The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, with the leave of the House I will now repeat a Statement made this morning by my right honourable friend Theresa May, the Home Secretary. The Statement is as follows.
“With permission, Mr Speaker, I would like to make a Statement about the use of communications data and interception; the difficulties faced by the police, law enforcement agencies and the security and intelligence agencies in utilising those capabilities; and the steps the Government plan to take to address those difficulties.
Before I do so, I would like to make something very clear. What I want to propose in my Statement today is a narrow and limited response to a set of specific challenges we face. I am not proposing the introduction of the communications data Bill that was considered in draft by a Joint Committee of both Houses of Parliament last year. I still believe that the measures contained within that Bill are necessary—and so does the Prime Minister—but there is no coalition consensus for those proposals and we will have to return to them at the general election.
The House will know that communications data—the ‘who, where, when and how’ of a communication but not its content—and interception, which provides the legal power to acquire the content of a communication, are vital for combating crime and fighting terrorism. Without them, we would be unable to bring criminals and terrorists to justice, and we would not be able to keep the public safe.
For example, the majority of the Security Service’s top priority counterterror investigations use interception capabilities in some form to identify, understand and disrupt the plots of terrorists. Communications data has played a significant role in every Security Service counterterrorism operation over the past decade. It has been used as evidence in 95% of all serious organised crime cases handled by the Crown Prosecution Service. It has played a significant role in the investigation of many of the most serious crimes in recent times, including the Oxford and Rochdale child grooming cases, the murder of Holly Wells and Jessica Chapman and the murder of Rhys Jones. It can prove or disprove alibis; it can identify associations between potential criminals; and it can tie suspects and victims to a crime scene.
I have talked before about the decline in our ability to obtain the communications data we need, which is caused by changes in the way people communicate and the technology behind those forms of communication. That is why I continue to support the measures in the draft communications data Bill. In addition to that decline, we now face two significant and urgent problems relating to both communications data and interception. The first is the recent judgment by the European Court of Justice that calls into question the legal basis upon which we require communication service providers in the UK to retain communications data. The second is the increasingly pressing need to put beyond doubt the application of our laws on interception so that communication service providers have to comply with their legal obligations, irrespective of where they are based.
I can tell the House today that the Government are introducing fast-track legislation—through the data retention and investigatory powers Bill—to deal with those two problems. I deal first with communications data, because we must respond to the ruling by the European Court of Justice that the data retention directive is invalid. The directive was the legal basis upon which the Governments of EU member states were required to compel communication service providers to retain certain communications data where they do not otherwise require it for their own business purposes. Indeed, the ruling provides us with such a problem precisely because very strong data protection laws mean that, in the absence of a legal duty to retain data, companies must delete data that is not required beyond their strict business use. This means that, if we do not clarify the legal position, we risk losing access to all such communications data and, with it, the ability to protect the public and keep our country safe.
The ECJ ruling said that the data retention directive does not contain the necessary safeguards in relation to access to the data, but it did not take into account the stringent controls and safeguards provided by domestic laws—in particular, the UK’s communications data access regime, which is governed primarily by the Regulation of Investigatory Powers Act 2000. RIPA was, and remains, designed to comply with the European Convention on Human Rights. It ensures that access to communications data can take place only where it is necessary and proportionate for a specific investigation. It therefore provides many of the safeguards that the European Court of Justice said were missing from the data retention directive.
This ECJ judgment clearly has implications not just for the United Kingdom but also for other EU member states and we are in close contact with other European Governments. Other Governments, such as Ireland and Denmark, implemented the data retention directive through primary legislation, which means that they have retained a clear legal basis for their data retention policies, unless a separate, successful legal challenge to their legislation is made. The UK does not have that luxury, because here the data retention directive was implemented through secondary legislation. While we are confident that our regulations remain in force, the Government must act now to remove any doubt about their legal basis and to give effect to the ECJ judgment. The legislation I am publishing today—and the draft regulations that accompany it—will not only do this, they will enhance the UK’s existing legal safeguards and in so doing it will address the criticism of the European Court.
I want to be clear, though, that this legislation will merely maintain the status quo. It will not tackle the wider problem of declining communications data capability, to which we must return in the next Parliament. But it will ensure, for now at least, that the police and other law enforcement agencies can investigate some of the criminality that is planned and takes place online. Without this legislation, we face the very prospect of losing access to this data overnight, with the consequence that police investigations will suddenly go dark and criminals will escape justice. We cannot allow this to happen.
