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My Lords, when I repeated the Statement of my right honourable friend the Home Secretary last Thursday, I outlined to the House the urgent need for this legislation. I am sure that noble Lords will agree with me that it is essential for both the Government and this Parliament to ensure that law enforcement, and the security and intelligence agencies, have the powers they need to do their duty. Those powers are now at risk. If we do not take urgent action, lives could be lost. As your Lordships’ House has already heard, the situation is pressing. The timetable for this legislation is, accordingly, inevitably very tight, and I will talk about the reasons for that.
However, it may be helpful to the House if I make clear that Members who wish to table amendments for the Committee stage of the Bill are now able to do so. Amendments for the Marshalled List may be tabled up until the rising of the House, at which point the Legislation Office will produce a Marshalled List in the normal way. Members will also be able to table manuscript amendments for the Committee stage of the Bill tomorrow morning. Arrangements for tabling amendments for subsequent stages of the Bill will be announced in due course.
Perhaps I may turn to the legislation itself. I should like to take a moment to reassure the House. This Bill does not provide any new powers. It does not alter or amend existing powers. It simply provides a clear basis, in respect of both data retention and investigatory powers, for the exercise of existing powers. Crucially, and quite rightly, the legislation is sunsetted. Its provisions will be repealed at the end of 2016. The intention—Clause 7 has been amended in the Commons to provide an explicit legal basis for this—is that we will have time in the interim for a proper debate about what powers are required in the future. There will be a review, led by the independent reviewer of terrorism legislation, David Anderson QC, into what powers and capabilities might be required in the future, considered in the full context of the threat. That review will consider capabilities but it will also consider safeguards to protect privacy, the challenge of changing technologies, issues of transparency and oversight, and the effectiveness of current legislation.
David Anderson’s work will be far-reaching. It will provide a robust, independent basis for the subsequent work of a Joint Committee of Parliament, to be established following the general election. There will be a public debate and Parliament will have the necessary time to consider legislation on these important and complex issues. I know that some noble Lords have questioned the timing of the sunsetting provision. I hope now that the Government’s intentions behind that timing are clear.
Noble Lords will also be aware of the wider package of measures, announced by the Prime Minister last week, which will strengthen safeguards and reassure the public that their rights to security and privacy are equally protected. We have now published terms of reference for the various measures, including the privacy and civil liberties oversight board. Following ongoing discussions with the Opposition and consideration in the Commons, we have amended Clause 6 to ensure that the independent Interception of Communications
Commissioner will now report every six months. I am sure that your Lordships will agree that these measures will help to ensure a better-informed public debate.
I now turn to the purpose of the Bill and the matters before us today. Communications data—the who, where, when and how of a communication, but not its content—can be used to piece together the activities of suspects, victims and vulnerable people. They can prove or disprove alibis, identify links between potential criminals, tie suspects and victims to a crime scene, and help find vulnerable persons at risk of imminent harm. Only this morning, noble Lords will have seen the news that the National Crime Agency has made more than 600 arrests as part of a six-month operation targeting people accessing child abuse images online. Senior officers are clear that, without access to communications data, many of these investigations would hit a dead end.
Those data are held by communications service providers for their business purposes and where they are required to do so by law. They are then accessed by law enforcement, subject to stringent safeguards, where it is necessary and proportionate to do so for a specific investigation. But, as I explained last week, a recent judgment in the European Court of Justice has put into doubt the legal basis on which we require service providers in the UK to retain communications data. As a result, we run the risk of losing access to data that are vital to a wide range of investigations. This could be devastating. It would seriously undermine the ability of the police, the National Crime Agency, the intelligence services and others to prevent and detect crime, catch terrorists, and safeguard and protect children and others at immediate risk of harm.
The Bill also deals with investigatory powers and, specifically, the interception of communications. The content of a communication—the text of an e-mail or a telephone conversation—can play a critical role in the work of law enforcement and the intelligence agencies. The majority of the Security Service’s top priority counterterrorism investigations use interception in some form to identify, understand and disrupt the plots of terrorists. The police and the National Crime Agency rely on interception to prevent and detect serious crimes, including drug trafficking, human trafficking and child sexual abuse.
The House will know that interception can take place only if there is a warrant authorised by a Secretary of State and that can happen only where he or she considers it necessary and proportionate and where the information sought cannot reasonably be obtained by other means. The legislation that provides for interception—the Regulation of Investigatory Powers Act 2000 or RIPA—obliges telecommunications service providers to give effect to interception warrants. This Government, like our predecessors, have maintained that this obligation applies to companies with customers in the UK, irrespective of where those companies are based. Given the increasing reliance of suspects in the UK on internet-based communications, the compliance of overseas companies is increasingly important to the UK’s interception capability. However, in the absence of explicit extra-territoriality, some overseas companies have now started to question their obligations under RIPA. Those companies have made it clear that they will comply with the law only where there is an explicit obligation to do so. Unless we put the matter beyond doubt, we could, very shortly, see a damaging loss of capability.
I now turn to the Government’s response to this situation. The Bill before the House today is a narrow and focused response to these two issues: the ECJ judgment and the potential loss of compliance with RIPA. On both matters, it makes explicit what we have always asserted to be the case. The first part of the Bill deals with the issue of data retention. At present, we can oblige companies to retain data where they are issued with a notice under the data retention regulations passed by Parliament in 2009. This means that the data are available when the police need them for an investigation. In spite of the ECJ judgment ruling, we have been clear that these regulations remain in force. However, in the light of the judgment, it is necessary to put the legal basis for these requirements beyond doubt. If we do not, there is a risk that these companies may begin to delete crucial data. Equally, if there were a successful challenge in the domestic courts, this would lead to an immediate loss of data.
Accordingly, Clauses 1 and 2 of the Bill provide a clear basis for data retention. They will replace the existing data retention regulations of 2009, maintaining the status quo. The data types to be covered by this new law will be identical to those in existing law. Although the European Court of Justice was critical of the data retention directive, it recognised the importance of data retention in preventing and detecting crime. Crucially, while the court asserted that the directive itself lacked the necessary safeguards, it did not take into account the robust regimes that exist in member states governing the access to the data. We believe that our retention and access regimes already address many of the ECJ’s criticisms. Among other safeguards, they include an authorisation process that was scrutinised in detail and endorsed by the Joint Committee on the Draft Communications Data Bill, ably chaired by my noble friend Lord Blencathra, and they are subject to robust, independent oversight by the Interception of Communications Commissioner.
The Government have, however, considered the judgment at length and are bringing forward changes that will extend the safeguards in place in order to respond to elements of the judgment and to ensure that the Bill is compliant with the European Convention on Human Rights. These include: the imposition of a requirement on the Secretary of State to consider the necessity and proportionality of a data retention notice before issuing it; specifying that the length of time for which data must be retained should be a maximum, rather than an absolute, period of 12 months; and the creation of a code of practice for data retention, which will place on a statutory footing well-established best practice.
A number of further safeguards will be introduced through the regulations made under the Bill. These regulations were published in draft last week.
I apologise for interrupting the flow of my noble friend’s speech. However, he started by saying that the Bill introduced no new powers and did not amend existing powers, but he appeared just now to indicate that there were new powers in the Bill. Have I got it wrong?
My noble friend has got it wrong: it is about safeguards. I am talking about safeguards, not powers. I am talking about the Bill imposing limits on the discretion of the Secretary of State through the regulations and the Bill itself. If my noble friend will allow me to continue he will see that I am placing that in the context of seeking to provide a basis for continuing the provisions of the Bill without extending the powers that are available to the Secretary of State or the Government under the Bill.
I can indeed do so. Extraterritoriality was assumed by the Government to be part of RIPA, and rightly so, as part and parcel of their legislation. We are making it explicit so that there can be no question of doubt about it. On extraterritoriality, as I said in my opening remarks, RIPA was based on the correct assumption that any firm that provided services here within the UK was governed by the law that we had in connection with these matters. In my view, there is no argument about that. Perhaps I may go on and finish my speech. The noble Lord is gracious enough to acknowledge that this is all of a piece, and I would like to be able to present it to the House as a piece.
I mentioned the number of safeguards to be introduced through regulations made under the Bill. These regulations were published in draft last week to enable parliamentary scrutiny and are available from the Printed Paper Office. The Delegated Powers and Regulatory Reform Committee has considered those regulations and made a report, which I am sure many noble Lords will have considered. I thank the committee’s members for their work. They have, as always, provided a useful and thorough review of the issues. In the case of this Bill, they have done so in a necessarily short period of time.
The committee is of course correct that it would be best to avoid a gap between the passage of this legislation and the passage of regulations. That is why the Home Secretary has been clear that our intention is to ensure that this secondary legislation can be approved by both Houses before the Summer Recess. This should reassure members of the committee, and other noble Lords, that the powers in question will not be exercised in lieu of those regulations being approved. It will not, therefore, be necessary to use the “made affirmative” procedure in this case. However, I thank my noble friend Lady Thomas of Winchester and her committee: their suggestion was a positive one. I am pleased that we have been able, through the usual channels, to ensure a more direct way of achieving the same objective —bringing the regulations into play before the Summer Recess.
The committee has also invited me to address the potential scope of the delegated power at Clause 1(3). I am pleased to do so. The Government have already published a provisional draft of the regulations to be made under the Bill, and these go no further than the existing data retention regulations 2009. They are, I can confirm, limited to matters relating to the powers conferred by Clauses 1(1) and (2). I hope that this will satisfy the House of the Government’s intention.
The second part of the Bill deals with interception. In relation to interception, Clauses 4 and 5 make it clear that the obligation under RIPA to comply with interception warrants applies to all those companies that provide communications services to people in the United Kingdom, regardless of where those companies happen to be based. These provisions do not extend existing powers. They simply seek to make explicit what has always been asserted to be the case.
I know that many noble Lords will be interested in Clause 5, which clarifies the definition of a telecommunications service. When RIPA was considered by Parliament in 2000, it was intended to be technologically neutral. Much of it relates to fixed line or mobile telephony, so it also covers web-based email and social media communications. We are simply seeking to clarify that definition in order to put this matter beyond doubt.
These provisions will make clear the legal obligation on companies that provide communications services to people in the UK to comply with warrants issued by the Secretary of State. In the absence of such clarity, vital capabilities may be lost in the near future. It is of course never ideal for these matters to be considered in haste, but I trust that noble Lords will agree that it is imperative that we urgently address these issues.
I know that some noble Lords have asked about the delay between the court judgment on
In relation to interception, as I have told the House, we have reached a dangerous tipping point. It has become clear that without immediate legal clarity we could soon see a loss of vital co-operation. This is not a matter that we are able to leave until after the Summer Recess.
I express my thanks to both sides of the House for the support that they have given to the Bill. It has been constructive, I think, to have spent Monday talking to various Peers about it. I particularly pay tribute to the noble Baroness, Lady Smith of Basildon, for the constructive approach that the Opposition have taken. I look forward to an equally constructive debate in the House as we consider the Bill on Second Reading and at later stages.
I recognise that this is a tight timetable, but I hope that I have made clear the reasons for that. They were accepted in the House of Commons, which overwhelmingly backed the Bill yesterday. I am sure that noble Lords agree that we must ensure that the police and the security and intelligence agencies have the capabilities they need to protect the public and keep us safe. That is what the Bill will do. I beg to move.
My Lords, we are grateful to the Minister for his explanation of the content of the Bill before us today. We were clear in responding to the Statement last Thursday that, while recognising the immediate need to retain existing evidence relating to investigations into serious and organised crime and national security, the Government’s handling of this issue raises serious questions and concerns.
Those concerns remain, and I will come back to them, but, at the outset, I welcome the Government’s acceptance of the two amendments that we tabled yesterday in the other place, which gave statutory authority to both a six-month review of this legislation and a wider review of RIPA, the Regulation of Investigatory Powers Act—the legislation that provides for and underpins the whole basis of intercept evidence. That means a much more detailed and fuller consideration not just of the legislation but also of the context, application, implementation, impact and effects—and, importantly, the oversight—of the wider issues involved in retaining data and of intercept evidence. As the Minister said, that will be undertaken by the Independent Terrorism Legislation Reviewer, David Anderson, and we consider that such a comprehensive review is essential.
These are highly sensitive and crucial issues. Fast-tracking this legislation in the week before the House of Commons rises and just two weeks before your Lordships’ House goes into recess, when it could have been brought forward earlier does not inspire the confidence to which we and the public are entitled.
Clauses 1 and 2 provide for the retention of communications data—which is very similar to the powers provided for in the data retention directive and then in the 2009 order that gave effect to it. The directive allowed for data to be retained for up to 24 months, although the 2009 regulations provided a limit of 12 months, as the then Labour Government considered that to be adequate and proportionate. As the Minister explained, legal action then followed and, as a result, the directive was struck out in April this year. Although the UK regulations remain, they could be legally challenged.
We accept the necessity of retaining that data as an essential tool in investigating and providing evidence of some of the most serious and organised criminal activity. We also concur with the judgment of the Constitution Committee in its report today that the ECJ legal judgment means that the 2009 regulations lack legal authority and that new legislation is required urgently to replace them.
However, we are told that the following the ECJ judgment, an assessment had to be undertaken as to the legal framework and what action was required by the Government. Why “following”? I appreciate that the judgment was detailed, but the basic, fundamental issue was clear. Given how important it is, we find it absolutely incredible that, prior to the court decision, the Government appear not to have undertaken the necessary work to ensure that a new legislative framework could have been put in place with the appropriate scrutiny of both Houses of Parliament in good time.
In its report today, the Constitution Committee reinforces this point in its comment at paragraph 6, when it says:
“The contrast between the time taken by the Government to consider their response and the time given to Parliament to scrutinise the bill is a matter of concern, not least because of suspicions that are naturally aroused when legislation is fast-tracked”.
It is not the first time. Albeit on a different issue, in July 2012 when the courts struck out the statement of Immigration Rules, it appeared that the Government had not taken the necessary advanced preparation and no action was taken until after the court decision; it was rushed in in the few weeks before recess. This is no way to legislate. Since the first Bill we have been dealing with in this new Session of Parliament was the Serious Crime Bill, I have to press the Minister as to why this legislation was not brought in alongside that Bill to ensure greater scrutiny. We may still have had to accept some truncated intervals but it would have been a significant improvement on what we have now and would have removed some of the distrust and suspicion that fast-tracking has brought.
In its 2009 report Fast-track Legislation: Constitutional Implications and Safeguards, the Constitution Committee set out certain principles that should be addressed when Governments seek to fast-track legislation. Looking at this, it seems that many of those principles have now been met, either in the legislation or by the Government’s acceptance of our amendments yesterday in the other place. Noble Lords will be aware that in the discussions we had with Ministers, we were insistent on a sunset clause. That has been agreed. The 2009 report also referred to post-legislative review; the Government’s acceptance of our amendments regarding the six-month review of the legislation and a statutory basis for the review of the Regulation of Investigatory Powers Act meets that criteria.
The Constitution Committee listed other principles then but there is one on which I seek a distinct and precise response from the Minister, and it is raised again by the Constitution Committee in its report today. Why has this had to be fast-track legislation? I have been clear, and the committee is clear in its report, that the issue is not the time imperative which we now face to ensure that investigations of serious crime can continue but why the Government failed to bring legislation forward before now. The Government have a duty to provide Parliament with a significantly better response than we have received to date.
As we have heard, Clauses 1 and 2 of the Bill, which is now somewhat affectionately known as DRIP, provide for the continuation of powers to retain communications data collected in the UK for a limited time. We are clear that these powers are needed. This information is used to investigate and prosecute some of the most serious crimes, and of course it can be used to prove an alibi of someone wrongly accused of such crimes. My understanding is that these data, held temporarily for up to a year, are used in something like 90% or 95% of all serious and organised crime investigations, counterterrorism investigations and online child abuse investigations.
For absolute clarity, it would be helpful if the Minister could confirm that nothing in those first two clauses on data retention allows for the content of communications to be retained, only information relating to the fact that a communication has taken place. Can he also confirm that nothing in these clauses in any way extends or enhances the existing data retention directives and that, as the Home Secretary said in her Statement, the number of public bodies able to access communications data will be reduced, as referred to in the judgment of the ECJ? Is he able to say anything more about that at this stage and when the order limiting use of these data is likely to be brought forward?
The Minister commented earlier on the Delegated Powers Committee’s report on this issue. It addressed that in paragraph 7 and suggested using the “made affirmative” procedure to ensure that the regulations are in force before the powers can be exercised. That is a helpful and welcome suggestion, as he acknowledged, because it addresses the illogicality of having fast-track primary legislation if the accompanying and essential secondary legislation which provides safeguards is not made available at the same time. I heard what the Minister said in response to that report in his opening comments. If I understood correctly, he agreed that that should take place but I was not totally clear whether he was agreeing to the procedure or saying that some other procedure would be found to ensure that secondary legislation would be in place when this Bill comes into force. It would be helpful to the House if he could explain that when he winds up.
Clauses 3 and 4 make explicit the territorial provisions in RIPA to put it beyond doubt that interception warrants can be issued on companies which provide services to the UK but are based outside the UK. They also clarify how such warrants can be issued. As I think noble Lords understand—I am sure that the Minister understands this from the meetings that he has had with me and others—this part of the Bill is more complex and illustrates how global the communications world has become. Increasingly our communications are global rather than local, but local communications can also be provided by companies that provide services within the UK while their headquarters may be outside the UK. The distinction between national and international data is extremely blurred in the light of modern technology. Will the Minister confirm that such information is already sought and provided in certain circumstances, and that these clauses ensure that the legal framework is explicit?
We have heard from the interventions from the noble Lord, Lord Phillips, and my noble friend Lord Knight about whether the extraterritorial claims go beyond current legislation. It would be helpful to have further clarification on this. My understanding, and perhaps the Minister can confirm this, is that it does not extend beyond the current practice and application of the law but reassures companies of the legal basis to comply with the legislation.
Lastly, I want to address the issue of safeguards and the wider review. The Government have to recognise that bringing forward these measures under the fast-track procedure means that it is essential that Parliament returns to these issues but that it does so in a completely different way. As important as these measures are, we should all recognise that this is temporary. There is a sunset clause to say that these provisions will expire at the end of 2016, when new legislation will have to be in place. Before then, a much wider review has to take place that must inform any such future legislation and oversight arrangements.
