he is also a first-class engineer. My understanding of what he has just said means that he is giving effect to the recommendation made by the Joint Committee on Human Rights; that is, that as far as is practicable, on its face the code will give effect to the standards set out in Article 8 of the European Convention on Human Rights and to the data protection principles. That is good news because it will cut down litigation and overloading of the courts. It will also ensure that Parliament does its job properly when it considers the measure using the affirmative procedure. We shall be able to bless it. The Minister's remarks have clinched it.

We all believe that Ministers will do what they say, but the fact that the affirmative resolution procedure is in place at the end of the process will—to use the words of Archbishop William Temple, spoken in another context—"just clinch it".

Lord McNally

My Lords, while the Minister takes a moment to bask in the approval of my noble friend Lord Lester, could I ask him to clarify a point made by the noble Earl, Lord Northesk, concerning the period of consultation? The period of consultation for a number of codes of conduct has been extremely long. A conflict could arise between the sense of urgency attached to the legislation before noble Lords and the need to consult. Will any guillotine procedures be introduced to the consultation process?

Lord Rooker

My Lords, first I should apologise to the noble Earl, Lord Northesk, for addressing him incorrectly. This point was raised in Committee and I remember saying that the Home Office has, in a sense, moved up a gear. We do not want lengthy delays on this. It is expected—the process will be really rapid—that it will take around six months to consult and agree the code.

It is always best to drive matters forward from the Dispatch Box. Over the past four years I have discovered that people take account of statements made from this position. I would expect to be able to bring before the House the code for consideration under the affirmative procedure before the Summer Recess next year. I should add that we do not plan for the Recess to take place during the first six months of 2002, but I am seeking to add a little finesse to the phrase "about six months". When I see a term such as "about six months", that period could stretch to seven or eight months. I shall stand at this Dispatch Box and move that the code be taken through the affirmative resolution procedure for approval before the Summer Recess. For my part and acknowledging my responsibilities in this matter, I shall try to drive the issue forward.

On Question, amendment agreed to.

Lord Rooker moved Amendments Nos. 11 to 13: Page 63, line 2, after "section" insert "which is for the time being in force Page 63, line 4, after "section" insert "which is for the time being in force Insert the following new Clause— "PROCEDURE FOR CODES OF PRACTICE

1. (1) Before issuing the code of practice under section 102 the Secretary of State shall—
1. (a) prepare and publish a draft of the code; and
2. (b) consider any representations made to him about the draft; and the Secretary of State may incorporate in the code finally issued any modifications made by him to the draft after its publication.
2. (2) Before publishing a draft of the code the Secretary of State shall consult with—
1. (a) the Information Commissioner; and
2. (b) the communications providers to whom the code will apply.
3. (3) The Secretary of State may discharge his duty under subsection (2) to consult with any communications providers by consulting with a person who appears to him to represent those providers.
4. (4) The Secretary of State shall lay before Parliament the draft code of practice under section 102 that is prepared and published by him under this section.
5. (5) The code of practice issued by the Secretary of State under section 102 shall not be brought into force except in accordance with an order made by the Secretary of State by statutory instrument.
6. (6) An order under subsection (5) may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient in connection with the coming into force of the code to which the order relates.
1288
7. (7) The Secretary of State shall not make an order under this section unless a draft of the order has been laid before Parliament and approved by resolution of each House.
8. (8) The Secretary of State may from time to time—
1. (a) revise the whole or any part of the code issued under section 102; and
2. (b) issue the revised code.
9. (9) The preceding provisions of this section shall apply (with appropriate modifications) in relation to the issue of any revised code under section 102 as they apply in relation to the first issuing of the code.
10. (10) Subsection (9) shall not, in the case of a draft of a revised code, require the Secretary of State to consult under subsection (2) with any communications providers who would not be affected by the proposed revisions."

On Question, amendments agreed to.

Clause 110 [Implementation of the third pillar]:

Lord Rooker moved Amendment No. 14: Page 66, line 25, leave out "31" and insert "K.3 The noble Lord said: In moving Amendment No. 14, I shall speak also to Amendment No. 15. These are genuine drafting amendments. We are not trying to change the Bill. I can assure the House that we are not trying to pull a fast one. The amendments are purely technical to ensure that the references to the 1995 and 1996 Conventions on Extradition are legally correct.

The conventions were established under Article K.3 of the Treaty on European Union. Clause 110(2) should refer to that article rather than to one of the renumbered articles in Title VI of the treaty, which replaced the K-numbered articles. I beg to move.

6.15 p.m.

Lord Pearson of Rannoch

My Lords, before the House agrees the amendments, I should like to put one or two questions to the Minister about the scope of what are now Clauses 110 and 111 of the Bill. As the noble Lord has said, they will import into legislation what is now Article 31, or what was Article K.3 before the Amsterdam treaty, together with the 1995 and 1996 Conventions on Extradition.

The first question arises because Article 31 is to be amended by the Treaty of Nice—assuming that that treaty is ratified—to give greater substance to Eurojust, to the European judicial network, and to Europol. Can the Minister tell the House how the Government see what I think we would all agree is the pan-European police force developing? In particular, do the Government envisage that members of Europol will be able to arrest people in this country without a British policeman in attendance?

Secondly, and perhaps far more important, is there any truth in the suggestion that the officers of Europol will have immunity from negligence? If that is so, why?

