Data Retention and Investigatory Powers Bill

Jim Hood Excerpts

Tuesday 15th July 2014 Commons Chamber

[Mr Hanson]

I beg to move amendment 3, page 6, line 41, at end insert

“and is subject to a reporting requirement as set out in subsection (1A).

(1A) The Commissioner for the Interception of Communications must report on the operation of this Act six months following commencement of this Act, followed by subsequent reports every six months.”

[The Temporary Chair (Mr Jim Hood)]

With this it will be convenient to take the following:

Amendment 4, page 7, line 1, leave out “5” and insert

“(Half-yearly reports by the Interception of Communications Commissioner)”.

Amendment 5, page 7, line 2, leave out “5” and insert

“(Half-yearly reports by the Interception of Communications Commissioner)”.

Government amendment 7.

Amendment 2, page 7, line 2, leave out “2016” and insert “2014”.

Clause 6 stand part.

Government new clause 7—Review of investigatory powers and their regulation.

New clause 1—Review of the powers, regulation, proportionality and oversight for communications and interception—

(2) The Secretary of State must arrange—

(a) for the operation and future of the powers, regulation, proportionality and oversight for data retention, access and interception to be reviewed, and

(b) for a report on the outcome of the review to be produced and published.

(3) Subsection (1) does not prevent the review from also dealing with other matters relating to the Regulation of Investigatory Powers Act 2000, the Intelligence Services Act 1994, oversight of the intelligence agencies and data privacy.

(4) The arrangements made by the Secretary of State must provide for the review to begin as soon as practicable, be carried out by the Independent Reviewer of Terrorism Legislation, and include public consultation.

(5) The full terms of reference must be established in consultation with the Independent Reviewer of Terrorism Legislation and relevant Select Committees of both Houses of Parliament.”

New clause 2—Oversight by the Interception of Communications Commissioner—

(1) The Interception of Communications Commissioner must report on the operation of sections 1 to 5 of this Act within six months of this Act coming into force and on six-monthly intervals thereafter.”

New clause 6—Half-yearly reports by the Interception of Communications Commissioner—

(1) Section 58 of the Regulation of Investigatory Powers Act 2000 (reports by the Interception of Communications Commissioner) is amended as follows.

(2 In subsection (4) (annual reports) after “calendar year” insert “and after the end of the period of six months beginning with the end of each calendar year”.

(3) In subsection (6) (duty to lay annual reports before Parliament) after “annual report” insert “, and every half-yearly report,”.

(4) In subsection (6A) (duty to send annual reports to the First Minister) after “annual report” insert “, and every half-yearly report,”.

(5) In subsection (7) (power to exclude matter from annual reports) after “annual report” insert “, or half-yearly report,”.”

Amendment 6, in Title, line 7, after “Act;” insert

“to make provision about additional reports by the Interception of Communications Commissioner;”.

Government amendment 8.

[Mr Hanson]

This goes to the heart of the key amendments that the Opposition seek to impress on the Government to improve the Bill. The Minister will know that we have supported the Bill to date at Second Reading and in the discussions we have had so far, but we have had, and continue to have, some concerns over the need for two aspects in particular. The first is to ensure that there is in place a mechanism for a review of the role of the Act that may or may not be passed ultimately by this House and by the other place shortly. That review lies with the interception commissioner for communications, who could look at the Act and see whether the intention of the House was being met and whether there were developments or amendments that needed to be brought to the attention of the Government.

You will note, Mr Hood, that several amendments relate to this aspect. My initial amendment 3, which I tabled with my right hon. Friends this morning, would add the following at the end of clause 6:

“The Commissioner for the Interception of Communications must report on the operation of this Act six months following commencement of this Act, followed by subsequent reports every six months.”

That was intended to ensure an element of review to meet some of the genuine concerns raised by hon. Members of all parties. You will also see, Mr Hood, that we tabled new clause 2, which is a variation on the same theme. We did so to ensure parliamentary debate, given that we were not sure at that stage what amending provisions would be selected. The new clause effectively provides for the same activity.

We have helpfully tabled new clause 6, too, which provides for half-yearly reports by the interception of communications commissioner. It is linked to amendment 6 and to amendments 4 and 5, but all have the same purpose in life: they are all designed to ensure that the communications regulator is able to review the Act and has a statutory responsibility to do so, not just in six months’ time, following Royal Assent—given the Government’s timetable, that could be as early as Thursday this week—but formally. That would enable the commissioner to examine some of the concerns raised across the House, including by my hon. Friend the Member for West Bromwich East (Mr Watson).

