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Meaning and Location of "interception" etc

Regulation of Investigatory Powers Bill – in the House of Commons at 7:49 pm on 26th July 2000.

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Lords amendment: No. 1, in page 4, line 32, leave out ("address or other") and insert ("traffic").

Photo of Charles Clarke Charles Clarke Minister of State, Home Office 7:50 pm, 26th July 2000

I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker:

With this it will be convenient to discuss Lords amendments Nos. 2 to 5, 23 to 32, and 126 and 127.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

First, I shall respond to the hon. Member for South Dorset (Mr. Bruce). He has pestered me most energetically, starting about 11 minutes ago. I told him that I was prepared to write to him. He raised the issue when we were considering the Care Standards Bill. The Minister of State, Department of Health discussed the matter with me. I told him that there was no conflict between the Bill and the Care Standards Bill. On that basis, my hon. Friend gave that assurance to the House. The hon. Member for South Dorset is right, in that I told my hon. Friend the Minister that I would write to the hon. Gentleman to explain precisely why there was no conflict. I will do that. I have not been pestered and pestering should not have been needed, until a few moments ago. Being pestered as I am now, I will respond in the appropriate way.

The definition of communications data to which the amendments refer has been the subject of a great deal of important attention. We discussed it first in Committee. Principally, the hon. Member for Sheffield, Hallam (Mr. Allan) raised important points about whether communications data were more or less intrusive, as a concept of intruding on people's freedom and knowledge, than other forms of surveillance, which were involved in the Bill. It has been a positive and helpful debate.

In supporting the amendments and in working with both Opposition parties in the other place, we wished to secure the maximum possible agreement and to go forward with a Bill that we can all agree represents the right way of proceeding. I shall not repeat the point, certainly not this evening. I place on record the fact that we appreciate the efforts of Lord Cope of Berkeley, Lord McNally and Opposition Members in this place in seeking to reach an agreement on where we should go. I appreciate the efforts made by many organisations, in business and elsewhere, which were keen to try to improve the Bill in a variety of ways. The amendments on these clauses and those in other groups that we shall discuss this evening are the product of a positive process of trying to seek agreement and improve the Bill in a generally constructive way. It is appropriate to pay tribute to those who have been involved in that process.

The purpose of this group of amendments is to draw the definition of communications data in the Bill tightly enough to exclude the possibility that the contents of the communication could be assessed. We all understand that when reading telephone bills it is possible to find where the calls go. Everybody was concerned to ensure that the content of, for example, a webpage or whatever should not be caught by the Bill.

We were ready to deal with that, so the new definitions set out in the amendments satisfy, we believe, three areas of concern. They include in what manner and by what method a person communicates with another person or machine. They exclude what they say or what data they pass on once the connection has been established—for example, the content of communications. Importantly, they still allow for dial-through fraud to be properly investigated.

Redrafting the definition has been a complicated process, and so it may assist the House if I explain briefly what each part of the new definition as set out in amendments Nos. 3 and 24 is designed to achieve. First, paragraph (a) covers subscriber information. Paragraph (b) covers routing information. Paragraph (c) is designed to address dial-through fraud. Paragraph (d) catches the data which are found at the beginning of each packet in a packet-switched network, which indicates which communications data attach to which communication. The tailpiece to the new definition puts it beyond any doubt that, in relation to internet communications, traffic data stop at the apparatus within which files or programmes are stored, so that traffic data may identify a server but not a website or page.

Amendment No. 31 adds the Inland Revenue as a public authority that may be allowed to seek access to communications data under clause 24. We decided, with the agreement of others, to put that in the Bill in response to the recommendations of Lord Grabiner, to deal with the black economy in a way which I think most people consider positive and effective.

The Bill makes provision for orders that may add to the purposes for which communication data can be accessed, and similarly add to the list of those public authorities that may access such data. Amendments Nos. 27 and 32 ensure that these order-making powers are subject to the affirmative resolution procedure.

We need these order-making powers to take account of changing circumstances. We think it important to understand that the process is changing. We need order-making powers, and we accept that they should be affirmative subject to the resolution procedure.

