(9 years, 1 month ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
The Minister for Security and Immigration (James Brokenshire)
I beg to move,
That the draft Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015, which was laid before this House on 4 March, be approved.
Mr Speaker
With this, it will be convenient to consider the following two motions:
That the draft Retention of Communications Data (Code of Practice) Order 2015, which was laid before this House on 4 March, be approved.
That the draft Authority to Carry Scheme (Civil Penalties) Regulations 2015, which were laid before this House on 2 March, be approved.
James Brokenshire
Before I open the debate on the three statutory instruments, I should like to make a few remarks about the current threat related to Syria and the Government’s response to it. It has been reported that three young men were arrested at the weekend after attempting to travel from Turkey to Syria. This reflects the good working relationship that we have with the Turkish authorities. Hon. Members will understand that I cannot comment on the specifics because there is an ongoing investigation, but I will say that those seeking to travel to engage in terrorist activity in Syria or Iraq should be in no doubt that we will take the strongest possible action to protect our national security, including prosecuting those who break the law.
The Counter-Terrorism and Security Act 2015 brought forward important new powers to disrupt the travel of those seeking to engage in terrorism-related activity. That included introducing a strengthened authority to carry scheme; I will return to that when I speak to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 in a few moments. Current events are a reminder of how important and relevant these counter-terrorism measures are.
It might help our consideration of these statutory instruments if I briefly outlined what the Government seek to achieve by them, and why we have brought them forward at this time. I would like to start by turning to the two communications data codes of practice. Communications data—the “who, where, when and how?” of a communication, but not its content—is crucial for fighting crime, protecting children and combating terrorism. The House will recall that last summer we enacted emergency legislation, the Data Retention and Investigatory Powers Act 2014, to preserve our data retention powers, and these codes are directly consequential on that legislation.
Communications data policy can broadly be split into two areas: acquisition and retention. Acquisition is carried out by relevant public authorities such as law enforcement agencies, while retention is carried out by communications services providers. The House will immediately see that these areas are linked; if data are not retained, they cannot be accessed.
The two codes of practice we are debating today—a revised acquisition code and a new data retention code—set out the processes and safeguards governing the retention and acquisition of communications data. They are intended to provide clarity and incorporate best practice on the use of the relevant powers, ensuring the highest standards of professionalism and compliance in this important aspect of law enforcement. We are bringing these codes forward now to ensure that the important safeguards within them, some of which follow concerns raised by the European Court of Justice judgment last year, come into force before Parliament rises.
Let me turn to one of the most important new safeguards in the acquisition code: that of access to journalistic material. As right hon. and hon. Members will know, the Interception of Communications Commissioner recently conducted an inquiry into police acquisition of journalists’ communications data. The measures in the revised code are intended to give effect to his recommendations, which were accepted straight away by the Government.
The acquisition code that we are debating stipulates that, in seeking to acquire communications data to identify or determine the source of journalistic information, law enforcement must use production orders under the Police and Criminal Evidence Act 1984 or its equivalents in Scotland and Northern Ireland. We are doing this because production orders require judicial approval. This will help to protect the freedoms that journalists enjoy in the UK.
Whenever law enforcement is seeking the communications data of a journalist to determine sources—this includes when police are seeking to confirm or corroborate other evidence of the identity of a journalist’s sources—the decision on the application will be made by a judge under PACE. However, that is only a stopgap until we can make the change through primary legislation in the next Parliament. We have therefore also published a draft clause that sets out how we would seek to enshrine the commissioner’s first recommendation in primary legislation.
James Brokenshire
I give way to my hon. Friend the Member for Cambridge (Dr Huppert).
Dr Huppert
I thank the Minister for giving way after choosing between the Chairman of the Home Affairs Committee and me.
I welcome the progress that has been made, because I think that it will help to protect journalists. The amendment that I tabled a couple of weeks ago referred to the protection of other communications, such as medical and legal information. Will the Minister say a little about why he is not seeking to protect such information in the same way? Would he at least be open to such a suggestion if he were involved in a future Government making the decision?
James Brokenshire
Our action reflected the recommendations of the commissioner himself. They were our lead and our guide. My hon. Friend will note, however, that the code of practice contains additional protections covering the consideration and assessment that must be undertaken by those who seek to make a request for communications data in respect of certain protected groups. An enhanced status has been conferred, in a number of ways.
James Brokenshire
I will, of course, give way to the right hon. Gentleman, to whom I meant no discourtesy by not giving way to him first.
