New Clause 5 — Sharing of communications data

Orders of the Day – in the House of Commons at 7:15 pm on 22 October 2007.

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'In section 25(1) of the Regulation of Investigatory Powers Act 2000 (c.23) (interpretation of Chapter II), for paragraph (g) substitute:—

"(g) an ambulance service or fire authority;

(h) the Health and Safety Executive;

(i) the Serious Fraud Office;

(j) any such other public authority not falling within paragraphs (a) to (i) carrying out duties of a similar type or nature to those public authorities identified in those paragraphs as may be specified for the purposes of this subsection by an order made by the Secretary of State.".'.— [Mr. Grieve.]

Brought up, and read the First time.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move, That the clause be read a Second time.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following: Government amendments Nos. 42 to 46.

Amendment No. 83, in title, line 11, leave out from 'amendments' to 'in' in line 12.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I present to the House new clause 5, which stands in my name and the names of my hon. Friends; amendment No. 83 is consequential on it. Through its long title, the Bill offers us the opportunity of looking at the working of the Regulation of Investigatory Powers Act 2000, to which the Government have proposed minor amendments. RIPA, as it is known, is an extremely controversial statute. It was introduced to provide an overarching framework under which material could be obtained by Government agencies for a number of purposes set out in the legislation.

The argument was that by setting out an overarching structure, we would simplify existing rules, which provide law enforcement agencies with a variety of powers to obtain data communications material. I should make it clear that historically there has been absolutely no doubt that such material is required by law enforcement agencies. RIPA followed on—this is rather an important aspect of the matter—from the anti-terrorism measures of 2000, in which the Government came to a voluntary agreement with service providers that the Government would retain data for counter-terrorism purposes. However, when RIPA came on to the statute book, it became apparent that far from being confined to the purposes of anti-terrorism, the material—which, under that voluntary agreement, was retained for 12 months—would be made available for a much wider range of uses. Those uses included not only the ones that one might normally expect for preventing crime, but use in connection with

"the interests of the economic well-being of the United Kingdom", and

"the purpose of protecting public health", as well as public safety, emergencies, collecting taxes and, most significantly of all,

"for any purpose...which is specified for the purposes of this subsection by an order made by the Secretary of State", even if that purpose was not included in the main body of RIPA's text.

RIPA specified a number of public authorities whose inclusion most Members would regard as absolutely straightforward—police forces, the National Criminal Intelligence Service, the National Crime Squad, Customs and Excise, Inland Revenue and intelligence services—but in addition it provided a catch-all phrase, which allowed the inclusion of

"any such public authority not falling within" the list

"as may be specified...by the Secretary of State."

Since then, if my research is correct, three statutory instruments have been made by the Government, producing an extremely long list of public authorities that may gain access to such material for a variety of purposes.

Again, it might be said in this House that some of the inclusions are understandable; for example, the emergency services are included, for the purposes of investigating crime—in that case, I think that the crime is likely to be hoax calls. However, the list goes on to include the Department of Trade and Industry, the Department for Transport, the Department for Environment, Food and Rural Affairs, the Food Standards Agency, the Department of Health, Home Office immigration services, county and district councils, the Charity Commission, the Environment Agency, the Gaming Board, the Information Commissioner, universal service providers—that is essentially the Post Office—and the Postal Services Commission. And the list goes on.

The vast majority of the bodies listed are included for the purposes of detecting or preventing crime, but that prompts the question whether it is a proportionate use of RIPA's draconian powers to apply them to such purposes. The criminality that a large number of the organisations mentioned are likely to investigate is not of the most serious kind. Let us take as an example the Health and Safety Executive, which our new clause would preserve in the list. I have prosecuted quite frequently for the HSE, and I accept that there may be times when, in the course of bringing a prosecution, getting hold of data relating to telephone calls that a person might have made could be useful, but the irony is that that power has always existed for use in the course of criminal proceedings. If someone thinks that they will need such material, they can always apply to the judge during the proceedings, and that applies to every single one of the organisations with which we are concerned.

What the Government have done is provide a general power, not for the purposes of prosecuting a case, but for background investigation of the activities of individuals, where that might be necessary for the prevention of crime. It is also noteworthy that at least one of the powers in RIPA—that in clause 28(3)(c), which relates to

"the interests of the economic well-being of the United Kingdom"— has, as far as I am aware, never been used. Its use would be a rather controversial subject, particularly if it was not linked to criminality.

When the original RIPA rules were presented in Committee upstairs, there was a storm of protest, particularly because the Government introduced the rules, and had the debate, before the publication of the report by the Joint Committee on Human Rights, which highlighted the fact that it thought that many of the powers being granted might well not pass the proportionality test, if they were challenged. Of course, one of the problems that we have is that challenging the powers is difficult, because most people will never know that they have been investigated, and that the powers have been used. Of course, the Information Commissioner can look into those matters, but individuals may well have their privacy invaded without ever being able to protest, because they will never have known about it.

