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New Clause 6 — Half-yearly reports by the Interception of Communications Commissioner

Bills Presented – in the House of Commons at 9:15 pm on 15th July 2014.

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Votes in this debate

  • Division number 39
    A majority of MPs voted in favour of requiring the mass retention of information about communications, (but not the content of those communications); in favour of arrangements to limit access to such information; in favour of requiring those based outside of the UK to comply with warrants to intercept the content of communications and to state operators of internet-based services may be required enact such intercepts; in favour of limiting the use of intercepts, and police access to communications data, on economic grounds to cases involving the interests of national security; and also in favour of more frequent reports from the Interception of Communications Commissioner and for the independent reviewer of terrorism legislation to review the operation and regulation of investigatory powers by May 2015.

‘(1) Section 58 of the Regulation of Investigatory Powers Act 2000 (reports by the Interception of Communications Commissioner) is amended as follows.

(2) In subsection (4) (annual reports) after “calendar year” insert “and after the end of the period of six months beginning with the end of each calendar year”.

(3) In subsection (6) (duty to lay annual reports before Parliament) after “annual report” insert “, and every half-yearly report,”.

(4) In subsection (6A) (duty to send annual reports to the First Minister) after “annual report” insert “, and every half-yearly report,”.

(5) In subsection (7) (power to exclude matter from annual reports) after “annual report” insert “, or half-yearly report,”.’.—(James Brokenshire.)

Brought up, and added to the Bill.

Amendments made: 6,in the Title, line 7, after “Act;” insert

“to make provision about additional reports by the Interception of Communications Commissioner;”

Amendment 8, in the Title, line 7, after “Act;” insert

“to make provision about a review of the operation and regulation of investigatory powers;”.—(James Brokenshire.)

This amendment is consequential on NC7.

The Deputy Speaker resumed the Chair.

Bill, as amended, reported.

Bill, as amended in the Committee, considered.

Third Reading.

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

I beg to move, That the Bill be now read a Third time.

We have had a lively and constructive debate today on the urgent need to ensure that communications data continue to be retained, and to clarify the law in respect of interception for communications service providers.

I thank all those who have contributed to the Bill during its various stages so far. I also want to place on record my gratitude to those who have recognised both the need for this legislation and the reason it is so important that we see it enacted quickly.

We discussed the Bill earlier today on Second Reading and it has just been scrutinised in Committee. I thank the Opposition for the support they have given to the Bill and their recognition of the importance of the issues it deals with. I also thank the Clerks of the House and all those involved in supporting us and enabling us to do this business in one day. Particular thanks are due to my hon. Friend the Minister for Security and Immigration for the excellent job he has done in taking the Bill through its Committee stage, and to Mr Hanson for his contributions on behalf of the Opposition.

I do not want to rehearse in detail all the arguments that have been made, but I remind Members that the Bill deals with two urgent issues, including the response to the European Court of Justice decision in April, which struck down the European data retention directive. That has created uncertainty among communications service providers about the legal basis for the retention of communications data in the UK, which is a crucial resort for law enforcement and intelligence agencies.

Photo of Julian Lewis Julian Lewis Conservative, New Forest East

I am sure the Home Secretary knows that I am, in general, supportive of the Bill, but, in the light of the vote we have just taken, what sort of guarantee can she offer the House that the same European Court that struck down the previous situation will not strike down this Bill as well?

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

As I indicated earlier, and as I think others have indicated during the course of the various debates we have had today, the European Court of Justice did not strike down the ability to retain data. It recognised that the ability to retain data was necessary and it recognised purposes for which those data could be retained. What it did in its judgment was say that the data retention directive was drafted too broadly and it challenged its scope.

Of course, it was always the case that regulations here in the United Kingdom had been drawn more tightly and narrowly than the data retention directive. We are able to put through this Bill with confidence because not only were our data retention regulations drafted in a way that met many of the issues that the ECJ raised, but we have made some changes to ensure that we meet the extra requirements that the ECJ made on us. That is what gives us confidence in the future of this legislation.

We have heard a number of examples today of how important it is to have the ability to retain and access communications data. It is vital for piecing together the activities of suspects, victims and vulnerable people, and ensuring that serious criminals and terrorists can be brought to justice. This Bill will clarify the legal basis for us to oblige communications service providers to continue retaining communications data.

