40 Clause 102, page 62, line 25, leave out paragraph (b) and insert—
X(b) for the purposes of prevention or detection of crime or the prosecution of offenders which may relate directly or indirectly to national security."
The Commons disagreed to this amendment for the following reason:
40A Because it is not appropriate to limit the power conferred by this clause in the manner proposed by the amendment.
My Lords, I beg to move that the House do not insist on their Amendment No. 40 to which the Commons have disagreed for their reason numbered 40A.
I shall be brief. We have made it clear that the retention of communication data provisions in the Bill will be proportionate and necessary and, I repeat, they will comply with all the data protection legislation and be wholly consistent with the European Convention on Human Rights and our Human Rights Act obligations.
We have listened to and acted on the concerns of noble Lords by providing on the face of the Bill for consultation with the Information Commissioner on the code of practice. The code of practice will also need to be approved by both Houses of Parliament under the affirmative resolution procedure. These are all new provisions since the Bill came from the other place, so the Government have moved on the issue.
However, I must make it clear that it is impossible to distinguish at the retention stage what data may be relevant for national security or terrorism purposes. I must remind noble Lords that the data will be retained not by the Government but by the communications providers. The provisions do not extend the access powers agreed by Parliament 18 months ago in the Regulation of Investigatory Powers Act, which are also compatible with human rights legislation. There cannot be any mass trawls. Only data used for billing purposes—date, time, place, telephone number, period of call—will be retained, not conversations or messages between individuals.
Earlier today, your Lordships' House voted not to press an amendment to restrict the purposes for which data may be disclosed by public authorities under the provisions of Part 3 of the Bill. The provisions in Part 11 are not about access to data but about its retention by communications service providers. It makes no sense to limit Part 11 to national security. Part 11 will be proportionate and it will follow EC law and the European Convention on Human Rights. There will be consultation with the Information Commissioner and the code will be subject to parliamentary approval.
It is our intention and our avowed desire to carry out the terms of this provision in voluntary agreement with the industry. We do not want to have to move to a statutory provision. Under a voluntary arrangement and given the code of practice, it is almost implicit that the Information Commissioner and the industry have a veto. If they do not agree, it cannot be done voluntarily. We should then have to go down the statutory route, which has its own built-in sunset clause. So there is a safeguard—a double lock, as it were—on that part of the Bill's provision. Therefore, I hope that noble Lords will see that the Government have moved considerably in this respect on data retention. Bearing in mind the principle behind the decisions made on Part 3, I hope that the original amendment will not be pressed.
Moved, That the House do not insist on their Amendment No. 40 to which the Commons have disagreed for their reason numbered 40A.—(Lord Rooker.)
My Lords, I am grateful to the Minister for setting out the present position. It is my belief—and, I think, that of the House—that he under-estimates the communications data that can be captured under this part of the Bill. It is true that the content of telephone conversations and other communications cannot be pried into. However, as is well known in the industry, the Xwhere, when, how, to whom and with whom?" of all communications, the website hits that anyone makes in the course of the daily round, if trawled automatically, enable the state and the Xrelevant authorities" to build up a personality profile that tells a great deal, in intimate detail, about citizens. That is the background.
There have been repeated assurances by Ministers in the course of the past year that the very thing that is being done would not be done. Perhaps I may give an example. On 10th May, when Patricia Hewitt took part in an on-line question and answer session for the Guardian, the following question was asked:
XThe police (NCIS and ACPO) are still pressing for a new law to compel ISPs to log the addresses of all e-mails sent and received, websites browsed, and newsgroups perused, for ALL their customers indiscriminately, for up to 7 years. . . . Will Labour enact such a law in its next term?".
The answer was XNo". The same categorical answer was given on three occasions.
My Lords, that is a partially fair point and I do not seek to deflect it. But I am saying that Ministers are now going back on their determination—before 11th September, I admit—to have nothing to do with such a provision. The whole issue is the correct balance between our traditional civil liberties and the needs of the moment. I need not remind the Minister that ours is the only country in Europe that is enacting new laws in the present situation. This House wants new laws. But the question addressed by the amendment is: how far should they go?
Clause 102 gives complete discretion to the Secretary of State to issue a voluntary code of practice. Everyone hopes that such a code will be the one that sticks. But Clause 103 gives the Minister compulsory powers of direction. There is no limit on those powers. He does not have to come back to Parliament. Their contents can apply—and, it is expected, will apply—to the whole industry. The Minister and those on these Benches have batted remarks back and forth on the issue of Xtrawling". The Minister resolutely maintains that there will be no trawling. We resolutely—
My Lords, will the noble Lord give me the opportunity to make a further point? What he says is not true. He is close to misleading the House. The powers are time-limited if we go down the statutory route. The Secretary of State would have to come back to Parliament after two years and obtain affirmative resolutions for the powers to continue. So it is not fair to say that there is no time limit on the powers in Clause 103. There is a time limit and it is set out in Clause 104. Indeed, the clause is headed:
XLapsing of powers in section 103".
My Lords, the Minister is talking about time limits. I was not. I was talking about the issue of trawling. Of course there is sunset provision included in the Bill. We happen to think that it is a weak one. We also take note of the fact that time-limited provisions tend to continue ad infinitum, as the noble Lord, Lord Jenkins, made clear at Second Reading.
I want to return to the important issue of trawling, as it worries many Members of this House. A document issued by the Home Office last month entitled The Retention of Communications Data—with the unhappy subheading, Supplementary Regulatory Impact Assessment—says this on the impact on civil liberties:
XData relating to specific individuals under investigation will only be available if data relating to the communications of the entire population is retained, since a criminal's data cannot be distinguished from anyone else's at the time of collection/retention. Mass retention has obvious civil liberties ramifications ... A balance must therefore be drawn between security and privacy".