Keith Vaz
I am delighted that the Minister chose the hon. Member for Cambridge (Dr Huppert) over me, because there is not a cigarette paper between us when it comes to these issues.
I warmly welcome the Minister’s decision, which was recommended by the Home Affairs Committee, but may I press him to go a little further? We also recommended a fundamental review of the operation of the Regulation of Investigatory Powers Act 2000, because we felt that it was time for that to happen.
James Brokenshire
The right hon. Gentleman will know that David Anderson, the independent reviewer of counter-terrorism legislation, is examining the RIPA issue very keenly. We await his report, which we expect to be completed before May and which I sincerely believe will help to inform further consideration of the Act during the next Parliament. The right hon. Gentleman will also know that the Data Retention and Investigatory Powers Act 2014 has an end date of 31 December 2016, which means that Parliament will have to return to the issue—informed, I am sure, not only by the independent reviewer’s report, but by that of the Select Committee.
Mark Field (Cities of London and Westminster) (Con)
I appreciate that we have the commissioner’s report, that the independent reviewer’s report is imminent and that there is a time limit of December 2016. However, given the grave concern that exists about, in particular, the powers and constraints affecting journalists, will the Minister assure us that he will keep the matter under general review, and that, if a problem arose, even with these orders, by the end of the year—or, indeed, within a matter of months—he would be willing to come back to the House and look at it afresh?
James Brokenshire
I assure my right hon. Friend, whom I congratulate on becoming a member of the Privy Council, that the matter will be kept under close scrutiny and review. We have published draft clauses, which could be enacted quickly in the next Parliament, to regularise the position. We recognise that this is an interim measure, and we want it to be enshrined in primary legislation that the House would have a full opportunity to debate. I should add that the code of practice provides for requests to be flagged up to the commissioner, and thus allows additional scrutiny to take place. I hope that that reassures my right hon. Friend.
The commissioner also recommended further changes to the guidance in the acquisition code, and we have sought to implement that recommendation. The code is now clear about the need to consider more than rights to privacy—in particular, the right to freedom of expression must be taken into account when that is appropriate—and it also contains new guidance on the considerations of necessity, proportionality and collateral intrusion, including unintended consequences.
The revised acquisition code enhances the operational independence of the authorising officer from the specific investigation for which communications data are required. It includes new, enhanced protections for those who may have professional duties of confidentiality or privilege. However, it is important to remember that we are debating communications data, not the content of communications.
The retention code sets out how the Government implement the requirements in the Data Retention and Investigatory Powers Act 2014 and the Data Retention Regulations 2014. It covers the following issues: the review, variation and revocation of data retention notices; communications service providers’ ability to recover their costs; data security; oversight by the Information Commissioner and safeguards on the disclosure; and the use of retained data by communications service providers.
The House will be aware that both codes underwent public consultation. The Government received about 300 submissions from organisations and individuals suggesting amendments and providing comments on the codes. I am grateful to all who took part. We have published a summary of the submissions received and how the Government have responded to them. The Department considered all the responses to the consultation and many of the suggestions have been adopted in the final drafts.
I would like to address briefly the final instrument in this motion: the Authority to Carry (Civil Penalties) Regulations 2015. They establish a penalty regime for breach of any requirement of the authority to carry scheme 2015, which this House approved on 10 March. A carrier may be liable to a penalty for breach of the following: a requirement to seek authority to carry a person; a requirement to provide specified information by a specified time; a requirement to provide information in a specified manner and form; a requirement to be able to receive communications in a specified manner and form; or a requirement not to carry a person when authority to carry has been refused—this is an important part of the code.
The scheme specifies that it is the requirements set out in detailed written notices issued to carriers under the Immigration Act 1971 or the Immigration, Asylum and Nationality Act 2006 that must be met under the scheme, rather than those requirements being specified in detail in the scheme itself.
James Brokenshire
The pre-existing authority to carry scheme has been used to prevent people from being able to travel to this country. It is important to note that the revised scheme deals with outbound as well as inbound, so this is an enhancement of the existing arrangements. Unfortunately, for operational reasons I cannot comment in detail on the use of the scheme, but I can say that requests have been made and carriers have abided by those requests to prevent people from travelling to this country. Therefore we have shown utility from the existing scheme on inbound legs, which is the point of the existing arrangement, but we are now seeking to extend it further in terms of various additional requirements, as well as also dealing with the outbound leg.