At the same time, we need to put beyond doubt the legal obligation on companies that provide services to people in the UK to comply with our laws on interception, regardless of where they are based. As we know, communications services used by us all are increasingly provided to the UK by companies based outside the country. Interception, which can take place only within strict limits and with a warrant authorised by the Secretary of State, can prove vital when investigating the most dangerous criminals or defending the security of the United Kingdom.

In the absence of explicit provisions in legislation, some overseas companies have started to question whether the law applies to them, so we are clarifying the law. The Regulation of Investigatory Powers Act 2000 was always intended to apply to any company providing communications services to the UK, as the provisions in the Bill make absolutely clear. The Bill does not introduce new powers, or extend the reach of law enforcement or security and intelligence agencies in any way. It responds to the European judgment, clarifies the existing provisions of RIPA and ensures that the police and security and intelligence agencies can maintain essential capabilities to fight crime and protect the public.

The Bill does not replicate the draft Communications Data Bill. As I have said several times, I continue to believe that its measures are absolutely necessary, but this Bill is not about what was in the draft Bill; it is about ensuring that we retain the capabilities we have at the moment. It will be for the next Parliament to debate other extensions in relation to communications data, as in the draft Bill. We know that that debate will take place because this Bill has been “sunsetted”. It will therefore be necessary for the Government to look at the issues after the election. Indeed, that will be on the basis of informed debate, following the review undertaken by David Anderson, as agreed.

The Bill will ensure that the job of those who protect us does not get even more difficult; that they can continue to use powers that are part of everyday policing; that they remain able to find vulnerable people at risk or in danger; and that they can maintain the use of vital capabilities to solve crime, save lives and protect the public from harm. It will ensure that our police, law enforcement agencies and security and intelligence agencies have the capabilities to do that. I now invite the House to pass the Bill and send it to the other place, and I commend it to the House.

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary 9:22 pm, 15th July 2014

We have had the Second Reading and four hours of debate in Committee, and we have now reached Third Reading. I, too, pay tribute on behalf of the Opposition to my right hon. Friend Mr Hanson, who has been in the Chamber since 12.30 pm, as well as to the Minister for Security and Immigration, who has probably not even had a chance to have a cup of tea, and to Dr Huppert, who when not popping up and down to speak, has been glued to his seat for many hours.

Many hon. Members have been present for several hours for a very thoughtful debate on such important legislation, but inevitably the debate has been limited. Many of the concerns raised today have been about the process—about the lack of time not only to debate the Bill, but to consider it further. I hope that the Government recognise that the process has undermined confidence. For that confidence to be restored, it will be particularly important for the Government to take steps on the implementation of the review and the wider safeguards.

Some Members have raised concerns about the retention of any data at all. The vast majority, however, have recognised the value of data retention in tackling serious crime, abuse and terrorism, and in protecting our children, but want the right kinds of safeguards to be put in place. Most Members recognise the need for Parliament to take action and to pass legislation before the summer break, because we do not want suddenly to prevent the police and the intelligence agencies to have access, under warrant, to the information on which they normally depend in investigating organised crime and fraud, identifying those abusing children online and building intelligence to foil terrorist activity.

I do not want to repeat the points I made on Second Reading about the Bill, the safeguards and the wider debate, but I will briefly cover some of the points made throughout the debates this afternoon. Some have raised concern about whether the Bill does what it says on the tin, to use the words of my right hon. Friend Alan Johnson—whether it simply replicates existing capabilities or extends them. The Government have repeatedly made it clear that the purpose of the Bill is to maintain existing capabilities and, indeed, to restrict them in line with the ECJ judgment. I am glad that the Government agreed to our amendments that were designed to ensure that that is the case. They require six-monthly reports on the operation of the Act to ensure that its implementation does not go further in any way.

As I argued earlier, many of the areas of concern that hon. Members have raised are not about the specifics of the legislation, but about the wider framework that governs communications data and interception. That is why we have called for a much broader review of the powers, safeguards and operations in the light of changing technologies and threats. I am glad that the Government agreed to our proposal that the review that we called for should be put on a statutory footing.