That makes it clear beyond peradventure that, whatever the Minister thinks about mass trawling and mass surveillance, the Home Office knows that that is precisely what these clauses relate to. It is their ability, via the Secretary of State's direction, to require the entire industry to retain its entire stock of traffic data for an unlimited period. It is that power that enables the security industry to have access, via the Regulation of Investigatory Powers Act and the Data Protection Act, to this huge warehouse of information. We on this side of the House have repeatedly said that we are not content with the balance as struck. That is why we want the amendment to remain.
Perhaps I may remind the House that, in giving directions, the Secretary of State only has to Xhave regard" as he thinks necessary for the prevention or detection of crime or the prosecution of offenders. The provision is completely general. We want the words to be inserted:
Xprevention or detection of crime or the prosecution of offenders which may relate directly or indirectly to national security".
That is the difference between us.
Perhaps I make two more points. First, the oversight and care, as it were, of the data collection machinery provided for in various statutes is in our view wholly inadequate. One of the reasons we feel strongly about this is that there is no effective oversight of the whole business.
To give one example, the parliamentary Intelligence and Security Committee recently commented that the tribunal set up under the Regulation of Investigatory Powers Act to control access to information and data did not even have enough staff to open the mail. I believe that we shall find that the Interception of Communications Commissioner, Lord Justice Swinton Thomas has a staff of two or fewer. Concerns on this side relate to the inadequacy of the oversight and protection of the citizen and his or her confidential information.
The National Criminal Intelligence Service is building—and has made it quite clear that it wants to go on building—a national traffic data warehouse. That is its aim. Indeed, a senior member of that body said recently, XWe want to have all the information we can lay hands on. It's up to you fellows to stop us".
That is what this amendment is about: stopping an excessive and insufficiently controlled acquisition and retention of data information which can then be accessed under the Regulation of Investigatory Powers Act, and with limited protection under the Data Protection Act. Your Lordships will know that, in certain circumstances, if the Secretary of State issues a certificate, none of the eight principles of the Data Protection Act will come to the aid of a citizen at all, even if he or she knows that his or her privileged information has been breached. That is a huge problem.
For all those reasons, it is our strong wish to see the amendment remain. I beg to move.
Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 40 to which the Commons have disagreed for their reason numbered 40A, leave out Xnot".—(Lord Phillips of Sudbury.)
My Lords, I support what the noble Lord, Lord Phillips of Sudbury, has said. While we welcome the agreement of the Home Secretary to subject the code of practice on data retention to affirmative resolution, we do not believe that that concession is enough. We believe that Lords Amendments Nos. 40 and 44 properly limit the scope of the proposed data retention provisions without in any way undermining the capacity of law enforcement authorities and intelligence agencies to counter the threat from global terrorism.
As my noble friend Lord Northesk said on Report, there is a very real risk that the vast accumulation of data that the Bill currently envisages could prove counter-productive and, thereby, hinder the work of the intelligence services in their challenging task of fighting terrorism. As the Minister has always insisted, investigations under the Regulation of Investigatory Powers Act, and on advice from the Information Commissioner, have proceeded, and are proceeding satisfactorily. With excellent co-operation from communication service providers, why do the Government require this extension of power?
XThe providers say the amendment is not workable".—[Official Report, Commons, 12/12/01; col. 907.]
Of course, we do not know which providers have made representations to the Home Office. But I am bound to say that that does not tie in with our advice from the ISPA (Internet Service Providers Association). That association favours the amendment because, given the general lack of legal clarity within Clause 102, it would much prefer checks for proportionality and reasonableness to be made within the narrower, although still wide, framework proposed. In that case, we shall insist that this House supports Amendments Nos. 40 and 44.
My Lords, I shall be brief. I shall reply to the central points that have been raised. First, we have made it absolutely clear that there will not be a data warehouse. Secondly, this is not a matter of mass surveillance, even though the retention by data providers of people's information is necessary. The Data Protection Act will cover that. That data cannot and will not be touched by the law enforcement authorities unless the regulation of investigatory powers tests are met: they are necessity and proportionality. As I said before, quite extravagant language is being used which is designed to frighten people into believing that they will be subjected to mass surveillance. They will not be.
I shall set out some of the points. The code of practice will set out the time limits. In this House we have already agreed that it will not be seven years. We were specifically asked about an article in the Observer and we said that it would not be seven years. I cannot say what it will be, but the implication is that it will be less than seven years because we need to achieve agreement on the code of practice.
Britain is not the only country to have data retention legislation. Belgium and France have such legislation. Contrary to what has been asserted by the noble Lords opposite, this is not the only country to introduce emergency anti-terrorism laws. France and the United States have done so. It is not true to say that we are isolated in that respect.
This is not an extension of police powers, but service providers will retain information that they already collect. This is not new, but we want them to retain that information a little longer so that if there are grounds for checking up on people, the information is there to be used.
The practice of retaining information has been carried out on an informal and voluntary basis since 11th September. It has proved extremely useful and we have had excellent co-operation from the data providers. I have no criticism of the Internet and telephone networks service providers. However, it is important to put such matters on a statutory basis with all the protections that this Bill provides, contrary to the assertions made by the noble Lord, Lord Phillips.
My Lords, if the noble Baroness, Lady Whitaker, says so I certainly shall accept that. I would be interested to know exactly what that country has introduced.
The protections to which the Minister referred are in place, but it is not true to say that there is no extension of powers in this Bill. The retention powers are new and potentially they are for the whole industry and for the industry's entire capture of traffic data. That is why, through this amendment, we seek a limit to those powers.