House of Commons

Tuesday 15th July 2014 Commons Chamber

Tuesday 15 July 2014

The House met at half-past Eleven o’clock

Prayers

Tuesday 15th July 2014 Commons Chamber

[Mr Speaker in the Chair]

Business before questions

Transport for London Bill [Lords] (By Order)

Buckinghamshire County Council (Filming on Highways) Bill [Lords] (By Order)

Second Readings opposed and deferred until Tuesday 22 July (Standing Order No. 20).

Oral Answers to Questions

Tuesday 15th July 2014 Commons Chamber

The Secretary of State was asked—

[Mr Adam Holloway (Gravesham) (Con)]

1. What progress his Department has made on improving primary care for frail older people.

[The Secretary of State for Health (Mr Jeremy Hunt)]

It is a particular pleasure to be here this morning, although I appreciate that that feeling may not be reciprocated on all sides of the House.

Our NHS will not be sustainable unless we totally transform out-of-hospital care. That is why we have introduced the £3.9 billion merger of the health and social care systems, and reforms to the GP contract. We are encouraging clinical commissioners to be responsible for all out-of-hospital commissioning.

[Mr Holloway]

I am delighted that my right hon. Friend is answering questions today. Will he confirm that the changes announced will mean that frail elderly patients in Gravesham will have a single person to co-ordinate their care?

[Mr Hunt]

There is agreement across the House that we need a focus on frail elderly patients and a system in which everybody knows, for their mum, dad or grandparents, that there is someone in the NHS where the buck stops in relation to complex, long-term conditions. That is a condition of the better care fund, so I hope that that will make a big difference in my hon. Friend’s constituency.

[Alison McGovern (Wirral South) (Lab)]

The Secretary of State mentioned integration. Good care and support for older people in their own homes are vital, yet a constituent visited me recently to say that she simply could not find a decent trustworthy care company to look after her relative. Will the Secretary of State join me in calling for all local authorities to sign up to the ethical care charter?

[Mr Hunt]

I do not know what the charter says, but I am happy to have a look at it. I agree with the hon. Lady’s sentiments. The important change we need to make is to understand that it is a false economy not to look after people who are vulnerable—those who need help washing, getting out of bed and feeding every day. Scrimping on such care is incredibly dangerous: it costs the NHS more, but most of all it means that those people are not treated with the dignity and respect that they should be.

[Greg Mulholland (Leeds North West) (LD)]

A recent Age UK report shows that older people are many times more likely to be moved multiple times in hospital, and that there is an attitude that they should not be using up hospital beds. What does my right hon. Friend suggest to tackle the problem, for example through improved guidance?

[Mr Hunt]

The attitude to which my hon. Friend refers is totally unacceptable. It is not specifically an NHS problem; we need to change the way of thinking across our society. In particular, I worry about people with dementia who are sometimes in hospital wards where they are not able to speak up for themselves. That is why we have introduced probably the toughest inspection regime of any hospital system anywhere in the world, and I hope it will make a real difference.

[Ms Margaret Ritchie (South Down) (SDLP)]

In view of the fact that there are currently 10 million people in the UK over 65, and the latest projections are for a further 5.5 million elderly people in 20 years’ time, what plans have the Government made to allocate and prioritise resources for the future care of older people with complex needs?

[Mr Hunt]

The hon. Lady is absolutely right. The figure always in my mind is that by the end of the next Parliament we will have more than 1 million additional over-70s. We need to totally change the way we look after those people, through the single point of contact and a different attitude to continuity of care. One of the things that matters most to those people is the feeling that there is someone in the NHS who knows about their particular needs, their family and their carers. That is the big challenge for the NHS in the next few years.

[Andrew Gwynne (Denton and Reddish) (Lab)]

The Health Secretary does not seem to realise that continuity of care is actually getting worse under him. The GP patient survey shows that the proportion of people who cannot regularly see their preferred GP has risen from 34% in 2012 to 39% in 2014, an increase equivalent to 1.2 million people. Experts say that that is one of the reasons why A and E is under so much pressure. Will he confirm that on Friday it will be precisely one year since hospital A and E departments last met his Government’s own A and E target?

[Mr Hunt]

What I will confirm is that the worst possible thing for continuity of care was Labour’s scrapping of named GPs in 2004. The single thing that makes the biggest difference is to have, for every frail and elderly person in our NHS, someone who is responsible. That is what we are bringing back.

[Julian Sturdy (York Outer) (Con)]

2. What steps his Department is taking to tackle the issue of antimicrobial resistance.

[The Parliamentary Under-Secretary of State for Health (Jane Ellison)]

We are leading cross-Government action to address antimicrobial resistance—AMR—at national and global levels. We published details of how we will measure the success of the UK’s AMR strategy, and we will publish an annual progress report in November. We are considering recommendations in the Science and Technology Committee’s AMR report. I gave evidence to that Committee and we will publish our response in September.

[Julian Sturdy]

I very much welcome the Government’s international lead on antibiotic resistance, led by the Prime Minister. Does my hon. Friend agree that increasing the unit price of antibiotics and tackling their growing misuse in developing countries is absolutely vital if we are not to face a return to the medical dark ages?

[Jane Ellison]

My hon. Friend is quite right to highlight this as a major challenge facing us. I pay tribute to the chief medical officer and to the Prime Minister for the international leadership they have given on this. My hon. Friend will be pleased to hear that the antibiotics market will be considered in its totality by the O’Neill review, which was announced by the Prime Minister on 2 July. It is of course important to bear it in mind that while we look at tackling global antibiotic misuse, we need to balance the need for global conservation measures with accessibility for lower-income countries.

[Mr David Heath (Somerton and Frome) (LD)]

3. What assessment he has made of the adequacy of resources made available by local authorities for the regulation of food safety.

[The Parliamentary Under-Secretary of State for Health (Jane Ellison)]

The allocation of local authority food law resources is a local matter. Authorities are increasingly using a risk-based approach to target these resources and looking at ways in which they can work smarter. The Food Standards Agency monitors and audits local authority controls to ensure appropriate resources are in place effectively to regulate food safety.