I want to turn now to interception because there is growing uncertainty among communication service providers about our interception powers. With technology developing rapidly and the way in which we communicate changing all the time, the communication service providers that serve the UK but are based overseas need legal clarity about what we can access. The House will understand that I cannot comment in detail on our operational capabilities when it comes to intercept, but I have briefed the Opposition on Privy Council terms and members of the Intelligence and Security Committee have heard first hand from the security and intelligence agencies and it is clear that we have reached a dangerous tipping point. We need to make sure that major communication service providers co-operate with the UK’s security and intelligence and law enforcement agencies when they need access to suspects’ communications. This would result immediately in a major loss of the powers and capabilities that are used every day to counter the threats we face from terrorists and organised criminals.
The Bill I am publishing today will therefore put beyond doubt the fact that the existing legal framework, which requires companies to co-operate with UK law enforcement and intelligence agencies, also extends to companies that are based overseas but provide services to people here in the UK. I will make copies of the draft Bill available to the Vote Office and the House Library. I will also make available in the Library the regulatory impact assessments and the draft regulations to be made under the Bill, in order to allow the opportunity for the House to scrutinise these proposals in full.
The parliamentary timetable for this legislation is inevitably very tight. My right honourable friend the Leader of the House has just provided details of the prospective timetable for the Bill’s consideration but it is crucial that we must have Royal Assent by Summer Recess. The Government have therefore sought to keep this Bill as short as possible. It is also subject to a sunset clause that means the legislation ceases to have effect from the end of 2016. This means that the Bill solves the immediate problems at hand and gives us enough time to review not just the full powers and capabilities we need, but also the way in which those powers and capabilities are regulated, before Parliament can consider new and more wide-ranging legislation after the general election.
It is right that we must balance the need to prevent criminal exploitation of communications networks with safeguards to protect ordinary citizens from intrusions upon their privacy. That is why, alongside the legislation I am publishing today, the Government will also introduce a package of measures to reassure the public that their rights to security and privacy are equally protected.
We will reduce the number of public authorities able to access communications data. We will publish an annual transparency report giving as much detail as possible—within obvious parameters—about the use of these sensitive powers. We will appoint a senior diplomat to lead discussions with other Governments to consider how we share data for law enforcement and intelligence purposes. We will establish a privacy and civil liberties board, based on the US model. This will build on the role of the independent reviewer of terrorism legislation, and the board will consider the balance between security and privacy and liberty in the full context of the threat we face from terrorism. And we will review the interception and communications data powers we need, as well as the way in which those powers and capabilities are regulated, in the full context of the threats we face. The Government are discussing in the usual channels the precise form this review might take, but I hope that an initial report will be published before the election.
I have said many times before that it is not possible to debate the correct balance between security and privacy—and, more specifically, the rights and wrongs of powers and capabilities such as access to communications data and interception—without understanding the threats we face as a country. Those threats remain considerable. They include the threat from terrorism—from overseas and from here in the UK—but also the threat from industrial, military and state espionage practised by other states and foreign businesses; the threat from organised criminal gangs; and the threat from all sorts of criminals whose work is made easier by cyber technology.
In the face of such a diverse range of threats, the Government would be negligent if they did not make sure that the people and the organisations that keep us safe—the police, other law enforcement agencies and the security and intelligence agencies—have the legal powers to utilise the capabilities they need. They are clear that we need to act immediately. If we do not, criminals and terrorists will go about their work unimpeded, and innocent lives will be lost. That is why I commend this Statement, and this Bill, to the House”.
My Lords, that concludes the Statement.
Lord Taylor of Holbeach
My Lords, once again I thank the noble Baroness for her support for the legislation. I am very happy to reassure her on the various aspects that she quite legitimately raised. It has of course not been possible to talk about this matter in public until today. Noble Lords will understand why that is the case, but the House will have the opportunity to consider the legislation. I expect that will be next week, but that will be for the usual channels to decide and announcements will be made.
The noble Baroness asked why we are having fast-track legislation—after all, the judgment was on 8 April. I can understand her concern. It is not easy to deal with things in fast-track legislation. On the other hand, I think she will understand that this is a difficult and sensitive area of policy. We did not want to get mired down in the communications data Bill, as the Joint Committee originally considered. We wanted to ensure that the measures that we were presenting, and which we are presenting in the Bill today, were sufficient to deal with the immediate problem and no more. We were not looking to extend any powers; we were just seeking to restore the situation ex ante the judgment. We wanted to ensure that there was proper consideration, to work with the law enforcement agencies and the data providers on how we dealt with this problem in legislation, and to give proper effect to the judgment that had been made by the European Court of Justice.
