Communications Data and Interception

Business of the House – in the House of Commons at 11:18 am on 10th July 2014.

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Photo of Theresa May Theresa May The Secretary of State for the Home Department 11:18 am, 10th July 2014

With permission, Madam Deputy Speaker, I would like to make a statement about the use of communications data and interception; the difficulties faced by the police, law enforcement agencies, and the security and intelligence agencies in utilising those capabilities; and the steps the Government plan to take to address those difficulties.

Before I do so, I would like to make something very clear. What I want to propose in my statement today is a narrow and limited response to a set of specific challenges we face. I am not proposing the introduction of the Communications Data Bill, which was considered in draft by a Joint Committee of both Houses last year. I believe that the measures contained in that Bill are necessary, and so does the Prime Minister, but there is no coalition consensus for those proposals and we will have to return to them at the general election.

The House will know that communications data—the who, where, when and how of a communication, but not its content—and interception, which provides the legal power to acquire the content of a communication, are vital for combating crime and fighting terrorism. Without them, we would be unable to bring criminals and terrorists to justice and we would not be able to keep the public safe. For example, the majority of the Security Service’s top priority counter-terror investigations use interception capabilities in some form to identify, understand and disrupt the plots of terrorists. Communications data have played a significant role in every Security Service counter-terrorism operation over the last decade. They have been used as evidence in 95% of all serious organised crime cases handled by the Crown Prosecution Service and they have played a significant role in the investigation of many of the most serious crimes in recent times, including the Oxford and Rochdale child grooming cases, the murder of Holly Wells and Jessica Chapman, and the murder of Rhys Jones. Communications data can prove or disprove alibis, identify associations between potential criminals and tie suspects and victims to a crime scene.

I have talked before about the decline in our ability to obtain the communications data we need, which is caused by changes in the way people communicate and the technology behind those forms of communication. That is why I continue to support the measures in the draft Communications Data Bill. However, in addition to that decline, we now face two significant and urgent problems relating to both communications data and interception: first, the recent judgment by the European Court of Justice, which calls into question the legal basis upon which we require communication service providers in the UK to retain communications data; and secondly, the increasingly pressing need to put beyond doubt the application of our laws on interception, so that communication service providers have to comply with their legal obligations irrespective of where they are based. So I can tell the House that today the Government are announcing the introduction of fast-track legislation, through the data retention and investigatory powers Bill, to deal with those two problems.

I want to deal with communications data first, because we must respond to the ruling by the European Court of Justice that the data retention directive is invalid. This directive was the legal basis upon which the Governments of EU member states were required to compel communication service providers to retain certain communications data where they do not otherwise require them for their own business purposes. Indeed, the ruling provides us with such a problem precisely because very strong data protection laws mean that, in the absence of a legal duty to retain specific data, companies must delete data that are not required beyond their strict business uses. That means that if we do not clarify the legal position, we risk losing access to all such communications data and, with it, the ability to protect the public and keep our country safe.

The ECJ ruling said that the data retention directive does not contain the necessary safeguards in relation to access to the data, but it did not take into account the stringent controls and safeguards provided by domestic laws, in particular the UK’s communications data access regime, which is governed primarily by the Regulation of Investigatory Powers Act 2000. RIPA was, and remains, designed to comply with the European convention on human rights. It ensures that access to communications data can take place only where it is necessary and proportionate for a specific investigation. It therefore provides many of the safeguards that the European Court of Justice said were missing from the data retention directive.

The ECJ judgment clearly has implications not just for the United Kingdom, but for other EU member states, and we are in close contact with other European Governments. Other countries, such as Ireland and Denmark, implemented the data retention directive through primary legislation, which means they have retained a clear legal basis for their data retention policies, unless a separate, successful legal challenge to their legislation is made. The UK does not have that luxury, because here the data retention directive was implemented through secondary legislation. While we are confident that our regulations remain in force, the Government must act now to remove any doubt about their legal basis and give effect to the ECJ judgment. The legislation I am publishing today and the draft regulations that accompany it will not only do that; they will enhance the UK’s existing legal safeguards and, in so doing, address the criticisms of the European Court.

The House will understand that I want to be clear, as I said earlier, that this legislation will merely maintain the status quo. It will not tackle the wider problem of declining communications data capability, to which we must return in the next Parliament, but it will ensure—for now, at least—that the police and other law enforcement agencies can investigate some of the criminality that is planned and takes place online. Without this legislation, we face the very prospect of losing access to this data overnight, with the consequence that police investigations would suddenly go dark and criminals would escape justice. We cannot allow that to happen.

I want to turn now to interception, because there is growing uncertainty among communication service providers about our interception powers. With technology developing rapidly and with the way in which we communicate changing all the time, the communication service providers that serve the UK but are based overseas need legal clarity about what we can access.

The House will understand that I cannot comment in detail on our operational capabilities when it comes to intercept, but I have briefed the Opposition on Privy Council terms and members of the Intelligence and Security Committee have heard first hand from the security and intelligence agencies, and it is clear that we have reached a dangerous tipping point. We need to make sure that major communication service providers co-operate with the UK’s security and intelligence and law enforcement agencies when they need access to suspects’ communications. Otherwise, we would immediately see a major loss of the powers and capabilities that are used every day to counter the threats we face from terrorists and organised criminals.