[Mr Heath]

Food safety standards in this country are generally very good, happily, but that is very much dependent on the work of local authorities and of laboratories. What consideration has she given to the recommendations of the interim Elliott review that there should be better coordination and integration of local authorities and also, possibly, a public analyst service?

[Jane Ellison]

Obviously we are awaiting the final Elliott report but, as my hon. Friend would expect, consideration is being given across government to the interim report. The Government are committed to improving co-ordination and intelligence sharing. We can see some of that in, for example, smart back-office sharing, on which his authority, I believe, has taken a lead. We are working across government, local authorities and industry to protect food integrity. Professor Elliott said that we have one of the safest systems in the world but there is always more we can do to work more closely together. I know that the FSA is working more closely with local authorities and that Public Health England has begun to have constructive discussions around the issues. But we will obviously respond in more detail when we have the final report.

[Keith Vaz (Leicester East) (Lab)]

Sugar is one of the most deadly parts of our daily diets. What can be done to regulate the amount of sugar in our diets locally that will result in a decrease in the number of people with diabetes?

[Jane Ellison]

I congratulate the right hon. Gentleman on the creativity with which he has introduced sugar into this question. He is right to highlight the fact that sugar is an important factor in considering how we get the nation healthier, which we see in the overall context of trying to encourage people to consume fewer calories. A lot of work has been done. He will be aware that we have just had a very detailed scientific report on sugar and carbohydrates more generally. We are considering that but he will be pleased to know that Public Health England has already started to roll out that advice at both a local and national level to consumers and families. We will of course consider what more we might do.

[Miss Anne McIntosh (Thirsk and Malton) (Con)]

Does my hon. Friend share our concern on the Select Committee that not enough regular food analysis is being done by local authorities? Will her Department press for this to prevent any further adulteration or food scares in the future?

[Jane Ellison]

We have discussed this with the FSA and we will respond in more detail when we have the final Elliott review. But it is worth noting that the FSA is supporting local authorities financially and with expertise, but is also very much encouraging people to work smarter so that a lot of inspection is based far more on risk. That is right, as we do not want businesses with excellent records of compliance being subjected to the same regime of testing and inspection as those who give rise to greater risk. I hope my hon. Friend would agree that an intelligence-led approach is the right thing to do.

[Mr Andy Slaughter (Hammersmith) (Lab)]

4. What plans he has for hospitals in west London and their A and E services.

[The Parliamentary Under-Secretary of State for Health (Jane Ellison)]

The NHS is, as the hon. Gentleman knows, implementing the plans for hospitals in west London under the “Shaping a Healthier Future” scheme. This will include 21st-century health care facilities for the local community, and it is very much led by local clinicians to provide better care for patients in the hon. Gentleman’s and other west London constituencies.

[Mr Slaughter]

Is the truth not that two west London A and E departments will close eight weeks tomorrow? Although the local NHS is paying M&C Saatchi to spin that decision, so far no one has told the 300,000 people in the catchment area for the Central Middlesex and Hammersmith hospitals that their A and Es are going to close and no evidence has been produced to show that it is safe to do so?

[Jane Ellison]

Unsurprisingly, that is another example of the hon. Gentleman putting politics before patients. We have had a slew of information put out to people in his area and surrounding areas, much of which did not highlight the new facilities that are being introduced. I would love to hear the hon. Gentleman talk up the new facilities coming into that area. Charing Cross hospital will be redeveloped as a 21st century health care facility, in line with my right hon. Friend’s decision based on the independent reconfiguration panel’s advice. Charing Cross and Ealing will have a local A and E with 24/7 access to full diagnostic support, consultant advice and specialist care—and it would be really refreshing if the hon. Gentleman, rather than following his usual line, could tell some of his constituents the good news about health care in his part of London.

[Sir Edward Leigh (Gainsborough) (Con)]

5. What steps he plans to take to improve standards in general practice.

[The Secretary of State for Health (Mr Jeremy Hunt)]

We are working hard to improve standards of care in general practice. We have brought back named GPs for those aged 75 and over, introduced a new inspection regime and are doing everything we can to recruit more GPs to improve capacity.

[Sir Edward Leigh]

When will both political parties be honest about the massive looming black hole in health funding, with an ageing population demanding ever better care? We cannot afford to pay for it out of general taxation, so are we going to be honest and have an open debate about moving to the French system of social insurance in which people are charged and repaid if they do not have the means, giving them an infinitely better health service?

[Mr Hunt]

I do not agree with my hon. Friend; let me explain why. The first and important point is that independent studies, such as that which was done last month by the Commonwealth Fund, have ranked the NHS top out of 11 major health economies, including the French example. Money is, of course, tight throughout the NHS, but we have been able to find efficiency savings of £20 billion over the last five years, and we will continue to find them. What I would not support, however, is any system of charging that would make it harder to access NHS services, particularly for older people whom we need to access more services more quickly if the NHS is to be sustainable.

[Lucy Powell (Manchester Central) (Lab/Co-op)]

Let me reassure the Secretary of State that Opposition Members are pleased to see him still in his post today, but if I were him, I would not take that as a compliment. On GP access, what is he actually doing? Survey after survey shows that patient satisfaction with access to their GP is getting worse and worse. That has been borne out in my constituency surgery in a significant number of cases. One constituent recently came to see me who had been discharged from hospital with significant care needs and he was told that he would have to wait three and a half weeks to see his GP. What is the Secretary of State actually doing about it?

[Mr Hunt]

I am delighted that the hon. Lady is delighted that I am in my position here today—we can all be delighted about that wonderful piece of news. Let me tell her that we are doing a lot to improve access to GPs. We have recruited 1,000 more GPs over the course of this Parliament. Let me gently say to her that we can afford those 1,000 GPs only because we pushed on with difficult reforms, getting rid of the PCT bureaucracy and removing 19,000 managers. We would not have been able to afford them if we had listened to her party and continued to spend money on bureaucracy and management.

[Mr Philip Hollobone (Kettering) (Con)]

In every area, there are some very good GPs and some less good ones. How does my right hon. Friend think that clinical commissioning groups should celebrate those GPs who go the extra mile and provide an example for others to follow?