In view of that, we thought it right to try to encourage the Government to revisit the issue during the passage of the Bill. New clause 5 is designed to allow just that. It preserves the inclusion of the public authorities that were originally provided for in RIPA—police forces, intelligence services and the like—but would merely add:

"(g) an ambulance service or fire authority;

(h) the Health and Safety Executive"— because we recognise that public safety cases may require such investigation—

"(i) the Serious Fraud Office" and, most importantly,

"(j) any such other public authority not falling within" the list that I gave

"carrying out duties of a similar type".

The purpose is to restrict the further list of public authorities essentially to the normal law enforcement agencies, and not, as is the case under the Bill, progressively to widen the scope, with the distinct possibility—and this is the most worrying prospect—that it could be further widened in future simply by statutory instrument.

Recently, RIPA's entire architecture has been subject to criticism, as the Minister will know, by a roundabout route. As a result of an EU directive implemented by the Government, the voluntary agreement on the retention of material has become permanent with the service suppliers, and the Government now have access through the EU directive to the information to which they had access under that agreement. That raises an interesting issue—and I hope that the Minister can answer this point—as we introduced a voluntary agreement designed specifically to deal with terrorism that was extended much further in RIPA. Through an EU directive, the boundaries of the provision have extended far beyond what was originally envisaged in the voluntary agreement effectively to cover every aspect of Government activity in this country.

That is not a happy state of affairs, and although I accept that new clause 5 is reticent in tackling the underlying problems in the legislation, which may require radical amendment, it at least offers us an opportunity to reconsider the road that we took when RIPA was passed. I do not think that the issue is going to go away: the public concern that has been expressed is entirely legitimate, and there is growing anxiety about the extent to which we may be creeping into a surveillance society. One of the arguments made for RIPA was that it would bring under one umbrella all the state's investigatory powers to obtain information on communications retention. However, that has not happened, as far as I am aware. Departments such as the Department for Work and Pensions have completely separate powers, enacted by the House, which undermines the need for RIPA in the first place.

I hope that the Minister will respond to my concerns and consider carefully whether, in fact, there are not better ways in which to proceed. I do not entertain huge hopes that we will succeed this evening in a Division, but I hope that at least the new clause will send the Minister a signal that the matter ought to be revisited, preferably by the Government after further consultation, because it raises the question of creeping, incremental powers for the state, which is not desirable without further debate. As often happens in the House, we have succeeded in putting together a package that will have a substantial impact on the liberty of the individual without appreciating the full force of what we are about. I hope that the Minister will respond positively to the proposal, even if he does not support the new clause, and explain how the Government propose to approach those problems in future.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office 7:30, 22 October 2007

I have no doubt that many of matters raised by Mr. Grieve are legitimate matters for debate, but this is not the time for that debate. As he suggested, new clause 5 will not achieve what he seeks to achieve, not least because of the orders that were passed on 1 October in the House. We can debate the rocky road that we have travelled on RIPA, but that is a debate for another time. The new clause seeks to address the list of public authorities that may obtain communications data under chapter 2 of part 1 of RIPA, but it fails to achieve that aim. RIPA already provides that an order specifying additional public authorities that may obtain communications data must be debated and approved by a resolution of each House.

We had a substantive public debate in 2003 in which we set out public authorities' necessary and proportionate requirements for obtaining data, and explained why various authorities had investigating and detecting duties in safeguarding public safety and public health. Parliament discussed the Regulation of Investigatory Powers (Communications Data) Order in November 2003, an order amending that order in 2005, and a further amendment in 2006. Public authorities' requirements were set out in the explanatory memorandums for each order. The new clause does not undo any of those orders.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I recommend that the Minister read the debate on the 2003 order. It was an extremely bad- tempered event, because the Government were late in presenting the relevant material to the House and they did not wait for the report from the Joint Committee on Human Rights. Many of the criticisms that I have made today were voiced then, but the Government have not done anything about them.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I was not challenging the notion that those debates were bad tempered—I have read them, and that is extremely clear—but they are over, and orders and secondary legislation have been passed. There is nothing in the new clause that changes any of that, even though the hon. Gentleman said that that is the aim of the new clause.