The Bill I am publishing today will therefore put beyond doubt the fact that the existing legal framework, which requires companies to co-operate with UK law enforcement and intelligence agencies, also extends to companies that are based overseas, but provide services to people here in the UK. I will make copies of the draft Bill available in the Vote Office, and I will also make available the regulatory impact assessments and the draft regulations to be made under the Bill, in order to allow the opportunity for the House to scrutinise these proposals in full.

The parliamentary timetable for this legislation is inevitably very tight. My right hon. Friend the Leader of the House has just provided details of the prospective timetable for the Bill’s consideration, but it is crucial that we have Royal Assent by the summer recess. The Government have therefore sought to keep this Bill as short as possible. It is also subject to a sunset clause, which means that the legislation will cease to have effect from the end of 2016. The Bill thus solves the immediate problems at hand and gives us enough time to review not just the full powers and capabilities we need, but the way in which those powers and capabilities are regulated, before Parliament can consider new, and more wide-ranging, legislation after the general election.

It is right to balance the need to prevent criminal exploitation of communications networks with safeguards to protect ordinary citizens from intrusions upon their privacy. That is why, alongside the legislation I am publishing today, the Government will also introduce a package of measures to reassure the public that their rights to security and privacy are equally protected. We will reduce the number of public authorities able to access communications data. We will publish an annual transparency report, giving as much detail as possible—within obvious parameters—about the use of these sensitive powers. We will appoint a former senior diplomat—I am sorry, I mean a senior former diplomat; for the avoidance of doubt, I repeat, a senior former diplomat!—to lead discussions with other Governments to consider how we share data for law enforcement and intelligence purposes.

We will establish a privacy and civil liberties board, based on the US model, which will build on the role of the independent reviewer of terrorism legislation, and the board will consider the balance between security and privacy and liberty in the full context of the threat we face from terrorism.

We will review the interception and communications data powers we need, as well as the way in which those powers and capabilities are regulated, in the full context of the threats we face. The Government are discussing with the usual channels the precise form this review might take, but I hope that an initial report will be published before the next election.

I have said many times before that it is not possible to debate the correct balance between security and privacy—and, more specifically, the rights and wrongs of powers and capabilities such as access to communications data and interception—without understanding the threats that we face as a country. Those threats remain considerable. They include the threat from terrorism—from overseas and from here in the UK—but also the threat from industrial, military and state espionage practised by other states and foreign businesses; the threat from organised criminal gangs; and the threat from all sorts of criminals whose work is made easier by cyber-technology.

In the face of such a diverse range of threats, the Government would be negligent if they did not make sure the people and the organisations that keep us safe—the police, other law enforcement agencies and the security and intelligence agencies—have the legal powers to utilise the capabilities they need. They are clear that we need to act immediately. If we do not, criminals and terrorists will go about their work unimpeded, and innocent lives will be lost. That is why I commend this statement, and this Bill, to the House.

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary 11:30 am, 10th July 2014

I thank the Home Secretary for her statement, and also for the detailed legal and security briefing with which her officials have provided me.

We agree with the Home Secretary that a temporary and urgent solution is needed as a result of the European Court judgment in April, because otherwise the police and intelligence agencies will suddenly lose vital information and evidence this summer. It would be too damaging to the fight against serious and organised crime, to the work against online child abuse, and to counter-terror investigations to risk losing that capability over the next two months while Parliament is in recess, and that is why we need to act.

However, as the Home Secretary will appreciate, there will be serious concern, in Parliament and throughout the country, about the lateness of this legislative proposal, and about the short time that we have in which to consider something so important. That lack of time for debate makes the safeguards that we have discussed particularly important, and I want to press the Home Secretary on some of them. It also makes it essential for the Government to engage in a wider, public debate about how we balance privacy and security in an internet age.

The European Court judgment has clearly created an immediate problem for companies that hold billing and other communications data to which the police have access under warrant when they investigate crimes. Action needs to be taken in the short term simply to allow them to continue to do what they have been doing, in a way that complies with the European Court judgment. The communications data need to be properly used under safeguards, but they are also vital to serious criminal investigations and to protecting the public. The police use them to find out with whom a suspect or criminal may have been conspiring to commit serious crimes, or to radicalise a terror suspect. They are used in 95% of all cases of serious and organised crime that reach the prosecution stage. When children go missing, the police can contact their mobile phone companies and find out where they were last. That helped them to find out that Holly Wells and Jessica Chapman were close to Ian Huntley’s house when their phone was switched off, and it helped to convict him of their murder.

The data also help the police to identify people who are sending online vile images of children who are being abused. An investigation by the Child Exploitation and Online Protection Centre resulted in the arrest of 200 suspects, and found 132 children who were at risk of abuse and needed to be safeguarded. However, it was able to reach those suspects and those children only because of communications data. The legislation is certainly needed, and the information is certainly needed. The legislation is a more restricted version of the existing data retention powers. It is because we recognise how crucial the evidence is that we believe that it would be too damaging to lose it over the summer.

We also recognise that there is a problem for some companies that provide communications services here in Britain but whose headquarters are based abroad, and which have asked for clarification of the scope of the legislation, as a result, again, of recent court cases. Companies should not be left in limbo or put off from complying with warrants when national security is at stake, for example, simply because they are concerned about whether it is lawful to do so because of the location of their headquarters.

We will scrutinise the detail of the legislation, and we will debate the safeguards that are necessary, but we agree that the legislation is needed now. However, I am concerned about its late arrival. The European Court judgment was in April, and the legislation has been published just seven days before the end of the parliamentary session. I hope that the Home Secretary will realise that it risks undermining confidence for issues as important as this to be left until the last minute and rushed through on an emergency basis rather than being given more time. We recognise the timetable of the European Court judgment and we recognise, too, the information she has provided to us in the Opposition over the last week about her proposals, but she will also recognise the importance of Select Committees being able to take evidence, and being able to consider these proposals, too.