Keith Vaz
We know of the Minister’s eloquence when asked questions by Members in this House and in the Select Committee, but he did not really give me an answer. I am not after answers on operational decisions; I want to know how many times an airline has carried when we have asked it not to carry—I do not think that that would give away any state secrets about who those people were. It is a simple matter of, “Does he know the answer? If not, will he write to us?”
James Brokenshire
I can reassure the right hon. Gentleman that the circumstances he describes have, certainly to my knowledge, never occurred. We would not wish to see that happen. That underlines the purpose and utility of having the authority to carry scheme in place, but we think it important to have a penalty in place none the less. We clearly have a scheme that sets out those requirements, but it needs to have enforcement and the ability to rely on that to ensure that there is good compliance with the scheme.
As I have described, a carrier may be liable to a penalty for breach of a requirement. The scheme specifies that it is the requirements set out in detailed written notices issued to carriers under the Immigration Act 1971 or the Immigration, Asylum and Nationality Act 2006 that must be met under the scheme, rather than those requirements being specified in detail in the scheme itself.
The Joint Committee on Statutory Instruments has reported these regulations to the House and drawn specific attention to them. It considers that the scheme imposes some requirements
“under which the relevant matters are all to be particularised subsequently in a way that is left unspecified in the Scheme itself”.
That is correct. The scheme identifies that the detailed specifications are in the requirements imposed on carriers under the 1971 Act or the 2006 Act. Carriers subject to specific requirements to provide information under the 1971 Act or the 2006 Act fully understand the information they are required to provide, the time or times at which it should be provided and the form and manner in which the information should be provided and received. In doing so, they comply with the scheme.
These measures are not about penalising carriers. The Government work with carriers to ensure the safety of their passengers and crew, the security of their aircraft, ships and trains and the security of the United Kingdom. However, there is a need for a civil penalty regime when carriers fail, without reasonable excuse, to comply with requirements of the authority to carry scheme. When a carrier fails to comply, we should have the ability to impose an appropriate penalty up to a maximum of £50,000. That is particularly the case if the failure results in a carrier’s bringing someone to the UK, or carrying someone from the UK, whom they had been or would have been expressly refused authority to carry. It is worth noting that these aspects of the regulations were not criticised by the Joint Committee.
The two communications data codes of practice outline best practice and ensure that the right safeguards are in place concerning access to, and retention of, communications data. It is important that we bring them into force by the end of this Parliament. The authority to carry scheme civil penalties regime will ensure that carriers comply with requirements imposed on them to prevent and disrupt travel by individuals who pose a threat to the public or, in the circumstances of children travelling to Syria, who are putting themselves at risk. I urge right hon. and hon. Members to approve these important statutory instruments.
Diana Johnson (Kingston upon Hull North) (Lab)
I should like to start by thanking the Minister for setting out clearly what is behind the three measures before us today. I particularly want to thank him for his remarks about the action being taken against those travelling to Iraq and Syria to become involved in terrorist activities. I am sure that the whole House will support the work that he and his Government are doing in that regard.
I shall deal first with the Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015. This reissued guidance has five laudable aims, which the Opposition support. They are: to enhance the operational independence of the authorising officer from involvement in the specific investigation for which communications data are required; to strengthen the protections for information that has professional sensitivity—particularly journalistic material; to reflect the additional requirements on local authorities to request communications data through a magistrate; to improve the record-keeping requirements for public authorities; and to improve best practice in regard to international co-operation and emergency calls.
We support those aims in the guidance, but I should like to ask the Minister a few questions about how we have reached this point in the code of practice. First, the draft guidance was put out to consultation late last year. Why has the response to that consultation not been published for Parliament to consider alongside this statutory instrument? The Minister said that it had been published, but I have had real difficulty finding it. The Vote Office could not find it for me when I requested it, and it is not next to the other documents on the Home Office website, so could the Minister tell me where I can find it? As he said during the passage of the Serious Crime Bill, there were more than 300 responses to the consultation, and it would have been useful to be able to see them.
Secondly, will the Minister explain the key difference between this guidance and that published just before Christmas? Thirdly, will he explain the timings of these changes? Why was a consultation launched while reports from the independent reviewer of terrorism legislation, due out in a few weeks’ time, and further recommendations from the interception of communications commissioner were expected? I appreciate that the changes reflect some earlier recommendations from the commissioner, and there have been subsequent changes to reflect new recommendations, but why is the code of practice being treated almost like a work in progress? Why not have the recommendations first, then a full consultation and then a final code of conduct, with special interim measures, which I know we would probably all support, to protect journalistic sources? Perhaps the Minister will be able to explain how this process has worked.