[Mr Hunt]

My hon. Friend has made a very good point. We have learnt from the big efforts to improve standards of care in hospitals—of which I think everyone in the House should be proud—that the best way in which to improve those standards is to be transparent about how well people are doing. What the new chief inspector of hospitals has done is identify not just the failing hospitals that have been put into special measures, but the good and outstanding hospitals, so that they know what they should and can aspire to. I think that we shall hear shortly how the chief inspector of general practice intends to implement the same regime in general practice.

[Mr Speaker]

Order. If the right hon. Gentleman would face the House, it would greatly avail us. I understand the natural temptation to look backwards—[Laughter.]—as in, behind him! But he must face the House.

[Mr Jamie Reed (Copeland) (Lab)]

On 20 June, I wrote to the Secretary of State informing him of the claims of doctors in Cumbria that unless drastic action were taken to reduce the pressures on GPs’ work loads, patients could die. I have not even received a response. Why, having being given such a stark warning, is the Secretary of State sitting on his hands? There are fewer GPs today than there were during Labour’s last year in office. How can standards in general practice be improved when surgeries are dealing with a recruitment crisis?

[Mr Hunt]

Let me give the hon. Gentleman his answer now. According to the Royal College of General Practitioners, 40 million more appointments with GPs are being made in every single year than were made when Labour was in office, and we have 1,000 more GPs than we had when his party was in power.

Let me say very clearly that the way in which we will deal with this problem is by increasing the capacity of general practice and the capacity of primary care. The hon. Gentleman should be supporting that—and he might just think about the 48-hour target that Labour has been talking about. If a new target for GPs is introduced, they will simply cut the amount of time that is available for them to deal with the most frail and vulnerable patients, and that would be wrong.

[Sir Tony Baldry (Banbury) (Con)]

6. What steps his Department is taking to support carers.

[The Minister of State, Department of Health (Norman Lamb)]

Under the Care Act 2014, rights for carers that are equal to those for whom they care will be enshrined in law for the first time. That includes support to meet their needs. My Department has also separately provided £400 million for the NHS to enable carers to take breaks from their caring responsibilities.

[Sir Tony Baldry]

As a condition of the better care fund, areas are being asked to choose local indicators, which will accompany national measures, to show progress towards the integration of health and social care. How many areas have chosen carer-reported quality of life as their local indicator, and how can more areas be encouraged to make carers a priority in their delivery of services through the better care fund?

[Norman Lamb]

My right hon. Friend is absolutely right to focus on the importance of better care fund plans, including the interests of carers. The planning guidance that was issued in December made it clear that the plans should include the well-being of carers. Updated guidance will be issued very soon, and will reinforce the central importance of carers’ being part of the plans. We do not yet have a final picture, but we are keen to ensure that all plans include the interests of carers.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

Last week I raised with the Prime Minister the case of a 62-year-old man who is caring for his wife, who has Alzheimer’s. When he sought an urgent GP appointment for her, he was told that it would take five weeks for her to see her GP and two weeks to see any GP, or he could take her to Salford Royal hospital’s A and E department. Does the care Minister think that that is acceptable, and will he now back the creation of a duty for NHS bodies to identify carers, so that they and the people for whom they are caring are given the support and the priority that they deserve?

[Norman Lamb]

No. I do not think that that level of wait is acceptable, which is exactly why we are promoting the better care fund. We want to bring together disparate parts of the system so that care is shaped around the needs of patients, and that has been widely supported throughout the system. I should also mention that the hon. Lady’s party colleague Baroness Pitkeathley was incredibly positive about the Care Act, saying that it was the biggest advance in her 30 years of working in the interests of carers. I wish that at some point the hon. Lady would just acknowledge all the good things that the Government have done in carers’ interests.

[Philip Davies (Shipley) (Con)]

7. What lessons his Department has learned from the Born in Bradford research study.

[The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter)]

By tracking the lives of 13,500 children and their families, the Born in Bradford research study is providing information that will help us to understand the causes of common childhood illnesses, and to explore the mental and social development of a new generation.

[Philip Davies]

In the Born in Bradford study, 63% of Pakistani mothers are married to cousins, and within that group there was a doubling of the risk of a baby being born with a congenital anomaly. The report also found that “a larger number” of children born to cousins

“will have health problems that may lead to death, or long term illness for the baby.”

How much do health issues related to first-cousin marriages cost the NHS, and, given those findings, is it not time that such marriages were outlawed?

[Dr Poulter]

We do not have any financial information, but it is important to point out that the Born in Bradford study showed that there was an increase in the risk of birth defects from 3% to 6% in consanguineous marriages. However, that clearly highlights that not all babies born to couples who are related have a genetic problem, and the key issue is to help women to make an informed choice before they get pregnant and to direct them to genetic counselling where that may be required.

[Mr Tom Clarke (Coatbridge, Chryston and Bellshill) (Lab)]

8. What the new deadline will be for moving people with a learning disability out of assessment and treatment units and into community provision.

[The Minister of State, Department of Health (Norman Lamb)]

We are working with NHS England to set out clear expectations for progress and improved rates of discharge. This includes NHS England producing an action plan to measure progress against. The Winterbourne View joint improvement programme is working with local areas to identify issues and to support them to make progress.

[Mr Clarke]

Given the severe lack of funding in this area and the need for development of housing and proper support within the community to avoid the recurrence of, for example, what happened in Winterbourne, will the Minister explain how he is addressing this problem and who he is working with?

[Norman Lamb]

I applaud the right hon. Gentleman’s work on this, and it is very important that we make it very clear to the public that all of us share the ambition to get people out of institutional care when they do not need to be there. Actually, it is not about the lack of resources. The scandal is that, as a system, we are spending a fortune on institutional care when people could very often be much better cared for in their own communities. The good thing is that Simon Stevens, the new chief executive of NHS England, has shown a personal interest in this. I have discussed it many times with him. We have asked NHS England to produce an action plan by the end of August, demonstrating exactly how it will speed up the progress of getting people out of institutional care.