We believe that data communication information and intercept evidence are vital in tackling the most serious of crimes, and for national security. I think that all noble Lords recognise that we do not live in an ideal society where all citizens are guaranteed total and absolute privacy, and that modern technology requires legislation protecting security and liberty to be kept up to date and relevant. Equally importantly, we recognise that there must be safeguards to ensure that any collection of information must be proportionate and justified, and that measures should be used only for the purpose for which they are intended. There must be safeguards to protect the public interest and public privacy. The public have a right to confidence that the collection and retention of data meets these criteria. The establishment of a Privacy and Civil Liberties Board, as mentioned in the Home Secretary’s Statement, is welcome but it will have to be set up and operated in a way that inspires confidence in its title. We also support strengthening and enhancing the Intelligence and Security Committee.
Previously, the Government have resisted our calls for an independent review, so we welcome their acceptance of our amendments in the other place yesterday to ensure the statutory review of RIPA and the wider implications of the legislation. There has to be more than that, though; following that review, and before new legislation, there has to be a wider public debate. I said at the beginning that these are sensitive issues; they are also complex ones that strike at the heart of the issues that we care about most. We care about crime, national security and public safety, but we also care about the rights and privacy of individuals. It is not unreasonable for the public to demand both security and liberty. We have to get that balance right. We have to have public understanding of the issues and public consent, and fast-track emergency legislation does not give us that.
We support the Bill and are content that it maintains the existing capabilities, and we are content that the proposals do not extend the application of existing frameworks but provide a secure legal position and fill an immediate gap to ensure that vital evidence will not be lost. However, these issues, with all their complexities and sometimes seeming contradictions, are not short term. They will be with us for a long time and we need proper, sustainable policies that command support, not just temporarily but for the longer term. The real challenge has yet to be met.
For all the concerns about the nature of today’s debate and the use of fast-track legislation, we should use this debate as a starting point. It is an opportunity to welcome the broader, wider review; to strengthen oversight; to properly and effectively consider the balance between liberty and security, between privacy and public safety, in a world where technology is developing faster than at any other time in history; and to ensure as far as possible that this is not a private debate but one that, through honesty and clarity, provides confidence that we can get the balance right.
My Lords, it is clear to me, having served as a police officer for more than 30 years, how important it is for communications companies to continue to retain the data that the Bill requires them to keep. Having said that, as a Liberal Democrat, I am extremely concerned to ensure that any invasion of privacy is undertaken only where it is absolutely necessary, proportionate and compliant with both the European Convention on Human Rights and the European Court of Justice judgment.
As the Minister said, there are two main aspects of the Bill: data retention and interception. On the first aspect, it is important, but not widely understood, that this legislation is about data being retained by private companies, not by the Government or their agencies, so that those investigating crime can make specific requests for data about specific individuals. It is also important, but widely misunderstood, that these data give only the context and not the content of the communication: the date, time, place and identities of those involved in the communication, but not what was said.
My noble friend Lord Macdonald of River Glaven will talk about his experience as a former Director of Public Prosecutions, but my experience is, as the noble Baroness, Lady Smith of Basildon, indicated, that there are very few prosecutions of those involved in serious and organised crime or terrorism that do not use such data. Indeed, some cases heavily rely on such data. I cannot overemphasise the importance of these data for crime detection purposes.
Despite the reassurances given by the Minister, there are justified and serious concerns about the haste with which this legislation has been laid before us. My noble friends Lord Carlile of Berriew and Lord Strasburger will take up those points. That is not to say that there are not justified and serious concerns about the use of these data. It is not just the data of those suspected of crime that are retained, but everyone’s data.
There are concerns that access to the data is being given where such action is not considered to be proportionate. In addition to the police investigating serious crime and the security services and the police investigating terrorism, other agencies, such as local authorities, can access these data for relatively minor matters. That is why the Liberal Democrats are insisting that the range of agencies that can access the data is restricted. Will the Minister please inform the House of what those restrictions will be?
There are also concerns that even those agencies that have legitimate access to the data might make requests that are not justified or proportionate. That is why the Liberal Democrats are insisting that annual transparency reports are produced to ensure that the number of requests does not significantly increase under this legislation. Will the Minister confirm that this will be the case?
The second area is the interception of the content of communication, which requires a warrant signed by a handful of senior government Ministers, and the apparent extension of this power overseas. Will the
Minister confirm that it was always implicit in the Regulation of Investigatory Powers Act, passed by the former Labour Government, that the power extended to companies whose infrastructure is overseas and that this Bill merely clarifies and does not extend its geographic reach? I know the Minister made that statement in his opening remarks, but it would be helpful for it to be emphasised because it is a major concern of many non-governmental organisations.
More generally, there are genuine and serious concerns about the whole area of intrusion into privacy and where the balance needs to be struck between privacy and security, as the noble Baroness, Lady Smith of Basildon, said. That is why the Liberal Democrats are insisting that there is a fundamental review of RIPA. We are very pleased that that was taken up in the other place by the party opposite and put into legislation. We need a fundamental review of all other legislation in this area and a sunset clause in the Bill to ensure that this review is undertaken. We need a proper debate in this country about how far we are willing to allow the state to intrude into our lives to keep us safe. Such a conversation has been delayed for far too long, and I am very pleased that, through the negotiations by the Deputy Prime Minister, this review will allow a proper discussion of these vital issues.
Can the Minister also confirm that an independent privacy and civil liberties oversight board will be established to advise the Government, not only on this review but on an ongoing basis, and that the Intelligence and Security Committee will in future be chaired by an opposition MP, to provide further confidence that there is a proper check on the activities of the Government and their agencies?
The new oversight board, the review of RIPA and the new annual transparency reports to be made to Parliament are all things that the Liberal Democrats supported at our recent party conference, where we called for a new digital Bill of Rights. Far from being a new intrusion into civil liberties, the Bill, alongside the package of changes also announced, will, I believe, strengthen civil liberties. We need to go further and enshrine a new digital Bill of Rights in statute, but these measures are an important step in the right direction.
The Liberal Democrats are very concerned about this whole area of privacy and security, which is why we have sought the concessions the Government have promised. That is why, when the Home Secretary saw this case as an opportunity to bring forward the communications data Bill again, we again blocked it. However, we accept these changes, on the basis of one final and vital point—that it is clear that this new Bill does not extend the power to intrude into people’s privacy.
As the Minister has said, this is not about extending the law further via emergency legislation rushed through Parliament. It is about retaining the status quo, which has been undermined by recent legal developments at the European Court of Justice, and the Government are in discussion with major non-UK telecoms providers. On that basis, and subject to the agreed concessions coming into force, we support the Bill.
My Lords, I should say at the outset that I am satisfied that the Government need the legislation before the House today. But like the noble Baroness, Lady Smith of Basildon, and others, I am very critical of the way in which Parliament has been treated on this matter. Taken with the subject discussed in the Private Notice Question earlier, this is a bad day for the relationship between Government and Parliament.
The Intelligence and Security Committee, on which the noble Marquess, Lord Lothian, and I represent this House, was warned a week ago today—last Wednesday, the day before the Home Secretary’s Statement—that this emergency legislation was to be introduced. The imminence of that Statement was widely reported in the next morning’s media, ahead of the Home Secretary’s Statement, so it appears that the media were briefed at the same time.
Why has Parliament been given so little time to consider this Bill? The two issues that it addresses have been apparent for weeks, indeed months. The ruling of the European Court of Justice was issued on
The second issue that the Bill addresses is the assertion that powers to require data from providers abroad have extraterritorial effect. But several of the communications providers based outside the United Kingdom have made no secret of the fact that they are willing to respond to requests for communications data only if they are required to do so by legislation. There is nothing new in that. Nor did it only become apparent last week that some of the major providers were based outside United Kingdom jurisdiction, or were about to move there. That, again, has been known for a long time.
The House may remember that following the Home Secretary’s Statement last week, which the Minister repeated, I raised this issue with him. He gave me a reply that at the time seemed good to me. However, on reflection, I find that I am not persuaded by it. The Minister explained that the delay between the ECJ judgment and the announcement of this legislation was due to the fact that the Government had been working with the law enforcement agencies and the data providers to get the details right. That is very understandable. Therefore the Government were discussing this problem with Microsoft, Yahoo! and other providers. Why were they not willing to discuss the issue similarly with Select Committees of Parliament when they were already discussing it outside the House? If the Government could reach a conclusion about the necessity for this legislation one week before the House of Commons went into recess, it beggars belief that they could not have reached that conclusion three weeks before the Recess, thus giving Parliament proper time to consider the Bill.
In 2012, when faced with the growing difficulty of getting access to communications data, the Government published a draft communications data Bill, as the House will remember. That Bill provided for a substantial extension of the Government’s powers, and the Government, very properly, provided the opportunity for a Joint Committee of both Houses and the Intelligence and Security Committee to examine the Bill and report on it. Both committees made some criticisms of the draft Bill, and the coalition decided not to go ahead with it as a result of the reservations of the Liberal Democrat members of the coalition. Unlike that Bill, this Bill does not break new ground, so the Government’s failure to give Parliament longer notice of it and enable Parliament to satisfy itself about its details is more difficult to explain. Those who take a conspiracy view of government might be tempted to speculate that having burned their fingers through consultation on the communications data Bill, the Government thought it wiser to bounce Parliament rather than to run the same risk again. The Minister owes the House an explanation of that.
I criticised the Government for their delay in consulting Parliament about the Bill. I have also asked myself whether the Bill is so urgent that it has to be treated as emergency legislation in the few days remaining before the Summer Recess. On this I believe the Government have a more convincing story to tell. I understand that the Government take the view that the UK regulations based on the European directive do not automatically lapse as a result of the ECJ judgment. One might therefore take the view that it could be several months before they could be challenged in a UK court, which would enable Parliament to consider the Bill properly in the autumn. However, I am advised that following the ECJ judgment, and ahead of a challenge, communications providers might feel obliged to destroy data that are no longer needed for their own operational purposes, and that evidence valuable for the prosecution of crime or prevention of terrorism might be lost. Similarly, the co-operation of communications providers outside the jurisdiction is sufficiently valuable in the prevention of serious crime and terrorism that I accept that the assertion of extraterritorial coverage should not be delayed. Therefore on the substance of the legislation, as I said at the outset, the powers in the Bill are necessary, subject always to the reservation that there has not been time to study its provisions in the detail that would have been desirable.
When the Intelligence and Security Committee examined the communications data Bill, which extended the Government’s powers, we were satisfied with the case in principle for extended powers, subject to important issues of detail. Although our committee has not had as much opportunity as it would have wished to examine the present Bill, it would be odd to cavil at the maintenance of existing powers which have been shown to be very important for the investigation and prevention of serious crime. Therefore, with regret that the Government have not given Parliament the time to examine the Bill properly in detail, I support the legislation.
My Lords, in view of the support for the proposals in the Bill, which has been voiced by the last three speakers—hedged around with caveats though that support was—I hope that I can be relatively brief in my support for those proposals. It is, of course, for my noble friend the Minister to reply to the criticism made by the noble Lord, Lord Butler, but it does not seem to me to be wholly unreasonable that the Government waited until they knew how they were going to proceed before putting proposals to Parliament or its committees. They could not know how they were going to proceed until they had completed their consultations with the companies to which the noble Lord referred. That does not seem to me to be unreasonable. However, that is really a matter for my noble friend the Minister. I propose to address my brief remarks to the substance of the Bill and the general proposals. They have not yet been challenged, but the debate is young and there may be those who may yet wish to challenge them.
One of my honourable friends in another place said yesterday that we should be cautious about allowing technology to infringe our freedoms. I would put it rather differently: I believe that we should embrace technology in order to protect our freedoms. The greatest freedom that any citizen can have is the freedom to carry out his or her lawful business without the danger of being blown up or being the victim of some other serious criminal offence. If the law enforcement authorities are to be able to carry out their job and protect that fundamental freedom, it is essential that they have the powers which are contained in this Bill.
The point was put extremely eloquently yesterday in another place. If noble Lords will permit me, I shall do something which I do not believe I have ever done before, which is to quote—with approval—from the observations of my immediate successor as Home Secretary, Mr Jack Straw. He said that,
“where there is a suspect for a crime, it is for a crime that has been committed in the past. The police will not know who that suspect is until they come to the police’s attention, at which point they have to get historical evidence. These days, part of that historical evidence will be in data records. They have to be able to access everybody’s data records in order to find those of one particular person, because the police, no more than the rest of us, are not given powers of clairvoyance with which to anticipate who is and who is not to be a suspect. Unless or until I hear from opponents of this Bill and of data retention how the police can be expected to identify in advance those who are going to be suspected of crime, I have to say that the whole logical basis of their argument completely falls away”.—[ Official Report , Commons, 15/07/2014; col. 734.]
Mr Straw was absolutely correct in those remarks. They go to the nub of the need for the powers contained in this Bill. He went on in his speech to explain that the supervisory powers over the authorities which have the ability to exercise the powers contained in the Bill has been extended and strengthened in recent years. I believe that that supervision is robust, and that it is adequate to protect the essential liberties of the citizen. I commend these proposals to the House.
My Lords, I have to start —like the noble Lord, Lord Butler, who made such an excellent contribution—by saying that the Government’s handling of this Bill has been a disgrace. I cannot repeat any better why it is a disgrace, and it would be ridiculous of me to try to compete with the noble Lord’s analysis. To have given Parliament three days when they have had three months to consider their response is a disgrace. Although my ministerial experience, at just five years, is much more limited than that of the previous speaker, whom I equally respect, particularly his experience as Home Secretary, I know that when there was the threat of a case in the European Court, Ministers would receive a risk analysis. I find it difficult to believe that no one in the Home Office had a plan B. If they were to lose that case, the thinking was not going on within government as to how they were going to handle losing the case and the uncertainty with which they would then have to deal with the RIPA powers. So I am afraid that that is my starting point.
I would also strongly agree with my noble friend Lady Smith of Basildon and others when they say that there is a need for Parliament to be seen to address the very real public concerns over the balance of privacy and security and the desire for personalisation of digital services. Some of us use digital services very heavily and are only just becoming aware of how much our desire for all those personal services that come through on our phones and tablets generate metadata that are now the subject of this legislation. Given the need for Parliament to be seen to address and debate, and lead a debate in the wider public, on those concerns, it is an affront to see the legislation railroaded using the fast-track mechanism. The basis of my comments is to analyse whether some of that is justified.
Yesterday, as is my wont, I gave some friends and some of their family who are over from Canada a tour of the Palace of Westminster. Highlights of that tour are always things such as the Magna Carta; there is a copy in the Content Lobby, and we will enjoy celebrating its 800-year anniversary next year. Then there is the statue of Lord Falkland, where the sword was cut to allow a suffragette called Marjory Hume to be taken off to prison in 1909, and the plaque commemorating Nelson Mandela speaking in Westminster Hall. Best of all is the broom cupboard in the Crypt, where Emily Wilding Davison hid on the night of the 1911 census, and the phrase at the end that Tony Benn put there:
“By such means was democracy won for the people of Britain”.
That tour contains in its highlights all those moments where we recognise hard-won civil liberties for us as individuals, both here and around the world. It is incumbent on us as a Parliament and those who serve at any given time in this Parliament to protect those liberties as strongly as we protect the safety and security of the people in this country.
We also need to remember that we have a different tolerance of our own privacy, because we agree to become public figures when we agree to come here, than do most people who live in our country. The information in Who’s Who would probably allow anyone who wanted to steal some of my information to do so, because it has my mother’s maiden name as well as my date of birth, which are the sort of questions that you get asked online. We understand that when we fill out the entry in Who’s Who and we are aware of the risks that we take when we do so. I hope when we make up our security information online that we are also aware of it and are accordingly cautious.
We also need to be aware of the issue of metadata. When I sat in the audience in the Donmar Warehouse theatre a month or so ago, as a guest of my noble friend Lord Mitchell, watching the play “Privacy”, we heard gasps from the audience when they found out how the default settings on an iPhone mean that Apple knows exactly where we are and exactly when at any given time, unless we change those settings. They were some of the greatest moments of theatre that I have seen in some years—it was my first profession— when I heard the gasps of the audience who saw the pictures of their houses flashed up on the back of the screen, because the researcher had researched them using metadata to show where they all lived. That is metadata, the subject of the Bill—and that is something that we have to be cautious about.
There has been a breakdown of trust in recent years between the people of this country and the state, particularly those pursuing criminal investigations. This is because of Hillsborough and Savile; because of phone hacking, and plebgate. We must have an active debate on a regular basis because of PRISM and because of the powers that the private sector and, through it, the state and GCHQ have to access our data. As a Parliament we have been remiss in not debating Snowden as actively as we should have and as actively as they have done in the US. If we do not, I think we are failing the public
I am persuaded by the arguments that Clauses 1 to 3 are necessary. I believe that security and the ability to continue criminal investigations mean that we have no choice but to pass Clauses 1 to 3 of this Bill. This was well put by the noble Lord, Lord Paddick. We need the status quo for criminal investigations.
I welcome the concessions that my right honourable friend the Shadow Home Secretary, Yvette Cooper, has won in getting the RIPA review and six-monthly reporting into the legislation. I worry that the thinking behind these reviews is through the prism—if that is not the wrong word—of security and law enforcement as the starting point, rather than the data privacy of individuals. I should also like to see a review of the operation of the Information Commissioner’s Office. According to its website, it is:
“The UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals”.
That office needs to be the guardian of members of the public on these issues. I hope the Minister will be able to give an assurance from the Dispatch Box that the Information Commissioner’s Office will be included in some of that review work.
Clause 4 concerns what I will call the new powers overseas because I cannot pronounce extraterritoriality very well. I struggle to see the emergency for this to be included in a fast-track Bill. In the report of the Constitution Committee, published today, paragraph 11 says:
“It is not clear why these provisions need to be fast-tracked”.
It may not be fashionable to quote Liberty but it says that Clause 5 of DRIP, read together with Clause 4 (8), gives the Government “new, express powers” to go to foreign webmail providers and demand that they hand over or obtain communications data. The objectives of the snoopers’ charter are therefore met via another route. That is their charge. If the Minister were able to respond to that, I think that supporters of Liberty would be pleased to hear it.
As I am sure your Lordships will all have done, I have received a letter from a list of highly credible legal experts on internet law. These are professors from a whole range of our best universities. They say that this clause,
“introduces powers that are not only completely novel in the United Kingdom, they are some of the first of their kind globally”
The letter continues,
“the proposed Bill arguably breaches EU law to the extent that it falls within the scope of EU law, since such mass surveillance would still fall foul of the criteria set out by the Court of Justice of the EU in the Digital Rights and Seitlinger judgment”.