Will the Minister also explain how the code of conduct has been written to ensure that it accurately reflects recent legislative changes? First, I was thinking about the recent orders extending the grounds on which the Financial Conduct Authority can access data. Is all that covered in this code? Secondly, the Serious Crime Act 2015 implements some of the recommendations from the interception of communications commissioner. Although it is welcome that the guidance goes some way to reflecting those changes, with a page added to give specific protection to journalistic sources, the Act introduced only partial and interim measures, so I want to know from the Minister whether the guidance will need to be reissued again when the final legislative measures are introduced.
On the second order before us, I want to ask about the definition of “communication” and “message”, an area where the code of practice does not address many of the issues raised during the passage of the Counter-Terrorism and Security Bill, both in this House and in the other place, about how “communication” is defined. Paragraph 2.13 of the code of practice is very specific in relation to fixed-line telephony calls. That is fine as far as it goes, and it is probably all that was needed 20 or 30 years ago, but this code of practice is for 2015 and beyond. I am sure the Minister will accept that the way we communicate now is very different from when we just had fixed telephone lines.
Fixed-line telephone calls now are a small element of communications. When we look at internet-based communications, from e-mail to app-based messaging and social media, we see that the code of conduct is too vague in what it is trying to do. Paragraph 2.11 refers readers of the code of practice back to section 2(1) of the Data Retention and Investigatory Powers Act 2014 and to the schedule to that Act. I am not sure why a code of practice supposedly designed, to quote from the code, to be
“readily available to employees of a CSP”
to use should refer them back to an obscure part of an Act that was criticised by some right hon. and hon. Members for not being as clear as it could be.
Paragraph 2.16 is the only one I could find in the code of practice that seeks to explain what DRIPA means for internet-based communications. The paragraph is headed “Internet email” and states:
“Internet email under DRIPA is considered to be any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service.”
Is that simply a definition of internet-based e-mail providers such as Hotmail or Gmail, or is it meant to include social media? If it is meant to include social media, why does it not say that, so it is clear in the code of practice?
In Committee, I asked a series of questions about social media, which the Minister did not answer, and I do not think they were answered in the other place either. Let me ask the Minister again: does the code of practice include messages sent on social media platforms such as Facebook? If it does, why is there no section in the guidance devoted to social media? As I have said, the title “Internet e-mail” is not clear in this respect. If social media are covered, does a message extend to tagging another person in a broader post? Specifically, if a person is tagged in a Facebook or Instagram post, does that count as a message for the purposes of this code? What about a person included in a tweet? Does that count as well?
Perhaps the Minister will also respond to questions on the generic forms of interaction on social media sites. I am talking about where there is no user-generated content, but there is an interaction—for example, I “love” a photo on Instagram, “like” a post on Facebook, “favourite” a tweet, or “swipe” on Tinder. Do those come within this code of practice?
When I raised those issues in Committee, the Minister said that the code covered all communications, by which he meant anything that conveyed a message—as if a message was a self-evident thing that did not need a clear definition. That rather clumsy presumption has been applied to this code of conduct. Will the Minister explain, with reference to the social media sites, how paragraph 2.16 is meant to be interpreted? I hope he can shed some light on this matter.
I also want to ask about the relationship that this code envisages between the Home Office and the communications service providers. For example, the code of practice gives the Secretary of State total discretion over the review of retention notices, but it says that factors leading to a review could include significant technological change. Can the Minister explain how an ongoing dialogue with the CSPs operates, and how it is being maintained to ensure that the Secretary of State will be aware of major technological changes?
Moving on, will the Minister explain why no impact assessment has been prepared for this legislation? Last week, we found that the impact assessment prepared for the Prevent elements of the Counter-Terrorism and Security Bill, vague and imprecise as they were, had not been signed off by the Home Office’s chief economist because the Home Office did not have the evidence base to support the legislation. Essentially, what that confirmed was that, after four years, the Home Office did not have that evidence about what works in terms of Prevent and so could not use that to inform and back up any legislative decisions. Is that the reason we do not have an impact assessment for the statutory instruments before us today? These codes of practice cover the process for decisions regarding compensation payments provided to CSPs, so they could have far-reaching cost and spending implications. They also have the potential to change significantly the compliance burdens on businesses.