[Mrs Anne McGuire (Stirling) (Lab)]

20. Promises come cheap, but results take sustained action. The fact is that a promise was made to the families of those with learning disabilities to move them out of assessment and treatment units by June 2014. What exactly is the situation now? The latest figures revealed that only 35% of that promise had been fulfilled.

[Norman Lamb]

The truth is that progress is far too slow. This has been a scandal that has dragged on for many years. It is not a new problem, and helping people who are capable of living independent lives with support in the community to get out of institutional care is long overdue. Changing the culture is complex and difficult, but we are absolutely determined to sustain the pressure to ensure that change is achieved.

[Grahame M. Morris (Easington) (Lab)]

22. I thank the Minister for those replies, but I understand that Sir Stephen Budd has been asked to lead a working group on these issues, reporting to NHS England. Will the Minister say a little more about the purpose of this group and its significance, in the light of the failure to meet the June deadline?

[Norman Lamb]

That is absolutely right, but Sir Simon Stevens took the view that it was essential to get the voluntary sector much more involved in the whole process. There are brilliant organisations such as Mencap and the Challenging Behaviour Foundation which are absolutely committed to achieving change, and the more we can work with them to achieve that change, the more likely we are to be successful.

[Liz Kendall (Leicester West) (Lab)]

After the appalling scandal at Winterbourne View, the Minister promised to stop people with learning disabilities being sent to assessment and treatment units for long periods. He has spectacularly failed: 2,600 people are still in ATUs, including 150 children; more people are now going into these units than are coming out; and half are still on anti-psychotic drugs or subject to physical restraint. Change will only happen with real leadership, but in answer to a parliamentary question, the Minister said he had not even met one of his colleagues at the Department for Communities and Local Government. He must now set a clear, non-negotiable deadline to end this practice in two years’ time and to secure public commitments from the Health Secretary, the Communities and Local Government Secretary and NHS England’s chief executive to make sure it happens.

[Norman Lamb]

I caution against sanctimony, because this scandal continued under the last Labour Government, who did nothing to get people out of institutional care. At least this Government are absolutely committed to changing that. What we discovered is that changing the culture is a lot more difficult than I had hoped, but we are absolutely determined to achieve the change, which is so necessary.

[Mr Robert Buckland (South Swindon) (Con)]

9. What assessment he has made of progress towards achieving parity of esteem for mental health.

[The Minister of State, Department of Health (Norman Lamb)]

Our mandate to NHS England requires measurable progress in achieving parity of esteem by March 2015. Parity will involve extending and ensuring better access to talking therapies, in particular for children, young people and those out of work. Progress towards better access to these services has been good.

[Mr Buckland]

I thank my hon. Friend for that answer. What further measures will be taken to improve access to specialist perinatal mental health services to deal with problems such as post-natal depression, and will we see measurable objectives on that in the NHS mandate?

[Norman Lamb]

We had a very good round table discussion about this with leaders from around the country last week. What emerged is that fantastic progress is being made in many places, but it is not uniform. There needs to be a concerted effort to ensure that mothers get access to the same specialist treatment wherever they live across the country, and we are determined to achieve that.

[Mrs Madeleine Moon (Bridgend) (Lab)]

21. The all-party group on suicide prevention has been looking at the money going into suicide prevention as a result of the Government’s suicide prevention plan. It is acknowledged by most local authorities that there is more money for mental health, but suicide has been rolled into mental health and there is a distinct lack of support for those who are suicidal but do not have a diagnosable mental health problem. What does the Minister intend to do about that?

[Norman Lamb]

The hon. Lady raises an important point, which she and I have discussed before: the fact that very many people who end up taking up their own lives have had no contact at all with statutory services. I would be happy to discuss further with her what additional steps we can take to ensure that those people get the support they need.

[Dr Sarah Wollaston (Totnes) (Con)]

I am delighted to see all the members of the Front-Bench team in their places this morning—or this afternoon, I should say. The principle of parity of esteem should also apply to consent to treatment. Does the Minister agree that the offer of talking therapies and other therapies must always be based on the principle of informed consent? Has he held any discussions with his colleagues in other Departments?

[Norman Lamb]

I completely agree with my hon. Friend. It seems to me to be inherent in the nature of therapy that people go into it willingly. The idea that we could frogmarch them into therapy against their will simply would not work. We could end up with a dangerous and costly tick-box exercise that achieved nothing, so there is no plan to introduce compulsion to access therapy.

[Luciana Berger (Liverpool, Wavertree) (Lab/Co-op)]

I listened carefully to what the Minister said in answer to the Chair of the Health Committee, the hon. Member for Totnes (Dr Wollaston), but will he confirm that there is no truth to reports that the Government are considering plans that would mean that people with mental illness would have their benefits stopped if they refused treatment? Rather than people refusing treatment, are not the increasing shortage of beds and ever longer treatment delays under this Government the real reasons why people are not receiving the help that they desperately need?

[Norman Lamb]

I can confirm, as I already have done, that there is no truth in the rumour. Indeed, in August we anticipate publishing the start of trial programmes to bring together IAPT—improving access to psychological therapies—with Jobcentre Plus. The idea of ensuring that people who are out of work and have mental health problems get access to psychological therapies is incredibly important, and I am very excited about the pilots that we will launch in August.

[Kerry McCarthy (Bristol East) (Lab)]

10. What assessment he has made of the effects of trends in food prices on public health.

[The Parliamentary Under-Secretary of State for Health (Jane Ellison)]

The Government monitor trends in food prices. We are obviously aware that for some families money is tight, but that is one of the reasons why in my area—public health—we are investing in programmes such as Change4Life. Public Health England has done a great job with Change4Life. Since its launch, more than 1.9 million families have joined, and the Meal Mixer app, for example, has been downloaded more than 1 million times and contains hundreds of quick, healthy and affordable family recipes.

[Kerry McCarthy]

I thank the Minister for that response. Some of the things that she mentioned involve people being in a position to make choices about the food that they buy, and we know the extent of food poverty is such that many people do not have the luxury of being able to do that. Is the Minister aware of the Trussell Trust and Oxfam report, which warns that people in food poverty are buying lower quality food and less food overall, giving rise to a real problem of malnutrition in children?