There is a menu of options for the Government to look at and for the Minister to comment on. I would be happy if he supported any of those amendments; I have tabled three options for him to examine in detail and to establish whether any of them meet his particular obligations. He has an opportunity to give a commitment to establishing that one or all of them would be appropriate.

The second aspect relates to new clause 1, which I tabled this morning with my right hon. Friend the Leader of the Opposition and other right hon. Friends. It would establish a “review of the powers, regulation, proportionality and oversight” and other issues that have been of concern to Members of all parties. Members were troubled about a number of longer-term issues, which need to be resolved before any action by a future Government on the storing of data and proportionality. We wanted to ensure that arrangements would be in place as soon as practicable for a review to be carried out by the independent reviewer of terrorism legislation, David Anderson. It should include public consultation, and we need to ensure that the full terms of reference are published in consultation with not just Mr Anderson but the relevant Select Committees of both Houses of Parliament. That means the involvement of, for example, my right hon. Friend the Member for Leicester East (Keith Vaz) and the Home Affairs Committee and, indeed, that of the right hon. and learned Member for Kensington (Sir Malcolm Rifkind) and the Intelligence and Security Committee, which could contribute to the discussion.

Since we tabled that new clause this morning, the Government have helpfully examined it and tabled their own new clause 7, which covers many of the long-term issues that I feel are necessary for us to consider. Crucially, it covers areas that my right hon. Friends and I are concerned about, particularly the point that the independent reviewer of terrorism must review the operation and regulation of investigatory powers and take current and future threats into account. We accept that there are current threats and there will be future threats. We need to examine our ability to deal with those threats, and, crucially, to think about how we can safeguard our privacy, given the challenges of new technologies.

I have been in the House for—dare I say it?—22 and a bit years, and when I was first here, we did not even have mobile phones. Now, time and pressure are moving on. I arrived late at Twitter, which I took up after the 2010 election, and I arrived at Facebook even later. There may be other technologies out there which I am not yet aware of.

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[Dr Huppert]

It is a pleasure to serve under your chairmanship, Mr Hood, and to follow the hon. Member for West Bromwich East (Mr Watson). I hugely admired his stance on the Digital Economy Act 2010, just before I became an MP, when I watched as he stood alone against his own Government, who were trying to ram a piece of legislation through the House in something like an hour or 90 minutes—he will, I am sure, remember the exact time. He had Liberal Democrat support, but we lost every vote on that occasion. I hugely admire him, and I saw his articles in The Guardian on that occasion and his frustration at not getting responses to letters from those on his own Front Bench, although that is perhaps an issue for him.

I have to tell the Committee that I am tempted by what the hon. Gentleman said about looking back in six months’ time. It sounds quite attractive—[Interruption.]

[The Temporary Chair (Mr Jim Hood)]

Order. I must ask the hon. Member for Sedgefield (Phil Wilson) to come to order.

[Dr Huppert]

Thank you, Mr Hood.

What the hon. Member for West Bromwich East set out is very tempting. I hear what he said and he made a strong case. However, although I have huge respect for why he is trying to achieve that, I am worried about what it would actually mean, because to get a new piece of legislation through in time it would, essentially, have to start now. I looked up the Identity Documents Act 2010—the first Act passed by this Government—which got rid of identity cards, something I am very proud of. It was obviously much easier to deal with, because it was getting rid of something, rather than creating something, so less scrutiny was necessary—we know what it is like not to have something. That was introduced in May and was not passed until December. It was very short—14 clauses, so only slightly longer than this one will be once we have added a couple of clauses. It took quite a long time to get it through the House, so if we were to get a replacement Act through in time, we would have to start now.

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[The Temporary Chair (Mr Jim Hood)]

Order. I obviously agree with the right hon. Member’s opinion about his hon. Friend, but it would be nice if he spoke to the amendment.

[Mr Straw]

Apologies; as a relatively new Member, I was led astray by my hon. Friend.