The short time for Parliament to consider this makes the safeguards we have argued for and agreed even more important, so the Home Secretary is right to make this temporary legislation. It means that Parliament will need to revisit this issue properly next year, with detailed evidence and the chance to secure a sustainable longer-term framework. She is also right to add further restrictions to the way in which the legislation will work, and I ask her for further clarification on this, because she will know we discussed, for example, narrowing the scope of some of the measures, as well as narrowing the number of organisations that will be able to access the data, and I would like to ask her for an update on those discussions, and whether she was able to produce that narrowing in practice.

We look forward as well to working in Parliament to make the new privacy and civil liberties board work effectively, but one of the most important safeguards is the Government’s agreement to an independent expert review of the Regulation of Investigatory Powers Act, something the Home Secretary will know I called for earlier this year. The legislation was drawn up in 2000. As a result of the communications data revolution, the law and our oversight framework are now out of date. New technology is blurring the distinction between communications and content and between domestic and international communications, and raising new questions about data storage. We need to reconsider, therefore, what safeguards are needed to make sure people’s privacy is protected in an internet age, and we need stronger oversight, too.

Previously the Government have resisted this proposal for a RIPA review, and I am glad that they have now agreed. I have suggested the review should be done by the independent counter-terrorism reviewer, David Anderson. Will the Home Secretary tell me whether that will be possible and also ensure that he will have the resources and capabilities and expertise he needs to be able to produce a thorough report which can recommend the kinds of reforms that we need but that can also give confidence to the process?

There are three other areas, which we have raised with the Home Secretary, and where it would be helpful to see whether we can go further: first, in asking the interception commissioner to provide reports every six months on the operation of this legislation while it is in force; secondly, in strengthening the Intelligence and Security Committee so that it has the same powers as Select Committees to call and compel witnesses and by having an Opposition Chair; thirdly, the longer-term reforms to overhaul the commissioners to provide stronger oversight. Again it would be helpful to have the Home Secretary’s response to those proposals.

Most important, however, we need a wider, longer public debate on these issues, which so far the Government have refused. The majority of people in Britain rightly support the work of the intelligence agencies and the work the police need to do online to keep us safe, but there are growing concerns as a result of new technology and the Snowdon leaks about what safeguards are needed and whether the framework is still up to date. The fact that the Communications Data Bill was so widely drawn last year also raised anxiety and undermined trust in the Government’s approach.

The Government must not ignore those concerns or they will grow and grow. It is vital to our democracy—both to protecting our national security and to protecting our basic freedoms—that there is widespread public consent to the balance the Government and the agencies need to strike. President Obama held such a debate last year. We have urged the Government to now lead such a debate. I hope that the agreement to the RIPA review will now allow that widespread cross-party approach to having that open debate about the safeguards for both privacy and our security that we need, because we cannot just keep on doing short-term sticking plaster legislation in a rush, without the proper consideration of the privacy and security balance modern Britain wants to see.

We will scrutinise the detail of this Bill as it goes through Parliament next week and we will support it, because we know the police and intelligence agencies need this information to fight crime, protect children and counter terrorism, and I hope we can also agree to the wider national debate that we need about how we safeguard our security and our privacy in an internet age.

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I thank the right hon. Lady for the support she has shown for the emergency legislation and I am grateful for the recognition across the House that we need to ensure that our security and intelligence agencies, and our police and law enforcement agencies, have available to them the powers they need to be able to do the job we all want them to do in terms of catching criminals, preventing terrorism and catching terrorists. There is also a recognition that, as we have said, and as the sunset clause shows, this is meeting a gap now; it is ensuring that those bodies have the capabilities they have until now been able to rely on and that those are able to continue in the face of the legal challenges that have arisen.

The right hon. Lady made a number of points. First, on the timing, the European Court of Justice judgment did indeed come in April, and, obviously, we have been spending quite a time since then looking at what is the most appropriate way to respond to it. But to any Members of the House who think it would have been possible to put these changes into normal legislation—into another Bill that is going through the House or into a separate Bill that was not fast-tracked—I say that that timetable was not available to us; it was always going to be necessary for this to be fast-tracked legislation in order to ensure that those capabilities are retained.

The right hon. Lady mentioned the issue of Select Committees wanting to be able to look at this measure. The Prime Minister, the Deputy Prime Minister and I briefed six Select Committee Chairmen yesterday, and today I am publishing a draft version of the Bill. The Bill will be formally introduced on Monday, but I thought it was appropriate to publish it in draft today, as that gives that little bit of extra time for people to be able to look at it. As I have said, I am aiming to make the maximum amount of background supporting information—the regulatory impact assessments and so forth—available to Members of the House, so that people have as much opportunity as possible within the short timetable to be able to look at the various issues.

The right hon. Lady asked whether there was any narrowing in the scope of the powers. The Bill makes something absolutely clear in relation to the issues of intercept. There have always been three areas of scope—national security, serious crime and economic well-being—and the Bill clarifies that economic well-being is there in the context of national security. Just for the avoidance of doubt, the Bill makes it clear that that is the context in which that has been used; it is related back to national security.