[Jane Ellison]

I am sure that, like me, the hon. Lady welcomes the news this morning that food price inflation is at an annual rate of 0%, so food prices are at the same level as last year. On the issue that she raises, that is exactly why programmes such as Change4Life are important. It is also important that we see other measures across government. The school food plan is important for its emphasis on nutrition, as are free school meals and the Healthy Start programme. The Government are doing lots of things to try to make it easier for less well-off families to eat healthily.

[Andrew Selous (South West Bedfordshire) (Con)]

Will the Minister applaud the work of Colin Kaye in my constituency, who, on his own farm, is producing cheap, good quality food to help reduce the cost of food so that people can eat more healthily and have lower food bills?

[Jane Ellison]

That sounds like a fantastic local initiative, and I thank my hon. Friend for highlighting it. Taken together with our advice and support for families on how to use healthy food to make healthy meals, initiatives such as that are to be applauded.

[Gordon Henderson (Sittingbourne and Sheppey) (Con)]

11. What progress his Department is making on improving the performance of failing hospitals.

[The Secretary of State for Health (Mr Jeremy Hunt)]

The new special measures regime for failing hospitals is designed to introduce honesty and transparency for hospitals in difficulty. The new chief inspector of hospitals will report later this week on progress in the first year. I am sure that the whole House will welcome the fact that the new regime has made really encouraging progress.

[Gordon Henderson]

Medway NHS Foundation Trust is not in my constituency, but is used by many of my constituents. It was announced last week that Medway is to remain in special measures because of the inadequacies of its A and E department. What steps can my right hon. Friend take to ensure that Medway receives the help needed to improve the service it provides to my constituents?

[Mr Hunt]

I thank my hon. Friend for his question. He is right that the chief inspector raised concerns about some issues that persist at Medway. It is important to praise the staff for the progress that they have made in the past year. We have put in place 113 more nurses, the Bernard dementia unit, which has made some really good progress, and a twinning arrangement with University Hospitals Birmingham, which is one of the best in the country. There are some encouraging signs. I wish to reassure him and his constituents that we will stop at nothing to ensure that we turn that hospital around

[Diana Johnson (Kingston upon Hull North) (Lab)]

The former chief executive of Hull and East Yorkshire Hospitals NHS Trust, Phil Morley, left his post suddenly just before the publication of a very poor Care Quality Commission report, leaving behind a culture of bullying in the trust. Is the Secretary of State as surprised as I am that he has now been appointed chief executive of a hospital in Essex?

[Mr Hunt]

I do not know the details of the individual case, and it would not be right for me to comment. However, what I will say is that we have changed the rules to prevent people who are responsible for poor care from popping up in another part of the system. From now on, when trusts appoint people to boards, they can check their prior records on a central database administered by the CQC. Let me tell the hon. Lady that we are absolutely determined to change the culture in the NHS so that we stamp out the bullying and intimidation that were such a factor for so many doctors and nurses for many years.

[Stephen Metcalfe (South Basildon and East Thurrock) (Con)]

23. Will the Secretary of State join me in congratulating the management and staff of Basildon hospital who have worked hard to turn the hospital around so that it is now rated as good? Will he confirm that his Department will continue to support it so that the hospital can carry on making progress?

[Mr Hunt]

I am delighted with the progress that has been made under Clare Panniker’s leadership. The hospital now has 241 more nurses, and the first maternity unit in the country to be rated as outstanding. My hon. Friend will want to know why it is that when there was a CQC report under the previous Government, it was sat on for six months and nothing was done.

[Mr Nick Gibb (Bognor Regis and Littlehampton) (Con)]

19. In 2005, Littlehampton’s community hospital was demolished to make way for a new community hospital. Weeks later, the plans were put on hold because community hospitals went out of vogue. Sussex Community NHS Trust now wants to increase the number of in-patient beds at community hospitals. Will the Secretary of State ensure that NHS Property Services rebuilds Littlehampton community hospital to deliver those beds where they are needed?

[Mr Hunt]

That is not actually a matter for NHS Property Services Ltd; it has to be locally driven. However, my hon. Friend is absolutely right that we need to enhance community care services, whether in community hospitals or through services delivered at home. My hon. Friend has a high proportion of older people in his constituency and the transformation will be incredibly important for all his constituents.

[Andrew George (St Ives) (LD)]

Will my right hon. Friend join me in welcoming the National Institute for Health and Care Excellence’s statement today on the establishment of safe staffing levels on hospital wards? He will be aware that I have been campaigning on the matter for many years. The 1:8 ratio is certainly not a target but a baseline against which safe staffing and patient care can now be measured.

[Mr Hunt]

I welcome what NICE has done today, because it is incredibly important that we end the scandal of short-staffed wards in our NHS, which was a feature for many years under Governments of both parties. The lesson of Mid Staffs is that the oldest and most vulnerable patients, such as people with dementia, can be forgotten when a hospital is under pressure, so NICE’s guidance will be welcomed and useful. It is important to say that it can save money, because nothing is more expensive than unsafe care.

[Mr Nicholas Brown (Newcastle upon Tyne East) (Lab)]

12. What recent advice he has received on NHS trust deficits in England.

[The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter)]

We have regular conversations with the NHS Trust Development Authority and Monitor about the provider sector. For 2014-15, the TDA, NHS England and Monitor are establishing a joint package of support and financial improvement measures for some of the weakest local health economies.

[Mr Brown]

Even if the Department were able to achieve every possible efficiency saving, both Monitor and the King’s Fund are forecasting a substantial deficit in next year’s budget. What is the Department’s policy response to that? I understood that the Secretary of State ruled out charging in answer to an earlier question, so that leaves either applying more money to the problem or restricting the service.

[Dr Poulter]

The right hon. Gentleman asks a valid question about how to make efficiency savings. Under the previous Government, there was a requirement in 2009 to make £20 billion of NHS efficiency savings during this Parliament, which is being delivered at £4 billion a year. Improving procurement practice at hospitals, improving estate management, greater energy efficiency measures, ensuring more shared business services in the back office and reducing bureaucracy are all measures that will continue to ensure that the NHS meets the challenge and frees up more money for front-line patient care.