We discussed this complicated and difficult area of the Bill in great detail in Committee—I put on record the efforts of the hon. Member for Hallam in trying to clarify these matters and develop them—and we believe that the definition of communications data is drawn tightly enough to exclude the possibility of accessing content. On that basis, I hope that the House will agree to accept the amendment.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

We have come a long way since Third Reading in this place. I thank all those organisations and individuals that have been involved in helping the Opposition in the House of Lords and in this place. I refer to bodies such as the Federation of the Electronics Industry, the Alliance for Electronic Business, the Internet Service Providers Association, the London Internet Exchange, the London Investment Banking Association, Justice, Liberty, the Conservative technology forum, Mr. Steven Brine, and the European Informatics Market.

I make no apology for listing those organisations and including Mr. Brine. They all have important interests in these matters. They have said from the outset that they support the principle that crimefighters should have the powers that they need and that there should be a proper framework for surveillance and the use of informants.

We reached the point on Third Reading in this place where the Government seemed unwilling to move further. The Opposition felt that the Government had not moved far enough. I join the tribute that has been paid to the work done by those in the House of Lords. I refer especially to Lord Cope of Berkeley and Lord Astor, with their team of Lord Goschen, Lord Northesk and Lord Lucas of Crudwell. The Liberal Democrats were ably led by Lord McNally. I even pay some tribute to Lord Bassam of Brighton, the Labour spokesman, who was forced to listen.

When we came to the end of Third Reading, I tabled a written question to the Minister to ascertain what amendments he intended to table in the Lords. He replied to the effect that he expected a very small number of minor and technical amendments. It is a tribute to the way in which matters have changed since the Bill was last in this place that we now have 29 pages of complete rewriting of the sections that most concerned the official Opposition and the Liberal Democrats.

I join in the welcome for these amendments, which deal with the important issue of communications data.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Before I do so, I should say that my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) said at the outset, on Second Reading, that she was concerned at the wide range of information which was covered by the power dealing with communications data. She expressed those difficulties fully. In Committee, we tabled amendments, which dealt with the issue. We tried to limit the power to cases where it was absolutely necessary to provide information and to deal with definitional problems.

We failed to make the progress that we should have done on that issue. However, it has been possible in the Lords, as a result of the new co-operation, to tighten the definitions of traffic data and address the issue of dial-through fraud, which had not been fully noted in this place. We therefore welcome the changes.

8 pm

At the end of the proceedings in the House of Lords, my noble Friend Lord Cope observed that the Bill had been much improved. Earlier today we heard from Madam Speaker how important it is to scrutinise legislation properly. This is a case in which the two Houses together have achieved a great deal. I have joshed the Minister slightly so far, but I agree with him that, as regards the first groups of amendments, the position is much improved.

It is right that the Bill should have passed through the House of Lords, and we accept the burden of the amendments, although we will want to see how the Bill works in practice, we will want to study the codes of practice in detail when they come before the House, and we will want to be sure that any order-making powers are exercised sensitively.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

My hon. Friend kindly read a list of organisations that had helped with the Bill. Will he put it on record that the group from the European Informatics Market group, EURIM, of which I am chairman, was headed by Chris Sundt, who had previously worked for ICL and was brought out of retirement to help? He worked constructively with that group, with the Confederation of British Industry group and with Government officials. I hope that my hon. Friend will acknowledge that Chris Sundt was particularly helpful.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I am happy to do that. I did not list all the names of all the people who helped, but perhaps I should have done. I did not think that the House would want me to do so. Certainly, Chris Sundt of EURIM made a substantial and detailed contribution, as did Philip Virgo, who is with EURIM as well. I could also mention Tom Wills Sandford of the Federation of the Electronics Industry, Caspar Bowden of the Foundation for Information Policy Research, and Tim Baker of the London Investment Bankers Association. I could go on all night, but I shall not.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I make no apology for speaking again on communications data, as I did at various stages in the passage of the Bill through the House. As the Minister knows, I think that the provisions dealing with communications data are born of complacency, are unsatisfactory, and have little regard for the protection of privacy and commercial confidences. Despite the Lords amendments, I believe that the situation remains unsatisfactory.