The right hon. Lady raised a point about the ISC and its chairmanship. Of course, the House has relatively recently debated the ISC’s structure and its relationship with Parliament. She has raised a specific point about the chairmanship and where that person should be drawn from, and I recognise the strength of view that she and the Opposition have on the matter. Hers is not a policy that we have, but it is open to the House to debate these matters should Members wish to do so.

Finally, let me deal with the review that is to take place. The right hon. Lady made a number of points about that, referring to it as a RIPA review. I should be absolutely clear with the House that it is not just a review that will look at RIPA and ask whether we need to tweak that; as I said, the review will look at the interception and communications data powers we need, as well as the way in which those powers and capabilities are regulated in the context of the threats that we face. That is important because we know that there are new challenges, through new technology, to our capabilities, and the threat context that we face is developing. RIPA came through in 2000 and we would want any legislative changes that the Government make after the next election to stand the test of a reasonable amount of time; we would not want to have to keep coming back to them. That is why this review has to be that wider review about the powers we need against the threat context we have and about the legislative and regulatory framework in which those powers and capabilities are regulated.

The right hon. Lady mentioned the proposal that David Anderson should undertake this review, and I am pleased to say to the House that I have been able to speak to him this morning and that he is willing to undertake it. I think that is very good, given his expertise and his knowledge and understanding of these issues. He and I have been very clear in our conversation. We have not yet been in a position to sit down and discuss terms of reference and the resources he would need, but I am absolutely clear, given the nature of the review that I have just set out, that we need to make sure we get the terms of reference right and that he has the resources and support necessary to be able to do the job that I think everybody across this House wants him to do.

Photo of Malcolm Rifkind Malcolm Rifkind Chair, Intelligence and Security Committee of Parliament

Is it not important for the House to take into account that the European Court made it clear that it recognises that there may indeed be a need for such a European directive but that it is concerned that the current directive is not consistent with Human Rights Act requirements and so forth? In so far as the Government have given a clear pledge that the Bill will be drafted to meet those concerns about safeguards and human rights considerations, the Intelligence and Security Committee warmly welcomes the proposal. So far as the other measures in the Bill are concerned, the Committee will be taking evidence from the intelligence agencies on the interception warrant issues and related matters, and we hope to be in a position to advise the House when it considers the Bill on Second Reading next week.

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I am grateful to my right hon. and learned Friend for his comments. He is absolutely right that the Court made it clear in its judgment that retaining those data could be necessary. The question was about the regulatory framework in which the data are retained and whether the methods and various aspects of access to the data were proportionate. I am grateful to him and to all members of the ISC for the work they continue to do on these issues. It is worth noting that the work of the ISC is important for the House and for the wider public, albeit that much of that work, by definition, is never seen or heard because of the matters that it addresses. The Committee plays an important role.

My right hon. and learned Friend mentioned the criticisms raised in the ECJ judgment, and there were four key areas of criticism, on scope, duration, access and storage. We are addressing all those criticisms, in so far as it is necessary to do so over and above the regulations that we have in place. As I indicated in my statement, our current framework already addresses some of the issues that the ECJ raised.

Photo of Alan Johnson Alan Johnson Labour, Kingston upon Hull West and Hessle

I support the Home Secretary’s statement and the legislation. Does she agree that restoring the status quo is necessary but not sufficient? She has told us that this information has been vital to uncovering every single terrorist plot against this country over the past 14 years, and she has told us that there are gaps in that information. Is it not a paradox that we are rushing through legislation in seven days to restore the status quo when we have wasted five years in which we could have addressed the gaps, thus leaving the security services less able to protect the citizens of this country?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

The right hon. Gentleman will have heard me indicate in my statement that legislation of the type proposed by the Government is necessary. Indeed, when he was in government prior to the 2010 election, the previous Government considered the future capabilities that were necessary. That issue needs to be addressed, and I stand by the draft Communications Data Bill that I published and that was considered by a Joint Committee. Future capabilities will be for the House and the Government to discuss after the election. Today, we are faced with the very real necessity to act now in order to maintain our capabilities; future capabilities will be part of the review and subsequent action.

Photo of Richard Ottaway Richard Ottaway Chair, Foreign Affairs Committee

In my judgment, this legislation is essential if we are to protect our citizens from criminals and terrorists. The annulled directive required the retention of traffic and location data but not the content of the communications, and it was therefore different from lawful interception, which requires a warrant. Will the Home Secretary confirm that that principle remains unaltered?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I absolutely can. In the Bill we are addressing the two issues of communications data and lawful intercept, and I am grateful to my right hon. Friend for recognising and drawing a distinction between them. It is important that people understand that distinction. Access to lawful intercept will continue in the way that it always has—under warrant. One of the roles of the Home Secretary and, in some areas, the Foreign Secretary and the Secretary of State for Northern Ireland, is to sign warrants and to consider their necessity and proportionality. A great strength of our system is that those ultimate decisions are made by people who are democratically accountable.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I welcome the Home Secretary’s proposals on data retention, which are absolutely essential to enable our security agencies to carry out their duty to protect our citizens, but I am concerned about the proposals to assert the extraterritoriality of our intercept powers, which, as she will know, is a matter of contention for some communications service providers. If some of them choose not to comply, what actions can she take to ensure uniformity of compliance with the legislation? That is a real challenge for her. I am also concerned about the mutual legal assistance treaty. It can provide a framework to enable us to get data from other jurisdictions, but it is so slow and cumbersome that it can take months. When we are in a fast-moving terrorist situation, we need to be able to get those data quickly. I think that reform of that treaty is a high priority.