I am very surprised that we do not have an impact assessment drafted for these orders. Perhaps the Minister can give us some background information; if he is not able to do so today, perhaps he could find it and place it in the Library. I have four questions. First, how many retention notices are currently in force, and how many are company-specific? Secondly, the code of practice talks about two years as the standard period for a review of a data retention notice. In practice, how many notices are reviewed before the two-year period? Thirdly, how many retention notices have been ended before the two-year period? Fourthly, what is the total spend on compensation agreed with the communications service providers in each of the past five years?
The Government’s explanatory memorandum to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 states:
“Full guidance will be provided to industry on the operation of the Scheme. The Home Office and other agencies will continue to engage with industry on the detail of the Scheme to assist implementation.”
Will the Minister make it clear when he expects this guidance to be made available? The transport industry also made an observation in a number of responses to the consultation—I think that there were 28 in total. The memorandum states:
“The majority of carriers felt, however, that a proposed maximum fine of £50,000 was excessive and disproportionate, especially when compared to the possible fines imposed by other countries.”
Will the Minister explain why, despite the view taken by the transport industry, the Government decided to maintain the upper limit of £50,000 for a fine?
Finally, I also note that the 21-day rule was breached for introducing those regulations. I hope that the Minister will comment on why. I am sure that he will make a commitment that every attempt will be made in future to ensure that orders are introduced within the appropriate time.
Keith Vaz (Leicester East) (Lab)
I shall be brief. It seems clear that the House will approve the orders moved by the Minister today. He began by putting the situation and the reasons behind the orders in context. He knows, as Security Minister, that the country faces a severe threat.
Last week, the Select Committee on Home Affairs, in one of our last sessions of this Parliament, heard the evidence of the relatives of Shamima, Amira and Khadiza, three young ladies aged 16, 15 and 15 who left Tower Hamlets and went to Syria. Only this morning, I met the families of two of the young men who have just returned from Istanbul. The families are wonderful people, hard working and dedicated to this country, and were as shocked as any of us would have been that their children had left the country and, in the case of the girls from Tower Hamlets, reached Syria and, in the case of the three young men, been brought back yesterday. I commend the police for their work, and the Turkish authorities in the latter case.
The Turkish ambassador gave us very good evidence last week, with a timeline. The situation was much better second time around, with phone calls being made instead of e-mails being sent. We need to commend people when things go right and this is a good news story in the fight against terrorism. We do not have many of them, but everyone worked together and we commend them for what they are doing.
Mr David Winnick (Walsall North) (Lab)
I am sure that we would all endorse what my right hon. Friend says and what the Minister said about the Turkish police and ensuring that the young people involved were returned to this country immediately. I cannot go further than that, as the Minister has stated. Does my right hon. Friend agree that we need to probe further, even though the numbers are very small, and ask why it is that young people like those he mentioned, whose relatives we saw in the Home Affairs Committee last week, should wish to join a group motivated by mass murder, savage beatings, beheadings and sex slavery? More needs to be done to find the reasons why such youngsters, born and educated in this country, should wish to travel in the way they intended.
Keith Vaz
My hon. Friend is absolutely right. The Committee has taken evidence from all the stakeholders involved, but it is the people who have gone abroad who really matter as we need to find out why they went in the first place. We need to get into their minds in some way, as he has said and as his questions in the Committee’s evidence sessions have tried to do, to find out why they make that decision, what turns them and what the tipping point is. They are brought up in this country, and by parents who obviously love and support them, but then suddenly they decide to go abroad. If I have one regret from all my years of chairing the Committee, it is that we have never been able to take evidence directly from those who have gone abroad. Some have come back, of course, but they are reluctant to talk to us, either formally or informally. My hon. Friend is absolutely right, and I think that why people decide to go is something that successor Committees and the next Parliament will have to consider.
On the orders before the House, I fully support the instrument that brings into force the code of practice to enhance safeguards and ensure clear guidance on best practice with regard to the acquisition and retention of communications data. When the Committee took evidence from journalists on the matter—this is in the public domain, of course—we said that we believed there ought to be exceptions. The Government accept that the authorities need to be very careful when they stray into areas relating to freedom of the press. I think that the code does provide for that, so the Government are right to bring it before the House now rather than at some later date.
However, the Committee, in looking at the regulations before the House, strongly suggested that RIPA’s days had come and gone. Although it was acceptable at the time to pass that legislation, we felt that, frankly, it was being misused. Anecdotally, we have head about some local authorities using the powers in RIPA to spy on families deciding where to send their children to school. We felt that such misuse was probably going on in other areas, but we did not know because there was no proper and effective monitoring.