They would say that the reassurance which the Minister gave, following my intervention, is not true. I am sure that everything the Minister is saying is on good advice and in good faith. I know him to be a completely honourable and truthful man and I do not question what he is saying. However, I would value it if he were able to publish or circulate to Members of your Lordships’ House the advice he has received that this legislation, particularly Clause 4, is not in further breach of EU law, and that it will not extend the legal rights—not the practice but the legal rights—of government in respect of these matters.
On balance, very reluctantly, I support the Second Reading of this Bill, but I question whether Clause 4 should continue to be in the Bill.
My Lords, I am not going to labour the importance of communications data in serious criminal trials. That has been widely acknowledged. However, I cannot think of a single major terrorist trial in recent years in which this material has not been deployed to significant and sometimes determinative effect. As the central purpose of the Bill is simply to preserve a situation in which this material may be accessed and used under appropriate lawful authority, I support it.
Of course, the ambit of the Bill goes far beyond phone calls. The world has changed, bringing with it the internet, e-mails and social media. I listened with great interest to what was said a few moments ago by the noble Lord, Lord Knight. However, I do not believe that any sane rule of law jurisdiction can confer on the internet a form of immunity so that what occurs there cannot be used as evidence of criminal wrongdoing if it is such evidence. As for extraterritoriality, it is difficult for me to understand why e-mails to and from individuals in the UK should be accessible if they are routed through a UK server but somehow inaccessible if they are routed through the United States. For my part, I prefer these matters to be resolved by legislation, which can be debated, amended, repealed and improved, rather than by nods and winks between our authorities on the one hand and overseas providers on the other, which is what may have happened too frequently in the past.
The point surely is the means by which the state obtains access to the preserved material. If these means are proportionate and prescribed by law, the process is consistent with the rule of law. There is nothing in the Bill that alters the mechanisms by which this preserved material may be accessed by the state. It remains, in criminal cases, by warrant following suspicion. The Bill has nothing to do with a snoopers’ charter or with
Operation Tempura. It mandates the limited preservation of data so that, where real suspicion exists, they may be accessed by lawful authority. It is not the bulk collection of data for random mining by the security agencies or the police. It is not a snoopers’ charter.
I make two other points. First, since the Snowden revelations first appeared in the Guardian and since we first learnt about Operation Tempura, many people have called for a wholesale review of the Regulation of Investigatory Powers Act. I have been one of them. We have argued that RIPA is hardly capable of regulating this sort of activity in 2014 and that the technological means of communication have altered so dramatically since the year 2000, when it was passed, that we need fresh legislation. The Bill brings that review in its wake. I welcome that very strongly. Secondly, many of us have looked with some admiration at the work of the Privacy and Civil Liberties Oversight Board, which was set up following a recommendation by the 9/11 Commission in the United States, and have called for the establishment of a similar board in our country. It seems, and I would welcome the Minister’s confirmation, that we will also have a privacy and civil rights oversight board in the United Kingdom.
From my perspective, these are powerful reforms, both coming in the wake of the Bill. My noble friend Lord Paddick referred to others. These powerful reforms show balance and the advantages of coalition. With respect to some of my noble friends, I very much doubt that we would have had these reforms without coalition. In combination, the Bill and these reforms seem to herald an environment with more respect for the appropriate relationship between national law enforcement imperatives and the prize of personal freedom. The Bill, set out as it is with clarity about extraterritoriality, in combination with these reforms will place us in a better environment than we have hitherto seen in this area. I welcome and support it.
My Lords, this debate has clearly attracted the attention of a large number of experts on this subject. We have already heard from five such experts on the Back Benches. My only justification for taking part is that I was the first ever Interception of Communications Commissioner, appointed as long ago as 1985. I think I can claim that, whatever my expertise may be, it at least antedates that of all the other experts in the Chamber today.
In the Statement that the noble Lord read the other day, he referred to the important role that communications data play in prosecutions. He mentioned that they are relied on in 95% of all prosecutions, and I have no reason at all to doubt that figure. However, as for the purpose for which the evidence is used, we were told that it is in order to identify criminal associations between people and possibly to answer a defence of alibi. Some of your Lordships must have thought that those were very narrow justifications or purposes for which the information is used, and they would have been very right to be puzzled by it. As we know, the evidence can be given to prove that a telephone conversation has taken place between two people. However, the contents of that telephone conversation cannot be used in evidence, yet that is by far the best evidence that there could be because it would mean that the criminals could be convicted out of their own mouths.
Before I am called to order by the noble Lord for venturing far beyond this Bill, he will understand why I am doing so, as this is a subject that I have been interested in for a very long time and I find it impossible not to mention it. No doubt, if there is to be a review of RIPA, it will be covered.
As for the Bill, it is clear that we must continue to be able to use communications data in court. For that reason, we must be able to serve valid retention notices on those who provide communications services to retain data for up to 12 months.
The 2009 regulations which contain those provisions are based on the data retention directive of 2006. Through no fault of ours, that directive has been held to be invalid by the ECJ—not the ECHR, which is of course the usual culprit in these matters. Therefore, it seems to me that we must give those regulations a better foundation. That is all that the Bill does; so far as I can see, it does not alter them or add to them in any way.
As for the other part of the Bill—the so-called extraterritoriality provision—I have certainly always understood that interception powers are applied to companies providing communications services in this country, wherever those providers are based. Apparently, that has now been questioned but, to my mind, the questioning is without foundation. All companies operating in this country must surely be subject to the same regime, and that is all that that part of the Bill achieves. It is extraterritorial—a word which always raises hackles—only in the sense that it enables us to serve warrants on companies which are based outside the country but operate within the country. Therefore, I can find no objection to that part of the Bill.
This, in my view, is a necessary and urgent Bill, and I can find no fault in it. I therefore urge the House to accept it.
My Lords, I join noble Lords who have expressed their regret—the noble Lord, Lord Butler, did so most forcefully—at the speed with which this legislation has come forward, and questioned whether there is a convincing explanation of why the European Court of Justice judgment, made in April, ended up with one day in the House of Commons in late July. I have my own suspicions as to how that happened. We seem to be quoting a lot from the other place, but if anybody reads Mr Jack Straw’s attempt to read the European Court of Justice judgment—which he found pretty incomprehensible and a load of porridge, as I think he described it—they will see that that may have been part of the extension of the problem. When this matter was raised in the debate on the Statement I warned the House that one is right to be deeply suspicious of emergency legislation that appears in this way. I should also say, deeply cynically, that that is even more the case when such legislation comes with all-party agreement. That is a time to fasten your seat belts and wonder what the background to it really is.
After that unhelpful opening comment for my noble friend, I should also say that I would regard it as pretty unacceptable if the Bill involved a major extension of powers. However, if it is true, as the Government maintain—and as is widely accepted, including by the Constitution Committee—that something that was lawful may now cease to be so, then a different situation obviously arises. Having said that, I certainly accept that this legislation is necessary. I absolutely recognise the critical importance of the retention of data and appropriately controlled interception in our fight against the increasing challenge of terrorism, crime, paedophilia, organised crime or whatever it might be.
The redeeming feature of the Government’s legislation is the sunset clause. I see that an amendment was moved in the other place that this should last only until Christmas, but that is quite inadequate. Having put this emergency legislation in place, we now need to have a serious look at the issues which arise out of it. I will quote again from the other place. I was impressed by the speech made by a former colleague, Yvette Cooper, who I was delighted to have serving with me under my chairmanship of the ISC. As a new Member of Parliament, she was immediately put on the ISC and made a very useful contribution to it. She rightly called for this not to be such a short sunset period, but to provide the opportunity for a major review of the issues of liberty and security. I am delighted to see that the ISC is going to conduct such a review. She also, in passing, made a comment about the many private companies that are making far more use of our private data than any police or intelligence agency has ever dreamed of doing. Some of us would be delighted to see this included as part of the consideration in any review that is conducted.
The former Attorney-General, Dominic Grieve, intervened to say that the question of interception is nothing new. This has been taking place since the telephone was invented. Alan Johnson then made an even more interesting observation that when he joined the Post Office there was a whole section in St Martin’s Le Grand post office entirely devoted to the steaming open of envelopes. Professor Christopher Andrew, in his study on this, identified that in 1969 that section opened 221,000 items. This is part of the background to some of these practices but it is not to say that any of this is justifiable unless it is strictly controlled, under proper legal authority and there is some accountability for the actions taken and the challenges that exist.
When I chaired the ISC, which goes back to when it started 20 years ago, it was clear that even then the agencies were struggling to keep up with the development of new technologies; with the amount of different systems and ways in which criminals, terrorists and others could communicate; and with how to keep some sort of effective protection against them. That was pre-Twitter, pre-Facebook and pre all the developments that have taken place.
The challenges now are definitely all the greater. Huge opportunities are offered to terrorists, to those involved in serious organised crime and to criminals who are very sophisticated in some of their methods of communication. It is a temptation for them. It is also a temptation for the agencies—not for any improper purpose but because they are trying to protect us and to keep us safe. They will be continually pushing against the limits of the constraints of legislation in the interests of trying to make sure that this country is as safe as it can possibly be. The challenges of oversight, of proper legislative authority and control, and of public confidence are very important.
Perhaps I may add one little personal note. I was delighted to see that Yvette Cooper said that if there were to be a Labour Government they would insist that the ISC should have a chairman from the Opposition, which is very wise. I have great respect for those who have been chairman of that committee, including Margaret Beckett and the current chairman, Sir Malcolm Rifkind. However, if an issue had come up that the ISC had to look at, and its chairman had been Foreign Secretary and responsible for the SIS, MI6 or GCHQ, maintaining public confidence when it produced a report would have been all the more difficult. I am delighted that that has become Labour Party policy and I encourage my noble friend to ensure that we move in that direction.
I am not sure that we have got the message across to the general public: they think that the retention of data is all about reading or listening to everybody’s messages and communications. I do not think that more than one person in 1,000 in this country knows what metadata means, which is the word that is frequently used. As my noble friend said in relation to data, we are concerned about the who, when, where and how, not about what people are actually saying. That is what we are talking about in relation to these data. I think that it is very important to do it.
I support this emergency legislation. If it goes through, it will protect our defences and ensure that they are in place in the next phase. Then we must look at the relationship between privacy and security. Although I have not heard much about it, I welcome the announcement about the privacy and civil liberties board. I welcome the work that it can do in ensuring that while we maintain our defences in a very dangerous world, the rights of the citizen, his liberty and his privacy, are properly protected as well.
My Lords, I start by saying that our nation needs secret intelligence agencies and the clue as to how open they should be rather lies in the word “secret”. Their job is to discover information, often hidden, that is important for our people’s security, safety and prosperity. It has always been important that adequate checks are in place to ensure that the agencies and the state behave in a manner that the nation expects of them.
What is unhealthy is the desperate desire generally, and particularly in some areas of the media, to see secrets and, indeed, to decide what should and should not be secret. Apart from anything else, it shows immense arrogance. I know that the days of thousands of men and women who worked at Bletchley Park keeping quiet for decades have gone, but the propensity of so many people today to divulge secrets about themselves and others on social media seems unfortunate. Indeed, in the case of national secrets it can be very damaging.
As the noble Lord, Lord King, mentioned, although there are repeated concerns about our Government’s legal and warranted access to communications, we seem to accept quite happily that communications providers and other private firms read the content of our e-mails and use metadata—I actually understand what metadata are—to find out how we shop, how we travel, where we travel, where we live and about our lifestyle for the purposes of advertising. They do all those things, and yet Liberty and other such organisations do not seem to mind at all. Those private firms are totally uncontrolled, while the state is very controlled in what it can do.
“Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security … the economic wellbeing of the country”,
and for the prevention of serious crime. As has been mentioned by a number of noble Lords, to ensure that our agencies stick to the law, they are overseen by the Intelligence and Security Committee, the independent commissioners for oversight, the Intelligence Services Commissioner, the Interception of Communications Commissioner, and the Investigatory Powers Tribunal. I know, from my time as a Security Minister and from travelling around the world, that we have one of the world’s strongest legal and regulatory frameworks governing the use of intercepted intelligence—much stronger than a number of countries in Europe. I believe that the intelligence agencies take their obligations under the law very seriously. When I was a Security Minister, it was implicit in the legislation passed by the Labour Government that it had effect on extraterritorial companies. That was the assumption, for the reasons explained so well by the noble and learned Lord, Lord Lloyd, and other speakers.
As the Minister said—it is worth repeating—the police and intelligence agencies currently use communications data to investigate crimes and catch criminals. They are crucial in 95% of cases. As a result of the European Court of Justice judgment, as was said, there is an imminent risk that this ability, which we have had for so many years, will be lost. The court said that it did not consider that the directive had the necessary safeguards, but it did not really understand our RIPA legislation. However, as far as that goes, we are where we are.
I share the view of my noble friends Lady Smith of Basildon and Lord Knight and the noble Lord, Lord Butler. I am not impressed by the speed with which this has happened. Something funny has happened; I would love to know what that is, and I feel that we have been slightly bounced. I am not happy with that, but we are where we are; that is the reality.
Nevertheless, I believe that this legislation is necessary and proportionate. It will ensure that the communications data required by the police and others continue to be available in the future, as they have been in the past. People refer to a snoopers’ charter, but I hate that expression; it really annoys me. We should call it the guardians’ charter— before Mr Rusbridger thinks that it has something to do with his newspaper, it is because I believe that the people who are doing it are guardians of the safety and security of us all. Snooping is a loathsome way of describing it. Do we really think that terrorists and criminals should have means of communication that they can be confident are beyond the sight of the Security Service, GCHQ and Special Branch acting with a proper legal warrant? I think not. It would be a disgrace if that were the case.
I suppose my parting shot is that I see the agencies and Special Branch as allies, not enemies. They are full of good, patriotic men and women working extremely hard, sometimes risking their lives for the good of our nation. They are part of our nation, not some alien force. Clearly, we must regularly review oversight mechanisms and it is right and proper, particularly in the case of emergency legislation, which none of us likes and is normally bad legislation, that we look in detail and include lots of safety caveats. Many noble Lords and Members of the other place have done that. I believe that we have the correct checks and balances in place, including the sunset clause. From what I have heard, they are sound and they are there. But speaking on an emotive level, and I like to go on the emotive level, I find it extraordinary that some of my fellow countrymen see the men and women of our agencies as the enemy. They are not. I would happily have them on my right flank in a fight. They work around the clock to ensure our safety and I believe the majority of our countrymen feel the same.
My Lords, I do not propose—indeed I am not qualified—to comment on the ruling of the European Court of Justice which has made it necessary to introduce the legislation that we are considering. But as a consequence of what I learnt as a member of the Joint Committee for pre-legislative scrutiny of the Government’s draft communications data Bill, chaired by my noble friend Lord Blencathra, I am sure that it is important—indeed necessary—that there be no doubt about the legality of requirements placed on communications service providers to make communications data other than the content of communications available, mainly for the detection and prevention of serious crime and of terrorist outrages, but also for other purposes, particularly child protection, and to retain those data for longer than they would need for their own commercial purposes.
Yesterday, the Minister described the Bill as a puncture repair to keep the car on the road, not a new tyre. I accept that the Bill does no more than restore the legal cover to the state in which it was, or was believed to be, before the European court’s judgment, and as such I believe that noble Lords can and should approve it. I also believe that the case has been made for extraterritoriality, as was said by my noble and learned friend Lord Lloyd of Berwick. But I remember an occasion in 1993 when the late Lady Thatcher, in a visit to the United States, took the US Secretary to the Treasury robustly to task for the US Government’s attempt to impose their powers extraterritorially. It was so robust that when she had finished the Secretary to the Treasury said, “Margaret, you need to watch your blood pressure”, to which she answered, “I should like you to know that my blood pressure is extremely low”.
The inquiries made by the Joint Committee chaired by my noble friend Lord Blencathra persuaded me, and I believe other members of the committee, that a strong and effective system is in place for ensuring that only communications data essential for a specific and justifiable investigation are required from the communications service providers. As another noble Lord has pointed out, this is a real safeguard to protect the privacy of the ordinary citizen going about his or her ordinary business.
In this business, there is constant tension between the need to respect and so far as possible to protect the right of the citizen to privacy in the conduct of his or her life and business, and the duty of the Government to protect the safety and security of the citizen as he or she goes about that life and business. In this tension, there are no absolutes as to how the balance between them should be struck. That balance changes as circumstances change, as the technology of communications changes and develops, which it does with great rapidity, and as new threats to safety and security emerge.
The state of legislation on communications data needs to be constantly reviewed as those changes progress. But, in the end, it is Parliament that must strike the balance. Parliament last reviewed the balance during the passage of the Regulation of Investigatory Powers Act 2000. To save myself stumbling over that in future, I will call it RIPA. The world of communications has changed—as the noble Lord, Lord Macdonald, pointed out—almost beyond recognition in the 14 years since 2000. The determination and ingenuity of those who commit serious and organised crime have not diminished. New threats, or potential threats, of terrorism have appeared in this country. It is high time to look again at the balance and to introduce new legislation to take account of those changes. We are asked today to approve a puncture repair. We should be looking at a new set of tyres.
The Government produced a draft communications data Bill earlier in this Parliament. The committee of the noble Lord, Lord Blencathra, thought that the draft Bill had not got the balance right, and made recommendations for changing it to rectify the balance. The Home Office then revised the draft Bill in the light of those recommendations and made improvements which, in the judgment of many of us, went a very long way towards meeting those recommendations and striking a proper contemporary balance between the right to privacy and the need to protect safety and security. Unfortunately Parliament was denied an opportunity to consider that revised draft Bill.
There will now be no opportunity, this side of the forthcoming general election, for Parliament to consider a full-scale and up-to-date new Bill, finding and striking a new balance between the right to privacy and the requirements of safety and security in this area of communications data. However, there will be a pressing need to do so early in the life of the new Parliament, both because of the lapse of time and the pace of technological change since RIPA was passed in 2000, and now because of the sunset clause in this emergency Bill.
I welcome the proposal, as provided for in Clause 7, to set up a review by the independent reviewer of terrorism legislation. I have one query about that. The independent reviewer is the reviewer of terrorism. It is not clear from the Bill whether his remit would extend to the use of the communications data regulations for purposes other than countering the terrorism threat, including the detection of serious crime and the other purposes set out in Section 22 of RIPA 2000. I hope that the independent reviewer will have the remit to go that far—he is well equipped and qualified to do so. However, the point should be made absolutely clear.
To change the metaphor, today's Bill, though urgently necessary, does no more than patch the sleeves of the existing and old fashioned jacket. What is required by the end of 2016 is a brand new jacket cut in the latest fashion.
