I would hope that the noble Lord would wait a moment. I am about to come to judicial oversight. I am talking now about the ability in principle and practice to have a TEO. If he can wait, I think he will be pleased to hear what I have to say following.
If the individual complies with the process of a TEO—this is a very important point and I hope it is helpful—they could be able return to this country within two days under a managed return. The JCHR is concerned to make the process less onerous, but onerous for whom? The passengers on that aircraft? These orders would make it unlawful for the individual to return to the UK without engagement with the UK authorities and that would be supported by the cancellation of the individual’s travel documents and inclusion of their details on watch lists. It allows for the imposition of certain requirements on the individual once they return to the UK.
The JCHR proposes an alternative to TEOs, which is to introduce “notification of return” orders, requiring UK nationals who are suspects to provide advance notification of their return to the UK on pain of criminal penalty if they fail to do so. I have tried hard to draft a measured response to this proposal, given that it simply does not recognise the minds and nature of militarised and/or radicalised individuals whom our enforcement agencies may be dealing with. In any event—and we will probably look at this more in Committee—I suggest that the committee’s proposed alternative may contravene Article 6 and the right to prevent self-incrimination.
Where I do agree with the JCHR report is in its desire to support these measures with some form of judicial oversight, if that oversight is humanly possible, given the speed of communications available to the individual concerned. Already our agencies operate in effect with one hand behind their backs in order to meet HR obligations and the rule of law; I will not support a measure which means both hands are tied. I am pleased that my noble friend the Minister has said in his opening remarks that he is now committed to considering some form of judicial oversight in relation to TEOs.
Perhaps it is helpful to add that we now know that those whom these measures are aimed at are rarely carrying out these acts of terrorism in a vacuum. Most of them have a very professional, well financed, powerful and evil force supporting, funding and directing them, even though they may appear in practice to be acting alone. The difficulty is to ensure to the best of our
ability that innocent people are not caught and impeded by these measures, although realistically that may not always be possible. But then that is why there are safeguards in place to minimise free movement where the individual co-operates and is indeed innocent. In addition, I support the proposal of the JCHR that the operation of these measures should be reviewed over time by the independent reviewer.
Turning to Part 2 of the Bill, relating to TPIMs, I entirely support the Government’s proposals to locate a TPIM subject away from their home address, given that this would be of real practical assistance to the police and MI5 in distancing individuals from their associates. The effect of amending the definition of terrorism-related activity in the TPIM Act would be to increase the threshold at which conduct is considered to be a terrorism-related activity. The proposal also to prevent individuals subject to TPIMs from acquiring and/or owning firearms, offensive weapons or explosives is overdue, coupled with a new power to require TPIM subjects to meet with statutory bodies specified by the Secretary of State. I think anyone beyond your Lordships’ House, hearing that these measures to support our agencies are not already in place, would be amazed.
Part 3 of the Bill relates to communications data—data which can help identify who has made a communication and when, where and how. It can include the time, and duration of a phone call, the phone number or e-mail address which has been contacted and the location from which a call has been made. It does not include the content of a call or e-mail—it is not hacking. It was interesting listening to the excellent and very thoughtful maiden speech given by the noble Lord, Lord Green of Deddington, where he made this very point—it is not hacking.
The new measures relate to IP addresses which are shared by multiple users, and IP resolution is the process of identifying who used an IP address at a given point in time which can then be used at any point in time to identify who has accessed a particular service or website. The Bill seeks to require communications service providers to retain data showing which device used which IP address at which point in time. Again, in my view this is overdue, given that capability in this area is increasingly undermining the ability of law enforcement agencies to use communications data to keep us safe. The data can be retained for up to a maximum of 12 months. I notice that in his very excellent maiden speech the noble Lord, Lord Evans of Weardale, said that access to communications data falls short of what is required. I think it is a great shame that he is unable to take part in further debates on this Bill, as his experience would obviously help us a great deal.
Turning now to Prevent duties in relation to activities in universities, I have concerns in line with those set out in the JCHR report. Universities and all other institutions where young people gather away from home present opportunities for young people to socialise freely among different faiths and cultures—to listen to other points of view, other ideas, other perspectives on life. Living side by side is not enough; the chance to communicate openly without fear of reprisal is of
critical importance. That said, I want to hear more from the Government about the objectives and the safeguards contained in the Bill. Indeed, there is a meeting with Ministers for interested Peers on Thursday this week to discuss this matter, which I will attend and I encourage others to do so in order to further consider these particular proposals.
Finally, I want to add my support to the proposals for more assistance for the work of the independent reviewer and for the power of the Secretary of State to establish, by regulation, a Privacy and Civil Liberties Board to provide advice and assistance to the Independent Reviewer of Terrorism Legislation in the discharge of his functions.
In conclusion, achieving the right balance is difficult and made more so by recent events. Debate, particularly in the media over the past few days, has been too often characteristically and depressingly skin deep with poor analysis. Fixed opinions do not work well in a changing world. Human rights are, to some degree, subjective and in considering the measures in this Bill, I believe our first priority should be to support our enforcement agencies who work tirelessly in their incredibly difficult quest to protect our fundamental freedoms.
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