I have no intention of going over issues previously debated, and if I did, Mr. Deputy Speaker, I know that you would rule me out of order. However, I seek a simple answer to a simple question, to which the Minister can say yes or no. The question is: can communications data obtained by one body under a notice given to a telecommunications operator be disclosed at a later time to another body for use for another purpose?

That should be easy to answer, one way or the other. If the Minister says, "No, communications data cannot ever subsequently be used for purposes other than those originally specified in the notice given to the telecommunications operator," I can stop speaking now.

My view is that communications data can be obtained legitimately under the Bill and, at a later stage, the data can be disclosed to another body for another purpose. For example, if such data were obtained by the police, it is possible to see how the data could subsequently be disclosed to the Inland Revenue or Customs and Excise, if powers described in some other legislation were exercised by those bodies.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I hope that I can help my hon. Friend, who has been assiduous in pressing this important point. The Data Protection Act 1998 already places restrictions on the use that can be made of personal data. In particular, the second data protection principle states: Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes. I can give my hon. Friend the assurance that the Bill does not remove or subtract from that principle.

There is a national security exemption in the 1998 Act, but the existing law also provides safeguards against the dissemination of information by the intelligence service in relation to the form of special arrangements that must be in place under the Security Service Act 1989 and the Intelligence Services Act 1994. I hope that my hon. Friend will accept that the Bill covers the point that he raises.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I am grateful that the Minister has put that on the record. It is an interesting assurance, which I want to explore. I am not challenging the national security exemption, but let us consider the provisions of the Data Protection Act 1998, which offer another route for a large number of subsequent disclosures for other purposes.

For example, on Second Reading, I raised the matter of communications data being available for council tax purposes. The Minister denied that that would happen. Indeed, I was told in a parliamentary written answer on 10 July that the Data Protection Act places restrictions on the degree to which information may be shared by organisations—the point that the Minister has just made—but that shows that information can, indeed, be shared.

My understanding of section 29 of the 1998 Act is that its broad provisions permit a local authority to collect personal data for council tax purposes from any data controller, and that such disclosure of communications data would therefore be consistent with the non-disclosure provisions outlined in section 29(3) of that Act—for instance, if the police decided to disclose communications data to local authorities, where those authorities had shown that failure to disclose would prejudice the collection of council tax.

The non-disclosure provisions in clause 27(4)(b), in the circumstances that I described, have the effect of negating the impact of the second principle, contrary to what the Minister said, and most of the other principles as well. I cite again the parliamentary answer that I received recently, in particular the reference to restrictions found in the Data Protection Act 1998.

I am at a loss to understand what those restrictions are, if the effect of the principles is negated by section 29 of that Act. I do not see what protection the Act offers in these circumstances.

Furthermore, I note that on the Home Office's website with respect to the Bill, Customs and Excise confirms that it obtains communications data 18, 000 times per quarter under the current arrangements. That represents 72, 000 notices a year under the Bill. I am not sure of the final number for all the self-authorising officials, but if we take into account the fact that communications data will be obtained by the Inland Revenue, more than 50 police forces, 400 local authorities and their benefits inspectors, the Department of Social Security, MI5, MI6, Government communications headquarters operations and possibly staff of the worthy egg inspectorate, among others, it is clear that we are dealing with half a million authorisation notices a year issued by hundreds of self-authorising officials.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

Does my hon. Friend accept that Customs and Excise is involved in that because one of its principal responsibilities is fighting organised crime, particularly organised drug crime? The relationships between the organised criminal networks are a key source of data in that fight. That is why, for Customs and Excise, that level of data collection is extremely important.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I hear that point, but I am not sure that the—

Mr. Deputy Speaker:

Order. May I tell the hon. Gentleman that we must relate our remarks to the Lords amendments before us and not go wide of those amendments?

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I accept that, Mr. Deputy Speaker. I am explaining why I am not satisfied that the Lords amendments go far enough in respect of communications data

I return to the point about the notices from hundreds of self-authorising officials. How on earth will such a rate of communications data obtaining be supervised by an overworked interception commissioner, presumably with just a handful of staff? Is he going to say, "Hey, Bob, can you look at this batch of 100,000 self-authorisations before lunch?" How can we expect the commissioner to supervise the hundreds of self-authorising officials, and hundreds of thousands of different acts of obtaining information?