I come back to the point of the amendment tabled by my hon. Friend the Member for West Bromwich East. I wish that we had had more extended debates on the Bill, stretching over a number of days, but that has not been available. There is some strength in the point made by the hon. Member for Cambridge. Let us say that the legislation was repealed in December. What additional information would we have on its operation after it had been in force for only a matter of months? What prospect would there have been of gaining additional information about how the Act was operating? I suspect that, whether we spent a day, a week or a month on the replacement for the Bill—that would have to start in the middle of October—to allow proper legislative time, we would simply be repeating the contents of this Bill. It is far better to have the extended period with a clear sunset in 2016, plus the reviews, to which my right hon. Friend the Member for Delyn has referred, as a way of carefully considering the future of this kind of legislation and then making sober decisions at some length after the election.

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[James Brokenshire]

I will speak to Government amendments 7 and 8 and new clause 7, which were tabled by my right hon. Friend the Home Secretary. I will also address the provisions that have been tabled by Opposition Front Benchers before turning to the issues with the timetable and the sunset clause.

The Government amendments provide for a review of the powers and capabilities. I am grateful to the right hon. Member for Delyn (Mr Hanson) for his comments about Opposition new clause 1, which relates to the same topic and sets out the terms of a review of the legislation. There is no difference of principle here. [Interruption.]

[The Temporary Chair (Mr Jim Hood)]

Order. I can hear murmuring. I have a wee bit of industrial deafness from a previous life, but even I can hear it. I notice that a lot of conversations are taking place. We have had a long debate. The Minister is summing it up and I hope that Members will give him the best of order.

[James Brokenshire]

Thank you, Mr Hood.

New clause 1 shows that there is overlapping ground on the review. There is no difference of principle in that regard. My right hon. Friend the Home Secretary announced in her statement last week that we would review the interception and communications data powers that we need, as well as the way in which those powers and capabilities are regulated, in the full context of the threats that we face. I am pleased that the independent reviewer of terrorism legislation, David Anderson, QC, has agreed to conduct the first phase of that work. Our amendments give that work proper statutory footing, and set out the issues that the review will need to cover. It will deal with the powers that are required in the light of the threats we face and how they are regulated, and it will require the independent reviewer to report before the next election. Crucially, it will require the review to take account not only of the threats we face, but also of the safeguards required to protect privacy, and the impact of changing technology on the work of the agencies to keep us safe.

On that basis the Government have tabled amendments that achieve what I believe the Opposition were seeking to do in their amendments on this matter. The amendments make that explicit and address the points that the right hon. Member for Delyn set out in his initial contribution. I think he said that he may be warming to new clause 7—sufficiently warmed, I hope, to withdraw new clause 1.

The periodic review of the legislation is important in assuring the House and the public that appropriate safeguards are being ensured, and that operations of communications data and lawful intercept are being conducted properly and appropriately. Should the Bill pass through the House, it will not extend the reach and remit of such measures, as some who have made earlier contributions have perhaps feared. I agree with the Opposition that while this legislation remains in statute until the sunset clause kicks in—in our view at the end of 2016, and I will come on to the specifics of that—and while reviews are being conducted, the provision of information from the interception of communications commissioner on a more frequent basis might help inform those making observations on the operation of and any deficiencies in the law on interception and communications data capabilities.

The right hon. Member for Delyn and those on the Opposition Front Bench have tabled a number of alternatives and amendments, and the Government are happy to accept new clause 6 and related technical amendments 4 and 5, alongside amendment 6, which adds to the long title of the Bill. Indeed, I think I should also formally move those amendments to ensure that they do not fall outside any timeline we may have. As I said, the Government are content to accept those amendments, and I invite the right hon. Gentleman to withdraw new clause 2 and amendment 3, which would have dealt with the same issues.

A great part of this debate in Committee has focused on amendment 2, which would bring forward the date at which the Bill ceases to have effect to 31 December this year, rather than the current date of 31 December 2016. With the greatest respect, and acknowledging the points that have been made, I do not believe that that is the most effective way to proceed and give the House the information to assess the broad issues of communications data effectively. We have set in train and committed to have an independent review from the independent reviewer of terrorism legislation on the broad area of communications data. If that review is concluded, the House will be better informed in assessing the balance of privacy and capabilities that exist, and considering how technology has changed and may impact on what is necessary. The independent review will be instrumental in providing that information, and in informing the next Government after the general election as to how to proceed on that basis.