I am pleased that the noble Baroness has welcomed the sunset clause. We accept that this is, if I might use the expression, a puncture repair job; it is not equipping data protection with a new tyre so that it can corner more suitably for the road conditions of the future. Future-proofing has to await new legislation. Meanwhile, we are dealing with the problem that would face us if we did not act now. While I understand that the House will want to scrutinise in detail what we are doing, I hope that we will have its support in taking the Bill through.
The noble Baroness asked what contact there had been with the chairmen of the Constitution Committee and the Delegated Powers Committee. Some of the constitutional issues are addressed in the Explanatory Memorandum that is being published today, but I have tried to ring the chairman of the Constitution Committee; unfortunately, though, he was not available. I also tried to ring the chairman of the Delegated Powers Committee but unfortunately she was not available either. However, both are Members of this House and I have left messages. I shall try to talk to them over the weekend, as indeed I am intending to do with other noble Lords who are interested. Various Select Committee chairmen in the House of Commons have been briefed by the Prime Minister.
The data retention provisions of the Bill relate to comms data. However, I must make clear that companies must provide the content of the communication when served with a warrant issued by the Secretary of State. The powers laid out in the Bill do not change anything in that regard.
There were indications in the Statement that RIPA and its whole relationship with future legislation is a matter for review. If we are to inform a new Bill after the election, we will need to study where we are at present. The role of the independent terrorism legislation reviewer in this matter is clear, and David Anderson is likely to be involved in a number of discussions specifically aimed at ensuring not only that this legislation is achieving its objective but that any future legislation or arrangements regarding privacy are going to be effective.
Baroness Hamwee (LD)
My Lords, I am grateful to the Minister for contacting me earlier this morning. Obviously, bringing this stop-gap legislation in such a hurry to both Houses has been a difficult process, and the opportunities for consultation have therefore been limited. There are very strong and divided views on these issues, including among human rights and civil liberties groups. I wonder whether the Minister can reassure the House that there will be consultation with those groups on regulations and guidance, if there is to be any, as well as their involvement in the review of RIPA.
I welcome what was described as a package of pro-civil liberties measures mentioned in the Statement. Will the Minister tell the House whether they will be introduced to the same swift timetable? Also—I do not mean the question to be frivolous—we are proposing to talk to the Americans, but have they agreed to talk to us?
Lord Taylor of Holbeach
We have good discussions with all our allies and I can assure the noble Baroness that I have no fear in that regard. I understand what she is saying about civil liberties and much of the discussions about this have centred on ways in which we can enhance privacy protection. The noble Baroness is quite right; we have not had time to consult. Letters will be going to a large number of people and I know that the list includes a number of the best-known civil liberties groups. As far as future business is concerned, and the implementation of the powers in the Bill, they will be parties to the discussion in the usual way. I will do my best to ensure that the noble Baroness is also kept informed.
Lord West of Spithead (Lab)
My Lords, I am very supportive of what the Government are doing. I think it is absolutely appropriate, subject to the various caveats that my noble friend Lady Smith of Basildon raised. There is no doubt whatever, as the Minister said, that this has ensured in the past our security, our ability to tackle organised crime and our ability to get murderers, paedophiles and the like. There is no doubt whatever about that, and it was something that was going to be lost. But is it not a disgrace that we find ourselves in this position? The communications data Bill was looked at by a Joint Committee of the House. It made a mass of suggestions as to how it should be amended to protect privacy and civil liberties. All of those measures were taken in and agreed, and the Bill redrafted. I think that the Liberal Democrats should be ashamed of the fact that they did not agree then to go forward with the Bill. If it had gone forward, we would not now be rushing through this legislation. Does the Minister agree?
Lord Taylor of Holbeach
Of course I do not agree. To be frank, I am a great believer in the partnership that the coalition represents. I have given an indication today in repeating the Statement that it is important to see this as a partnership between protecting individual liberty and at the same time making sure that we have the capability. I am so grateful to the noble Lord for his support in that regard. I am sure he would not expect me to go into detail as to why we have not progressed. We said in the Statement that we recognised that there was not enough unity of purpose across the coalition to continue with the communications data Bill. I make no apology for that. This will obviously be discussed at the time of the general election and hopefully afterwards we will be able to address the issue.
Lord Lloyd of Berwick (CB)
My Lords, I hope that the noble Lord will recall that a committee of privy counsellors was set up some years ago to consider the admission of the intercept as evidence in terrorist and criminal cases. Does he agree that the intercept, the actual words spoken, provides by far the strongest basis on which to convict terrorists and other serious criminals—far better than just the fact that a communication took place? When does he think that the Chilcot committee, which is still considering this matter, is going to report?
