Lord Clement-Jones (LD)

My Lords, I support Amendments 390 and 391 tabled by the noble Lord, Lord Anderson of Ipswich, which I have signed. As he has explained, these amendments are designed to probe the proposed extension of border powers. These are powers which are already among the strongest vested in the police, which are useable at ports, airports and near the land border with Ireland. The Committee needs very little reminder of the pedigree of the noble Lord, Lord Anderson, as the Independent Reviewer of Terrorism Legislation. This informs his view of these new powers under Clauses 135 to 137, which represent a major extension of state reach. They extend the existing power to seize a physical device to include data that is accessible from a phone but stored in the cloud. We are no longer talking about just a handset, but the entirety of a person’s Gmail account, iCloud photo library and private digital history. Although the operational logic of following data in the cloud is understandable, we should reflect that this information is seized without the need for prior suspicion of an offence. As the successor of the noble Lord, Lord Anderson, the current Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, has asked, “is merely travelling through a port of border a sufficient reason” for a citizen “to surrender so much of their privacy?” As the noble Lord, Lord Anderson, said, Amendment 390 would introduce a vital safeguard based on the Supreme Court’s judgment in Beghal v DPP, which stipulates that if the police wish to retain the extracted cloud data for longer than three months they must have reasonable grounds to suspect the individual is involved in terrorism or hostile activity. We cannot allow the digital core of an innocent traveller to be duplicated and kept indefinitely by the state simply because they pass through a port of entry, as the noble Lord said. As the noble Lord said, Amendment 391 is directed at the National Security Act 2023. As it is currently drafted, the Government would allow the retention of cloud data based on the purely subjective test that the constable believes that it is necessary. This is perhaps the least onerous threshold imaginable in our law. Amendment 391 would perform what the noble Lord, Lord Anderson, described as minor “keyhole surgery” by replacing this subjective belief with an objective test of necessity, which would ensure that the retention of highly sensitive personal data, which may include journalistic or legally privileged material, was governed by an actual legal standard that can be scrutinised, rather than a mere hunch or the personal belief of an individual officer.