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I am grateful to the right hon. Lady. She raises two issues. First, she is absolutely right that there have been questions about the extraterritoriality of the current provisions in RIPA. We have asserted, as I believe the previous Government did, that the extraterritorial jurisdiction was there, but we have chosen to make it absolutely clear in the Bill that it is possible to exercise a warrant extraterritorially. That is part of the purpose of that part of the legislation. Secondly, we have already had discussions with the United States on the mutual legal assistance arrangements, and it is precisely that sort of issue that I think the senior former diplomat will be able to address in discussions with other Governments, particularly the American Government, because the right hon. Lady is absolutely right that currently the processes are very slow and do not address the issue as we need them to.

Photo of Alan Beith Alan Beith Chair, Justice Committee, Chair, Liaison Committee (Commons), Chair, National Policy Statements Sub-Committee

Since it is not surprising that this is a difficult issue on which to achieve coalition consensus, I welcome the fact that the Home Secretary has agreed with my right hon. Friend the Deputy Prime Minister on a whole series of safeguards that are absent from previous legislation. I suggest that as part of the fundamental review that now needs to take place of this essential but temporary legislation we should consider whether some authority beyond that of Ministers, perhaps of a judicial kind, might be needed, certainly for the highest level of intrusion into privacy.

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I note my right hon. Friend’s point. Of course, the question of whether some form of legal or judicial authority—a magistrates court, perhaps—should look at access to communications data was considered by the Joint Scrutiny Committee. It looked at the processes that are in place today and accepted that they were absolutely appropriate and suited the requirements.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee

I apologise to the Home Secretary for missing the start of her statement. I welcome the briefing that she and the Prime Minister gave to me and other Select Committee Chairs yesterday. I support these proposals. Keith Bristow has said that it is vital that we retain this information in order to protect the public. On scrutiny, she is due to appear before the Home Affairs Committee next week. I hope that that will be part of the scrutiny process for the Bill. Will she reassure the House that David Anderson will be given the resources he needs, because at the moment he is doing a very important job, but he needs the resources to do it even more effectively?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I look forward to my appearance before the Home Affairs Committee, as I always do. I can give the right hon. Gentleman an absolute assurance on that. As I indicated earlier, this review will set the scene for legislation that will operate for some years to come, so it is essential that we get it right. We must see it in the context of the threats we face, look at the powers we need and then consider the right regulatory framework for those powers. I am clear that David Anderson will be given the resources he needs.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

The Home Secretary has justified rushing this Bill through the House on the basis of an emergency. However, the case was put to the ECJ some time ago, and it took some time to reach its conclusion on 8 April, so if there is an emergency, it was a predicable one on 8 April. There has since been plenty of time to look at the 12 clauses that relate to data retention, so why is there an emergency now and not then?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

As I said in an earlier response, there was always going to be a need for fast-track legislation. There was never going to be any possibility of taking the Bill through the House in the normal time scale, because of the potential timetable within which we would be losing access to this data. I also say to my right hon. Friend that of course the case was going through the European Court of Justice, but until it had given its determination, no one was absolutely certain what the result would be and what aspects it would raise. There was always the possibility that even if it did decide to strike down the data retention directive it would stay that decision for a period of time to give an opportunity for other legislative frameworks to be put in place by member states. In the event, it chose not to do that. It chose to strike down the directive immediately. As I said, we are clear that our data retention regulations stand, but we need to put it absolutely beyond doubt and ensure that we do not lose these important capabilities.

Photo of Ian Paisley Jnr Ian Paisley Jnr Shadow DUP Spokesperson (Work and Pensions), Shadow DUP Spokesperson (Environment, Food and Rural Affairs)

The Home Secretary will know that she has the full support of all law-abiding citizens in Northern Ireland for legislation that defends the realm and ensures that terrorists are dealt with appropriately. Indeed, legislation such as this has been used to jail some 300 people for serious terrorist offences, and to protect our citizens. With that in mind, the Secretary of State mentioned the sunset clause. Come 2016, I am sure that this legislation will still be required. Will she assure us that by then we will have something more permanent in place, or have a proper debate about what should be in place to ensure that legislation such as this is operational?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I thank the hon. Gentleman for his support of this emergency legislation. He recognises only too well the importance of ensuring that we have the capabilities that we need to deal with both terrorists and serious criminals. On the timetable, the intention is that the review will report before the general election, so that after the election it will be possible for the Government to take it forward and to look at the legislation that is required in sufficient time to get it on the statute book before the sunset clause kicks in at the end of 2016.

Photo of Nick Herbert Nick Herbert Conservative, Arundel and South Downs

I welcome these proposals. Is my right hon. Friend aware that one of her predecessors as Home Secretary, Sir Robert Peel, faced strong opposition in this House to the creation of a modern police force on civil liberties grounds? Peel replied that liberty does not consist in having our home raided by an organised gang of thieves. Does not any responsible Government now have to recognise that technology, while enabling the fight against crime, has also presented serious criminals and terrorists with new opportunities to commit crime and we must respond to that?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

My right hon. Friend is absolutely right. We need to be able to respond to that challenge if we are to continue to fulfil one of the absolutely fundamental roles of Government, which is keeping the public safe and secure. Sometimes people describe the debate between liberty and security as a sort of binary process; we can have only one or the other. I do not see it as that. We can only enjoy our liberty if we have our security.