Nobody should underestimate the importance of that review, because we cannot keep passing sticking-plaster legislation, we cannot carry on with business as usual, and we cannot carry on with the current framework when new technology is overtaking it. Nor should anybody just hope that these issues will go away once today’s debates are finished, because they will not and they cannot. The changing technology, changing attitudes, changing expectations and changing threats mean that Parliament needs to keep up.

I hope that Members who have argued about the different aspects of the legislation, who have taken different views on aspects of the legislation or who have even disagreed with the legislation will come together to contribute to the review, to decide what the next steps should be and to take part in the wider debate that we need about security and liberty in the internet age. In the end, these issues go to the heart of our democracy. We need both security and liberty. If we do not feel safe or secure on our streets or online, we are not free, but if security is absolute, we lose that precious freedom for which people have fought for generations. We will not all agree on how to sustain both, we will not all agree on how to get the balance right, and our constituents will not all agree either. However, the debate itself is healthy and vital, and I suspect that there will be rather more consensus than most people think.

I hope that we can finally agree on three things today: first, that the wider debate is needed to keep up with the changing world and to ensure that there is public confidence and consent for the vital work that the police and agencies do; secondly, that this last-minute process has not been a good one, and that we really should not do it again; and thirdly, that this temporary legislation, with its safeguards, really is needed in the short term, and that we should pass it tonight.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge 9:27 pm, 15th July 2014

At the end of this rather long day, I want to reflect briefly on where we are in this area. There is a tension between privacy and security. As I have said, it is not a question of having one or the other; we can have both. I do not believe that those who are more concerned about security want to ride roughshod over privacy and civil liberties. Equally, those of us who are passionate about privacy and civil liberties care about security. We can have both and we need to work on both. There will be differences in the relative weighting that we place on each.

Let me go back to 2012, when we had the Home Secretary’s draft Communications Data Bill, which was the son of the previous Government’s interception modernisation programme. The Home Secretary has been very clear that she believes that we should have that Bill. We, as partners in the coalition Government, insisted that it be only a draft Bill. A Committee went through it carefully—a process that took many months—and we vetoed it because the Committee was very critical. Had we not had that process, there may well have been no need for this piece of fast-track legislation, because we would have had the communications data Bill and it would have covered many of the things that were required. However, it would have been far more intrusive and of questionable security value.

All that was before the Snowden period, when we found out what was happening. What has the House done to reflect the concerns that people have about privacy, data and surveillance? We have had one debate in Westminster Hall, which I managed to secure, in which neither Front Bencher supported the calls for massive reform of RIPA, although many Members from all parties did so. There has been one Bill in the House on this subject, which was introduced by my hon. Friend Mr Heath. Of course, like most private Members’ Bills, it did not make any progress. This House has failed to have the discussions and debates that have happened in the US, Germany and many other places.

That leads directly to the scepticism about the Bill that many people feel. There is a track record and people have developed concerns over many years. For decades we have had claims from the Government, again and again, about what is needed for security. So many clichés—the old lines: if we have nothing to hide, we have nothing to fear. Every reference to everything is justified by a reference to terrorists or paedophiles. Of course those matter and are serious, but they are not the same as proper evidence-based arguments about what is needed and is proportionate.

I understand the concern that many members of the public and in the House feel about this subject and this legislation, but the Bill deals with a genuine problem and replaces existing powers that the state already has with powers that are the same or lesser. Ministers have been clear that that is the intention. There is no question that somebody in the future will look back at this debate and believe there has been any intention to widen powers, and time after time we have heard that on the record. There has been debate about whether the law can be challenged under the ECHR. It can certainly be challenged; laws can always be challenged, and if it turns out that there are problems with it, I am sure they will be addressed. However, I do not think that will happen.

On the flipside, we have covered what would be a genuine crisis to ensure that we can continue with our security levels, and we have made extra gains that put us in a better place from a privacy and civil liberties perspective. The sunset clause will focus people and force the review to happen, and we will finally get a proper long-term detailed piece of work on how we can have better legislation. That will take years to get right, but we must get it right.

We have a privacy and civil liberties oversight board to ensure that those concerns are seriously considered as policy is developed and looked after, developing the existing role of David Anderson QC. The Bill will be more powerful than he has been able to be. A senior diplomat will try to come up with a better way of dealing with the international problems that we are all struggling with. We would all like a better model, and pushing ahead with that will make a big difference. We will see reductions in access. Fewer organisations will be able to get access to information which, coupled with a reduction in the maximum time limit for which data can be held, will mean more protection for all of us overall. We will have transparency reports so that we know what is going on and why, and can have far more informed debates here and in public.

