Data Retention and Acquisition Regulations 2018

Lord Rosser Excerpts

Wednesday 24th October 2018 Grand Committee

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the noble Lord, Lord Paddick, has compared these regulations to a dog masquerading as a cat. My feeling about them is that they seem more like the plotline from a political thriller than a reality that we ought to be facing. The regulations are actually a barefaced attempt by the Government to expand their creepy surveillance powers deeper and deeper into our lives. We seem to be the last bulwark here against the Government adopting Henry VIII powers that are simply unacceptable in these areas. These changes are unacceptable and we are going to do as much as we can to stop them. The Data Retention and Investigatory Powers Act was already hugely controversial, and these regulations seek to extend those powers even further.

Big changes to legislation, such as this, should be done through an Act of Parliament, rather than sneaking it through, without full scrutiny, under secondary legislation. I think it is quite outrageous of the Government to try to do this. In particular, I too was at that meeting on 10 October—one of the two Peers who attended, out of 800—and I feel that at no point have our concerns raised at that meeting been looked at, discussed or taken into account. I also take great issue with the definition of “serious crime” which these regulations use to justify state intrusion into people’s communications. Serious crime, we are told, is any offence which is capable of leading to a prison sentence of more than 12 months. Such serious crimes would therefore include possession of small quantities of cannabis, the obscene performance of plays or petty theft. I personally would not indulge in any of those, obviously, but I imagine there are categories that I could fall into, in total innocence, and that offends me very deeply.

Detecting and preventing even these pettiest of crimes would be grounds for the state to collect communications data. There does not need to be reasonable suspicion that you have committed an offence, just a general intention to make sure that you have not done anything wrong. Using these powers for so-called serious crime, the police will be able to gather the location data transmitted by your phone and any other electronic device. So with very few legal safeguards, the state can track you at will. These ever more oppressive data collection laws make it ever easier to spy on each and every one of us, for even the vaguest of reasons.

These laws are going the wrong way. Of course we need proper powers to tackle terrorism and truly serious crime, but alienating a lot of the populace is not the way to go. These powers should not come at the expense of the rights and freedoms of the majority of people, who are innocent of any serious crime. I feel that the Government are turning into an ugly, greedy surveillance monster, willing to sacrifice civil liberties that are, or should be, at the heart of real democracy.

[Lord Rosser (Lab)]

As the Minister said, the purpose of these regulations is to reflect a ruling of the European Court on communications data acquisition and retention that the Investigatory Powers Act 2016 is incompatible with European law. In the light of that ruling, these regulations have been brought forward, seeking to bring our legislation in line with European law, and of course what is before us also contains the code of practice to which the Minister referred.

The regulations and the code of practice provide for independent authorisation over the use of the relevant powers. The regulations also restrict the crime purpose for acquiring retained commissions to what is described as “serious crime”.

In the Commons, where this matter has already been discussed, we said that we did not oppose the changes made. We also said that we supported strong powers, but added that we supported strong safeguards. Although it is not entirely about safeguards, the issues that have been raised have also been about powers, but certainly much of the comment that has been made, although not exclusively, has been about the extent to which there are or are not appropriate safeguards in relation to these measures.

The noble Lord, Lord Paddick, raised issues about the definition of serious crime, which, as I understand it, is up to the member state to define. However, he also raised questions over the issue of whether the Government’s definition is too wide ranging, since it covers offences for which a penalty of 12 months’ imprisonment or more can be imposed, as opposed to what might realistically be expected to be imposed for the offence, and the fact that the definition covers, as the noble Lord said, any crime by a body corporate or any offence that involves as a key part of it,

“the sending of a communication or a breach of a person’s privacy”,

which it would appear could include minor transgressions as well as matters for which one would quite definitely expect these powers to be used.

On the issue of the custodial threshold, as the noble Lord, Lord Paddick, has said, it is in relation to offences which would, as I understand it—and as I think he understands it—carry a maximum of 12 months’ imprisonment. He has contrasted it to the present definitions, which can be found elsewhere, including under the Investigatory Powers Act, where the reference is to three years—I think the noble Lord said he expected it to be three years. That is of course, as he has already said, a very different issue to an offence having a potential maximum of 12 months, which it is now suggested it should be in this case.

Clearly, that having been said, and the decision having been made to lower the threshold—I think I know from what was said in the Commons what the Minister is likely to say in respect of that, and I will listen with great interest to her response—there is the issue of how, as far as the powers stand at the moment under these regulations, we will be able to stop them being abused by using them in respect of offences which could hardly be deemed to be serious. As the noble Lord, Lord Paddick, said, if you look at the kind of offences for which there can be a maximum of 12 months’ imprisonment, they can include—because you have a lower and a higher level of defence—types of offence which it would be difficult to describe as serious.

The Minister referred to the Office for Communications Data Authorisations. As I understand it, if there is a desire to use the powers under the Bill, it is to that office under the Investigatory Powers Commissioner that an application will be made. Reference has been made to using the powers in a way that is proportionate and necessary. Bearing in mind that we are talking about an offence being investigated and so do not know fully its level of severity or otherwise, an obvious question in the context of what the noble Lord, Lord Paddick, has raised is how those deciding whether to authorise the use of those powers will judge whether we are dealing with a serious crime.

I await with interest the Minister’s response to the points that have been raised not only by the noble Lord but by the noble Baroness, Lady Jones.

--- Later in debate ---

[Lord Rosser]

I thank the Minister for her assurance that she will give the details in writing, which I am sure will be very helpful. I did ask how the Office for Communications Data Authorisations would make its judgment as regards whether to agree to authorise the use of powers under the Bill. As has been said, we are now in a situation where included in the definition of serious crime is a penalty which can be at its maximum a sentence of 12 months’ imprisonment. As I am sure the Minister knows, that covers an awful lot of offences where, in the normal course of events, you would not expect an individual found guilty of that offence, when you look at the nature of the offence, to get anything like 12 months.

I am still not too clear, and it would be very helpful if the Minister could address this, how the Office for Communications Data Authorisations would make its assessment when it relates to a crime for which the maximum penalty is 12 months. How will it be able to make the assessment of what the penalty is likely to be if the individual is found guilty of that offence? Presumably, if it were to end up going to court and a fine imposed, which can happen even for something that has a maximum penalty of 12 months, surely we would not expect them to agree to authorise a power under the Bill.