The Prime Minister has said that he thinks that a Joint Committee should be established to take that review forward and have that additional scrutiny. We therefore have the long-stop date, which is a termination date in 2016. That does not get renewed; the legislation ends at that point to give this House and the other place appropriate time to legislate in the context of those reviews, as well as for further scrutiny or consideration by the Joint Committee.

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[Mr Hanson]

We have had a useful debate on the amendments. The Opposition had two objectives in tabling our amendments and new clauses today: first, to secure a review of this Act, if passed by this House and by the House of Lords, within six months and then every six months following that; and secondly, to put it on the record that we need to have a wider examination of the whole of the intercept evidence-data collection issue. I think we have had a meeting of minds on that issue. With that in mind, I am happy to withdraw amendment 3 and to support new clause 6, and to ask the Government to accept that as they have indicated they will. We will then support Government new clause 7, which meets our objectives. There are other consequential amendments but, for clarity, that is my objective. It would be helpful, given what the Minister said, if we proceeded on that basis.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 4, page 7, line 1, leave out “5” and insert

“(Half-yearly reports by the Interception of Communications Commissioner)”. —(Mr Hanson.)

[The Temporary Chair (Mr Jim Hood)]

I call the Minister to move amendment 7 formally.

[James Brokenshire]

On a point of order, Mr. Hood. I believe that amendment 5 is a technical amendment that may also be required. I do not know whether that will be dealt with now or later.

[(The Temporary Chair (Mr Jim Hood)]

That is not a point of order. I can tell the Minister that we will take amendment 5 after we deal with amendment 7.

Amendment made: 7, page 7, line 1, after “5” insert

“and (Review of investigatory powers and their regulation)” —(James Brokenshire.)

This amendment is consequential on NC7

Amendment made: 5, page 7, line 2, leave out “5” and insert

“(Half-yearly reports by the Interception of Communications Commissioner)” —(Mr Hanson.)

Amendment proposed: 2, page 7, line 2, leave out “2016” and insert “2014”—(Mr Watson.)

Question put, That the amendment be made

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[Dr Huppert]

I beg to move, That the clause be read a Second time.

[The Temporary Chair (Mr Jim Hood)]

With this it will be convenient to discuss new clause 4—Legal certainty for transparency reporting—

‘(1) The Regulation of Investigatory Powers Act 2000 is amended as in subsection (2).

(2) In section 54 (Tipping-off), after subsection (5) insert—

“(5A) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was made as part of an aggregated statistical disclosure covering a period of time greater than six months.”’

This amendment would provide a defence against the “tipping-off” offence, which has been cited as a reason why companies cannot release transparency reports. This amendment would allow statistics to be made available at six monthly (or greater) intervals.

[Dr Huppert]

These are, I hope, two unobjectionable new clauses, which seek clarity from the Government about what is intended in respect of the transparency reporting. One challenge we have faced for a very long time in this area is the fact that, as I mentioned earlier, very little information is kept by the Home Office or any of the other bodies about what exactly this information is used for, how many pieces of information are collected by different people and what the reasons were. This is a very frustrating state of affairs.

When we looked at the draft Communications Data Bill, we found that there was just a two-week snapshot survey of a few police forces—it was not even all of them—asking about the purposes for which communications data are used. For that reason, I have for a long time wanted proper transparency reporting from the Government and all the organisations—some companies, such as Google, already do this as far as they can—so that we know what is being done and we can make an informed decision about whether it is being done appropriately.

Currently, we have well over 500,000 requests for communications data every year. In order to judge whether that is a large or a small number, we need to know why they were made. We also need to know—we simply do not know this at the moment—how many people it relates to. Do those 500,000 requests relate to more than 500,000 people, or are there, in fact, 20 requests, say, relating to one person? We simply do not have that information.

This is not just a concern that I and various others have raised; it is something that the interception of communications commissioner raised in his 2013 annual report, in which he said:

“In my view the unreliability and inadequacy of the statistical requirements is a significant problem which requires attention.”

We must fix this; it is very important that we know. It was a bit of a shock to find, for example, that only 11.4% of requests were for national security. The vast majority were to prevent or detect crime or to prevent disorder. We should have that information available; we should know. Partly because of the lack of it, the commissioner highlighted the fact that he simply had to estimate various parameters that he was supposed to be investigating. He also said that he was concerned about “significant institutional overuse” and that the figure was “a very large number” that had

“the feel of being too many.”

We need to have the information available and published, so that we can make a proper decision.