Stephen McPartland
I am grateful to the right hon. Gentleman for giving way—
Mr Speaker
Order. I beg the hon. Gentleman’s pardon. I blame myself; I was immersed in conversation. It was a case of mistaken identity. The hon. Gentleman is wearing a delightful white shirt, not a checked one. He is not Mr Cairns; he is indeed Mr Stephen McPartland. I apologise to the hon. Gentleman, and indeed to the other hon. Gentleman.
Stephen McPartland
Thank you, Mr Speaker.
I think the Minister has done an excellent job in bringing on side some of us who were not as supportive of these proposals as others, but I am still concerned about the number of organisations that will be able to use DRIPA to access information. Does the right hon. Gentleman know how many such organisations there are?
Keith Vaz
The hon. Gentleman is absolutely right to be wary of that. I do not know how many other organisations can do that, and I think that there is a lack of monitoring. When Parliament passes legislation for a specific purpose and it is then used for other purposes—journalists say that this could be used to spy on them, for example, thereby giving up vital information about sources—parliamentarians need to pause and reconsider, and I think that is what we have to do. As he will know, given his great experience in home affairs matters, having in a previous life been so intimate with the workings of the Liverpool passport office, the state’s use of these powers does tend to creep. We need to ensure that we are vigilant in that regard.
The Minister says that he is waiting for David Anderson to report. One way of ensuring that David Anderson does a quicker job is to give him more resources. One of the things the Select Committee has noted is that the independent assessor does not have the kinds of resources that we would have expected. If the Government—whoever is in power after 7 May—help him along his path, we may be able to get a result much more quickly. We would therefore get the review of RIPA, which I think the whole House wants. The Prime Minister certainly wants it, from what I have heard him say about it. I hope we will be able to move that forward.
Finally, on the last set of regulations before the House, the Authority to Carry Scheme (Civil Penalties) Regulations 2015, I have no problem in principle with what the Minister proposes, but he told the House, in effect, that the situation in which these would take effect has never arisen—that a carrier, having been asked not to carry, has defied Government, either inbound or outbound, and said, “We are going to carry this person.” It was the previous Government who introduced the carriers’ liability regulations. I probably voted for the measure at the time—I cannot remember as it was so long ago. It was effective because the carrier tends not to put someone on a plane if that person has been told on departure from another country that they do not have the requisite visa to enter the United Kingdom, as it is the carrier that will pay the fine.
There is nothing wrong with the principle, but we should legislate when we know that there is a problem. We finally got out of the Minister the fact that there has never been a situation where that has happened, so here we are, passing legislation to stop something that has never happened. His argument is that it is important to have that power in the back pocket because we never know when we might need it. It is important for the Minister to be able to wave it in front of carriers and say, “If you don’t do this, you will be fined.”
My objection to civil penalties is that the amount collected by the Government is lamentably small. To save us having to table parliamentary questions, as we are right at the end of this Parliament and we might not get the answers before we rise, I hope that the Minister will give us some figures when he winds up showing the percentage of civil penalty fines that have not been paid by those who are subject to them. I think unpaid fines owed to the Home Office will run into millions of pounds. The last time I looked, it was a pretty high figure.
All I ask the Minister to do is to reassure the House that he is a good collector of those penalties—not the hon. Gentleman personally, but his Department. I am sure that if he knocked on my door and asked for the penalty to be paid, I would pay it immediately. He is such a nice and charming man that I would cough up immediately, but we cannot spare the Minister for Security and Immigration for that kind of work. Others have to do it, or sometimes it is done by letter. All that happens is that the letter is put to one side. Perhaps he will have the figure for the amount of uncollected civil penalties currently owed to the Home Office. If it does not run into millions, I will buy him dinner in the Members Dining Room before the House rises on 30 March. On that cheerful note, I will finish my contribution.
John McDonnell (Hayes and Harlington) (Lab)
I will not delay the House more than a minute. Over the past 12 months I have bored the House enough, like a needle on a cracked record, on the subject of the protection of journalists.
That started with a debate on the concerns expressed by the National Union of Journalists about the volume of production orders that were being used against its members, as well as the range of organisations using and abusing RIPA, and the police moving away from PACE to avoid accountability through the courts, and then using RIPA. In addition, concerns were expressed by the NUJ about the development of DRIPA.
