Retention of Communications Data (Further Extension of Initial Period) Order 2005

– in the House of Lords at 4:30 pm on 24 November 2005.

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(Further Extension of Initial Period) Order 2005

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 4:45, 24 November 2005

rose to move, That the draft order laid before the House on 3 November be approved [8th Report from the Joint Committee].

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, this order is made under Sections 105(3) and 105(5) of the Anti-terrorism, Crime and Security Act 2001—a measure made in response to a new threat from terrorism witnessed on 11 September 2001. Four years later, as we know, that threat was realised here in the streets of London on 7 July.

The purpose of the order is to extend, for a further two years, the initial period within which the Secretary of State may, by order, authorise the giving of directions to require communications service providers to retain communications data. The initial period has been extended by Parliament once previously, in December 2003, but that extended period will end on 13 December this year. I want to explain why the Government believe that an order for a further extension is necessary.

Communications data—that is, data about communications and how they are made, but not what was said or written—remains a vital investigative tool. It provides evidence of associations between individuals and events in time and place. It also provides evidence of innocence. Without data of this sort being available, one of the suspects for the attempted terror attack on London on 21 July may well have evaded arrest in Rome. It is also likely that the ability of the police and the Security Service to painstakingly investigate the associations between those involved in all of the July attacks, and with those who may have directed or financed their activity, would be limited. Many individuals convicted of the most serious offences with evidence communications data might escape detection and prosecution.

Yet, the availability of such data is not guaranteed. The effectiveness with which the police can investigate offences can depend upon which communications service provider a suspect, victim or witness has used. Service providers are required to erase data or make it anonymous once a communication is completed, unless the provider needs to retain it for a business purpose. Once the provider has no need of keeping that data it is destroyed, within days—or, sometimes, minutes—of the communication taking place. One consequence of a vibrant and competitive communications sector is a trend to reduce costs, and to retain less data or even stop retaining it at all.

Two years ago, as well as extending that initial period, Parliament approved a voluntary code of practice under Section 103 of the 2001 Act. This enabled service providers to voluntarily and lawfully undertake to retain data in line with the code which they might otherwise have been forced to erase or anonymise. With the Act also providing for government funding, providers can choose to retain data that they might otherwise decide not to spend their money on keeping. That investment on behalf of the public can be justified if it secures the preservation of vital evidence of terrorist planning.

At this point I would like to pay tribute to the communications service providers and their staff who have tirelessly assisted the Security Service and the police, particularly since the July bombings. They supported those investigations by responding to requirements placed upon them to make data available for lawful disclosure. The important contribution that they are making can already be seen in those trials where communications data has been vital in securing convictions—particularly in murders, threats to kill and kidnaps, where there is no doubt about the necessity and proportionality of investigating communications material.

I also pay tribute to the co-operation of those service providers, big and small, that as part of their corporate social responsibility have engaged in constructive dialogue with the Government about retaining data in line with the voluntary code as their business models change and as technology changes. Those providers have considered which data they retain for a business purpose that they could retain for longer, if they choose to do so. They have considered appropriate technical solutions for increasing their storage capabilities and for the consequential retrieval and disclosure of data. They have identified the costs of those solutions for which they look to government to contribute, in line with the provisions of the Act.

Although this process can be quickly summarised, it does not happen quickly. It remains a technically complex issue. With complex communications networks involved it can take months for a provider to work out how it might extend the retention of its data and ensure that data can be searched and specific data identified readily. When the initial period was previously extended the Government believed, without the benefit of practical experience acquired over two years of technical discussions with industry, that it would be possible to determine the effectiveness of the voluntary code of practice within three months. What we were able to determine in that time was willingness on the part of providers to volunteer or to consider doing so. The Government have now concluded agreements with providers to support the implementation of technical solutions initiatives that will help to ensure that data is retained and not lost. Other solutions and agreements are in various stages of preparation and negotiation.

At the same time, the Government are in discussion with service providers that have indicated they are prepared to retain data for longer, but only if required to do so. Equally, there are providers that have undertaken to retain data voluntarily, or will be doing so, but want that agreement to be made subject to a future direction, once their technical solution is fully in place. They will be content to be directed to do what they already have undertaken to do and to derive additional legal certainty from complying with a legal obligation to retain data rather than a voluntary undertaking.

If the possibility of giving directions is lost, there are significant providers that will disengage from dialogue with the Government, or whose willingness to find and develop technical solutions will be lost. The opportunity of preserving and enhancing the contribution that communications data makes to the investigation of terrorism and serious crimes will be lost with it. The voluntary code has provided an important building block upon which the foundations of a practical, viable and lawful scheme for the retention of communications data is being constructed. The full value of the investment of consideration and time that service providers have given, and are continuing to give, will be realised by cementing that good will with directions.

The primary responsibility for any democratic state is to provide for the security and safety of its citizens from the threats posed by terrorism. It is right that in doing so the Government strike the right balance between the public interest and business interests, and between the need to retain data for the public good to tackle terrorism and serious crime, and the need to destroy data out of honest respect for individuals' privacy. Having said all those things and rehearsed those issues, I beg to move.

Moved, That the draft order laid before the House on 3 November be approved [8th Report from the Joint Committee].—(Lord Bassam of Brighton.)

