Data Retention and Investigatory Powers Bill

Lord Knight of Weymouth Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord Taylor of Holbeach]

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.

[Lord Knight of Weymouth (Lab)]

I apologise for intervening in the Minister’s speech, but given that he has just been interrupted anyway, on the same point, can he clarify that Clause 4, “Extra-territoriality in Part 1 of RIPA”, is not an extension of the legal powers that the state has in respect of these matters?

[Lord Taylor of Holbeach]

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 Clause 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 e-mail 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 8 April and this legislation being introduced. Following that judgment we needed to balance the necessity to respond quickly with the need to ensure that care was taken to get our response right. We could not have acted prior to that judgment because the precise response needed to be framed in relation to the detail of the judgment. While we are clear that the existing regulations remain in force, we must act now to put this matter beyond doubt, providing a basis in primary legislation and responding to some of the points made by the court.

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.

--- Later in debate ---

[Lord Knight of Weymouth]

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.