I am grateful to the Minister for allowing the interchange of views between the NUJ and his officials. That has helped us to move forward clearly on the codes of practice, but those do not go far enough, nor do these regulations, to meet the NUJ’s position on the protection of journalistic sources. However, the draft clauses have been published. We are about to go into purdah. Whoever is in government after the election will have to address the issue fairly quickly, as the Minister knows. Can the lines of communication between the civil servants and the NUJ remain open during this period? Also, can further meetings take place with the NUJ’s legal advisers and the NUJ representatives to ensure that the eventual legislation, or the advice on the eventual legislation, that goes before the incoming Ministers will meet with the approval of all stakeholders, as well as journalists?
James Brokenshire
With the leave of the House, Madam Deputy Speaker, I will try to respond to as many as possible of the various points that have been raised during this helpful debate.
Let me at the outset welcome the support that right hon. and hon. Members have given to these statutory instruments, even if, in a number of cases, they feel that further work may be required. Further debate and discussion is taking place about the communications data aspects and the report by David Anderson. I can tell the right hon. Member for Leicester East (Keith Vaz), the Chair of the Home Affairs Committee, that David Anderson remains on course to report on time before 1 May. I underline the fact that the new privacy and civil liberties oversight board will give further support to David Anderson in his important work, which the right hon. Gentleman and many others in the House recognise in terms of the contribution that he makes.
The right hon. Gentleman highlighted the case of the three schoolgirls who travelled from London to Syria and the evidence that his Committee took last week. It would not be appropriate for me to comment on the specifics of that recent case, not least because the investigation is still ongoing. He rightly underlines the huge distress that is caused to families by these cases. We hope that this matter can be resolved and that the girls are able to return home to their families as soon as possible. I know that the whole House would wish to underline that.
There are continuing issues on which we need to challenge ourselves as regards why people seek to travel in this way. As the evidence that has been provided to various Committees indicates, it is a complicated picture featuring the impact of social media, peers, and other influences. That is why, as a Government, we have taken a very broad view in recognising the responsibilities that we all hold in seeking to prevent people from travelling and becoming involved in terrorist-related activity. We will be able to return to this again next week, I hope, when we look at further instruments and guidance that may need to be considered further before the House rises.
Keith Vaz
I look forward to looking at the Minister’s further instruments when they become available for scrutiny.
On the point about communities and families, having looked carefully at this subject, the lesson that the Committee has learned over the past 10 days is that they should not be afraid to come forward and speak to the authorities, because the authorities will deal with them sympathetically and they will not be stigmatised. We are all in this together to fight those who seek to seduce and groom young men and women and take them out of our country.
James Brokenshire
The right hon. Gentleman makes a very important point that I entirely endorse. Indeed, that is why the Home Office has been keen to support initiatives such as that advanced by Families Against Stress and Trauma, which has campaigned to highlight the need to come forward and report to the authorities or to others who may be able to take action to safeguard and prevent such actions.
The hon. Member for Hayes and Harlington (John McDonnell) raised again the position of journalists in relation to communications data. He and I have rightly debated that on a number of occasions in this House. He, and others, may not feel that this is the final settled picture. As I have said, we recognise that this matter needs to be further regularised in primary legislation, and we hope that the House will be able to return to it swiftly after the general election. In his report, the commissioner said that there had been no abuse, in relation to his investigations and his inquiry, into the manner in which communications data requests are made of journalists. I welcome the hon. Gentleman’s suggestion that we should ensure that there is continuing dialogue on this matter.
The draft clauses, and our desire to receive feedback on them, provide a further opportunity for those channels to be kept open. Although the House will head into purdah and Dissolution shortly, I hope communication will be maintained with officials to ensure that, when this House returns, the next Government can move forward quickly in the light not only of David Anderson’s report, but of the feedback we receive on the draft clauses. I hope that reassures the hon. Gentleman.
I will go through as many as possible of the points raised by the hon. Member for Kingston upon Hull North (Diana Johnson), whose broad support I welcome. As the explanatory notes make clear, a full regulatory impact assessment was made of the effect of the Data Retention and Investigatory Powers Act 2014 and the Counter-Terrorism and Security Act 2015.