I am happy to debate RIPA and what public authorities should, or should not, be allowed to do, and what they can do with the three different grades of communications data. Much of the discussion of the orders that came into force on 1 October was based on erroneous facts. It was thought that hundreds of authorities would be allowed access to the highest level of communications data, but that is not the case. It was suggested that any number of public authorities would be allowed to access that data for tax purposes, but that is simply not the case. Naturally, Her Majesty's Revenue and Customs can do so, because that is part of its duty. We were given the impression that, notwithstanding the detailed orders and regulations, there would be a free-for-all, in which, as the hon. Gentleman implied, every arm of the state would have ready access to the most detailed communications data. That is not the case, but new clause 5 fails to address that. It may a useful device in airing the notion that we need a detailed debate on the relevant provisions in RIPA—I give the hon. Gentleman that—but this is not the time to hold that debate.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I disagree with the Minister. If the new clause were accepted, it would immediately create an incompatibility between RIPA's new wording and the scope of the orders passed by the House. The primary legislation would no longer back up the full scope of the secondary legislation, particularly the organisations that have been given those powers.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

The hon. Gentleman is far more erudite and expert in those legal matters than I am. I watched with admiration as he danced on the head of a legalistic pin to good effect, but I am told in substantial terms that what he seeks will not be achieved by the measure. The impact that he seeks to achieve on the orders that came into force on 1 October will not prevail. That is a matter of dispute: the Department's lawyers challenge his view—he will be used to that position, too. However, there will be opportunities—I go this far with him—to revisit and discuss the substance of the provisions of RIPA with respect to communications data. The new clause is not the way to do that.

Let me deal with the proposals in the Government amendments, which are straightforward. They make it clear that only senior HMRC officials can authorise the use of intrusive surveillance powers. I am pleased to bring the amendments to the House in response to concerns raised in Committee, principally by James Brokenshire. Commenting on concerns raised by the Law Society, he asked that the Under-Secretary of State for the Home Department, my hon. Friend Mr. Coaker—he was in Committee, happily, not me—consider whether it could be made clearer precisely who was mandated by the provisions. That is what the Government amendments seek to achieve.

Although I accept the broad thrust of the contextual introduction by the hon. Member for Beaconsfield to debates about RIPA and communications data, this is not the place or the new clause to change that. In any case, the new clause as drafted would not achieve the hon. Gentleman's objective. In that happy consensual spirit on the Government amendments and partially consensual approach on new clause 5, I hope he will withdraw new clause 5 and that the Government amendments, tabled not least at the insistence—very eloquent, I am sure—of the hon. Member for Hornchurch, prevail.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Let me start by saying some pleasant things to the Minister. I thank him for the amendments that the Government have tabled in respect of the level of officer in Customs and Excise authorising intrusive surveillance. We are grateful for the Minister's response to the representations made by my hon. Friend James Brokenshire. We welcome the amendments and will gladly support them.

On our amendments, there is that classic difference of approach between Government and Opposition, which, I am afraid, will continue to separate us. The Minister may be right that the Bill, which deals with many other matters, was not the easiest place for us to focus on what we perceive to be the serious deficiencies of RIPA. I also accept that amending the legislation in order to achieve all the points that I raised in the course of debate is difficult without a complete overhaul of the architecture of the Act, but it is still worth attempting. I differ from the Minister in the belief that if the amendment were passed, it would alter the way in which the Act can be interpreted and which public authorities could remain on the list of those who could obtain the information.

With that in mind, and with the background fact that the legislation is causing public disquiet, on which there has been a considerable amount of comment, even though I am the first to accept that its origins may have been reasonable when it was first considered, it is the duty of the Opposition at least to seek the opinion of the House to see how many Members share that disquiet. I shall therefore put the new clause to the vote.

I am grateful to the Minister for showing a willingness to listen to some of the problems that have been caused by this area of legislation. We are undoubtedly living in a period of our history where the power and rights of the state to intrude into citizens' lives have increased beyond all recognition, compared with the position 10, 15, 20 or 30 years ago. We are in serious danger of accepting as a norm what our forefathers would have regarded as an outrage. Although there are security considerations that we must balance, on the back of security we are in danger of creating a highly regulated state that is rather poor at bringing about behavioural changes in relation to the observance of the law.

That is one of the big topics that we must face in the House, and I suspect it is one to which we will return over and over again. It would be helpful if we could reach a degree of consensus in all parts of the House on how to strike the balance, but I am pretty well convinced in my own mind that at present the balance is far too skewed towards the intrusive powers of the state and far away from the rights of the individual.

Question put, That the clause be read a Second time:—

The House proceeded to a Division

M

Delighted to read quotes from Dominic Grieve with regard to overly intrusive powers of the State and breach of Human Rights Issues.

Submitted by Matthew Willis

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. May I ask the Serjeant to investigate the delay in the No Lobby?

The House having divided: Ayes 198, Noes 273.

Division number 214 Orders of the Day — New Clause 5 — Sharing of communications data

Aye: 198 MPs

No: 273 MPs

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Question accordingly negatived.