My Lords, I begin by reminding the House of my involvement with the All-Party Parliamentary Group on Extraordinary Rendition and my trusteeship of Fair Trials International, since I shall want to refer to some of that in a minute or two.
It was quite properly said by the Prime Minister, and indeed by my noble friend Lord Howard in his comments a few minutes ago, that the first duty of a Government is to keep the citizens safe. Before us is a Bill that focuses solely on that objective. Moreover, it is a Bill with a sunset clause: one that is—for my taste —a trifle long, but nevertheless a sunset clause. Add to this the fact that my noble friend took the trouble to invite those Members of your Lordships’ House who were interested to a briefing—for which I greatly thank him. So what’s not to like? For me, like the noble Lords, Lord West and Lord Armstrong, the issue is of course balance: the balance between the need to keep us safe and the need to respect our privacy and our freedom. Never does the one trump the other. As the noble Lord, Lord Armstrong, pointed out, the balance is constantly shifting. It is that sense of balance on which I should like to focus in the next few minutes and on which I hope that my noble friend can provide reassurance when he winds up the debate later.
First, the Bill addresses a technical matter in what is a fast developing field—so fast developing that, we have been told, although the purpose of the Bill is to restore the status quo prevailing before the ECJ judgment, the technical developments in the industry in the mean time require an extension of powers. In the words of the Explanatory Notes, that is to ensure that,
“the definition of ‘telecommunications service’ ensures internet-based services, such as webmail, are included”.
The Explanatory Notes do not use the word “extending” to describe that; they use the word “clarifying”, which I suppose goes to show that one man’s clarification could be another man’s extension.
I am forced to ask myself what other aspects of clarification there are in the Bill on which I hope that my noble friend can reassure me. In particular, I hope that he will dwell briefly on the issues raised by Clause 4, which other noble Lords have raised, which concern extraterritoriality. Noble Lords will have received briefing papers circulated on the Bill which argue that RIPA as it stands has never had any extraterritorial powers. Indeed, your Lordships’ Constitution Committee raised that in paragraph 10 of its report. The Government may have acted as if it has, but the legal base does not exist. If that is the case, this would be another extension, not a clarification. Indeed, as the Constitution Committee pointed out, it emphasises the unfortunate necessity of rushing this through if we are actually extending the law, not merely putting a patch on a puncture.
Then there are questions about the utility of the provision: whether modern encryption and other safeguarding mechanisms render any data collection of little or no value. Perhaps my noble friend will enlighten the House later on whether he has had discussions with service providers on that point.
Finally, there are those who want to be reassured that the provisions of extraterritoriality are a one-way street: that there is nothing in the Bill—mutual recognition implied, or the like—which would enable overseas organisations to reach deeper into the personal information of UK residents.
In the Statement that the Home Secretary made on
“It has 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”.—[Hansard, 10/7/14; col. 280.]
Those are appalling crimes, and it is excellent that modern techniques have brought perpetrators to justice, but the use of those high-profile cases does not mean that we should suspend or blunt our critical judgment about the proposals before us today.
As a parallel example, my noble friend knows my concerns about certain aspects of the European arrest warrant. Defending the warrant, Ministers always use the high-profile cases of murderers, terrorists and paedophiles who have been speedily returned to justice. That is very good, but less publicity—or no publicity—is given to those cases where the process goes awry and innocent people suffer greatly. I am anxious to explore whether, in passing this legislation, we may be opening similar challenges or difficulties.
One answer to the conundrum given in the briefings is that the legislation refers only to the making of a communication—that is to say, as other noble Lords have said, the when, the where and the with whom—not its content. The Minister and the noble Lord, Lord Paddick, referred to that in their comments. However, as I understand it, this is another area where technological developments are beginning to blur familiar distinctions. The noble Lord, Lord Knight, referred to the term “metadata” as being increasingly used to describe the ability to build upon limited information to create a broader picture. My noble friend Lord King said that he did not have a definition but I do, provided by the invaluable Wikipedia. It says:
“Metadata assists in resource discovery by ‘allowing resources to be found by relevant criteria, identifying resources, bringing similar resources together, distinguishing dissimilar resources, and giving location information’”.
I am concerned that this could—not does but could—take us perilously close to the general mining and profiling of our fellow citizens and, in this regard, it is important to note that the House of Commons Library briefing note provided for the Bill makes it absolutely clear that the use of metadata does not require a warrant from the Secretary of State. With this so-called clarification, the Bill may open up a much greater degree of surveillance of the ordinary citizen than has to date appeared possible.
Given the complex nature of the Bill, it will therefore be vital that the public have confidence in these proposals if they are transparently operated and the Government of the day are frank about them. Those of us who have been involved with the UK’s involvement in rendition have not found it easy to establish such trust with the Government. For years, the previous Administration denied any complicity in rendition but have had to admit that in 2002 two rendition flights landed in Diego Garcia, the British Overseas Territory in the Indian Ocean with a base leased to the US Government. Now we are told that flight records since 2002 are,
“incomplete due to water damage”,
so I fear that the truth will probably never be known.
I share my noble friend Lord King’s concern about the importance of the role of the privacy and civil liberties oversight board. To do its job effectively, its members need the appropriate powers. I understand that there are some terms of reference being circulated; I am afraid that I have not yet seen them. However, the sort of questions are not just about the terms of reference. They are questions such as: will the members of the board be guaranteed a proper degree of security clearance, and how will it actually operate? Will it be a day a week for senior grandees to glance over the issues and make a few ex-cathedra statements, or will they be expected to get their hands dirty and do the unglamorous but necessary work of ensuring that the proper procedures are followed? Only if the latter approach is followed will the public be reassured that the right balance between security and liberty is being struck.
Twelve years ago, in the spring of 2002, another piece of legislation concerning the Anglo-US extradition treaty was rushed through in response to the terrorist threats, post-9/11. In the event, most of the requests under that agreement have been about financial crime. There is nothing wrong with that but it was not what it said on the tin. Latterly, we have had the bizarre case of Mr Gary McKinnon. He may have been an unusual man but he was no terrorist: his crime was to embarrass the Pentagon by hacking into its computer systems. As my noble friend Lady Browning memorably said, the Pentagon should have hired him rather than seeking to imprison him. As we consider this legislation, we need to bear in mind these sorts of unintended consequences that result from rushed scrutiny.
My Lords, like the noble Lord, Lord Hodgson, I have some problems with the Bill. It is utterly wrong that the Bill is being introduced as emergency legislation. Others may be quite sanguine about that but I am not. It has involved drawing down this expedited procedure when no emergency need have existed at all as there was plenty of time in the past three months to have dealt with this expeditiously. That is a serious abuse of Parliament. The use of emergency procedure to enact laws that are controversial and have a significant impact on individual rights is happening too often. This is not the first time it has happened and it is the sort of rubber-stamping that makes for careless law.
It is my concern that the Bill is seeking to provide a lawful basis for the unlawful exercise of power by the UK security agencies. I say that because the Snowden disclosures showed that in fact there was a sharing of information by GCHQ with the American security services. They were looking into metadata in ways that none of us knew about and which were certainly not covered by RIPA. It meant that the security services were involved in activities that were not covered by law. It is right that there should be new legislation but this is not the way to do it. It is deeply regrettable that we are having a bite at it in this way.
I am concerned that the excuse being made is that companies would have rushed out and somehow destroyed material in response to the judgment of the European Court of Justice. However, the Government were involved in deep and amicable consultations with provider companies. Indeed, their involvement in those consultations was given as the reason for the delay. Provider companies want to co-operate with the Government. It is in their interests that they have the support of government for many of their activities. I do not believe for a minute that undertakings could not have been given that there would be no rush to destroy material in the knowledge that legislation was in the pipeline.
Although it is generally accepted that RIPA is not fit for purpose—as the noble Lord, Lord Macdonald, said, it was enacted when the internet was in its infancy and no one anticipated that technological changes would enable government agencies to obtain enormous quantities of data on the personal activities and lives of individuals—I do not think it is right to embark on legal reform without full and well informed debate. The noble Lord, Lord King, is right. There is still inadequate understanding by the public of what this legislation will mean, but it is no wonder when there is not proper parliamentary debate and public discussion about giving the state intrusive powers about which they should be concerned. Information is not being given to the public.
When all three main parties agree to a piece of legislation behind the arras, the smell of rat regularly permeates Parliament and it is usually a signal that something else is up. The claim is made that this legislation merely maintains the status quo until a sunset clause expires in December 2016. How does the status quo comply with the ruling of the European Court of Justice that the UK’s data retention directive was contrary to law? And why is the sun setting so far in the distance?
I understand that the main political parties do not want accusations being made of being soft on terrorism and do not want finger-pointing. That is why this is being dealt with in this way. That is the truth and the reality of why we are rushing the Bill through Parliament now. It is a sad reflection on the quality of debate about terrorism that there is so much finger-pointing. We live with the fear that we would be blamed if a particular party were to say, “Hold on a minute”.
Legal experts in this field are clear that the Bill now being rushed through Parliament does not even try to comply with the ECJ judgment. Furthermore, DRIP does far more than replace the data retention regulations. It makes substantive changes to the interception warrants, interception capability and communications data access provisions of RIPA. We should always remember that it is the practice of those who draft legislation about the functions of the security services to make it as complex and impenetrable as possible, and that is what this legislation is—obscurantist lawmaking at its height. It is very difficult to fathom what is going on here. One of the tricks is to mix definitions. If Europe uses one set of definitions, we will find that the drafters of legislation here invent their own. If an old law exists, drafters choose to create new language but at times slip into old legislative usage just to confuse.
What we are definitely seeing here is a broadening of RIPA definitions. It is also important to know that words such as “facilitating” flag up to any lawyer that we are moving into “broad interpretation” territory. On
“The bill clarifies how the current definition should be interpreted, but this cannot change or extend the meaning of the definition in RIPA to capture new services”.
The lawyer Graham Smith says that this is “twaddle”, while the Explanatory Notes attached to the Bill say explicitly that it is intended that webmail and other internet-based services should be caught. There is a suspicion among many experts in the field that something else is going on here and that a significant change is being made without properly explaining the purpose behind it. That should be a matter of concern to this House.
The Minister tells us that it is important to be able to access communication data that can help to place a person in a certain vicinity at a particular time through their phone records. I agree with those who have spoken, who are criminal lawyers like myself, or who have been involved in very serious cases, that there is no doubt that it is invaluable to be able to access this kind of material. In my view, it is right that there should be the retention of data and interception, but with proper warrants and proper controls.
We should all recognise that our phones and other technological equipment are enormously revealing about our movements, activities, associations and interests, and that crime warrants are sought for this kind of material. However, we have to recognise that the disclosures of Snowden showed that we are regularly seeing programs such as Trojan or backdoor programs enter into our material without, one suspects, those kinds of warrants being obtained. Similarly, clouds can be accessed and captured so that they can be used for intelligence purposes without proper procedures being applied. If that were to be the case, we should know about it, and we should be insisting on proper controls. There is no doubt that there are important issues here requiring primary legislation, but they should not be subject to rushed law and they certainly need proper debate.
There is another matter of concern. It was announced in the past few days that there will be a privacy and civil liberties board, which will have four members. That may be very welcome but it will replace David Anderson, the independent reviewer of terrorism legislation. Will the new board have the same access to sensitive intelligence? I am glad that the noble Lord, Lord Carlile, is in his place and will be speaking shortly. The argument was always made that having just one trusted individual made that office effective and watertight. I would be interested to know whether it will be the same with the new board.
Secrecy is required for certain aspects of state function, but too often secrecy is overclaimed. It can be a cover for abuse, which is what we are seeking to prevent. That is why safeguards are essential and it is why Parliament has such an important role. The procedures that we are discussing today should have had the opportunity for much greater scrutiny. Civil liberties have to be protected and they require constant vigilance. They are eroded usually by creep, in small slices at a time, and we have to be the guardians of civil liberties and our constitution as well as our security.
My Lords, like most noble Lords who have spoken, I support the Second Reading of the Bill on the understanding that its purpose is to preserve evidence of a kind that is currently available to the courts. Indeed, I congratulate the Government on their declared intention to increase the safeguards over the use of communications data, though I shall have something to say about safeguards a little later.
I am concerned that some near-hysterical misinformation has appeared in the media in relation to the use of the data concerned. The canard has been sold—I think that is what you do with canards—wholesale that the Bill is directed mainly, even exclusively, at terrorism. That this is not so is demonstrated by one statistic from the Crown Prosecution Service—my noble friend Lord Macdonald adverted to this—which is that 95% of its serious and organised crime cases include evidence of this kind as part of the proof against the accused, and sometimes it is the crucial proof. There is a necessity to ensure that such crucial evidence remains available and, of course, it is important that service providers know what the law is and where they stand.
All that said, I have three reservations with which I hope the Minister can assist the House. They have grown over the days since the Bill was announced, particularly on reading yesterday’s debate in another place. The first is my concern about the case for urgency. I, too, noticed the observations and reservations of the Constitution Committee, which were published this afternoon. The reasons given by the Home Secretary in the other place on
Davis on almost everything, and he has been trying equally hard to disagree with me, but on this subject I agree with him. I also particularly agree with the noble Lord, Lord Butler, who brings to this discussion all his experience of the workings of government. I can see that a shortened period for this legislation might have been necessary, but one day in the Commons and two here just are not sufficient for legislation of this importance. Indeed, with a proper period, the new safeguards could have been included in the Bill and could therefore have been part of a holistic package, as opposed to a less than holy promise. There is absolutely no evidence that I have seen that this Bill could not have been introduced a month ago, and given that we are sitting until, I understand,
I now turn to my second reservation. Nothing more than a summary of the intended future safeguards is available. That is hardly a reassuring position. As I understand it, there has been precious little consultation about them outside Parliament. Will the Minister tell your Lordships who outside Parliament has been consulted formally on the safeguards? One of the things that were announced yesterday was the abolition of the independent reviewer of terrorism legislation, who is currently the brilliant David Anderson QC. We have heard much entirely justified praise of him in this debate, but he is being abolished. Can we have an explanation of why? Will the Minister please tell the House when Mr Anderson himself was first informed of the intended abolition of his post? How much earlier than yesterday was it? How long was he given to respond to the proposal? What arrangements exist for a full and proper consultation on the proposal to abolish the independent reviewer, who has the advantages just mentioned by the noble Baroness, Lady Kennedy of The Shaws? Why does the Minister believe that the replacement of the independent reviewer with a committee or board will strengthen the scrutiny of issues, subject to limitations that are necessarily dictated by national security?
I turn to my third concern, which is the about the terms of reference of the proposed, so-called independent privacy and civil liberties board. The first thing I say to my noble friend is: let us be honest about what this board is. It is the counterterrorism oversight board, and we would do well to adopt the title used in the United States so that it is what it says on the tin, as it were. I ask my noble friend to answer these questions. Was Mr Anderson consulted about the terms of reference for that board, which have been published today? If he was, were any of his comments rejected as part of the terms of reference, and if so, which ones? I am sure that the Minister will have information at his fingertips within minutes. In particular, there is the crucial question raised by the noble Baroness, Lady Kennedy. Will members of the board enjoy developed vetted access to be able fully to scrutinise counterterrorism activity by the services? It is crucial that, if his post is abolished, someone should have that access. It is important to have a positive assurance of that, otherwise what has been announced is a seriously retrograde step in terms of scrutiny.
Mr Anderson, and, indeed, I before him, spent more than 100 days a year up to now as independent reviewer. At the worst time, after 2005, in one year I spent 144 days, I think, as independent reviewer. It was certainly more than 140 days. Will the members of this board be expected to give, and will they be paid for, the 100-plus days per year that independent reviewers of terrorism legislation have given in every single year since 2001? Can we be assured—I speak here of David Anderson, not of myself—that the people on this board will be of such a quality that they are able to scrutinise such matters using their past analytical experience? It is not something you can just walk into out of some other discipline.
I notice that one of the aims is expressed in the terms of reference, rather oddly, as being to:
“Provide public assurance that the current arrangements ensure”,
satisfactory regard to, “privacy and civil liberties”. May we at least have an assurance that the words “or otherwise” will be added so that the mission is not just to ensure that the Government are doing the right thing, but to be able to state clearly when they may be doing the wrong thing?
Also, can the Minister assure us that the current requirement for an annual review of all sensitive counterterrorism legislation will be part of the terms of reference of this board if the independent reviewer is abolished? That is something that happens now and it has proved peculiarly useful. My suggestion to your Lordships would be that if the Government wish to create this board—and, as I said at the beginning of these comments, I am very much in favour of increased safeguards—alongside they should continue to have the independent reviewer of terrorism legislation, and he can usefully chair the board as well. It might involve more than 140 days, but I am sure somebody could be found to do it because it is an extremely interesting and intellectually rewarding task.
I apologise for taking up more than the average time in this debate, but the points I have sought to make are all, in my view, important ones that we could and should include in legislative scrutiny, were we to have a more normal timeframe. In the absence of that, I invite the Minister to respond to the questions I have just raised.
My Lords, it was on a Wednesday in July, like today, just over nine years ago, on
The rumour was that the Bishop had been unable to come here because there had been an electrical surge on the Underground, and his line had been out of operation. It was only when we got upstairs to our rooms on the west corridor that we realised the real horror of that day. Those who remember it will recall how London became completely seized up with traffic jams, no public transport was able to move, mobile phones would not work, and the general feeling was one of extreme distress—horror at what had happened to the victims, and immense inconvenience and disruption to the way of life in London.
I mention that because whenever I am confronted, in court or indeed in here, by this kind of issue, about the balance between security and the right to privacy, I seek to find where the balance should be struck, realising how immensely important it is, from whichever side one is looking at the problem.
Against that background, one must commend the security services for the painstaking work that they do on our behalf, which is, no doubt, greatly assisted by the data that we are thinking about. One should also appreciate the immense burden that rests on Ministers, who have to take some of these acute decisions on our behalf, balancing, as they have to, privacy against security.
This is an extremely difficult issue, but on the principle of the measure I am in no doubt—as I think almost all of us agree—that the Bill should have a Second Reading. Its purpose, and the principle that lies behind it, seem to me entirely beyond question. The problem, as always when one considers matters in this House, is one of detail—and it is the opportunity of detailed scrutiny that is, in effect, being denied to us by the speed with which the measure has come forward.
Speaking entirely for myself, I think it is a great shame that the Government have excited criticism of the kind that they have, which undermines public confidence in an area where, as others have said, public confidence is so important. It is a great pity, it is a great disadvantage, and it is difficult for us, who are coping with detail in an unfamiliar area, to meet the requirements we have to meet in order to contribute effectively to the debate.