Lord Taylor of Holbeach
My Lords, I am not in a position to answer that particular question. It may be beyond the gift of anyone to answer it at this stage. The noble and learned Lord makes a very interesting point which I am sure will be considered, but it is not part and parcel of this legislation, which is very narrow in what it is seeking to achieve. We are not looking to extend the powers that we currently have available.
Lord King of Bridgwater (Con)
My Lords, to save the Minister embarrassment I do not expect him to reply to this point; I fully agree with the previous comment of the noble Lord, Lord West, about the failure to move forward with the previous Bill. Having said that, my noble friend will be aware that both Houses of Parliament are very leery indeed about emergency legislation, and are rightly suspicious of it. It is not just the cynics who say that they are not totally reassured when all parties are in agreement on emergency legislation, which has not always had a happy history.
Having said that, nobody could underestimate the importance of the matters that the Minister has discussed and of what the data have meant to the defence of this country. If ever there was a time not to reduce our defences, this must be it. Can the Minister confirm again that this represents no change in the present situation—that there is no advance in the intrusions on the citizen; it is a matter of data, not the content of messages? It is the “who, when and where” that are so vital in the pursuit of this.
The most important thing is that the provisions also contain the surprisingly short sunset clause, as I understand it, of May 2015—
Lord King of Bridgwater
That is still, for the matters which must be discussed, a short sunset clause. It is absolutely right that that is there, and I welcome it.
Lord Taylor of Holbeach
I am most grateful to my noble friend. As a former chairman of the Intelligence and Security Select Committee, I know that he—like the noble Lord, Lord West, from his ministerial role—can see inside this problem. I expect and want the House to scrutinise this legislation, because it is right and proper that we do so.
My noble friend is right also to point to the fact that the sunset clause allows an incoming Government only 18 months to put a new communications data Bill on the table if they choose to do so. If I were part of any such Government I would be exhorting prompt action in that area. Clearly, without the legislation that we are now hoping to bring forward, we place ourselves in an extraordinarily difficult position.
Lord Davies of Stamford (Lab)
My Lords, in all the unfortunate circumstances, the Government were quite right to respond to the ECJ decision as they have. However, on the first part of the Statement on the powers that we thought existed to compel private sector organisations to retain communications data, is not the unfortunate position in which the Government now find themselves a result of their tendency—perhaps more than a tendency; sometimes it looks like a default option—always to implement European directives whenever they can by means of secondary rather than primary legislation? It may the tendency of every bureaucracy, and perhaps every Minister, to try to minimise the degree of democratic transparency and parliamentary scrutiny through which they have to go to get legislation on the statute book. However, in the light of experience, do the Government not agree that they have been getting the balance wrong compared to other countries—the Minister cited the Irish and Danish examples—and that that balance needs to be looked at again?
Lord Taylor of Holbeach
Well, we are now coming forward with primary legislation; I hope that it meets with the noble Lord’s approval. I understand his point exactly, but we are dealing with that problem now. It has been the practice of successive Governments to deal with European directives in this fashion. Perhaps in some areas it may pay us to make exceptions to that, particularly if we think that there are matters that really ought to be brought to the attention of the House through primary legislation.
Lord Armstrong of Ilminster (CB)
My Lords, I was a member of the Joint Committee which scrutinised the draft communications data Bill. I am sure that all members of that committee would attach great importance to restoring the position that we thought we were in before this. For that reason, I, and I think many colleagues on the Cross Benches, will support the Bill. The sunset clause which has been described will make it necessary to review communications data legislation very early in the new Parliament. I hope that the scrutiny given to it will then bear fruit because I think the result was a good Bill which balanced the essential needs of civil liberty and privacy against the Government’s first duty to protect the security and safety of the citizen.
Lord Taylor of Holbeach
My Lords, the noble Lord, Lord Armstrong, speaks from a great deal of experience in this area. I welcome his support. I agree that this is a matter which will have to be addressed very quickly by an incoming Government. This is a live issue, as is properly demonstrated by the debate we are having now.
Lord Pearson of Rannoch (UKIP)
My Lords, would we be in this predicament if we were not members of the European Union and therefore subservient to the judgments of the Luxembourg court? Surely these matters should be for our Government and Parliament and for international collaboration under their control.
Lord Taylor of Holbeach
No, my Lords, I do not see the sequitur in that at all. It is right and proper that we should make sure that the legal framework under which we operate is established in Parliament. That is what we are doing. The way in which we adapt to changed circumstances is a healthy arrangement. Regardless of the European Court of Justice’s decision, we would need to address some of the issues that this Bill deals with. We are right to be dealing with it as soon as we possibly can.
