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My Lords, in moving Amendment 134, which is in my name and that of my noble friend Lady Hamwee, I will also speak to Amendments 135, 142, 144 and 240 and on whether Clauses 63 to 65, relating to filtering arrangements, should stand part of the Bill.
Amendment 134 would amend Clause 63(1) to say that the Secretary of State “may by regulations establish” rather than simply “may establish”. Amendment 240 is consequent on that. Amendment 135 would amend Clause 63(1), so that while the Secretary of State may establish filtering arrangements, she would not “maintain and operate” them herself. In fact, my understanding is that the Government have no idea at this stage who might maintain or operate such arrangements.
I do not intend to speak to Amendment 138, which we will not be moving and do not consider worth debating. Amendment 140 would have added to the duties in connection with the operation of the filtering arrangements—that the Secretary of State shall, in exercising her powers under Clauses 63 to 68, have regard to the general duties in relation to privacy in Clause 2.
To the duty on the Secretary of State to provide a report to the Investigatory Powers Commissioner about the operation of the filter, Amendment 142 adds a duty to lay a report before each House of Parliament about the functioning of the filtering arrangements during the previous year. Amendment 144 requires the Secretary of State immediately to report to the Investigatory Powers Commissioner any processing errors—not just “significant” processing errors—giving rise to a contravention of the requirements of this part.
This feature of the Bill is almost identical to that proposed in the Communications Data Bill. The Joint Committee described it as a government-owned data mining device. I described it on Second Reading as a virtual national database. The noble and learned Lord, Lord Keen of Elie, said that it was not a database. I did not maintain that it was; I said it was a virtual database. My understanding is that this is a search engine that would have real-time direct access to communication databases held by every communication service provider, including, if the Bill is not amended, everyone’s internet connection records.
At the moment, the police and security services, through a single point of contact, make application to communication service providers, which assess the lawfulness of the request and, if satisfied, provide the information. The filter would bypass that important safety check and allow security services to self-authorise access to communication service providers’ data. It would allow complex queries that could provide detailed information about people’s private lives. As the noble Lord, Lord Lucas, said on Second Reading:
“We are producing a resource there that Francis Urquhart would have loved to have his fingers on: absolute knowledge of everyone’s private life”—[Official Report, 27/6/16; col1427.]
The request filter would make life for the police and the security services easier—I say the security services, but I think they have their own systems. Life without the filter would not be impossible for the police, just not easier than it is now. It is therefore not necessary, only desirable and, as such, fails the necessity and proportionality tests for the invasion of privacy.
The Government cannot say what it would look like, where it would be built, who would run it on their behalf or how it would be kept secure. It is a hypothetical virtual database. It would be a dangerous precedent for Parliament to authorise such a device without knowing who would run it and what the security implications would be. I beg to move.