For my own part, I started my study of the issue by looking at the judgment of the European Court of Justice that gave rise to all the problems, in the case called Digital Rights Ireland, reported in April this year. It is an interesting, and quite easily read, judgment, and quite a lot of it entirely supports what the Government seek to do. The basis of the criticism is Article 7 of the European Charter of Fundamental Rights, to which this country is not a party. However, one has to bear in mind the fact that Article 52(3) of the charter says that in so far as it,
“contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms”— the ECHR, to which we are, of course, a party—
“the meaning and scope of those rights shall be the same as those laid down by the said Convention”.
So there is a read-across between Article 7 of the charter, which the European Court of Justice was talking about, and Article 8 of the convention, to which the noble Lord, Lord West, referred, which contains the guarantee of the right to privacy. However, it is extremely important to appreciate that, as he also said, it contains the balancing provision that:
“There shall be no interference … except such as is in accordance with the law and is necessary in a democratic society”.
One is entitled to take that into account in considering what the court was talking about.
When the court analysed the case—this is in paragraphs 41, 43 and 44 of the judgment—it was satisfied that there was a genuine national interest in what the measure sought to do, and indeed in the objective of the measure that it was considering, which was the directive. In its judgment the court clearly makes the point that in connection with such issues,
“the retention of … data may be considered to be appropriate for attaining the objective pursued by that directive”.
So far, so good. But what was the basis of the criticism? One has to examine the judgment a little bit to understand what caused concern, and ultimately led to the decision that the court gave. We find that in paragraphs 37, 45 and 46, and also paragraphs 59, 64 and 65. It was the detail of the wording of the directive, and in particular the wide-ranging and potentially serious interference with fundamental rights that it gave rise to, that caused the problem. This is the crucial sentence, in paragraph 65:
“without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary”.
We find the same phrase—
“limited to what is strictly necessary”— in paragraph 64. The noble Lord, Lord Paddick, picked up that aspect when he used the phrase “absolutely necessary” in his speech. This is a high test, and the court found that it was not satisfied by the directive.
That leads me to my first point for the Minister. In Clause 1(1) of the Bill, everything depends on the view taken by the Secretary of State about the requirement being imposed. The phrase used is “necessary and proportionate”. I would be grateful if the Minister could explain where that phrase comes from. It is not the phrase used by the European Court of Justice, and one might be forgiven for thinking that it does not constitute quite as high a test as the strict test that the court laid down in the phrase, “strictly necessary”.
The wording is important, because any court that is testing the ability of the scheme that the Bill contains to satisfy the requirements of the convention will look at the precise wording and see whether the guidance given to the Secretary of State, who has to take the decision, is sufficiently accurate and precise to enable him or her to fulfil the requirements of the directive. I am disappointed, I must say, that the carefully chosen wording of the court was not adopted here, and I would be grateful for an explanation of why that was not the case.
This is not an opportunity to go into detail, but one of the unfortunate aspects of the procedure being adopted is that we are being asked to rest on the basis of amendments to a code of practice, and no doubt further regulations, which we have not seen. So a great deal of this has to be taken on trust. I am prepared, in this area, to repose a great deal of trust in Ministers.
But the wording of the test that they are being asked to apply is absolutely crucial. If one is seeking a sound foundation—a legal basis that puts the matter beyond doubt—one needs to choose the words extremely carefully.
Finally, I come to the question of extraterritoriality. Like others, I have been given suggestions—including a considerably detailed one—that there is an extension of the investigatory powers. I think I owe it to Jack Straw, as the noble Lord, Lord Howard, mentioned earlier, to make this point: in Section 2 of the Regulation of Investigatory Powers Act there is a definition of one of the expressions in the Act—“telecommunications system”. That definition says that a “telecommunications system” means a system,
“whether wholly or partly in the United Kingdom or elsewhere”.
Jack Straw stressed the words “or elsewhere”, and said that built into the definitions in RIPA from the very beginning was a recognition that such systems operate widely well beyond our own shores, so it was wrong to think that extraterritoriality was something new. I accept that, and here is the foundation for that proposition, right in Section 2 of RIPA. I also accept that since then there has been some informal method of imposing extraterritoriality—no doubt very properly, with the co-operation of overseas bodies—but that, the way things are nowadays, there is a need for that to be regularised. That is what Clause 4 is all about. However, I have a word of warning. Warrants are all very well; you can write a warrant and get it issued. The problem is in its enforcement.
I will give two examples, one of which takes us back to 1987 and the Zircon affair, which may not mean very much to us nowadays. The journalist Duncan Campbell was working with the BBC to present a series of programmes called “Secret Society”. One of his programmes was about the funding by government of a spy satellite, which in those days seemed a horrifying thing to do—perhaps we are now so used to them that we do not mind them. Nevertheless, Duncan Campbell thought that something extremely sinister was going on, and the BBC, in Glasgow, as it happened, had in its possession a great deal of material on that. Special Branch knew about that, got a warrant in London, went over the border to Glasgow and delivered the warrant to the BBC, which caved in and gave a lot of material to Special Branch. The BBC then consulted its solicitor, who looked at the warrant and said, “This is no good, because it hasn’t been passed through the system for the enforcement of warrants in Scotland—no sheriff has been asked to look at it”. So all the stuff had to be handed back. Special Branch went back over the system, tried a second time—got it wrong again—and the third time got it right. All sorts of things could have happened, although I do not suppose that much happened, because they were dealing with paper copies. However, nowadays it is so important to get the system right. Has thought been given—as has obviously been given to the mechanism for the creation of the warrant in the first place—to its enforcement?
The other example is a reported decision of this House in a case called Granada, Television, in 1999, which was the reverse problem. The Scots were trying to enforce a warrant or to obtain material in Manchester under a warrant for use in Scotland. They ran into all sorts of difficulties, which are described in that case, because of the problems of cross-border warrants. Therefore, while a great deal of thought has been given to the design of Clause 4—which I admire, as it deals with many of the problems—has thought been given to how you can enforce these warrants on people overseas? What about their enforceability in the United States or in China and the mechanisms which are necessary to make them effective? There is enough here that goes so far within our own shores, but the enforceability of warrants overseas may matter at the end of the day if we are to move beyond the informal process into an area that stands up to scrutiny in a court of law.
My Lords, I am very grateful to the noble and learned Lord, Lord Hope of Craighead, for that brilliant explanation of the judgments of the European Court of Justice and related matters. I find it intimidating to continue now with some rather tedious political points after his brilliant exposition.
I will not detain your Lordships very long this evening. I simply want to record my strong support for this essential Bill and to urge your Lordships to give it a speedy passage on to the statute book. However, before I say anything more, I declare an interest as a strategic adviser to the head of public sector business of Telefónica UK. As an international company, it provides communications services to customers in the UK and therefore will be directly affected by the Bill when it becomes the law of the land. I have never discussed any aspect of the proposed legislation with anyone at Telefónica, and my connection with the company is declared in the register of members’ interests. Nevertheless, I thought it wise to mention that to avoid any possible misunderstandings at a later date.
As was pointed out by the Minister and many other noble Lords who have spoken, communications data of the kind affected by the court’s decision are critical to the success of almost all investigations of serious and organised crime, including rape, child sexual exploitation and murder. Of course, they are also critical to the prevention of terrorist activity at home and abroad. That material is also vital to securing convictions and, as one or two noble Lords have mentioned, to protecting the vulnerable who are at risk of serious harm. That is why we cannot afford for there to be doubts surrounding the legality of our communications retention and investigatory arrangements. In the speech of a month ago which I referred to, I also urged the Government, in putting things right by removing those doubts, to “act boldly and courageously” so that our law enforcement, security and intelligence agencies were able to use the full range of available technological systems and equipment to assist them in their mission of keeping us safe.
In saying that, I had in mind the communications data Bill, which, sadly, we will not consider in this Parliament. I very much hope that we as a nation will not have cause to regret the decision of the coalition Government not to proceed with that Bill at this time. I say that not only because I believe that a Bill of that kind is essential if our policing, security and intelligence services are to have even half a chance of keeping up with the ever-expanding capabilities of the information processing and communications industries. I say it also because that draft Bill was described in this House last Thursday by the noble Lord, Lord Armstrong of Ilminster, and again today, as,
“a good Bill which balanced the essential needs of civil liberty and privacy against the Government’s first duty to protect the security and safety of the citizen”.—[ Official Report , 10/7/14; col. 288.]
That Bill has been ready for introduction for some time now, and has been sidelined for purely party-political reasons, despite a large amount of work having already been done on it by both the Government and the Joint Select Committee under the chairmanship of my noble friend Lord Blencathra. How sad that we should play politics with an issue that is so central to our national security and to the safety of our communities.
Be that as it may, I must admit that it would be difficult to characterise the provisions of this Bill as either bold or courageous. We have heard on a number of occasions from my right honourable friend the Home Secretary and from the Minister that this is a narrow and limited Bill, which does nothing more than maintain the status quo and ensure that police investigations do not suddenly go dark and criminals escape justice. I am sorry about that—it all sounds a bit too cautious for me. However, perhaps it is just as well that the Bill is not more courageous and bold. As we all know, courageous and bold Bills have a tendency to excite a good deal of political controversy, and therefore take up a good deal of parliamentary time. In the present instance, time is something we do not have very much of.
It is essential that we get these provisions on the statute book as quickly as possible. I see no justification for wasting precious parliamentary hours and days arguing about whether the Government should have brought the Bill forward more quickly, made it shorter or more comprehensive, or anything else. There will be plenty of time to argue about the Government’s management of the Bill and about their general approach to public safety and fighting crime in the run-up to the general election, which is about to begin, if indeed it has not already done so. The fact is that the Bill does the job that needs doing now. It does it efficiently and effectively. Those who want to have these issues discussed at much greater length can take heart from the fact that the Bill contains a sunset clause, which ensures that it will be repealed on
Parliament acts to continue it, with or without amendment. That is why I endorse the Bill without reservation and urge other noble Lords to do the same.
My Lords, we have heard a number of speeches this evening which, unfortunately, have been dismissive of public concerns about this Bill, but I am glad to say that the general tenor of the debate has been very thoughtful. We have heard some very sophisticated speeches which have engaged with this subject in considerable detail. I pay particular tribute to the speeches from the noble Lord, Lord Hodgson, the noble Baroness, Lady Kennedy, the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Hope. There were a large number of questions in those speeches, and I hope the Minister will take time to address those when he sums up and to provide the House with suitable considered answers because I do not think that the public concern in this matter is misplaced.
The concern is probably growing because of the volume of communications and data available. It is certainly growing because of the phenomenon of metadata which has already been dealt with in a number of colleagues’ speeches. The concern has also grown because of a major scandal which, curiously, has not been mentioned. The Snowden revelations revealed that the NSA—it has a symbiotic relationship with GCHQ, as the House will know—was severely in breach of American law. The chief executive of the NSA gave answers which were certainly less than full and frank, to a committee of the US Congress. That sort of incident can only greatly exacerbate public concern. Emergency legislation on such a sensitive matter is a perfect formula for maximising public anxiety. So it is not surprising that there are some very serious questions in people’s minds. It is important that Parliament makes sure that it does its job today, and indeed tomorrow, and makes sure that all the various angles of concern are pursued and addressed and that we get suitable answers from the Government.
I agree with the remarks of my noble friend Lord West. Having mentioned the NSA, I want to make that clear. I also have had a lot of professional dealings over the years with officials of the three major agencies. I have always found them—and genuinely believe them to be, in their vast majority—people of great professionalism, who are patriotic, extremely well motivated, entirely honest and concerned to obey the law. So I agree with what my noble friend said, and I endorse those remarks. However, at the same time, we need to make sure that the legitimate concerns are properly addressed.
We all have to strike a balance this evening in how we decide to deal with this matter. My strong inclination is to support the Government. We have heard the Government say that major criminal prosecutions depend on the continued availability of these powers. We are talking about powers that, in the main, are already in place and with which we are familiar, although there were interesting questions today about surreptitious and covert extension of the powers in the Bill. The Minister, who takes his duties very seriously and for whom the House has the greatest regard, said in his introductory remarks that lives may depend on the continuation of these powers, by virtue of our passing this Bill as rapidly as the Government are asking us to do. For those reasons, it would be difficult to do anything to hold this Bill up. I do not intend to do that. Nevertheless, I look forward with great interest to the answers from the noble Lord.
I want to make three brief points. The first is a repetition of what I said last week when the Statement was made, but the audience is slightly different tonight so I will repeat it. It is clear that we would not have got into this particular mess, and the Government would not have required this emergency legislation, if we had used primary legislation to provide ourselves the original powers. This is not a party political point because it is a point for both Governments. I know very well, and I said last Thursday, that all bureaucracies—it must be true around the world—and all Ministers like to have a quiet life if they can, and their first, instinctive, default reaction is always to try to put through any legislation through the secondary process so that the scrutiny will be pretty soft, maybe even perfunctory, and unlikely to be very profound. That sort of behaviour only changes when it is seen to have a cost. On this occasion it does have a cost for the Government so I hope that a lesson will be learnt. When we have legislation that raises important principles, or as in this case, an important conflict of principles between privacy and security, that sort of legislation should always go through the primary legislative process.
My second point deals with timing. I repeat what has already been said by many others. I do not believe for a moment that it was necessary to wait three months after the ECJ judgment to tell Parliament—or anybody at all—that there was a need for new legislation on this matter. The Government, if they had been half-competent, would have known before
My third point is this: I have had no collusion with the noble Lord, Lord Butler—I had not the faintest idea what he was going to say. I personally was absolutely horrified that there was no report by the Intelligence and Security Committee available, when we have to take a decision so rapidly on this Bill. I may be wrong, but I thought the whole purpose of the Intelligence and Security Committee was that we had their ears and eyes on our behalf behind the security wall, able to ask questions of the agencies, able with their great experience and knowledge—which the noble Lord, Lord Butler, certainly represents—to weigh the answers, to decide what exactly the threat is, to decide whether the powers that the agencies have are adequate and if not, in what way they need to be supplemented, or whether they are excessive and gold-plated. All these questions are those which the Committee is able to reach a judgment on, on our behalf. We could ask the questions but we would not get the answers, whereas the Committee can not only ask the questions but can insist on getting the answers.
I was absolutely stunned that there was no report at all. I could not quite believe it. I went to the Printed Paper Office and asked for the committee report—I was told that there was not one. As the noble Lord, Lord Butler, has told us, the committee did not hear about this until a few hours before the rest of us, and so it is not surprising that it could not produce a report. If it had had two or three months’ warning, which it could easily have had, we could have had a very intelligent and helpful report. It might have helped the Government—I am assuming that the Government are not actually up to some terrible trick and are not deliberately trying to disguise the facts from the public and from Parliament. What an extraordinary. idiotic thing it was, to pre-empt the possibility of such a report being produced in the first place.
As I said, I will be supporting this Bill but I am very concerned about these matters. I think that the whole House is waiting with great interest to hear the Minister’s response.
My Lords, I start my contribution to this debate with the words of Benjamin Franklin, in a letter to the colonial Government more than 250 years ago:
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”.
Having said that, nobody in this House more than I wants the people of this country to be safe—to be safe from terrorists, safe from paedophiles, safe from drug barons, safe from anyone who would do us harm. I am sure that every noble Lord feels the same way.
I am also confident that we all agree that there are some limits on the price we are prepared to pay to nudge the threats to our citizens closer to zero. For example, not many of us would be happy to see the Government installing equipment in everyone’s home to continuously record video and sound. We would not like it if all our letters were being steamed open by the authorities, and then scanned and recorded for no better reason than that we might one day go off the rails and commit a serious crime. Although these measures would probably reduce crime of all types, most people would consider the level of intrusion too big a price to pay. We all have a privacy red line we would not cross in return for some sort of reduction in the threat to our safety. It is a matter of where that red line is that we are debating.
By the way, some noble Lords may not realise that so far as our use of the internet is concerned, the red line has already been crossed. GCHQ’s Project Tempora is doing the digital equivalent of steaming open our e-mails and web browsing, and recording it all, with no differentiation between metadata and content. I have tried on many occasions in this Chamber to raise this huge invasion of our privacy, which is without the people’s consent, but have just been stonewalled by the Home Office, which would rather that we talk about something else and leave it to get on with trampling on our liberty and our privacy.
To return to this Bill, some will be surprised to hear that I support it, for two reasons. The first is that I accept that the ECJ judgment could leave our police and intelligence agencies with no communications data about those who have committed, or are about to commit, serious crime. We do not have time to discuss and agree a Bill to replace RIPA that would deliver the data on the bad guys and leave the innocent alone, and would provide the extra security and control that is needed. So we have no option but to pass this Bill to temporarily fill the gap. Although that means that vast numbers of suspicionless citizens will have their metadata collected and stored, I am reassured that this Bill, when it is enacted, will start life under a sentence of death in 29 months. I will come to my second reason for not opposing this Bill in a moment.
Although other noble Lords—in fact, every the noble Lord—has referred to it in this debate, I cannot stand here without drawing the House’s attention to the scandalous affront to democracy that is the timetable for this Bill. The Home Office and everyone else knew about the ECJ judgment on
There are only two possible explanations for this chain of events. The first is pure incompetence and a failure to understand the judgment; the second one, to my mind, is that it is a ploy by the Home Office to suppress scrutiny of important and complex legislation. Last Tuesday I watched the Home Secretary struggle to explain the sudden panic to the Home Affairs Select Committee. Perhaps my noble friend the Minister could have a go when he responds to this debate. Why was this Bill not mentioned in the Queen’s speech, which took place eight weeks after the ECJ judgment? Was it a mistake or was it a conspiracy? No wonder there is such cynicism about and distrust of politicians out in the country.
RIPA was deeply flawed for many reasons when it was passed. Today it is also out of date, having been passed seven years before the first smartphone was introduced to the market—Apple’s iPhone—and internet on the move became ubiquitous. It allows too many public authorities to delve into too much of our data for too many reasons. While the equivalent in America is used less than 60,000 times a year, there are more than half a million access requests a year in the UK. But the biggest problem with RIPA is that it contains a deliberate and well concealed loophole that is used to claim legal cover for Project Tempora’s hoovering up of everything that everyone does on the internet and storing it. The British people were never asked, via their representatives in Parliament, “How do you feel about the Government helping themselves to all your private data?”. I presume that they were not asked because the Home Office knew what the answer would be—and it would not have been, “Yes please”, especially if it had been explained that it is as if there is a man or woman from the Ministry looking over your shoulder and making notes whenever you use the internet, at home or at work or on a train, or wherever you are. So instead of getting the permission of the British people, the Home Office used legislative sleight of hand to slip it in under the radar. That must ring alarm bells about related legislation such as this Bill being rushed through without proper scrutiny.