On the difference between the consultative code and the final version, the key changes include the introduction of the requirements for law enforcement to use the Police and Criminal Evidence Act 1984 to acquire communications data in order to determine journalistic sources. Other changes include greater clarity on the additional consideration for those in sensitive professions and increased guidance on the necessity and proportionality that must be met by all applications for communications data. I assure the hon. Lady that we reflected carefully on the submissions. The codes reflect all recent primary legislation, but, as she will appreciate, if significant changes are made to primary legislation in the future, new codes may be required.
We do not provide details of which companies are the subject of data retention notices nor the detail of those notices, as it could be of considerable benefit to terrorists and other criminals if they knew which companies were under the data retention obligations, and they could adjust their behaviour accordingly. That is why we have maintained a consistent stance.
The responses to the public consultation have been published on the Home Office website and we have written to the Chairs of the relevant parliamentary Committees. I am sorry if the hon. Lady was not able to locate them and I am happy to write to her to point her directly to them, because I specifically made sure that they were published in advance of today’s debate. I am disappointed that she has not been able to locate them, which is what I wanted her to be able to do.
Diana Johnson
I am grateful that the Minister will write to me, but I made strenuous efforts to get hold of the responses, including getting the Vote Office to look for them and having a good search of the Home Office website myself. Perhaps it is time for the website to undergo a review to make sure it is as accessible as possible.
James Brokenshire
All I can say is that the consultation responses were published. I note the hon. Lady’s challenge and I will certainly point her in the right direction.
On 4 February the interception of communications commissioner reported on the issue of journalists’ material. We are introducing the codes as quickly as possible to give as full effect as we can to the commissioner’s recommendations. Frankly, we do not believe it would be appropriate to wait. The hon. Lady asked why we are doing it now and in this way. It is being done in this way to ensure that the codes and safeguards are put in place as quickly as possible. I judged that it was right to do the initial consultation and get feedback even though we knew that the commissioner was due to report, because if we had waited for the commissioner’s response and then done a full consultation on the full code, we would not be in the position we are in today. I think that was the right approach.
The hon. Lady also asked technical questions about social media. The provisions apply to relevant communications data generated or processed in the UK by communications service providers. The codes of practice give some examples of the data to be retained and the way in which the CSPs build their systems. The communications data generated differ among CSPs and the services they provide. It is important that the Government can work with providers to ensure that appropriate data are retained. The code provides that the Home Office may give further guidance to those implementing the requirements. In other words, there can be further drill-down to give further specificity. The Home Office works closely with providers to ensure that it is aware of future technological changes that may lead to a review of a data retention notice. I will reflect further on the points made by the hon. Lady and place any additional information in the Library.
Finally, the £50,000 maximum penalty for failing to comply with the requirement under the authority to carry scheme reflects the seriousness attached to a carrier bringing someone into the UK or taking someone out of the UK when refused the authority to do so. I certainly hear the point made by the right hon. Member for Leicester East when he asked why we should have a penalty if compliance is already enforced. Now that we are extending the scheme to both inbound and outbound carrying, having looked at different aspects of it under the code and reflected on the issues raised, it is appropriate to have a penalty or sanction to encourage and promote the positive behaviour that right hon. Gentleman, the hon. Member for Kingston upon Hull North and I want. We have brought in the penalty in that spirit.
Keith Vaz
The Minister is always generous in giving way, which helps the scrutiny of such measures. I am sorry if I missed this, but did he give the House a figure for how much is owed to the Home Office in civil penalties in total? I am eager to take him for supper before we close on 30 March.
James Brokenshire
I would tell the right hon. Gentleman that in respect of that particular provision—[Interruption.] I will come to his point. In respect of that provision, we clearly do not want there to be any unpaid penalties; we want compliance and therefore for penalties not to be levied in the first place. We are putting the penalty in place in that spirit of good compliance.
I normally try my best to meet the right hon. Gentleman’s requests for information as soon as possible, but I am afraid that I will have to disappoint him on this occasion. I note his request for the details of the various civil penalties levied under the civil penalties scheme, and I will certainly take it away and see what further information I can give him to assuage his clear desire for it.
With those comments, and given the broad welcome that the House has given to the measures, I hope that the House will be minded to support them.
Question put and agreed to.
Resolved,
That the draft Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015, which was laid before this House on 4 March, be approved.
Investigatory Powers
Resolved,
That the draft Retention of Communications Data (Code of Practice) Order 2015, which was laid before this House on 4 March, be approved.—(James Brokenshire.)
Immigration
Resolved,
That the draft Authority to Carry Scheme (Civil Penalties) Regulations 2015, which were laid before this House on 2 March, be approved.—(James Brokenshire.)