[Jeremy Lefroy (Stafford) (Con)]

Stafford hospital has struggled with deficits for many years, but it has substantially improved its care. On Friday, however, it was announced that 58 beds will be closed due to staff shortages. My constituents and others are extremely concerned that the trust special administrator’s plans, which the Secretary of State endorsed, to keep A and E, acute medicine and many other services at Stafford are at risk. Will the Minister reassure them and staff that that is absolutely not the case and that the TSA’s plans will be enacted as a minimum?

[Dr Poulter]

The most important thing in delivering local services is to ensure high-quality patient care and patient safety, so I would want the TSA’s plans to be delivered as quickly as possible to ensure that high-quality services are delivered locally and that patients’ best interests are protected.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

13. What steps he is taking to improve care for people affected by stroke.

[The Minister of State, Department of Health (Norman Lamb)]

Mortality from stroke has fallen by over 40% in recent years. Awareness of stroke symptoms is being raised through the Act FAST campaign. The strategic clinical networks are sharing best practice in stroke care by, for example, working with commissioners and providers to improve stroke rehabilitation services.

[Jesse Norman]

I thank the Minister for that reply. Effective stroke care is extremely difficult to deliver in my county of Herefordshire, because patients are often scattered and inaccessible and the necessary treatment is highly time-critical. What are the Government’s plans to protect and enhance stroke care in rural communities, especially at Hereford hospital?

[Norman Lamb]

My hon. Friend raises an incredibly important point. I have the same experience in my county of Norfolk. Clinical commissioning groups are responsible for commissioning stroke care. The Herefordshire CCG is working with Wye Valley NHS Trust to improve the quality of stroke services and is seeking to establish a sustainable, hyper-acute service in the county, and it is clearly necessary that that is achieved.

[Helen Jones (Warrington North) (Lab)]

Emotional and psychological support after stroke can be just as important as physical care, yet many patients do not get the care they need even though research shows that investment in this area can not only benefit patients but save the NHS money in the long run. What steps will the Minister take to ensure that all stroke survivors get the right emotional and psychological support after stroke?

[Norman Lamb]

The hon. Lady is absolutely right. The cardiovascular disease outcomes strategy, which was published last year, acknowledges the importance of access to psychological therapies. Indeed, there is some really innovative work going on. A psychiatrist called Andre Tylee in London is doing work with heart patients, bringing in psychological therapies and improving their physical as well as their mental health outcomes, and the hon. Lady is absolutely right to make the case for that.

[Paul Burstow (Sutton and Cheam) (LD)]

14. What the timetable is for publication of a successor to the current national dementia strategy.

[The Secretary of State for Health (Mr Jeremy Hunt)]

Dementia is one of the most important issues we face at the moment and we are having detailed discussions with stakeholders about the best way to ensure that the very successful Prime Minister’s challenge on dementia continues into the next Parliament.

[Paul Burstow]

I am grateful for that answer and have no doubt that the continuation of the challenge is very important, but both the Prime Minister and the Secretary of State have told the House from the Dispatch Box that there will be a successor to the national dementia strategy. My question was very straightforward. Is there a timetable for delivering that strategy, given that the current strategy ends this year?

[Mr Hunt]

I should clarify for my right hon. Friend that the Prime Minister’s challenge was a successor to the national dementia strategy. The Prime Minister’s challenge finishes at the end of this Parliament and that is why we are having discussions about what should succeed it, because we all have an interest in ensuring that we maintain the tremendous momentum of the past few years.

[Mr Speaker]

I call Michael Connarty—he is not here.

[Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)]

16. What assessment he has made of the adherence by NHS trusts and clinical commissioning groups to the healthy child programme (a) in general and (b) in respect of the provision of perinatal mental health services.

[The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter)]

NHS England commissions the healthy child programme and the NHS England mandate includes an objective to reduce the incidence and impact of post-natal depression. NHS England is held to account through its regular assurance processes and we are well on track to deliver an additional 4,200 health visitors by 2015 who will provide individual one-to-one support for women in the post-natal period.

[Mrs Hodgson]

The National Childbirth Trust found that just 3% of clinical commissioning groups have strategies to provide these services and 60% have no plans to put them in place at all. The Minister might be aware that the all-party group on conception to age two, superbly chaired by the hon. Member for East Worthing and Shoreham (Tim Loughton), has recently announced an inquiry into factors affecting child development, with the first session last week considering this very issue. In advance of its conclusions, will the Minister give a pre-emptive guarantee that all expectant mothers will have access to perinatal mental health services and that it will not just depend on where they live?

[Dr Poulter]

The hon. Lady makes a very important point. We know the importance of good perinatal mental health not just for the mother but for the life chances of the child. That is very important if we are to ensure that we get the commissioning of maternity services right in the future. There is a commitment in the Health Education England mandate that by 2017 all maternity units will have specialist perinatal mental health staff available to support mums with perinatal mental health problems.

[James Duddridge (Rochford and Southend East) (Con)]

T1. If he will make a statement on his departmental responsibilities.

[The Secretary of State for Health (Mr Jeremy Hunt)]

I am pleased to tell the House that on 19 June the Prime Minister hosted a very successful global dementia summit as a follow-up to the G8 dementia summit. We are currently diagnosing and treating 70,000 more people every year with dementia, but the big challenge is, as he set out at the G8 summit, finding a cure or disease-modifying therapy by 2025. We had useful discussions on what barriers need to be eliminated to ensure that the research happens to find such a cure.

[James Duddridge]

What assessment has the Secretary of State made of the need for a single hyper-acute stroke unit in south Essex?

[Mr Hunt]

I know that discussions are going on on that very topic and the CCGs are very interested in putting a hyper-acute stroke service at Southend hospital, which I know has excellent stroke services. We still need further improvements in the ambulance services for the east of England if we are going to do that and that is what we are currently discussing.