Photo of Baroness Seccombe Baroness Seccombe Deputy Chief Whip, Whips, Spokespersons In the Lords, (Assisted By Shadow Law Officers), Spokespersons In the Lords, (Assist the Home Affairs Team)

My Lords, I am most grateful to the Minister for explaining what is behind the application today. It has been enormously helpful. I take note that this would extend the order until December 2007.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

My Lords, I, too, am grateful for what the Minister said. This is an important order, and the Anti-terrorism Crime and Security Act 2001 under which it is made is landmark legislation in terms of the relationship between the state and the citizen. It is right that we in this place expend much time and anguished debate on every measure that potentially impinges on the liberty or privacy of the subject, as this measure certainly does. I am sure that noble Lords—all four of us—will remember the very strong debate that preceded the passing of the 2001 Act. Noble Lords will remember too—the Government will at any rate—that the sunset clause in Section 204 was forced on the Government in a Division and eventually accepted by the other place.

It is perhaps proper to recollect that a major voice in that procedure was that of Lord Alexander, who now sadly is no longer with us. I mention him because he had a big part to play in that process. The Minister and I were heavily involved in the passage of the Regulation of Investigatory Powers Act—another landmark piece of legislation which seeks to protect the state and citizen against terrorism and undue criminal activity.

I thank the Minister for a full explanation. The Explanatory Memorandum that accompanied the order was a model of its kind; it set out fully the context in which this order is being made and was helpful to those on these Benches; I am sure that I speak for the noble Baroness, Lady Noakes, as well. I am content—just as she was—to concur in the passage of this order, mainly because the Government have been true to their word. I remember well at the time of the passage of the Act that they said they would make every effort to seek a voluntary arrangement with the industry. That they have done, for which I am extremely grateful, because I believe that voluntary arrangements are invariably better than those that are compulsorily placed upon anyone or any body of organisations. I hope that despite the fact that, as the Minister said, some of the companies involved would feel easier if they were forced to do what they are currently doing voluntarily, the Government will encourage the continuation of the voluntary arrangement so long as they are effective. The indications that the Minister gave this afternoon were that they are at the moment effective.

How far are the Government having to utilise the provisions of Section 106, which allows the Secretary of State to make appropriate arrangements to pay communications providers who are voluntarily co-operating in the retention of communications data? It would be valuable to know that. I would also be grateful if the Minister could tell the House whether a communications provider who is voluntarily retaining data that it would normally have destroyed, is thereby exposing itself to the risk of civil suit on the part of any individual or entity whose data are being retained as a result of the voluntary arrangements. Because again, if—as I hope and think—the communications provider concerned is not exposing itself to liability to be sued effectively by an individual company concerned, that is another reason why one should persevere if at all possible with the current voluntary arrangements. Subject to hearing what the Minister might have to say on those two questions I am, on behalf of the Liberal Democrat Benches, content to support the passage of the order.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I am grateful to the noble Lord and the noble Baroness for their contribution in this short discussion. I am also grateful to the noble Lord, Lord Phillips, for his compliments on the way the Government have conducted themselves on this matter. We do not often receive compliments and it is quite nice to receive one or two. Although it may have been an irritation to the government at the time, the way in which Lord Alexander conducted himself in those debates and brought forward his amendments made the government focus very carefully on how they subsequently managed their relations with service providers and so on. One could say that it is one of Lord Alexander's lasting legacies to us.

As the noble Lord, Lord Phillips, knows, the voluntary code of practice was the subject of lengthy discussions between the Home Office and the Information Commissioner's office. Data are retained in line with the code and fall within paragraph 5 of Schedule 2 to the Data Protection Act 1998. Rightly, providers are entitled to rely heavily on the fact that the Secretary of State and Parliament have concluded that an extension of communications data is necessary to safeguard national security. I am sure that the noble Lord, Lord Phillips, will be pleased to know that the Information Commissioner continues to support that position.

The noble Lord, Lord Phillips, asked whether service providers would want to be directed. I think that they accept that, in choosing to retain data in line with the code, they are party to a decision to retain data and to any challenge about the lawfulness of the processing of data. But, if they were directed to retain data by the Government, only the Government would be challengeable, and I suppose that that is why they see a benefit in that arrangement. The legal position was explored in detail with the Information Commissioner before the voluntary code was consulted on publicly and approved by Parliament. Again, the Information Commissioner shares the view that retention of data, even under the voluntary code, complies with the Data Protection Act. We are happy to rely on that.

The noble Lord asked one or two questions about cost. The costs will obviously be unique to each provider. One project—perhaps the largest so far—involves a major mobile phone service provider with a significant market share of roughly 20 per cent. It has undertaken to extend the network traffic data retention period from two days to provide all-round cover. There is a significant cost to that. We have to recognise that and ensure that there is proper funding. We are budgeting around £6 million annually to meet appropriate data collection, retention and associated retrieval costs. It is not a small cost. In terms of the global government budget, it is quite small, although it is large in itself and large in terms of the service provider.

There is a funding process. The Government are making appropriate contributions to the costs incurred by providers that undertake to retain data for extended periods. In practice, those contributions are 100 per cent. That does not mean that every provider is being funded—that would be neither practical nor proportionate. The allocation and prioritisation of funding to providers is determined very much according to the provider's market share and interest to the intelligence and law enforcement agencies, whether or not the provider is providing novel, or perhaps unique, leading-edge services. The costs of any data retention must be proportionate to the value that the data may have in the investigation of serious crime and terrorism in the UK. Currently the focus is, rightly, on telephony traffic data, whether fixed, mobile or, in the future, Internet-provided.

I think that I have probably gone as far as I can in providing information. To do more would be inappropriate and perhaps commercially sensitive. I hope that the noble Lord will be satisfied with the advice that I have given.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

My Lords, I am grateful to the Minister and reiterate happiness with the passage of the instrument.

On Question, Motion agreed to.

House adjourned at four minutes past five o'clock.

Thursday, 24 November 2005.