Finally, I shall put a more generic question concerning the clauses as amended by the Government. It is clear that we are witnessing a three-pronged attack on some of our most fundamental civil liberties, all inspired far more by Brussels' quest for power than by any reasonable attempt to control terrorism. The first prong consists of these clauses in the Bill, which noble Lords have now substantially improved. The second prong comprises the proposed European arrest warrant, which we debated most recently in the course of Starred Questions earlier today, and the outcome of which we must await with trepidation.

My question concerns the third prong of this very worrying assault; that is, the Treaty of Nice itself. In his amendments, I believe that the noble Lord has assumed that the treaty will be ratified. Do the Government agree that the measures originally proposed in these clauses, along with any that may emerge in the arrest warrant, could be brought into force under the existing treaties, but especially if the Treaty of Nice is ratified? In other words, if the Nice Treaty is ratified, or even if it is not, surely all these matters could be dealt with without any need for the Bill or for the arrest warrant? Perhaps they would have taken longer, but I think that it is important to know where we stand in the development of the competencies of the European Union. I should be most grateful for the Minister's response.

Lord Rooker

My Lords, it is kind of the noble Lord to give me an opportunity to revisit the third pillar. However, I shall decline the invitation. I have just moved two amendments, exactly the same as each other, which seek to change references to "31" from "K/" mentioned in two separate lines in a clause over which a major debate was held yesterday in this House. I would remind the noble Lord of that. The Government made a major modification to the Bill by time limiting to 1st July 2002 implementation of the third pillar.

I have been assured by my noble friend to my left that Europol is a good thing. The Nice Treaty has not been ratified and therefore the noble Lord's question is hypothetical. We shall have to wait until ratification has taken place. I do not know anything about immunity from negligence, except to say that such immunity would not strike me as a good thing in any walk of life. I should add that that comment should not be construed as a change in government policy. As regards the issue of UK citizens living in this country being arrested without the need for the presence of UK policemen, I find it extremely difficult to believe that such a move could be contemplated.

I almost regret to have to say to the noble Lord that there will be bags of opportunities to debate these issues when we deal with the legislation which has already been forecast for next year. I want to take the comments of the noble Lord seriously because I realise that these are important issues. I am told continually that matters are dealt with differently in this House; we are more measured and precise. We have achieved a far better scrutiny of the Bill than would normally be the case on the Floor of the other House, even when it has more time to deal with business. However, I have to say to the noble Lord that when dealing with an amendment that seeks to change a reference to "31" from "K/", I am limited in what I am prepared to respond to in the debate.

Lord Pearson of Rannoch

My Lords, I accept that we shall not cover all the points that 11 have put to the noble Lord, but he has been warned.

On Question, amendment agreed to.

Lord Rooker moved Amendment No. 15: Page 66, line 28, leave out "31" and insert "K.3

The Deputy Speaker (Lord Ampthill)

My Lords, I believe that this amendment is to be moved formally and that the right reverend Prelate will not accuse the Minister of any mischief.

The Lord Bishop of Portsmouth

My Lords, the Minister is true to his word and this amendment has the total and 100 per cent support of the right reverend Prelates concerned about the implementation of the third pillar.

On Question, amendment agreed to.

Clause 127 [Short Title]:

Lord Dixon-Smith moved Amendment No. 16: 16 Page 75, line 23, leave out "Anti- The noble Lord said: My Lords, I do not want to debate particle physics but I cannot help but wonder whether we are not entering the realm of Bills and anti-Bills. Only a year ago, we passed a Terrorism Bill and now we are passing an Anti-terrorism Bill. The four-letter word at the beginning of the Bill's Title is a little out of place and for the sake of consistency—and all those who may refer to these matters in future—it would be better if the measure were named the Terrorism, Crime and Security Act 2001.

Lord Elton

My Lords, presumably this is an anti-crime Bill as well. If it is not necessary to state "anti-crime", why is it necessary to state "Anti-terrorism"?

Lord Rooker

My Lords, as I have discovered at three departments in the past four years, there are lots of rules on the titles that one can and cannot give to a Bill. I first became aware of that long before I entered the other place, in respect of the Fair Rent Bill of the now noble Lord, Lord Walker. We thought that was a very political title and there was much debate about it.

We need to differentiate this measure from the Terrorism Act 2000. I am not aware of anyone referring in the press or on the wireless to anything other than the Anti-terrorism Bill—its Short Title. We should keep it as that. That title might annoy people when they look for the measure in an alphabetical index but it is important to avoid confusion with the 2000 Act. At this late stage, we cannot justify such a substantial change to the legislation.

Lord Dixon-Smith

My Lords, the Minister's response does not surprise me. I take the opportunity to thank him and his colleagues in respect of a period of arduous and solid work on the Floor of the House. We have not always agreed, inevitably, but I hope that relationships have remained amicable. I am grateful to the Government for the generosity of their approach, in letting us see the Bill before it was published. They have been generous with their time subsequently.

I thank all noble Lords who have taken part in eight days of very hard work and also the Government Chief Whip, the Chief Whip of the Liberal Democrats and my own Chief Whip. They have between them worked hard to keep the show on the road for eight days. It is not usual to acknowledge them but the usual channels seem to have worked very well in respect of this Bill. I want to thank some real trojans, who have had a difficult time—the staff in the Public Bill Office. They are not usually thanked—and nor are the staff in the Whips' Office, who have the daily grind of trying to make sense of our demands for groupings. I am happy to place those thanks on record.

Lord McNally

My Lords, before the noble Lord sits down, although I would have been pleased to associate myself with all his remarks, I will save my plaudits until and if the Bill do now pass. I suspect that we have a little more time yet before we find whether it do pass.

Lord Dixon-Smith

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Bill passed, and returned to the Commons with amendments.