Data Retention and Investigatory Powers Bill

Debate between Charles Walker and Dominic Raab

Tuesday 15th July 2014 Commons Chamber

[Mr Dominic Raab (Esher and Walton) (Con)]

May I declare an interest at the outset? My wife works for Google, albeit in a role entirely unrelated to this debate.

It was US founding father Thomas Jefferson who declared:

“The price of liberty is eternal vigilance.”

He meant vigilance not by the state but by lawmakers, citizens and civic society. As the Government grapple with an undoubted problem—the proliferation of the means, and the volume, of communications used by terrorists and serious criminals—this House must exercise its duty of vigilance, particularly when legislation is being rushed through at lightning speed, increasing the risk that we get the balance wrong.

I for one would like to see Parliament remain in Session until the summer to make sure that we get this right. I urge the Government to look very carefully at the amendment tabled by the hon. Member for West Bromwich East (Mr Watson) and others, which would allow us to sunset this Bill by the end of the year, to give us time to put some proper legislation in place. That seems to me to be the one point in this debate that is utterly unanswerable—we must surely be able to enact a better piece of legislation in six months than in one day. If not, what would that say about hon. Members on both sides of the House?

Last Thursday, this House debated giving the European Court of Justice the last word on powers relating to crime, policing and extradition, yet today the Government are lamenting the ECJ’s ruling on UK surveillance powers. I hope that all hon. Members will wake up to the wider democratic erosion by the European Union of our ability to strike the right balance for ourselves through this Parliament and our courts.

Equally, I recognise the concern of the intelligence agencies about the capability gap between communications between nefarious individuals and groups and our capacity to keep track of them. However, even if legislation itself can provide a framework for collecting this rising tide of data in a safe way with adequate checks and balances, the real problem, to be frank, is not the gathering but the challenge of sifting through an exponentially increasing amount of communications data to find the missing piece of the security jigsaw. That is why, while they are invaluable in police investigations and prosecutions after criminal activity has occurred, the role of comms data in monitoring real-time plots by terrorists and criminals posing some kind of imminent public threat is, frankly, pretty minimal. I wish Ministers and shadow Ministers would be a bit more explicit and honest about that.

In that context, I want to make five points. First, it is not strictly correct to say that we are merely reasserting the legal status quo. Until recently, internet providers and other IT companies held communications data voluntarily, and the key issue was the terms on which the Government could access those data. They no longer need to retain those data for commercial purposes, so the nature of the relationship between the state and commercial operators has fundamentally changed from a voluntary to a coercive one. This is the first time that we have in effect put our legislative imprimatur on that change, and it will have major implications for the IT companies. There is a very real risk that they will be perceived by their customers as the privatised wing of an increasingly powerful surveillance state, and they are understandably very anxious about that.

The second issue is the extent to which we can retain our communications capability at least at the same level as before. I do not doubt that the technological revolution has dented our ability to track criminals, but I question whether we can realistically expect to maintain this particular operational capability, at least in the way we have in the past, just by gathering more and more data on every citizen. There is a world of difference between gathering the rising tide of communications data and the effective use of such data to improve our security. If our challenge is to look for a needle in a haystack, increasing the size of the haystack will not necessarily make that task any easier. The only way in which the authorities will be able to make effective use of the increasingly vast quantities of data is through data mining and profiling, which—mercifully—no Minister has avowed; it would have major ramifications for the relationship between the citizen and the state.

With that in mind, my third point is that our strategic approach to surveillance should focus our finite resources and our intrusive powers on national security and the most serious crimes that threaten public safety. Yet the Bill will retain powers not just for national security, crime and public safety, but for a long list of other purposes—from tax collection to economic well-being and public health—and, indeed, any other purpose that the Secretary of State may order. I appreciate that Ministers will say they are just copying RIPA, but that legislation is fundamentally flawed, and it is regrettable that we are just nodding it through again in such a rushed time frame.

[Mr Charles Walker (Broxbourne) (Con)]

Is my hon. Friend suggesting that he wants those aspects of the Bill removed before Third Reading?

[Mr Raab]

Rather than the Bill just being nodded through, the key thing is to take advantage of a fairly light legislative timetable between now and the end of the year: we could pass the emergency legislation, and then get the job done properly and correctly, with the right balance.

The fourth issue is the extension of interception and communications data powers to cover foreign companies under clause 4. It is a new power, or at least there is an increase in the extent of the power. Have the internet and phone companies concerned agreed to this substantial assertion of extraterritorial jurisdiction? If not, how do the Government plan to get round the encryption and other security mechanisms in which many such firms take pride for the purpose of protecting their customers’ privacy? In practice, there are only three possibilities: that foreign firms co-operate voluntarily, which would be brand suicide; that that part of the Bill becomes utterly ineffective, because those with a malevolent intent quickly work out which providers will leave them immune to the powers that are enacted; or the nuclear option of the Government considering Chinese-style blocks or bans on offending modes of communication by overseas providers. Such unanswered questions are fundamental to the Bill, as they were to the draft Communications Data Bill before its demise. For all the legitimate concerns about privacy, it can equally be questioned whether clause 4 has any realistic hope of dealing effectively with the problem at hand.

Finally, as so often in this House we are yet again reaching instinctively for legislation to deal with issues that really require a stronger law enforcement capability. The annual Home Office statistics released last September showed that total terrorism convictions had fallen by 57% compared with the level in 2006-07. I have long called for a more robust prosecutorial capacity to fight terrorism and serious crime, such as lifting the ban on the use of intercept evidence, more plea bargaining and a stronger Crown Prosecution Service.

I am very conscious of the time, but the fundamental point is the need to recognise that there is a problem with communications data, but that we do not need to rush through the Bill or to repeat the mistakes of RIPA. I hope that Ministers will respond to the points made so that we can avoid passing in haste yet another piece of clumsy surveillance legislation that will erode our privacy as citizens without effectively tackling the undoubted security threat we face.