Parliament, too, must take its share of the blame for this state of affairs. For too long, parliamentarians have been asleep at wheel when it comes to watching our spies or resisting Home Office land grabs. Is it not to Parliament’s shame that it took an ECJ judgment to point out that the European directive on data retention, which the UK was heavily involved in promoting, fails to comply with human rights law in many ways? Many specialist lawyers are saying that existing UK law and regulations, after amendment by this Bill and its accompanying regulations, fails to answer at least two of the ECJ’s concerns, which leaves it vulnerable to challenges. As a former Conservative chairman and shadow Home Secretary said in the other place yesterday:
“While the Bill may be law by the end of the week, it may be junk by the end of the year”.—[Hansard, Commons, 15/7/14; col. 731.]
What then—another emergency Bill?
I said earlier that there was another reason why I am supporting this Bill. It is that the Deputy Prime Minister has been very astute in extracting a high price for his co-operation. I am particularly pleased that the long overdue review of RIPA will now happen and that Mr Anderson’s report will go to a Joint Committee for consideration. The new Government will have to take notice because RIPA will be heading for the buffers when this Bill expires in 2016. As other noble Lords have said, it is high time that there was a full debate in this country on how much privacy we are prepared to sacrifice for a bit more security. The setting up of a privacy and civil liberties council has the potential to redress the balance in favour of the citizen versus the state. Time will tell. The small but meaningful decision that the chair of the ISC must be from an opposition party will make a difference.
Finally, I am not a politician, but I hope that noble Lords will forgive me for making a political point. None of these important steps forward, and others that I have not mentioned, would have happened without Nick Clegg’s steadfast insistence. None of them would have happened without the Liberal Democrats being in government.
My Lords, when Tim Berners-Lee famously typed his message “this is for everyone” at the start of the 2012 Olympic ceremony, I do not think he could have imagined just how prescient that statement would be and why. Tim has always striven for an open, transparent and universal web, one where people are able to have private conversations and assume complex identities. Nowadays his Olympic optimism could be read instead as a statement of the irrevocable powers of governments and commercial organisations to know everything that people are doing in their digital lives.
I do not think that many of us who were around at the beginning of the web’s development imagined that the landscape would so quickly look as it does today. I certainly thought that, as the web became more mainstream, it would open up enterprise, policy-making and the monopolies that had characterised our society. The power for individuals to disrupt the status quo and to create better services—both public and private—seemed significant. Instead, it is remarkable how quickly the freedoms that I found so energising are in danger of being eroded.
In this context, I want to talk about three aspects of the Bill: first, the digital skills needed within Parliament to achieve proper scrutiny; secondly, the timing of the sunset clause; and, finally, the nuances of Clause 4. I spend a great deal of my working life encouraging large organisations to embrace the digital world, particularly the pace of digital change. Generally, I am on the side of speed, and I am often mocked for setting an unfeasible and unreasonable timeframe to complete a project. As noble Lords have said, the timeframes for this Bill are alarming.
I agree with all noble Lords who have raised the point, as well as with the World Wide Web Foundation, which said that,
“we fundamentally disagree with the lack of consultation and the speed with which the Bill will be rushed through. Full and frank public debate that informs the legislative process should have occurred by now—after all, these issues have been making headlines for over a year and the relevant ECJ judgment was delivered in April”.
Putting aside whether it is proper parliamentary process, this rush seems to highlight an issue of growing importance which we, as parliamentarians, face. I consider myself fairly digitally literate and yet I have struggled to understand the nuances that are informing this legislation. Whatever our political persuasion and whatever we feel about the subjects, we can all agree that these are complex areas which are understandably unfamiliar to many parliamentarians who are being asked to consider them. I felt as if I had a head start, yet I struggled to assimilate the different areas addressed in the Bill. As the noble Lords, Lord Knight and Lord Hodgson, demonstrated so effectively, even the meaning of metadata is complicated. Contrary to popular belief, it can very easily and quickly lead to individual identification.
Through no fault of their own, parliamentarians may well be making judgments on areas which are rapidly evolving and where technology is changing the art of the possible. For example, ways of intercepting and recording data that do not exist today will undoubtedly be invented. There are many products launching right now which will change the boundaries again. How do wearable technologies, such as Google Glass, which collect data fit into this new picture? It therefore makes me extremely nervous that Bills which require such deep technical expertise are given so little time.
The digital capability of the other place and of your Lordships’ House is something that will become more and more profoundly significant. All pieces of legislation will soon have aspects of technology at their core and our ability to scrutinise effectively will rely on a deeper understanding than currently exists. As someone from the digital sector, it is also disappointing to watch as legislation that directly affects that sector is so cursorily debated. It only goes to further people’s belief that neither House understands the modern world nor cares about their digital lives. It is a tough problem to crack, but may I suggest to the Minister that it would be interesting to consider a review of our own skills which might lead to some actions to improve them?
The lack of time to scrutinise the Bill is what makes the sunset clause so vital. If debate about these issues is as important as the Government reassuringly claim that it is, why would a sunset clause not come into force much more quickly than after two and a half years? The pace of technological change is so great that to be certain of anything two years out is brave. The questions under discussion are becoming more, not less important to citizens. Many in the technology community, including Jimmy Wales, the founder of Wikipedia, are calling for a six month sunset clause. Despite the six-month reviews included as part of the amendments made yesterday, that would seem extremely sensible and desirable.
My final point is on Clause 4 of the Bill. If this clause is seeking to preserve the status quo, it is a status quo that has never been clear or legal. It is a status quo which, as has been intimated by other noble Lords, read in conjunction with Section 8(2) of RIPA would allow for the blanket interception of all data from international technology companies. Like the noble Baroness, Lady Kennedy, I would appreciate clarification as to whether this complies with the ECJ judgment.
I am not clear why, in an age where all data can be collected, all data should be collected. We require reasonable suspicion and an individual search warrant in order to enter someone’s home. Why cannot the same be true in respect of someone’s online property? No one would suggest that, where appropriate, Governments should not be able to target individuals about whom they have suspicions. The security of citizens is paramount. I have felt reassured that, where necessary, the security services have the ability to track an individual who may pose a threat, using all the available new platforms. However, I believe that this Bill is building on a modus operandi that has been going on for too long without clarity or transparency, and because it has been happening it does not mean that it should go on happening. In some ways it could be argued that at least Clause 4 puts a legal framework around something that, as the Home Secretary herself has said, was just previously assumed by Government, but at least let us be honest about the extent and genesis of these powers.
When the Snowden revelations broke, President Obama immediately set up an expert panel to examine oversight of the security services. That showed how far the political discourse in the UK lagged behind that of the US. No such steps were taken here. This panel looked into claims by the NSA about the necessity of data gathering. It found only one case where the bulk collection of phone records was helpful—itself a money laundering incident. Allegations that GCHQ and the NSA undermined encryption alarm everyone who trusts the web with their medical, financial or personal records. Public trust is at an all-time low and I fully understand why. We ignore people’s anxiety at our peril.
As many noble Lords are aware, this year is the 25th anniversary of the world wide web. It is essential that we do not charge headlong into decisions about the relationship between citizen and state in the new world that will influence us for the next 25 years. I am an optimist, but I must confess that I am uncharacteristically depressed. The web I want seems to be disappearing. Addressing the ECJ ruling and planning this Bill far earlier could have been an extraordinary opportunity to instigate a wide-ranging and sophisticated review about the future, a review which carefully considered the implications of data collection, the role of surveillance and the trade-off between privacy and security. Instead, we are being catapulted into legislation that builds on the badly understood and arguably dysfunctional RIPA legislation.
This Bill sets a precedent from which, even with reviews and a sunset clause, I believe it will be hard to row back. I sincerely hope that we do not regret it. I look forward to the Minister’s response.
My Lords, I am glad to follow two such courageous, perceptive and challenging speeches, with which I found myself in great agreement.
It would be foolish to deny that we live in a very dangerous world. One of the most important considerations is that we do not—deliberately or, at worst, inadvertently—give victories to the extremists. We must become resolute in defending the things that make our society worth protecting. At times I share the noble Baroness’s despair, which she was very honest about. I have an awful feeling that if we looked at ourselves from another planet and saw what had happened to the quality of our life in the past 20 years, we would be appalled at how far the extremists have won victories by getting us to restrict and undermine the whole quality of our society, of which law, as we understand it, and the operation of law is so essential.
A long time ago I dealt with security in the Ministry of Defence. I was not dealing with it in this particular context, but as a Service Minister. It struck me then that if you believe that in the reality of the world in which we live there must be security services, by definition it is crucial that they are headed and staffed by people who are second to none in their commitment to the defence of liberal democracy, and who in that context really believe that what they are about is maintaining the quality of British life. Therefore, it seems to me there has to be trust in all this. That is why it is so important to be able to be confident that the right culture operates in the security services and the Home Office.
That is why I cheered the very stern rebuke at the beginning of the debate from the noble Lord, Lord Butler, with all his distinguished experience. It is totally unacceptable and a very sad day for the quality of British democracy that we should rush the Bill through at the end of the summer session, with all this duress. I share the view of the noble Lord, Lord Carlile. I cannot see any evidence as to why we could not have considered this earlier. One is forced to the sad conclusion that a political game is going on here: that the Government want to reduce the amount of public discussion. Let us take one statistic: 88% of the British public want their telephone communications to be private. If we move into this kind of area, it is crucial that we have the maximum public debate and discussion, starting with Parliament, about what is involved and what is at stake. We have not had that. Whatever the improvements to the legislation—I take my hat off to those who have worked very hard to get it improved—we still know we are not going to be able to begin to scrutinise it in the required detail.
I want to make another general observation. I often reflect that, in an age of advanced IT and incredibly advanced surveillance techniques, it is just possible that we in institutions such as Parliament are all trying to shut the stable door once the horse has bolted. That brings me back to trust. Unless the security services and others operate with a relentless commitment to values that matter, I am very dubious as to how far effective scrutiny can ever be ensured in the future. We can take certain steps, but there will always be potential for abuse. In recent years, there have been too many disturbing examples of the security services going off course. In saying that, I do not want to join an ill informed body of people yelling at the security services, which are doing immensely challenging work in very difficult circumstances. I have great admiration for them. However, we have to face up to the targeting, which has been seen in recent years, of benign activist organisations, of trade unions and, indeed, of my noble friend Lady Lawrence. Those are profoundly disturbing issues that raise all sorts of questions about how much trust there can be and how we can ensure we have as much accountability as possible, with all the reservations I have expressed.
In the mean time, I would like to raise certain specific issues, on which it would be helpful if the Minister was able to comment or indeed write—although I do not think there is much time to write to us before tomorrow. The Minister and the Government have repeatedly said that DRIP just maintains existing interception capability, but is that really the case? Is it not, in effect, primary legislation that is supporting and extending controversial mass interventions—let us face up to it—such as those revealed by Snowden, the use of which has been doubted by the US Privacy and Civil Liberties Oversight Board and criticised by the Interception Commissioner? I would like to hear more from the Minister on that point.
How can I know if we come to this urgent situation because we currently have some sort of acute emergency? How can any of us know the realities of the nature of that acute situation? If we really have such a situation, why will it take two and a half years before the emergency measures have to be reasserted and positively endorsed by Parliament? That is a hell of a long time. Surely we should have a much shorter period.
If there is to be an independent review of RIPA it obviously has to be robust. I believe it must include terms of reference, proper funding, specified timescales and scope. What is really needed is a convincing board of people with relevant and impressive experience, with a credible chair.
There is one other matter. If we are trying to establish minimum requirements for a review of UK-USA data sharing, we need to clarify our goals. We need to update existing arrangements for data interception and processing by the US in the UK. We need to review the whole process of UK-US data sharing, and we have to look at the US’s use of data retention in view of new technologies and innovative practices since the original 1946 UKUSA agreement, as amended. We need a specific assurance that UK data will not be available to support activities that would be unlawful in the UK, including extrajudicial targeted killing—noting confirmation from senior US officials that “metadata kills”. That is an extremely serious issue, which we cannot skate over. We need very specific reassurances from the Government.
I conclude as I was arguing a moment ago, and some of those who serve on the same Select Committee as I do will get a bit weary of how often I find myself repeating this. Because of the nature of the IT advances and the huge scope of surveillance that we now have, we are playing around unless we are second to none in the fight to establish a culture to defend what freedom, justice, the rule of law and open government are really all about. I am afraid that we have slipped a very long way.
My Lords, it is an honour to follow such a speech from the noble Lord, Lord Judd. I feel that I had better declare my involvement in iRights, a civil society initiative that seeks to establish five principles that would frame all interactions with children and young people under 18 when they use the internet and digital technologies.
There seem to be four aspects of the Bill that cause concern: the process by which it came to your Lordships’ House; whether it does or does not represent the status quo; whether the status quo is what we want to reproduce; and, given the uncertainty of the first three, whether the sunset clause is too far away.
Given how much has been said on the first point, I just want to share the dismay of others at the lack of both foresight and oversight. I understand that heading off opposition and consulting stakeholders are legitimate parts of the legislative process but, somewhat unusually, in considering this Bill it is worth us noting that nearly all the UK population uses the technologies that the Bill addresses. They, too, are stakeholders, and to deny them a proper understanding through the reporting of public debate that the parliamentary process provides is at the very best disrespectful and most probably a further blow to public confidence in the political establishment.
The question of security versus freedom and privacy will be central in a world in which web and digital technologies become the organisational technologies of our society. Rushing through emergency legislation that has been privately consulted upon by an elite group of parliamentarians and international companies does not send a reassuring message of transparency and accountability that such an important issue deserves.
We are repeatedly told that this Bill is not intended as an extension of powers but that it simply upholds the status quo, that Clause 1 restores the previous position on communications data retention, and that what had previously been assumed about the extraterritorial application of communications data acquisition and interception powers was now being properly put on the face of the Bill in Clause 4. This reassurance has been repeated in briefings, in the Explanatory Notes attached to the draft Bill, in the impact assessment, in the other place and today in this debate, but it is in this Chamber on multiple occasions, listening to the likes of my noble friend Lord Pannick, the noble Lord, Lord Lester, my noble and learned friend Lord Woolf and many others that I have experienced the powerful art of clarification.
The companies at which the extraterritorial reach of RIPA is established and aimed want clarification, by Ministers’ own admission. If they need clarification, it must mean that there is some doubt. If there is no longer doubt then there has, de facto, been an extension, the purposes and meaning of which have not adequately been tested by the British public nor by their Parliament.
My noble friend Lady Lane-Fox, in her debate that celebrated the 25th anniversary of the world wide web and again today, suggested that we as a nation and we as a Parliament had not properly responded to the revelations contained in the leaks orchestrated by Edward Snowden. In spite of what we now know and the Pulitzer prize-winning efforts of the Guardian and the Washington Post to make us care, we are rushing through a Bill without the opportunity to determine whether the status quo should be underlined and underscored or whether, in a world where communications are central to every aspect of our lives, we now need to think again.
I should like to make it clear that I have little appetite for a lawless and untended communications highway with no responsibilities to real-world outcomes. Like most others who reject this emergency legislation, I would actively support a more carefully considered Bill that sought to address some of the broader issues that have been raised today and some of the newer technologies on the horizon. However, imposing suspicionless blanket communications data retention on the entire population challenges the basic premise of a free society. For that reason, this policy has been struck down in constitutional courts across Europe and, for that reason too, we must have a regime that takes account of all possible consequences of data retention, as well as the absolutely legitimate needs of the police and security forces.
The European Court of Justice found that on 10 counts the 2009 regulations failed to deliver proportionate retention of data. It laid out specific criteria that needed to be met. We have been told by Ministers in briefings that the Bill in front of us answers some of those findings and that others are answered by existing UK legislation. In spite of reading many late briefings,
I cannot fully comprehend in sufficient detail whether all 10 counts have been fully answered. I ask the Minister whether there is any danger that the Bill simply re-enacts the disproportionate retention that has already been found unlawful by the European Court of Justice—a point put much more eloquently and precisely by my noble and learned friend Lord Hope of Craighead.
It is disappointing that the Bill has come to your Lordships’ House in such unhappy haste and that its progress to becoming law does not serve to educate Members of both Houses about the issues at stake. Nor does it ignite a desperately needed public debate about who is gathering the data, what those data are, and when and how they are being gathered. It is desperately worrying that its development has taken place entirely in private. I find myself wondering whether the explanations given by Ministers for conceiving this Bill in private suggest that Her Majesty’s Government’s need for privacy is a little more equal than the need for privacy of the population as a whole.
Given the inevitable passing of the Bill without it being subject to the parliamentary journey that it deserves, your Lordships may wish to send a message to the citizens of the UK by inserting an earlier date for the sunset clause. It would be a date not designed to serve the needs of the election cycle but one that reflects the urgent need of the British people—indeed, it is an emergency—for their Parliament to understand, investigate and decide how we are going to balance their need for security against their need for privacy and liberty.
My Lords, I support the Bill, which is an essential stop-gap measure.
We must continue with our current powers and the 12-month retention period until we pass new legislation which tackles the so-called capability gap, deals with the vexed question of IP addresses and strikes a proper balance between the needs of the security services and the police on the one hand and the privacy of the individual on the other. For the moment, that means the Bill that we are considering today, and it means more Elastoplasts on the broken and bleeding RIPA 2000. Also, we must attempt to persuade our United States service providers to co-operate with us—the extraterritoriality clause.
I do not want to sound like a second-hand car salesman as I return yet again to extol the virtues of the report of the Joint Committee on the Draft Communications Data Bill, which I had the privilege of chairing 18 months ago. We were fortunate to have the noble Lords, Lord Armstrong of Ilminster, Lord Strasburger and Lord Jones, my noble friend Lord Faulks and the noble Baroness, Lady Cohen of Pimlico, as well as six excellent colleagues from the Commons. Our task was to scrutinise the draft Bill, which was then commonly known as the snoopers’ charter. We all started with some fairly strongly held beliefs, some of which we discovered were quite wrong, and we held widely different views on key issues. Nevertheless, we agreed on a unanimous report, which I commend to the House and the Home Office as a blueprint for new legislation to replace RIPA. It is only £15.50 and I have lots of remaindered copies.