[Andy Burnham (Leigh) (Lab)]

I shall begin by congratulating the Health Secretary on surviving the massacre of the moderates. This was no real surprise for those of us on the Opposition Benches, however, because we know that his real views on the NHS are anything but moderate. On his watch, there has been more privatisation and now there is an accelerating postcode lottery. Today, the Royal College of Surgeons has revealed that some people waiting for hip replacements are being denied treatment that is available elsewhere because of arbitrary pain thresholds that are so harsh in places that people must be in severe debilitating pain before they can be treated. This is in direct contravention of National Institute for Health and Care Excellence guidance. Will the Secretary of State today condemn the fact that people are being denied treatment in that way, and act immediately to end the practice?

[Mr Hunt]

Of course it is absolutely right that people should follow NICE guidance, including all clinical commissioning groups, but if the right hon. Gentleman looks at what has happened over the past four years, he will see that we are treating more people, not fewer, with 6,000 more people getting their knees replaced and 9,000 more getting their hips replaced every year. That is possible only because we have 7,000 more doctors in the NHS because we took the difficult decision to get rid of the primary care trusts. Will he now accept that he was wrong to oppose those reforms and wrong to put politics before patients?

[Andy Burnham]

The Secretary of State says that CCGs should be following NICE guidance, but they are not. Seven out of 10 are not following that guidance, and people who are waiting for operations today will be left in pain because he is not acting. The truth is that the reorganisation has resulted in a postcode lottery writ large, and it is worse than we thought, because there is now a proposal in one area to end the provision of hearing aids on the national health service. That is totally unacceptable. Action on Hearing Loss warns that that would set a dangerous national precedent, leaving millions unable to live their lives. So, no ifs, no buts—will he condemn that proposal now and guarantee that patients will not be forced to pay for hearing aids on his watch?

[Mr Hunt]

I make it absolutely clear that everyone should follow NICE guidance. As the right hon. Gentleman has talked about the reorganisation, will he please accept that we are now doing 850,000 more operations on the NHS every single year? That means that more people are getting help with their hearing, their hips and their knees, and with all the other things that they need. He bitterly opposed that reorganisation, but he must now realise that he was wrong to oppose it then and he is wrong to oppose it now.

[Stuart Andrew (Pudsey) (Con)]

T2. I recently had the pleasure of meeting my constituents Susan Childs and Doreen Smulders, who raised the issue of the inequalities that exist for men with prostate cancer. Will my right hon. Friend tell me what steps are being taken to address the shortfalls in care and support that such men are receiving across the country?

[The Parliamentary Under-Secretary of State for Health (Jane Ellison)]

My hon. Friend is right to suggest that we want to drive consistency across the country, and NHS England is taking great notice of the cancer patient experience survey in a number of areas of cancer care. It has been a real driver of change where it has identified variation. I am sure he will welcome the fact that the overall range of variation for many indicators relating to prostate cancer has narrowed. None the less, we want to see NHS England working with NHS Improving Quality—NHS IQ—and others to ensure that struggling organisations are brought up to the standards of the best. The survey is a good way of driving that.

[Rushanara Ali (Bethnal Green and Bow) (Lab)]

T3. Since 2010, the percentage of patients who say that they can see their GP within 48 hours has halved from 80% to 40%. Given the pressure on the NHS, and especially on accident and emergency services, will the Secretary of State explain why the Government’s reforms are threatening to close 98 surgeries around the country, including five in Tower Hamlets? Will he publish the full list today?

[Mr Jeremy Hunt]

Let me gently explain to the hon. Lady that she has excellent GP provision in Tower Hamlets, led by Dr Sam Everington. It is a model of what can happen under the Government’s reforms. The way in which we are going to make it easier for people to see their GP is with additional capacity. We have 1,000 more GPs during this Parliament, and we have achieved that only because we took the difficult decision to get rid of 19,000 managers, which was bitterly opposed by the hon. Lady and the Labour party.

[Margot James (Stourbridge) (Con)]

T4. Now that the Medicines and Healthcare Products Regulatory Agency has concluded its consultation on the use of generic asthma inhalers by schools in cases of emergency when a child does not have his or her own inhaler, will my hon. Friend update the House on the next steps? In particular, does she expect schools to be allowed to keep these inhalers in the new school year?

[Jane Ellison]

I congratulate my hon. Friend on her great campaigning on this issue, and on the really good results that she has had. As she says, we have recently consulted on changing the regulations under the Medicines Act 1968 to allow schools to hold inhalers in the way that she has described. There was overwhelming support for such a change, and we will lay the necessary statutory instrument this week to enable the change to come into force on 1 October.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

T6. On nurse-patient staffing ratios, it has been reported in the Health Service Journal that out of 139 trusts surveyed, 119 failed to fill their registered day nurse hours, 112 failed to fill their registered night nurse hours and 105 failed to fill their registered nurse hours across day and night. Is it not time for Ministers and NICE to state straightforwardly that a ratio of one nurse to eight patients or better is the only way for patient safety?

[Mr Jeremy Hunt]

NICE has taken the sensible decision to issue its guidance. It does so independently, but we are not making it mandatory on the advice of the chief nursing officer and many other chief nurses across the country for the simple reason that if we have a mandatory minimum, that can become the maximum that trusts invest in and many wards need more than 1:8. That is why NICE’s guidance was so important today.

[Andrew Selous (South West Bedfordshire) (Con)]

T5. The Chavasse report on improving care for members of the armed services and veterans builds on the improvements that we have already made and has been welcomed by the Department of Health and indeed the Ministry of Defence. We owe it to our armed services to carry on making improvements to their care, so will the Minister encourage NHS England to look favourably on its recommendations?

[The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter)]

My hon. Friend is right to highlight the importance of the Chavasse report. Its focus on improving care for veterans is warmly welcomed. There is a lot that we can work with to deliver better care and build on the specialist care centres already in place for veterans who have lost limbs and need prosthetic services and to provide additional support for veterans with mental health problems.

[Mr Speaker]

Mr George Mudie. Not here.

[Mr Jim Cunningham (Coventry South) (Lab)]

May I remind the Secretary of State that it takes seven years to train a doctor and most of the doctors he boasts about were trained under a Labour Government? What is he doing about the disparity between GPs surgeries and the service that they offer? Some months ago I made some visits in Coventry and I was amazed by the difference in the levels of service.