Photo of Eleanor Laing Eleanor Laing Deputy Speaker (First Deputy Chairman of Ways and Means), First Deputy Chairman of Ways and Means

Although I appreciate that this is a very difficult subject, I remind the House that short questions and answers will mean that everyone has a chance to contribute to this statement.

Photo of Chris Bryant Chris Bryant Shadow Minister (Work and Pensions)

I sympathise with the Home Secretary’s quandary, but I rather sympathise, too, with Mr Davis, because the only reason that this is an emergency that has to be dealt with in a single day in the House of Commons is that the Government have spent three months making up their mind, and they have decided that we are going on holiday in 10 days’ time. Does it not make far more sense to enable proper consideration so that we do not have unintended consequences from this legislation? If the legislation was considered in this House on two separate days, we could table amendments after Second Reading.

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I understand the hon. Gentleman’s point. To ensure that we get this legislation through in the necessary time and that we have a space of time—I recognise that it is a short space of time—I am publishing the draft Bill today. I am not waiting until Monday to publish the formal introduction of the Bill, because I want Members to have some extra time to look at it. It is important for this House to proceed through this matter in a timely way such that we can ensure that we do not lose the capabilities, and that we get the legislation on the statute book before the recess.

Photo of Mark Field Mark Field Conservative, Cities of London and Westminster

Like many Members, I am instinctively uncomfortable about rushed emergency legislation, and also a little uncomfortable if there is too much consensus among those on all the Front Benches on any piece of legislation. However, I welcome what the Home Secretary has said today. She is right—it is a narrow and limited Bill which is only a precursor to other legislation. In my role as a junior member of the Intelligence and Security Committee, may I take this opportunity to assure all Members of the House that we take incredibly seriously our responsibilities to make sure that our security services act only in a legal and a necessary and proportionate manner?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I am grateful to my hon. Friend for his comments. I sometimes think that on some issues we cannot win in terms of the length of time available. The important point is that the Bill is not about extending powers or about new powers; it is confirmation of existing powers and of a legislative framework around them. The debate about extension of powers or any change of powers will come after the review and after the election.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Culture and Sport), Shadow SNP Spokesperson (Constitution)

Given the real intention and agenda, is this not just the snoopers’ charter—the prequel? Although there have been all sorts of arrangements and discussions among those on all the Front Benches and even with Select Committee Chairs, there has been none with the Scottish Government, even though we are responsible for policing arrangements and for justice? I asked the Scottish Government this morning what detailed discussions the Home Secretary has had with them. There were none. Does she think that is good enough?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I am very sorry about the tone that the hon. Gentleman has taken. We are, of course, making the Scottish Government aware of this, and discussions will take place with the Scottish Government. We are facing a situation where, potentially, we could see the loss of capabilities that lead to dangerous criminals, paedophiles and terrorists being apprehended and brought to justice. I should have thought that every Member of the House, in all parts of the House, would want to ensure that we maintained those capabilities, and I am very sorry if the hon. Gentleman takes a different view.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

As a member of the Joint Scrutiny Committee that for six months considered similar matters, and as a member of the Home Affairs Committee, may I commend the Home Secretary for her statement? Will she confirm that the Bill maintains modern policing effectively to deal with modern criminality? It represents the status quo and it does not focus just on anti-terrorism. It would focus also on child protection and serious criminality of all types, and it is crucial that it is maintained.

Photo of Theresa May Theresa May The Secretary of State for the Home Department

My hon. Friend is right and, as he says, he has the experience of membership of the Home Affairs Committee and of sitting on the Joint Scrutiny Committee on the Draft Communications Data Bill. We are maintaining a capability, and as I indicated in reference to cases in my statement, and as the shadow Home Secretary indicated in reference to cases in her response, we have seen murders and serious crimes where the access to communications data has been vital in order to solve those and bring the perpetrators to justice.

Photo of David Winnick David Winnick Labour, Walsall North

Is the Home Secretary aware that, despite what she has said, there are great misgivings, which I share, about the legislation being rushed through next week? I will not support it, and I think it is quite wrong that such important legislation affecting criminality, terrorism and civil liberties should be rushed through in a single day. Those on the Front Benches agree, but that does not mean that all of us have to agree as well. Does she accept—

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Deputy Speaker and Chairman of Ways and Means, Chairman of Ways and Means

Order. I must move on. We have to get everybody in. I think the Home Secretary has enough to go on.

Photo of Theresa May Theresa May The Secretary of State for the Home Department

In the interests of brevity, let me say that I disagree with Mr Winnick.

Photo of Edward Leigh Edward Leigh Chair, Public Accounts Commission

Surely most members of the public would congratulate the Government and the former Labour Government for being so robust on these matters. In the context of the wider debate, will the Home Secretary resist the advice given to her by the Liberal party that we should have further legal impediments? For the public, if there is a choice between their children being blown up on the tube or those people’s conversations being listened to, it is a no-brainer.

Photo of Theresa May Theresa May The Secretary of State for the Home Department

Yes, I believe the public do want to see our police, our law enforcement agencies and our security and intelligence agencies have access to the capabilities they need to keep people safe. The legislation is about ensuring that we maintain those capabilities.