To be fair, just after we reported, the Home Office showed me and the noble Lord, Lord Armstrong, the framework for a new Bill, which incorporated about 95% of the recommendations we made in the report. Unfortunately, that new draft did not find favour with all members of the coalition, but I will not be critical. However, it is essential that after the next election measures along the lines we suggested should proceed expeditiously. Why, you may ask? It is simply because RIPA is no longer fit for purpose and should not be the framework on to which we patch amendments to catch up with technological changes. The Home Office says that there is a capability gap of 25% in the information it collects now as compared to 2000. My committee was highly sceptical about that.
In 2000, I had a top-of-the-range Nokia phone which held about 100 phone numbers and 120 short text messages. I wish I had that phone back. In 2000, only 50% of UK adults had a mobile phone. In 2012, that figure was 92% with 81.6 million mobile subscriptions. What does your iPhone or Galaxy hold now? A thousand times more information, as it can also handle all web and e-mail traffic. Facebook was invented on
“the volume of communications data now available is vastly greater than what was available when RIPA was passed. The much quoted figure of a 25% communications data gap purports to relate to data which might in theory be available, but currently is not. The 25% figure is, no doubt unintentionally, both misleading and unhelpful”.
Section 2 of the Bill defines “communications data” and gives them the same meaning as Section 21 of RIPA, but what exactly are communications data? There are three parts to this. First there are traffic data, identifying the location of the device to or from which the communication is sent. Secondly, there are use data, which are anything other than content about the use made of a service. Finally, there are subscriber data which are data, other than traffic or use, held by a service provider about the persons to whom it provides the service. Traffic and subscriber data are absolutely vital for law enforcement authorities, as we have all heard, since they give the location, name and address of the subscriber, their bank account details and stuff such as that. At least that was all they did in 2000, when half of communications were by land line. However, RIPA was drafted in such a way that every bit of information one supplies to a service provider is automatically classed as subscriber data unless it is in the narrow category of traffic or use data. Subscriber data have, therefore, accidentally become a catch-all for everything not called traffic or use. That is one major reason why there was widespread criticism of the draft Bill and why many people called it the snoopers’ charter.
However, there were other reasons. The original Bill was exceptionally widely drafted, for the best of intentions. That was a tactical mistake by the Home Office. Itwanted to make the legislation technologically future-proof. Facebook and Twitter came out a few years after
RIPA was passed and the Home Office, Ministers and many of us who served there know that although one can get a crime and justice Bill in nearly every Queen’s Speech, there was little likelihood of a new RIPA being passed every year. So the Home Office tried to make the legislation in the draft Bill as wide as possible, taking into account any new gizmo, widget, app or service that some brilliant geek might invent in his bedroom many years hence. Inevitably, that very wide scope concerned many people and rightly so. My committee said that no area of technology was moving faster than communications technology and that if Parliament wanted more control of legislation in this field, we had to have a very efficient means of annually, if necessary, amending the legislation to keep up with technological advances. That was the quid pro quo; if this House or the other place wanted narrowly focused measures requiring parliamentary approval, we had to give the Government a rapid mechanism to approve changes.
The other major tactical mistake that the Home Office made originally and later corrected—but by that time the damage was done—was not to spell out exactly what were the crucial bits of information it really wanted in the new measures. Opponents were rightly pointing out that the draft Bill wanted to capture and store every communication, including the content of all e-mails and records of every website visited. We were told that the reasons could not be revealed because of secrecy, hence the very wide drafting of Clause 1. Initially, the Home Office would not tell us what data types it was looking for. However, when we talked to the police and others, it soon became clear that 98% of the time they needed only location, name, address, bank details and numbers. This is basic traffic, use and subscriber data—the who, what and when stuff.
When applied to computers and the technology we have now, that meant three slightly different things. Subscriber data would include IP addresses, but that is no different, in principle, from telephone numbers. The second, highly contentious items we wanted were data identifying which services or websites are used on the internet up to the first forward slash. Thirdly, there were data from CSPs based overseas, which are addressed in Clause 4 of the Bill. The Home Office confirmed to my committee on
The extraterritoriality provision in Clause 4 attempts to deal with the difficulty of obtaining information and co-operation from giant service providers based mainly in California. I am with very distinguished and learned noble Lords but that clause is a little bit of wishful thinking. We are legally powerless to compel Google or Apple, or any of the rest of them in California, to give us information held on their servers outside the UK. However, in 2012, we heard fairly powerful evidence that they co-operated all the time with the British Government—nudge, nudge, wink, wink: we do all that co-operation stuff—but they wanted a comfort blanket of something judicial or semi-judicial that they could rely on. That is what they get in the States. The FBI gets a judge to approve a warrant and then the CSPs will hand over everything straightaway. So they wanted this fig leaf of some British warrant so that they could say to their customers,
“We do not want to give anything away, we will keep everything secret, but we have this judicial warrant so we have to hand it over under the law”. It is great if they do that, but do not expect United States service providers to feel legally bound by the power we are putting in here. It is a good little fig leaf; it is ours and we should give it a go.
The one mega item that my committee wrestled with was internet protocol or IP addresses and web logs. There is deep division in the country and in Parliament about the state collecting and storing all these and how far that impinges on personal liberty. This is not the time to go into it but it is the core of the concerns raised about the earlier Bill. This Bill, rightly, does not touch on it, but we will have to return to this issue early in the next Parliament. My committee concluded that a new Bill should be drafted in such a way that this one item could be voted on in both Houses of Parliament and a definitive decision reached on it. We did not want it hidden away in some obscure legal or technical jargon that would cause suspicion of the Government’s motives, as well as confusing every single one of us who were supposed to vote on it.
I am proud to say that my committee was thorough and meticulous, not because of me but because of the others who served on it. We savaged the Home Office draft Bill and I make no apology for that. However, we drew up a framework for a better Bill. I pay tribute to Home Office Ministers and officials who rapidly took on board 95% of what we suggested. The noble Lord, Lord Armstrong, and I were fortunate enough to see some of the revised draft. That draft did not get full coalition support but, in my opinion, it dealt with all the problems. If that Bill were to be presented again, it could never be properly called a snoopers’ charter. It targeted the gap, narrowed the scope and built in protections.
Turning to Clause 7 and the independent reviewer, I shall send Mr Anderson our report since we have done most of the work for him—at least, on items concerning Clause 7(2)(b) to (f). We were not allowed, and we did not want to have, the power to comment on current and future threats to the United Kingdom. There is a clear case for new legislation to replace RIPA to give our security services, the police and others the powers that they need, but that has to be based on parliamentary approval of all aspects of all the powers. The public will consent to quite large levels of intrusion so long as the powers to do it are clear, open and proportionate, and have had proper democratic scrutiny. I hope that when Mr Anderson reports we will not be faced with a heavily redacted report on which the Government may wish to base the reasons for new legislation. That simply would not get through this House.
Noble Lords will be pleased to hear that that leads me to my final point. I think I heard the Home Secretary say that there will be a scaling back of the organisations that could get access of some sort to the data. On our committee, I think we were all surprised and appalled to discover that more than 600 organisations, including 400 councils, could use RIPA to access data. None of them is in RIPA except the police, SOCA, which is now the National Crime Agency, HMRC and the security services. That was another fundamental presentational mistake that the Home Office made and is still making. We have the repeated mantra from Ministers and the Government that access to communications data is essential to deal with terrorists, paedophiles and serious crime, and that these organisations need the exceptional powers granted in RIPA to deal with them. We all agree on that and there is no argument there. But when one finds that local councils are included as relevant authorities, and that one used RIPA to catch out a parent outside a school catchment area, and that others use it to catch fly tippers, no wonder people simply do not believe that the Government were thinking only of taking exceptional powers to deal with terrorists, paedophiles and serious crime.
Among the 200 other organisations is my favourite bête noire: the Defra egg inspectorate is on the list because its job, through its Veterinary Medicines Directorate, is to investigate the serious crime of stamping the little lion on the wrong eggs. I kid you not. I checked on the website this morning and—I do not know how this can be put in Hansard—I can give the Minister the pages from the website, including the picture of the little lion on the eggs. That is still being done. I make that slightly silly point because these organisations are on the list and they undermine the argument that we need RIPA powers to deal with the serious crimes. I ask the Minister to get rid of all these other organisations, which account for less than 2% of the access requests to RIPA but do enormous discredit to the main argument. I know that they cannot get access to intercepted communications data and that they are more limited in what they can get access to, but they get some form of access. Let us restrict the new RIPA powers to the police, the security services, the FSA, the NCA, HMRC and the United Kingdom Border Agency—the big players. If we do that, we will go a long way to removing the snoopers’ charter label. The British people and this Parliament will be happy to grant exceptional powers to these important organisations to access all data if it is to catch terrorists, paedophiles and serious criminals. But the quid pro quo is that they, and only they, should have access to these powers. I appreciate that some of these matters are not for this Bill but they are part of the broken and bleeding sore that is RIPA just now and which this Bill is trying to patch up. We need the Bill but we need a new RIPA even more. I apologise for taking so long.
My Lords, it is a pleasure to follow the noble Lord, Lord Blencathra, who knows a lot about this area. I do not need to repeat many of the very good arguments that have been made, including the obvious case about the delay between the European Court passing its judgment in April and this Bill being rushed through now, which is right. The Government have to answer for it. I do not wish to pursue it. I agree that the legislation needs to go through and that it is very good that the Government have accepted some of the amendments dealing with reviews, the sunset clause, and so on.
I heard the Minister say in his opening speech that he accepted the second recommendation in the Delegated Powers Committee’s report. I did not hear him say that he accepted the first recommendation, which deals with the affirmative procedure being used after the regulations have been brought into effect. Will the Government accept that recommendation in paragraph 7 of the report? The noble and learned Lord, Lord Hope of Craighead, made a number of interesting points. If I understood him correctly, as regards Clause 3 on grounds for issuing warrants and obtaining data, his question deserves an answer. Why are the Government using the words “necessary and proportionate”, which is a weaker phrase, when the European Court of Justice refers to “strictly necessary”? I am relieved to see the noble and learned Lord nodding because I did not quite follow some of the legal points that he made. That seems to be an important point.
I now turn to the issue in its wider sense, which has been very important to me for some time. I have had a long involvement in legislation, as the noble Lord, Lord Howard, will know, including in the Prevention of Terrorism Act in the House of Commons. The noble Lord, Lord King, made the point that about 30 to 40 years ago there was a department in, I think, the Home Office, which steamed open letters to see what was written in them. My memory is of making a speech in about 1979 pointing out that MI5 and MI6 did not have an existence in statute. No statute recognises the existence of those two organisations despite the fact that MI6 probably was the most famous secret service in the world, thanks in no small part to James Bond and, rather less romantically, to the Cambridge spy ring. What interested me was that they had no legal existence in the normal sense. As a result of the questions that I and others asked at that time, legislation was passed in the early 1980s which gave them a statutory basis.
It is also right to say that Bletchley Park, which was unacknowledged, emigrated after the war to Cheltenham and became GCHQ. I am not quite sure of the history. I asked the noble Baroness, Lady Trumpington, but I am not sure that she knew either at what point it became part of statute. To put this in a historical perspective, the interesting reason is that it is difficult for democratic states to deal with legislation of this type. Although everyone has been rightly saying that our security services are very good and deserve praise, it is also right to point out that the various civil liberty groups and individuals who rattle the bars at times of legislation of this type going through at high speed are absolutely right to do so. Although some people might get frustrated with them, a healthy democracy, if it did not have such groups and individuals, ought to invent them. It is worth pointing out that they are as necessary as the security services.
I strongly agree with the noble Lord, Lord Blencathra; we have discussed before how the Regulatory and Investigatory Powers Act was unfit for purpose before it hit the statute book. It was already out of date. In a sense, my main point, which also relates to the speech made by the noble Baroness, Lady Lane-Fox, is that we should be extremely proud in this country that Tim Berners-Lee invented the world wide web. We underestimate how much he is appreciated around the world. In the context of this debate, we also underestimate massively the complexity of the path before us with modern technology.
There is a balance here. We all know that the balance is between the powers of the state and the rights of individual—freedom, citizenship, privacy and so on. It is a recognition that, because of the nature of modern weapons, the threat particularly from terrorism—although the Bill goes wider than just terrorism—is profoundly dangerous, far more dangerous than the 19th-century anarchist going around with a smoking bomb, ready to throw it. We are now talking about the death of thousands, or perhaps tens of thousands, of people.
On the other hand, there is the complexity of the technology; it brings us great freedoms and we ought to be grateful for that. I am sorry that the noble Baroness, Lady Lane-Fox, was a bit depressed by it. I find that, with the invention of modern technology, the freedoms and the ability to deal with problems accelerate. I will give a very brief example. I was out walking in the Oxfordshire countryside at the weekend and came across a cow stuck in a pool of mud and water. It was drowning. Thanks to modern technology, I was able to give the precise latitude and longitude of the position to a police officer—using the 101 number, not the 999 number. Within 35 minutes—we were 30 minutes away from the nearest track—two firemen appeared and pulled the cow out. It might seem a minor example, but you have only to think of all the examples in your life in which modern technology had been profoundly useful and had opened up all sorts of possibilities. If that had been the old days, I would have had to walk for miles to find a phone or a farm, and I probably would not have got back in time for this debate. The difference is massive and, of course, it opens up all sorts of possibilities in real life.
I come to my main point in this debate. I was very glad that the Government had accepted the recommendations about reviews, sunset clauses and so on because I believe that the challenge to us is to use this time that we have, in this House and in the House of Commons, to devise better ways of looking at legislation, particularly in relation to issues of this type. We do not have a structure for examining legislation in a way that keeps us up with technological change. I agree with all the comments that have been made about some of the committees and so on. I feel that this view applies not just to this Bill but to many Bills, which are often slightly dated by the time they come into effect because they have been overtaken by technology.
Legislation such as this is particularly important because the control of the security services evokes the Nineteen Eighty-Four argument about how much power should be given to the state and how much you risk if you take those powers away and leave yourself at risk from the activities of other groups. I wish that I had a nice, simple model to offer to the Minister and could say, “This is the sort of structure that we need to develop in this House in order to have the processes that could keep us up to date with technological change on the legislation that we are passing”. I do not have such a model, and the challenge to this House and to the House of Commons is to devise such structures. Both Houses are famous—and rightly so—for their ability to defend and speak up for freedom over the centuries, but we are in such a strange situation.
I return to what the noble Baroness, Lady Lane-Fox, said about technology. Her speech was important because it was the only one so far in this debate that put it in the context of the digital revolution. As we try to legislate now, I do not think of myself as at the cutting edge of the digital revolution; I manage, but it is more of a struggle than a great success. Yet it is so important. It affects so many walks of life and so many people, and there is a danger that the public see us as not being relevant, in part because we cannot keep up our legislative processes with the speed of technological change.
There is an opportunity here to use this Bill and the period working up to the sunset clause to start looking at more effective ways of keeping legislation up to speed with technology. The importance of this Bill is massive because of the balance between the security of citizens in the face of threats from crime and the protection of their rights, of which we are so proud both in this House and in the House of Commons. I urge the Government to acknowledge that we all need to focus on how we can improve our legislative processes so that we do not have situations like this and, if we have to rush something through, that we examine and process them in a way which does not mean that we end up losing some of the freedoms that we value so dearly.
My Lords, I thank noble Lords for allowing me to speak. I will be brief, not least in view of the erudite speeches that have gone before. I thank the Government for adding to my general knowledge because until a week ago I did not know what metadata were, and I cared even less; now I know, and I care very much.
We have debated various parts of the Bill extensively today. On the emergency aspect of this Bill, I find it hard to believe that all those big brains at the Home Office did not see this coming. I simply find it impossible to believe. Along with hundreds of thousands of people outside this House, I do not understand why this is an emergency.
Do these regulations come in before the Summer Recess or will they be delayed until after? That, of course, has an impact on whether this truly was an emergency.
On the issue of extraterritoriality, the powers seem to have been implied, but they were implicit rather than explicit. For me, this is an expansion of powers and therefore should have had a proper consultation. Ducking public consultation is really not part of the democratic process. We hear again and again that this is being done to protect us, but the security services and the police will always ask for greater powers and more weapons so that they can do their job properly. However, it is for politicians to decide whether that is appropriate and whether it is for the common good and for the public good; I would argue that it is not.
Some of the clauses from the other place were accepted, and I am very pleased about that. However, the one on bringing the sunset clause forward to 2014 was an opportunity missed because, quite honestly, if we are not having a proper debate now, having it as soon as possible and ignoring the political timetable would have been a good way forward.
As other noble Lords have said, it is very easy to encroach on civil liberties and it is for us to decide where the line is between national security and civil liberties. I feel again and again that it is easy to be pushed into things through fear rather than for sensible reasons of national security. I do not support the Second Reading of this Bill.
This Bill was the subject of just nine hours of discussion and debate in the House of Commons yesterday. We will have to wait and see whether the time spent on discussion and debate in this House exceeds or falls short of that over the two days—today and tomorrow—that have been set aside.
Serious concerns have been raised in this debate over the way in which this Bill is being rushed through in the light of the fact that the European Court of Justice judgment, which the Government say has been the driving force behind the need for this Bill, was handed down more than three months ago. The reality is that the date of the Summer Recess was known in April, when the judgment was given. Thus the need for minds to be focused on reaching conclusions without delay was also known. We could have avoided the situation that we now have of rushed legislation, rushed committee reports, committees being sidelined and a general feeling that the Government could have ensured that there was more time to consider the proposals in the Bill before it needs to be passed prior to the Recess.
The rush means that the reports of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee have only today been published. The Constitution Committee has commented on its report that between the date of the ECJ judgment in early April and
The Delegated Powers and Regulatory Reform Committee also pointed out that Clause 1(3) confers a power on the Secretary of State to make further provision by regulations about the retention of relevant communication data, and does not restrict the scope of the powers conferred by Clause 1(3). Perhaps the
Minister will also respond to the view of the Constitution Committee in the light of the scope of the powers conferred by Clause 1(3) that, since it is the Government’s intention that the Bill does not enhance data retention powers, perhaps the Bill should expressly so provide.
The delay in bringing forward the Bill and then having to rush it through is all the more surprising since the judgment of the Court of Justice of the European Union to declare the new EU data retention directive invalid cannot have been entirely unexpected to the Government, since it supported the earlier opinion of the Advocate-General in December 2013. He found the directive incompatible with the EU’s Charter of Fundamental Rights in respect of the right to respect for private life and the right to the protection of personal data. The case was brought by the High Court in Ireland and the Constitutional Court in Austria. In essence, the Court of Justice of the European Union concluded that the data retention directive adopted by the EU legislature exceeded the limits imposed by compliance with the principle of proportionality as it did not limit the interference in respect of the fundamental rights in question to what is strictly necessary, since the directive covered in a generalised manner all individuals, all means of electronic indication and all traffic data without any differentiation, limitation or exception being made in the light of the objectives of fighting against serious crime.