Photo of David Maclean David Maclean Conservative, Penrith and The Border

The hon. Gentleman mentioned the egg inspectorate as an example. Is he not worried about the new schedule, which does more than name a few other specific sub-departments in the Ministry of Agriculture, Fisheries and Food or the Department of Health? Under the schedule, the relevant authority would be the whole Ministry or Department involved, and all its officials, who would then have a power that they did not have before.

Mr. Deputy Speaker:

Order. If we went into that question, we would not be dealing with the amendment.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I take the point made by the right hon. Gentleman, who may want to expand on it later.

The problem is especially acute if self-authorising officials are later able to pass communications data to another body without anyone's knowledge. I have described how the later disclosures are not expressed in the notice given to a telecommunications operator.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

But they can pray in aid other legislation to get data from those who collected it originally. It follows that the interception commissioner examining the authorisation process would not know about such subsequent disclosures either, for the simple reason that they would not appear on the notice in the first place. To put it bluntly, the authorisation mechanism and other protections under chapter II of the Bill could be reduced to a meaningless sham if no record of subsequent disclosures is kept as part of the authorisation process.

I am not satisfied with the concessions made in the Lords. My hon. Friend said that the Data Protection Act 1988 was a protection. He repeats that as a mantra, but detailed examination reveals that the protection offered is not very strong. I suspect that it could be overridden easily: information could then be transferred and data used for purposes other than those specified when collected. The interception of communications commissioner would have little power to prevent that transfer of information; in fact he would have little knowledge of it.

I agree with my hon. Friend the Minister about the need to tackle organised crime, but at the beginning of our deliberations on the Bill he said that it was about striking a balance between what is public and what is private. That has not been properly achieved in respect of communications data. It is sad that the Bill does not contain the necessary safeguards in respect of the subsequent disclosure of communications data to a body not described on the original notice.

I am disappointed by the Lords amendments. My hon. Friend the Minister does not seem to have been fully advised about what the Data Protection Act 1988 would protect.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

Liberal Democrat Members are pleased with the Lords amendments, which are precisely what we hoped would be agreed in the other place. I remind the House that my hon. Friend the Member for Southwark, North and Bermondsey (Mr. Hughes) said on Third Reading that we anticipated further amendments.

The Minister was kind enough to say that I raised in Committee the key point covered by the amendments. The Hansard record shows that the Minister did his best to defend the Bill, but at the time I felt that he was listening to our arguments. I had every confidence that he would think about them and perhaps that he would seek to amend the Bill. We are pleased that that is what happened.

The amendments deal with the problem that communications data in the historical sense were not appropriate to be covered by the Bill. An example of such data might be the records on a telephone bill of calls made. The amendments' adoption of the term "traffic data" is welcome, but the change is more than cosmetic. It extends the definition to include matters appropriate to the internet, and it goes beyond the older forms of telecommunication, which merely involve voice calls between specific numbers.

The phrase "big browser is watching you" has been used to encapsulate the concerns that have been raised about the Bill's effect on browsing among internet websites, and the extent to which communications data could bleed into that activity. We are pleased with Lord Bassam's specific assurance on the matter, when he said that the amendments ensure that the definition cannot be interpreted to include any content of communication or interaction with websites.—[Official Report, House of Lords, 12 July 2000; Vol. 615, c. 257.] That is a very important and welcome change. We will need to see the codes of practice, and more work will have to be done to verify Lord Bassam's statement, but Ministers in both Houses have made clear the intention behind the amendments, and that is reassuring.

8.15 pm

My noble Friend Lord McNally said in another place that the new amendments offered a definition that we could live with. We do not intend to reduce our scrutiny of the application of the new definition of "traffic data", or of any codes of practice or regulations that are introduced, but we consider that we can live with the new definition. The Internet and e-commerce communities had been worried that the Bill would be so intrusive that it would damage this country's business interests, as well as the right to personal privacy that everyone expects to enjoy. We accept that that enjoyment must recognise the reasonable limits imposed by the need to deal with serious crime and national security.