Lord Cormack (Con)
My Lords, when I was in another place I conducted an inquiry into organised crime in Northern Ireland and I became aware of how crucial cross-border collaboration was in that context. Will there be full discussions with the Government of the Republic of Ireland to ensure that our fight against crime in that part of the United Kingdom can continue unabated?
Lord Taylor of Holbeach
Yes. One of the factors which the noble Baroness, Lady Smith, and I welcome is that, in the Serious Crime Bill, there is a whole series of measures attaching to Northern Ireland which have support. We hope that these will enable the two law enforcement agencies on that island to work closely together in the interests of protecting the people of that island.
Baroness Taylor of Bolton (Lab)
My Lords, I associate myself with the comments of the noble Lord, Lord West, and the noble Lord, Lord King, whom I succeeded as chair of the Intelligence and Security Committee. Those of us who have had direct experience of the benefits of this kind of information will very much support what the Government are doing. Perhaps I may ask the Minister a practical question about data retention. By acknowledging that new legislation is required, can we assume that there is nothing that threatens the use of existing data that are held? Will the Minister continue to use examples in the way that he did today in repeating the Statement so that people outside who have concerns about the use of data recognise the productive way in which they can be used in important criminal cases?
Lord Taylor of Holbeach
Yes. I think that sometimes the arguments become focused on particular issues. I agree with the noble Baroness. I know that she speaks from experience and I am grateful for her support. There is an important communications exercise in making sure that people realise why we are involved in the fight against crime and the fight against sexual exploitation. These are all factors in our need to have this capability. I am grateful for the noble Baroness’s support.
Lord Butler of Brockwell (CB)
My Lords, I know that the Intelligence and Security Committee, of which I am a member, will now look at this legislation very urgently, as is necessary. However, that committee has to deal all the time with highly classified matters. Does the Minister agree that it would have made the task of the committee easier, and its task of advising the two Houses easier, if the Government had consulted the committee at an earlier stage?
Lord Taylor of Holbeach
Had that been possible, it might have been done. Clearly, the Bill is a complicated piece of legislation and getting it right has not been easy. I think the noble Lord will understand the background against which the Bill will be presented to the House of Commons and to your Lordships’ House. In such circumstances, it was important that the Government got their own position right first. Having done that, we are very grateful for the scrutiny and advice that we will receive from the Intelligence and Security Committee.
Lord Elystan-Morgan (CB)
My Lords, I wholeheartedly support what has been said concerning the inhibition which now exists on the use of vital evidence by way of intercept, which makes it impossible for what would have otherwise been crucially important prosecutions to succeed. I well appreciate that there are two sides to the argument and I appreciate that final advice to Parliament on this matter is still awaited, but will the noble Lord accept that in many common-law countries the rule is different? It is left to the good sense of the prosecution whether to rely on such evidence, bearing very much in mind the sensitivity of the situation in the public interest. It does not seem beyond the bounds of possibility that the United Kingdom is coming under very severe pressure from very powerful allies in this particular matter, to her own detriment.
Lord Taylor of Holbeach
I do not want to go into detail today on the noble Lord’s points. However, I will examine what he said, because he is talking about procedures rather than the matter that the Bill deals with—how we handle this in legal process. If the noble Lord will allow me, I will write to him in response to his question. I am grateful to him for raising it.
Lord Marlesford (Con)
Given the point that the noble Lord, Lord Butler, has just made, and of course given the total paramountcy of the defence of the realm, will the Minister assure us that if the scrutiny of the Bill were to reveal defects in the legislation—which, after all, is what scrutiny is about—the Bill would be amendable, notwithstanding the parliamentary timetable for the Recess?
Lord Taylor of Holbeach
My Lords, the passage of the Bill contains all the normal phases of discussion so it would be for Parliament to decide whether it needed to change the Bill. I hope that it will not be a political football, with people trying to make further points about what might have been and what could be, and all the rest. I do not think that the House is in the mood for that. All the comments that have been made have made it clear to me that, in general, the Bill correctly addresses the issue and we will look at the wording and make sure that we have got it right. That is what scrutiny is for and that is what we are here for. I hope that we will take advantage of that opportunity. I also hope to brief noble Lords on Monday by party group—arrangements are in place for those briefings—because I thought it would be helpful if we had an opportunity to talk about these things before we consider the Bill and before it goes to the House of Commons, which will consider it early next week.