Photo of Tom Watson Tom Watson Labour, West Bromwich East

I have no doubt that the Home Secretary will get her Bill through next week, but the price will be a perception that it is the result of a last-minute deal between elites with little scrutiny by Parliament or civic society and that the rushed legislation might unravel. We have an honourable tradition in this country of policing by consent in which I know the Home Secretary also believes passionately. Does she agree that we should seek the same standards from our intelligence services? British people are not stupid and they are not ideological when it comes to this kind of thing. Why can they not have time to discuss it with their elected representatives?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

As I have made clear, we are ensuring that we confirm and maintain capabilities that have already been put in place—capabilities that were put in place in legislation passed by the previous Labour Government. I recognise that the hon. Gentleman and a number of other hon. Members, including one of my right hon. Friends, have suggested that when those on the Front Benches agree on something that is somehow a conspiracy that needs to be resisted at all costs. The fact that all parties in this House, the coalition Government and Her Majesty’s Opposition are supporting the measure shows the serious nature of the issues we face and the importance of dealing with them.

Photo of Menzies Campbell Menzies Campbell Liberal Democrat, North East Fife

I, too, was late into the Chamber, which is why I have waited until now to seek to intervene. I apologise to my right hon. Friend for that. I commend her for her ability to strike a proper balance on incredibly sensitive issues, but may I remind her that there is a precedent established by her distinguished predecessor, Roy Jenkins, who at the height of the troubles in Northern Ireland put significant and important anti-terrorist legislation through the House according to almost the same kind of timetable?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I am grateful to my right hon. and learned Friend for his remarks of support for this legislation and for the useful historical precedent that he has brought to my attention, which I might quote in future.

Photo of Nia Griffith Nia Griffith Shadow Minister (Wales)

The Home Secretary has quite rightly mentioned close co-operation with Europe and has mentioned countries such as Denmark and Ireland where no action is needed. Will she elaborate on what action she will be taking to ensure that when action is needed by countries, it is taken so that no EU state is left as a safe haven for communications by criminals, which, in this day and age, could easily be used by anyone?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I do, of course, talk about these issues with my opposite numbers in the EU member states. I have been talking with them about how they will address the issue, and I will continue to do so. We want to ensure that we have the maximum ability to deal with terrorists and criminals and that we do not leave any safe haven available for them.

Photo of Therese Coffey Therese Coffey Conservative, Suffolk Coastal

Will my right hon. Friend spell out the implications for the safety of people in this country if we do not proceed with the legislation as she proposes, with the commendable support of the Opposition?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

The risk is very clear. The risk is that we will lose access to communications data and to our ability to access intercept material. As I have said, those capabilities have been used in every major terrorist investigation by the Security Service. In 95% of the serious criminal cases dealt with by the Crown Prosecution Service, communications data were used and were necessary. In many of those cases, such data were an important and vital part of getting a prosecution—not just in investigating but in prosecuting criminals. Failure to have access to that data will mean the criminals will go unimpeded and will not be brought to justice. I think that sadly, as a result of that, innocent lives will be lost.

Photo of Steve Pound Steve Pound Shadow Minister (Northern Ireland)

I am not entirely sure that the passage of the Prevention of Terrorism (Temporary Provisions) Act 1974 provides an example of best practice. May I ask the Home Secretary whether she believes that any aspect of this proposed legislation should have a specific individual significance for Northern Ireland and if so will a separate statement be made?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

Our proposals have broad application and there will be no separate statement in relation to Northern Ireland. I think that the statement I have made today stands.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

Will my right hon. Friend reassure the House that the principles of proportionality set out in the ECJ judgment will be adhered to in the draft legislation and will the new privacy and civil liberties board be able, amongst other things, to consider the need for a properly codified law of privacy and data protection in this country?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

On the second point, we are still looking at the exact form that that board will take and its terms of reference. It would be premature for me to suggest that it went down a particular route on an issue that it was looking at.

On the question of proportionality raised in the ECJ judgment, we have addressed that in two regards. One of its arguments was that the scope of the data retention directive was too broad, so we are explicitly limiting data retention to a strict list of data types—those that were specified in our data retention regulations of 2009. It also raised the issue of an absolute period of time for which data needed were retained and the possibility that no consideration was being given to whether all data needed to be retained for the same length of time. The new Bill therefore makes the data retention period not 12 months but a maximum of 12 months to provide for some flexibility if appropriate.

Photo of Steve McCabe Steve McCabe Shadow Minister (Education)

When I look back to the start of this Parliament, I cannot help thinking that the Home Secretary is changing from the protection of freedoms queen into Mrs Snoop. Is not the real reason we have an emergency that it has taken three months for the coalition partners to agree a deal on this security measure?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

No. Proper government is about looking at these judgments properly and giving them full consideration to ensure that we give the right and appropriate response. This coalition Government have been very clear, from day one, that we were looking at the balance between security and civil liberties. That is why when we came into office we took decisions to make certain changes such as changing the pre-charge detention period from 28 days to 14 days. We are doing what is right and appropriate to ensure that people’s privacy and liberties are protected while, at the same time, our agencies have the capabilities they need to keep people safe.

Photo of Julian Smith Julian Smith Conservative, Skipton and Ripon

I thank the Home Secretary for her statement and for the Government’s laser-like focus on keeping British families safe while ensuring that the legal framework is robust. Does she agree that our intelligence services have been subject to much unfair criticism of late—unfair because they operate within the law, because they are unable to speak fully for themselves, and because they are among the best intelligence services in the world?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

My hon. Friend is absolutely right. We are very fortunate in the quality of people we have in our security and intelligence agencies. They do a job that they have to do day by day, relentlessly, in the pursuit of terrorists and those who would seek to do this country harm in a variety of ways, and they do that job very well. This House should never shrink from commending them on the work that they do and thanking them, on behalf of the public, for that work.