This has not been an easy process and I pay tribute to everybody involved, of all different views. I had the privilege of being involved in a number of those discussions, and it has been difficult for many people in this House. However, I think the Bill has dealt with security problems while boosting—a bit at least to start with—privacy and civil liberties. As has been reported in many places, this will be seen in years to come as a time when the House said, “We must tackle this and ensure we get it right.”

Photo of Caroline Lucas Caroline Lucas Green, Brighton, Pavilion 9:32 pm, 15th July 2014

For the sake of completeness I want to say a few words having sat here not quite as long as some of my honourable colleagues, although it feels like a long time. Those of us who opposed the process and content of the legislation have clearly lost the debate tonight, but none of us has been convinced by the arguments we have heard. We have not been convinced that there is a case for the kind of emergency that would require legislation being railroaded through the House in one day, and we have not heard anything that persuades us that the Bill does not go further than the status quo. We believe that it does go further than the status quo, particularly where extraterritoriality is concerned. Blanket data retention not being permitted by the European Court of Justice is the key element to many of the debates over the past few hours. Many of us who have stood by the position that it is precisely the blanket data retention that is not permitted by the ECJ are still concerned that the Court’s position will be contradicted by the Bill, and I imagine we may find that that is a problem in the months to come.

The shadow Home Secretary said that she hoped we would agree on three things. First, she hoped we would agree that this debate is needed for public confidence and consent. I certainly agree that this debate is needed, but not in the space of a day. I argue that precisely by trying to rush this Bill through in a day, we are utterly undermining public confidence and consent. I certainly agree with her second point that the last minute process was not good.

Her third point—her claim that this temporary legislation is necessary—was her most important point. I argue very strongly that, in all the debates we have heard this afternoon, that case has not been made. The case for a six month sunset clause not being effective has not been made. Others have made the case that a sunset clause is supposed to concentrate minds and that in two-and-a-half years it will suddenly deliver things that a six month sunset clause could not deliver. That position does not stand up to scrutiny. A sunset clause in December would concentrate minds in the same way and we should have focused on that.

What I worry about most of all is that the debate will have lost some of the confidence in this place. I think that many people who have been watching this debate are deeply concerned about what they perceive to be an issue of such importance being treated with such contempt and about the Orwellian doublespeak that we have heard throughout the past few hours.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 9:35 pm, 15th July 2014

Following on from Caroline Lucas, I fear that there is no such thing as a perfect piece of legislation. None the less, what we have produced today, albeit in some considerable speed, is a Bill entirely worthy of the support of the entire House. I hope that the other place will permit it to get on to the statute book as soon as possible. I just have one point of interest that I wish to raise with those with on the Front Bench. I am not sure whether a member of the Home Office team will be responding to the debate, but perhaps somebody could write to me when they have a moment.

Under clause 4, which deals with extraterritoriality, it is quite clear that there are companies providing telecommunications services that will have a place of business or somebody in this jurisdiction who will be able to accept service of an interception warrant and so come within the terms of the statute. My only concern—it is not a concern that will destroy the Bill in any way at all—is practical. There may well be some telecommunications providers external to this jurisdiction that do not have a place of business in this country and do not have someone on whom an interception warrant can be served. Therefore, they will, like so many other aspects of extraterritorial law, not be susceptible to this legislation.

I am assuming—I put this in the interrogative—that my right hon. Friend the Home Secretary will be having discussions, or has already had discussions, with her overseas counterparts to make sure that overseas jurisdictions will co-operate, if we ask them to, to ensure that those overseas companies comply with the terms of this legislation as a matter of comity, if for no other reason. It strikes me that there is a lacuna, perhaps a very small lacuna, which may not be capable of being dealt with, but which none the less needs to be thought about.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington 9:38 pm, 15th July 2014

Caroline Lucas said that those of us who oppose the Bill lost the debate today. I do not think we did. We lost the vote, but the debate will continue on a number of fronts. That Parliament can countenance legislation as important as this going through in such a hurried and ill-informed way—to be frank—has opened up a debate about its relevance and role. It will open the debate on the detail of the Bill: the regulations and the guidance we have yet to see—it was not published in advance of the debate—but which will be significantly important to its implementation. It will also open up the debate on whether the Bill meets the compliance criteria set out in the judgment against the previous directive. I think we will very quickly see a further challenge. We may be back here soon with more proposals for emergency legislation to address a further legal challenge.