We are pleased with the amendments. I am grateful for the Minister's kind words about the work that has been done by Liberal Democrat and Conservative Members in this House, and by Members of the House of Lords. My noble Friends Lords McNally and Phillips of Sudbury have been especially active, as have the Conservative peers with whom they have worked and to whom I also pay tribute. That was a good example of how to work together on complex and detailed matters.

There is no need to go into detail about the amendments. We will look at the codes of practice when they are published, but we now have a definition of "traffic data" that we can live with. The previous definition, of "communications data", would have been too intrusive, and not proportional to the safeguards covering matters of lesser security. It is quite proper that the interception of communications should require more stringent safeguards in terms of authorisation, and of those who can take out warrants for that purpose.

The amendments have general cross-party support. We welcome them, and hope that the House agrees to them.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

I shall be brief. Conservative Members are pleased that the Government eventually listened to criticism of the Bill and introduced these amendments. We are also pleased with the level of co-operation extended by the Home Office. We warned at the outset of our proceedings about the effect of the Bill's provisions in respect of telecommunications. The Department of Trade and Industry washed its hands of the Bill, as did Oftel when it was confronted with the provisions relating to interception of communications.

The Home Office was left to rescue the Bill on its own, and Ministers and their officials have done their best. However, although I do not want to seem mealy mouthed, the latest briefing that I have received from FIPR describes the Bill as being technically inept: ineffective against criminals while undermining the privacy, safety and security interests of honest citizens and businesses.

I will not go through that briefing. It is very long, but it does reveal the holes in the Bill. I will not even be tempted to read out some of the examples of possible complications that have been sent to me.

I understand that the Government are attempting to deal with difficult issues. The Human Rights Act 1998 precludes authorities from looking at various matters, while complicated regulations allow the Government, according to certain criteria set down in law, to overturn what is supposedly a basic human right. That difficulty is a result of human rights legislation overturning quite sensible regulations that the Government would want to introduce for the safety of individuals while ensuring that we find out about crimes that are being committed.

I echo the comments of my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) and of the hon. Member for Sheffield, Hallam (Mr. Allan) that we must look at the way in which the regulations will be introduced. As for the amendments on the cost of introducing the legislation, I do not want Her Majesty's Government to spend my taxpayers' money in dealing with matters that can be bypassed so simply. We want a simple set of regulations. We need to ensure that when a criminal is investigated, there are no loopholes—which the Bill and the amendments could well provide—that could allow a clever lawyer to say that under subsection so and so, somebody did not put the right tick in the right box at the right time. In that way, although everyone can see that someone is guilty of a crime, all the evidence that had been collected would be thrown out.

The Minister has clearly tried to do a workmanlike job. I do not blame him for being left with this mess to sort out, but unless the measure provides a simplified, cost-effective way of dealing with this issue that will make it easier for the police services and others that have a role in such investigations, I am afraid that we will be coming back in a year or so to try and untie this Gordian knot.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

First, I think that there is a misunderstanding between my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen) and me. I believe that the safeguards in the Bill are sufficient to cover the points that he makes. I am happy to continue discussing this point with him, but I think that it is dealt with in the Bill.

Secondly, I do not accept that the comments quoted by the hon. Member for South Dorset (Mr. Bruce) that the Bill is technically inept, ineffective against criminals, and so on. We have made it clear from the outset that law enforcement faces a number of serious technical challenges as a result of technological innovation. It is also a simple and important fact that criminals need to communicate. That is particularly true in the case of organised crime involved in trafficking drugs and people. This power is therefore very important in contesting those criminal organisations.

Thirdly, and very importantly, interception powers are carefully targeted—that is what the Bill is all about. We are very keen, and have been throughout the Bill's passage, to work not only with the Opposition but also with industry. We do not want a breakdown of trust or confidence. However, I do not accept the comments of the Foundation for Information Policy Research quoted by the hon. Member for South Dorset. I would not have responded to this debate except to say that, but I cannot let his remarks stand on the record unchallenged. I accept the genuine feeling with which he said that we had tried to address the point, but not the views of the Foundation for Information Policy Research. We also do not accept that we can do nothing in the face of criminal organisations which work in this way—we must try and deal with the problem. I hope that the House will agree with the Lords amendments.

Lords amendment agreed to.

Subsequent Lords amendments agreed to, some with Special Entry.