Photo of Gavin Shuker Gavin Shuker Shadow Minister (International Development)

Prior to 8 April, did the Home Secretary receive legal advice that asserted that existing legislation was deficient and that remedial action through a legislative route would be necessary?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

First, Ministers do not refer at the Dispatch Box to legal advice that they have received. As I said earlier, the European Court of Justice case was going through the European Court of Justice, and a number of outcomes could have resulted. Until it made its determination, nobody knew the precise nature of it and the issues that would need to be addressed.

Photo of Robert Halfon Robert Halfon Conservative, Harlow

I welcome the measures that the Home Secretary has set out and the measured way in which she put them before the House. On protecting individuals’ rights to privacy, will she consider, in the long term, establishing a British internet Bill of rights to codify the things that she set out and give the public a framework whereby they know that their rights will be protected?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

My hon. Friend makes an interesting suggestion that slightly echoes that made by my hon. Friend Mr Buckland about privacy and the rights and responsibilities that people have on the internet. I would expect the whole question of privacy around the internet to be part of what the review looks at in terms of the powers and capabilities that we need and how we regulate those in an appropriate way that makes sure that we have the right balance.

Photo of Mike Gapes Mike Gapes Labour, Ilford South

I welcome this measured, responsible statement and the response by the shadow Home Secretary. The Home Secretary referred to the position with regard to Denmark and Ireland, which use implementations from primary legislation. Will she give us more information about other European countries? Is it possible that other countries with coalition Governments will have already made the necessary changes and that others might take a lot longer than this, leaving a hole in European security?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

Other countries are having to address this in terms of their own legislative frameworks. For some, the timetable will be different from the timetable we are adopting, purely because of their situation and what they need to do. We would expect that, in due course, the European Commission will look at the issue of the EU data retention directive that has been struck down and whether it and member states will wish to come together to put in place a further directive. However, that will not be for some time, hence the need to take action in the interim.

Photo of Andrew Jones Andrew Jones Conservative, Harrogate and Knaresborough

I welcome my right hon. Friend’s statement. Is not this a replacement of pre-existing powers to ensure that criminals do not slip through the net and escape justice?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

My hon. Friend is absolutely right and puts it extremely well.

Photo of Derek Twigg Derek Twigg Labour, Halton

The Home Secretary said that “the Government will also introduce a package of measures to reassure the public that their rights to security and privacy are equally protected.” What will the key parts of that package be?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

Yes, I did refer to that. We are going to ensure that we have more transparency from Government through the information that we will be publishing in an annual transparency report, within parameters. We will also reduce the number of bodies that are able to have access to the communications data, establish a privacy and civil liberties board based on the US model, have a review of the capabilities and powers that are necessary against the threats we face and the ways in which those are regulated, and lead discussions with other Governments on how we deal with these matters of sharing data across borders.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

While thanking the Home Secretary for her statement and praising her role in wishing to protect the civil liberties of those of us who do not want to be blown up, is not the truth of the matter that the reason for the three-month delay between the European Court judgment and today’s announcement of legislation is that the Lib Dem part of the coalition has been umming and aahing over this issue for far too long? I see that no Lib Dems are on the Front Bench to support her while she speaks.

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I have to point out to my hon. Friend that the Minister for Crime Prevention was present when I made my statement and for the early part of these questions. As I am sure my hon. Friend will recognise, other Ministers were present on the Front Bench for the statement and the shadow Home Secretary’s response but have had to go to undertake other business. In fact, over this period we have been making sure that we are responding to the judgment from the European Court in a way that is appropriate and maintains the capabilities that we need in the UK.

Photo of Bob Blackman Bob Blackman Conservative, Harrow East

Will my right hon. Friend expand on the legal protections there will be to prevent improper use of the data collected so that the only people who will have something to fear from this legislation are criminals, and the ordinary public will be protected?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

A wide range of protections regarding access to communications data already exists within the legislation in relation to the Regulation of Investigatory Powers Act 2000, access to interception, and the communications data retention regulations. As I said earlier, the whole question of access to communications data was scrutinised by a Joint Committee of both Houses of Parliament, which, having looked at these processes, concluded that they were entirely appropriate.

However, we will ensure that access to retained communications data will be limited to access that is considered to be necessary and proportionate through the RIPA process, court orders, or any further mechanisms specifically approved by Parliament.

Photo of Gavin Williamson Gavin Williamson Conservative, South Staffordshire

Will my right hon. Friend assure my constituents that this legislation will be an important and vital tool in the police’s battle against child abusers and those who seek to perpetrate paedophile acts?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

I can absolutely give my hon. Friend that assurance. Communications data in particular are an absolutely vital tool in investigations and in bringing criminals to justice. They have been a particularly important tool in recent cases of child abuse, and they are also important with regard to the serious crimes I mentioned earlier, including murder. It is vital that we have access to this tool, in order to be able to keep people safe and bring perpetrators of those crimes to justice.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

Thank you, Mr Deputy Speaker. I believe we have a duty to pass this fast-track legislation quickly. Does my right hon. Friend agree that, unless we do so, the police and the security services will not have the powers that may stop innocent citizens of this country dying?

Photo of Theresa May Theresa May The Secretary of State for the Home Department

My hon. Friend is right. I have been clear in my responses that I fear that, if we do not ensure that we maintain these capabilities, not only will we see criminals going about their business without the police being able to deal with them appropriately and bring them to justice, but we could see innocent lives being lost.