The effect of the European Court of Justice decision was to strike down regulations to enable internet providers to retain communications data for law enforcement purposes of up to 12 months, thus creating uncertainty among communications service providers about the legal basis for the retention of communications data in the UK. The ECJ ruling did not take account of any controls or safeguards in the domestic laws of member states and in particular our communications data access regime, which is governed largely by the Regulation of Investigatory Powers Act 2000. RIPA seeks to ensure that access to communications data can take place only where it is necessary and proportionate for a specific investigation. Our data protection laws mean that in the absence of a legal duty to retain specific data, companies must delete data that are not required under their strict business uses.
Communications data, as has already been said, have been crucial to every counterterrorism operation by the security services in recent years and are used as evidence in nearly all serious and organised crime cases dealt with by the Crown Prosecution Service. The view of the House of Commons Home Affairs Committee yesterday was that the retention of communications data, subject to appropriate safeguards, was an important tool in the fight against terrorism, organised crime and child sexual exploitation, and that the Government were right to bring forward urgent legislation.
Following the ECJ ruling, the concern has been that without new legislation data could be destroyed within a short period by communications service providers fearing legal challenges, with the result that the police and security services would be unable to access them. With the EC directive in question having been transposed into UK law, national legislation needs to be amended only with regard to aspects that become contrary to
EU law after a judgment by the European Court of Justice, and a finding of invalidity of the directive does not cancel the ability for member states to oblige retention of data. Indeed, the European Court of Justice accepted that an ability to retain data was necessary and recognised purposes for which data could be retained. Its objection to the directive was to its generalised nature and scope.
The EU data retention directive was implemented through secondary legislation through the Data Retention (EC Directive) Regulations 2009, and the Bill that we debate today is intended to remove any doubt there may be about the legal basis of our 2009 regulations and to give effect to the ECJ ruling. Clauses 1 and 2 confer on the Secretary of State the powers currently in the 2009 regulations to require service providers to retain communications data. The Bill of course also addresses the application of our laws on interception to remove any doubt that the requirement that companies co-operate with UK law enforcement and intelligence agencies also extends to companies that are based overseas but provide services to people in the United Kingdom.
The Constitution Committee said in its report published today that it is not clear why this last part of the Bill on interception needs to be fast tracked as there is evidence that the Government have known about the problem for some time, since the Joint Committee on the Draft Communications Data Bill noted in its report published at the end of 2012 that,
“many overseas CSPs refuse to acknowledge the extra-territorial application of RIPA”.
Will the Minister give the Government’s response to that point?
A number of the contributions in this debate have referred to the need to strike a balance in making a judgment on the Bill between the two main concerns of privacy of information and the need for agencies such as the police and security agencies to know about information and have access to it. The need in a democracy is to sustain liberty and security, and privacy and safety. The Government have made it clear that the purpose of the Bill, which we support, is to maintain existing capabilities and indeed to restrict them in line with the ECJ judgment. Clause 3, for example, will change the basis for obtaining a warrant for intercept on grounds of economic well-being. At the moment, under the Regulation of Investigatory Powers Act 2000, economic well-being is the sole criterion without condition. In future it will be subject to the interests of national security.
In the House of Commons, the Government agreed to our amendments designed to ensure that the Bill does not go beyond existing capabilities by requiring six-monthly reports on the operation of the Bill when it becomes an Act, to ensure that its implementation does not go beyond what the Government have stated is its purpose. There is also a sunset clause in the Bill, on which we insisted, which means that the legislation will cease to have effect from the end of 2016. That provides an opportunity for full public consideration and debate about what powers and capabilities will actually be required and how they will be regulated after then in the field of communications data access and interception. It will also provide an opportunity to ensure that whatever is deemed to be required will have rather greater public understanding and acceptance than is the case at present. People want to feel secure, but they also value their privacy and they do not like to find out the sheer extent to which that privacy can be and is being invaded from whistleblowers. They rightly feel that there should be more transparency from government on this issue both on the extent and necessity, and with that greater transparency might well come rather more trust and acceptance of the need for what should be done, provided it is proportionate.
The Government said last week that they would review the interception and communications data powers that we need and how they are regulated in the context of the threats we face. It was helpful that in the Commons the Government accepted the need to go down the road of our amendments and place this work, which will be conducted in the first phase by the Independent Reviewer of Terrorism Legislation, David Anderson QC, on a proper statutory footing. I hope the Minister, having mentioned Mr Anderson, will respond to the numerous points raised by my noble friend Lady Kennedy of The Shaws and by the noble Lord, Lord Carlile, about the future of Mr Anderson’s post, and the role and powers of the proposed new board.
The review which Mr Anderson will be conducting in the first phase will also take account of the impact of changing technology on the work of the different agencies involved. We have been calling for an independent expert review of the legal and operational framework, and in particular of the Regulation of Investigatory Powers Act 2000, because the speed of the communications data revolution since that Act has probably already led to the law and our oversight framework becoming out of date. The police and the security and other relevant agencies need to be able to keep up with new technology, but the safeguards need to keep up too—though, as has already been said in this debate, it is the knowledge that some private companies and organisations have about our daily lives and what we do that is equally breathtaking.
We will play our part in seeing that this Bill is passed, because the existing powers that it seeks to retain are too important for public safety and security to be put at risk of being lost. However, we also need that full debate about achieving the right balance, in a democracy, in an increasingly technological age, between privacy and liberty on the one hand and safety and security on the other, and ensuring that that balance commands public consent and confidence.
My Lords, this debate has been an exceptional debate, not only because we are dealing with something of great importance but also because we have heard some extremely able and interesting speeches. Some have been more supportive than others of the Bill I have presented to the House, but I found them all interesting. The debate reflects the ability of this House to recognise the importance and significance of legislation and the scrutiny it can offer. We know that these are extraordinary circumstances: we are being asked to consider fast-track legislation. However, I think that everyone understands why the Government need a sense of urgency about this legislation.
I hope that where noble Lords have expressed reservations about that, I will be able to reassure them. I appreciate the concerns of some noble Lords about the constrained timetable, given the time that has elapsed between the ECJ judgment and this Bill being introduced. I hope that the House will understand and accept that we have had to make sure that our response both addressed the needs of law enforcement and intelligence agencies and provided the appropriate safeguards and public reassurance. This inevitably required careful consideration, in order to create a package to which all parties could agree.
We feel that it is important that the Bill has been widely supported across the parties, and indeed passed through the House of Commons with a very large majority. Building that consensus was important in a matter that was clearly as important as this.
In the absence of a clear legal basis for retaining communications data, the police stand to lose access to vital information, which—as has been pointed out—contributes to 95% of serious crime prosecutions. Unless we make clear the obligations that RIPA imposes on companies based overseas but providing services here in the UK, the security and intelligence agencies stand to lose their ability to monitor terrorists and organised crime groups in this country. Indeed, as a number of noble Lords have said, and have agreed with the Government, the Bill does not provide new powers. It does not alter or extend existing powers. It simply provides a clear legal basis for powers that the police and intelligence agencies have always relied on to keep people safe, which for different reasons—and there are different reasons within the two parts of the Bill—are now in question.
We have been clear that the Bill is not a permanent solution to the challenges we face in the future. We had a brilliant speech from my noble friend Lord Blencathra, who talked about the scrutiny he had given to previous attempts to find a solution to these problems. It is quite clear that in this Bill we are not attempting to address the future proofing of which he talked. It does not address the growing gap in relation to communications data that the draft communications data Bill sought to resolve. Nor does it address the wider question of the powers that law enforcement, and the security and intelligence agencies, will require in the future.
Those issues will have to be addressed. That is why the provisions in the Bill fall away at the end of 2016. A number of noble Lords have said that we need an earlier sunset. However, if we are to have a proper successor to RIPA, if we are to have a proper evaluation of this matter and if we are to have the public debate about these issues that noble Lords have called for, we need time to do so. Although there have been suggestions that we are being governed by the political timetable—the electoral timetable—I think it is important that we recognise that legislation is dependent on Governments, and Governments have to be elected. Governments have to develop programmes that they are able to communicate.
It is to the credit of this Parliament that we have been able to agree on this issue. I do not know who will form the Government after the election. I do, however, know that it is important that, whichever Government are elected, they have the responsibility of finding a successor to this law and future proofing this sort of issue in the ways outlined so ably by my noble friend. That is why the provisions will fall away. There will be a public debate. I want a public debate. It will have to take account of not only the threats we face but the safeguards required to strike the necessary balance between privacy and security.
This is a very important point. I am sympathetic to the longer sunset, but I do not understand what sort of structures the Government want to put into place to enable that public debate to inform the changes.
For a start, not only will there be a review of this piece of legislation on a six-monthly basis, something that has been agreed and now forms part of the Bill, but David Anderson, the independent reviewer—that is the very paragraph I was turning to, the noble Lord, Lord Soley, will be delighted to know—will lead a review into these issues. The Bill now provides a clear basis in law for that review. The noble Lord, Lord Blencathra, suggested that Mr Anderson looked at his report as a starting point for addressing this sort of issue. That will be available before the election, and will help inform public debate during the election. The wider safeguards and assurances that sit around the Bill are also important. I am glad that noble Lords have taken account of those safeguards, which build on the extensive safeguards that already exist.
However, there are wider issues, and I will do my best to go through some of them at this stage. I am going to demand a lot of my officials, in the sense that I will ask them, to the extent that they are able, before Committee tomorrow morning, to draft a letter which can be circulated to all noble Lords who have participated —if I do not get time, because I am conscious of time.
In a very interesting speech, the noble Lord, Lord Knight, asked whether there was compliance with the European Convention on Human Rights. The Home Secretary and I have signed on the Bill a declaration that it is so. We have also made available the memorandum to the Joint Committee on Human Rights, which explains how our Bill satisfies the ECHR. I hope that that reassures the noble Lord.
The noble Lord, Lord Rosser, asked: what are our plans for the timing of regulations? I understand the interest in that. The draft regulations have been published and we have informed the House that the Government’s intention is to lay the regulations following Royal Assent, so that they can be approved by both Houses of Parliament prior to recess. They have, of course, already been published, as I said, and we are liaising with both the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee, ably chaired by my noble friend Lord Goodlad, to ensure that they can consider these matters as soon as possible. The JCSI will meet on Monday to consider the regulations, so that the Commons can debate them prior to recess.
The noble Lord, Lord Strasburger, asked why the measures were not part of the Queen’s Speech. When the gracious Speech was written, our response had not been finalised. The noble Baroness, Lady Smith, asked why it did not form part of the Serious Crime Bill, which she and I are seeing through this House and has finished in Committee. As she knows, we will not return to Report until October. The difficulty of the timetable for that Bill means that it will not be through all its stages before the new year, if we are lucky.
My Lords, the Minister has given answers to a lot of the questions that have been raised, but I said, when I talked about introducing the provisions at the same time as the Serious Crime Bill, that although these provisions may have had to be taken more quickly than the rest of the Bill, it is still the view of most Members of your Lordships’ House that these provisions could have been brought in sooner.
My Lords, I do not think that the Government consider that that was a satisfactory way to deal with the problem.
The noble Lord, Lord Davies of Stamford, asked why the Intelligence and Security Committee did not have time to report on the Bill. I note the noble Lord’s concern on that, but I draw his attention to remarks in the Commons yesterday by the chairman of the committee, Sir Malcolm Rifkind. He said:
“The Intelligence and Security Committee has considered the Bill, and we have taken evidence from the intelligence agencies on its content. If we were concerned in any way that the Bill simply added to the powers available to the Government and that they were using a fast-track procedure to implement it, we would not be able to recommend its endorsement, but we are satisfied that that is not the case”.—[Hansard, Commons, 15/7/14; col. 725.]
Noble Lords should bear that in mind.
Perhaps the noble Lord will allow me to answer other people’s questions.
The noble Lord, Lord Soley, asked about Royal Assent; I think that I have dealt with that. The noble Baroness, Lady Kennedy, was particularly concerned about the nature of the matters that we are trying to deal with. There are already a number of reviews in the system, including that to be headed by the independent reviewer of terrorism legislation, David Anderson. He needs to be given time to conduct that work. I see no point in requiring Parliament to return to those issues almost as soon as we return from the Summer Recess without the benefit of the work that we have set in train. Any such legislation would require an accelerated timetable, and we do not want to be doing that again if we can avoid it. I think all noble Lords will agree on that.
The noble Lord, Lord Armstrong of Ilminster, asked whether David Anderson’s review would cover all use of communications data. Clause 7 makes clear that the review covers the operation and regulation of investigatory powers. That extends to communications data for all purposes under RIPA for which it can be obtained. I hope that that reassures the noble Lord.
The noble Lord, Lord Knight, also asked: would the review consider all legislation relating to communications and lawful interception? It does indeed; I have just explained that to the noble Lord, Lord Armstrong.
In answer to the noble Lord, Lord Macdonald of River Glaven, the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Kennedy, who is about to resume her place, as I said in my Second Reading speech, we intend to create a privacy and civil liberties board. The terms of reference can be found on the Home Office website and in the Printed Paper Office. Legislation would be required to establish the board, and we will have plenty of opportunity to discuss the detail of the board’s functions then.
I am grateful to my noble friend Lord Carlile for the work that he has done in this area; he has been a very important figure in these matters. David Anderson, his successor, has been consulted on the proposals before the announcement was made to Parliament and as they have developed. Parliament will have the opportunity to debate these matters fully when the legislation to create the board is presented.
The noble Lord, Lord Judd, asked about US data sharing. He will be aware that the Government have announced the appointment of a senior diplomat to look at the issue of data sharing. That is another feature of the non-legislative part of the announcements made by the Home Secretary in the Statement which I repeated here.
My noble friend Lord Paddick asked: what is the annual transparency report and how does it relate to the internet section of the commissioner’s report? There will be an annual transparency report relating to the exercise of powers under RIPA. It will take advantage of as much detail as possible. There will, of course, be a six-monthly report on the operation of the Bill.
My noble friend Lord King of Bridgwater asked: will we reform the ISC so that the chairman is drawn from the Opposition? In view of the reforms that we have made in the Justice and Security Act 2013, the Government have no immediate plans to make further changes, but it is a matter that is live and to which Parliament may well wish to return.
I turn to some of the detailed items under data retention types. The regulations made under the Bill will directly replace the data retention regulations of 2009; they will not extend the list of data types being regulated.
The noble Baroness, Lady Kennedy, asked about the ECJ judgment on the EU data retention directive. It did not take account of any of the domestic safeguards that we had in place. Many of the ECJ’s concerns were addressed in the UK’s domestic legislation. The difficulty in responding to the judgment was that we had to consider how we implemented some of the safeguards so that it was clear that they were in primary legislation, not the secondary legislation in which we had translated the European directive in the first place.
Lady Kidron, also asked: how do the regulations respond to the issue of the ECJ judgment? They will replace the 2009 data retention regulations. In particular, regulations will set out what must be specified in a data retention notice; place requirements on the Secretary of State to keep such notices under review; set out the security requirements that apply; provide that service providers can be reimbursed for any expenses incurred in complying with the requirements; and revoke the 2009 regulations, as they will be redundant.
The noble and learned Lord, Lord Hope of Craighead, asked why Clause 1(1) does not use the wording of the ECJ judgment. The test in the Bill requires the Secretary of State to consider whether it is necessary to require a provider to retain data, but also whether it is proportionate for that legitimate aim. This is in accordance with the judgment, which also makes it clear that it is necessary to verify the proportionality of any interference with a person’s rights when requiring the retention of data. That is why that particular wording referring to proportionality is used.
My noble friend Lord Blencathra raised a plethora of issues, if I may refer to them as such. It is vital that future consideration bears in mind the parliamentary inquiry and accordingly, as I have said, it is explicitly referred to in the terms of reference. Local councils will no longer be able to access communications data under these proposals. From the lists that I have seen, the Egg Marketing Inspectorate does not, nor has it ever had, access to communications data under RIPA. Indeed, Defra will also be losing its entitlement to such access in future. We recognise that the list has grown and that it needs to be cut down. The 13 bodies which will have their powers removed are the Civil Nuclear Constabulary, the Port of Liverpool Police, the Port of Dover Police, the Royal Mail, BIS, Defra, the Department of Agriculture and Rural Development in Northern Ireland, the Environment Agency, the Scottish Environment Protection Agency, the Department of the Environment in Northern Ireland, the Food Standards Agency, the Pensions Regulator and the Charity Commissioners. I should think that noble Lords are amazed that those bodies had access in the first place. This just shows the necessity for reviewing this sort of legislation and working it out on the basis of who actually needs it.
There was some concern over territoriality—a difficult word to say, particularly if one has been sitting here for a few hours. The noble Lord, Lord Knight of Weymouth, raised this, as did my noble friends Lord Paddick and Lord Hodgson and the noble Lord, Lord Judd. The Bill clarifies the territorial extent of the Regulation of Investigatory Powers Act: in the absence of explicit extraterritorial jurisdiction, some companies have started to question whether the legislation applies to them. This is nothing new. Jack Straw—who as Home Secretary was responsible for RIPA in the first place—made this clear yesterday in the House of Commons. He stated that the “clear intention” of that Act was to extend extraterritoriality. My noble friend Lord Howard of Lympne quoted Jack Straw to great effect; his was a very effective speech. I am pleased that many noble and noble and learned Lords, including the noble and learned Lord, Lord Lloyd of Berwick, recognise that this is not an extension of powers.
I have done my best, within the relatively short time that I have had to wind up what has been an extremely useful debate, to reassure noble Lords about this issue. The wider safeguards that sit around the Bill are important and we will have a chance to discuss them at length. However, I am glad that noble Lords have taken account of them in discussing the Bill before us today. We will no doubt be back tomorrow to consider it in Committee. There are wider issues and it is good that they have been raised by my noble friend Lord Blencathra.
I welcome this debate, and I would like briefly to reflect on the importance of the issues that we will return to tomorrow. Communications data and interception powers are intrusive. They are rightly subject to very strict safeguards, but they are also of vital importance to the work of law enforcement and the security and intelligence agencies. Without the legislation that we are considering today, those powers would be undermined. Those who mean us harm would be able to evade detection. Put simply, lives would be at risk. These are important issues. That is why this debate has been an important one. On that basis, I commend the Bill to the House and ask that it receive its Second Reading.
Bill read a second time and committed to a Committee of the Whole House.