I do not, therefore, think that the debate ends here. I think it actually starts here. It would have been more effective if we had had the time to have a proper debate and a sunset clause with a short period of time. That would have focused the attention of Parliament, rather than the drift into what I think will be the first stage in a wider debate on, perhaps, the resurrection of the communications Bill proposals that the Government, or one element of the coalition, brought forward earlier in their period of office.

Photo of Frank Field Frank Field Labour, Birkenhead

I have a constituent who came down to London from Liverpool airport, where he worked, to try to gain knowledge as to how one could increase access to the airport for people with disabilities. That was on the day of the London bombings. He was a great rugby player but when he finally went back to Birkenhead, he did so without both of his legs. How do I justify to him a Bill that says that phone records should be kept in case they form some pattern that somebody wishes to investigate? How could I, preciously, say that that is more important than my constituent’s legs?

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

We have to clarify whether the implications of the Bill would have persisted in that case. A number of us are not convinced that there is a case. More importantly, in terms of parliamentary process, we could be in a situation where, literally within weeks, this legislation could be struck down again. We have rushed a procedure where we have arrived at legislation in which many do not have confidence but which is also seriously vulnerable to a challenge again. If we had taken the time and had a sunset clause that forced the pace to an extent—such as by the end of the year—we could have come back with more effective legislation that would have given my hon. Friend’s constituent more of an assurance that it would be effective in tackling those sorts of terrible crimes. That is why a number of us were offended by the speed of the legislation, which can result in ineffective legislation at the end of the day.

Photo of Sammy Wilson Sammy Wilson Shadow DUP Spokesperson (Treasury)

The hon. Gentleman expresses a lot of the concerns that are felt even by those of us who wish to see effective security legislation in place. Does he agree that had the Government acted when they knew that there was a challenge to the legislation, all of what he is asking for now could have been done?

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

What I found extraordinary was the argument that a sunset clause for the end of this year would not have given us sufficient time to produce adequate legislation. Yet that is almost the same passage of time that the Government had to produce today’s Bill—from April to July. If we cannot produce adequate legislation in the next five months, how have the Government managed to produce adequate legislation within that three-month period?

If the Government and coalition had been more open and transparent, and had undertaken a full and open consultation—and brought a draft Bill to the House—we would have had an opportunity to secure legislation that I believe would have been effective and would have had the support of the wider community. That would have given confidence to the constituent of my right hon. Friend Mr Field that we were really tackling terrorism, rather than simply going through an exercise to comply with a European Court of Justice judgment.

I repeat what a number of Members have said. This is no way to legislate. I agree with my right hon. Friend the shadow Home Secretary that this must be the last time we ever address an important issue in this way. If this is about coalition partners falling out, that is the weakest excuse for not being more open and transparent to the House about the problems we have to address.

I am fearful also that this is the foot in the door towards bringing back the communications legislation that was proposed previously. Many of my constituents have expressed the view that this is the start of widening the vista of snooping legislation. On that basis, I think it was important to have had the debate today and to put the Government on guard that the House will not tolerate being bounced into this type of legislation again.

Question put, That the Bill be now read the Third time.

The House divided:

Ayes 449, Noes 33.

Division number 39 Data Retention and Investigatory Powers Bill — Third Reading

A majority of MPs voted in favour of requiring the mass retention of information about communications, (but not the content of those communications); in favour of arrangements to limit access to such information; in favour of requiring those based outside of the UK to comply with warrants to intercept the content of communications and to state operators of internet-based services may be required enact such intercepts; in favour of limiting the use of intercepts, and police access to communications data, on economic grounds to cases involving the interests of national security; and also in favour of more frequent reports from the Interception of Communications Commissioner and for the independent reviewer of terrorism legislation to review the operation and regulation of investigatory powers by May 2015.

Aye: 449 MPs

No: 33 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 164 MPs

Absents: A-Z by last name

Question accordingly agreed to.

Bill accordingly read the Third time and passed.