[Mr Jeremy Hunt]

It does take seven years to train a GP, but we also have to have an NHS that is able to pay for GPs when they are trained. That is why it was so important to take the difficult decision to reduce the amount of money that we spend on back-office and management costs. The hon. Gentleman is right to say that there is too much disparity in the services offered by different GPs. That is something that the chief inspector of general practice is thinking about, and he will publish his plans shortly.

[Mr Robert Buckland (South Swindon) (Con)]

T8. From my regular discussions with local GPs in Swindon, I know that the reasons behind recruitment issues are often complex and localised. Will my right hon. Friend assure me that those responsible for commissioning GP services will place daily access to general practitioners at the heart of their considerations?

[Mr Hunt]

I know that they do that, and I know that people recognise that access is a critical issue. That is why the Prime Minister introduced a £50 million fund last year that has been taken up by 1,100 of the 8,000 surgeries across the country to improve access in evenings, at weekends and by e-mail and Skype. I hope that those will benefit his constituents.

[Bill Esterson (Sefton Central) (Lab)]

SSP Health runs a number of GP practices in my constituency and across Merseyside. When it took over, it promised full-time GPs and an improvement in services, yet after well over a year several of the practices are still run by locums. We have seen vulnerable, elderly people unable to get appointments for many days, if not weeks, and those who can have gone to other practices. Will the Secretary of State look at what is going on with SSP Health in and around Merseyside and give me and other hon. Members an answer?

[Mr Hunt]

I am happy to do so, because the service that he describes—I have not seen the details—sounds totally unacceptable.

[Paul Burstow (Sutton and Cheam) (LD)]

T9. Given that last year, more than 7,500 people with a mental health crisis found themselves in police cells rather than anywhere appropriate such as a hospital, given that 263 of those people were children and young people, and given that they stayed for 10 and a half hours in a police cell, is it not time that we took the evidence of street triage, which we know works, and rolled it out across the country?

[The Minister of State, Department of Health (Norman Lamb)]

The fascinating thing is that street triage is spreading across the country because forces and mental health trusts see the enormous value of it. The really exciting news is the significant reduction in the number of people who end up in police cells. That is in part due to the standards that we set through the crisis care concordat for the first time for mental health crisis care.

[Meg Munn (Sheffield, Heeley) (Lab/Co-op)]

I welcome the Secretary of State’s commitment to getting rid of as much bureaucracy as possible, so will he look into what is happening with NHS England in south Yorkshire that is delaying approval for a much-needed GP surgery in my constituency? Given that it is in partnership with the local authority, the delay risks us losing the surgery altogether.

[Mr Jeremy Hunt]

I am happy to look into the details of that case and be as much of a bureaucracy buster as I can.

[Robert Halfon (Harlow) (Con)]

T10. Is my hon. Friend aware that nurses are paying an extra £200 a month and patients an extra £40 a week for ever-increasing hospital car parking charges? Will he look into the problem, meet me and do everything he can to end the great hospital car parking rip-off?

[Mr Hunt]

I share my hon. Friend’s concerns that the car park charges in some hospitals are just too high. I understand that hospitals have financial pressures, as do many parts of the system, but I am happy to talk to him on another occasion about what specifically can be done on this issue.

[Mrs Emma Lewell-Buck (South Shields) (Lab)]

Annually 30,000 applications for funeral payments are rejected, leaving families committed to expensive funerals that they cannot afford. People who are approaching end of life are not advised, as part of their palliative care, about planning for funeral costs or their eligibility for support. What is the Secretary of State going to do to remedy this?

[Norman Lamb]

The hon. Lady raises an important issue and I am very happy to discuss her concerns further with her.

[Iain Stewart (Milton Keynes South) (Con)]

The Secretary of State will be aware of the campaign run by the Milton Keynes Citizen, my hon. Friend the Member for Milton Keynes North (Mark Lancaster) and myself for an expanded A and E department at Milton Keynes hospital. What assurances can he give me that A and E services at the hospital will be able to meet the needs of an expanding population?

[Mr Jeremy Hunt]

No one could have campaigned harder than my hon. Friend and his hon. Friend the Member for Milton Keynes North (Mark Lancaster) for improving the services at their local A and E department. A consultation is currently taking place. There is no question of closing both A and Es in that area, and I understand that a very good capital bid for £2 million for his local A and E has been put in which, subject to the usual value-for-money requirements, looks like it is very strong.

[Julie Hilling (Bolton West) (Lab)]

My constituent, 81-year-old Rita, was taken seriously ill on holiday and had to spend two weeks in hospital. She was discharged with a letter saying that she needed very urgent surgery, but has had to wait five weeks before she even sees a consultant, let alone getting any treatment. What can the Secretary of State do for Rita and others like her?

[Mr Hunt]

We are working extremely hard to make sure that people do not have those long waits. We are doing about 3.5 million more diagnostic tests, for example, every year in the NHS than four years ago. I am happy to look into the individual case and see what lessons can be learned and to see whether we can help the hon. Lady’s constituent.

[Duncan Hames (Chippenham) (LD)]

Is it ever acceptable, as reported to me in my constituency surgery last week, for a GP to tell their patient, “There is nothing I can do, so I don’t want to hear any more about your mental health”?

[Norman Lamb]

No, that is entirely unacceptable. What we see in some of the best parts of the country such as Torbay, one of the integrated care pioneers, is that they are completely integrating mental health with primary care, delivering better results for patients. The sort of attitude that my hon. Friend describes has to end.

[Chris Bryant (Rhondda) (Lab)]

There is lots of evidence to show that chronic traumatic encephalopathy is now a major cause of depression, dementia and in many cases suicide, but the World cup showed that many sporting bodies are still not taking concussion seriously enough. Will the Minister, perhaps with colleagues in other Departments, bring in all the sporting bodies, the doctors and the teachers so that we can take concussion in sport seriously?

[Dr Poulter]

The hon. Gentleman makes a very good point. As we commission NHS services, it is increasingly important that there is more focus on sports injury and rehabilitation, not just in relation to our elite sports people, but in relation to those people who play sport regularly at weekends, to ensure that they are properly looked after. If it would be helpful, I am happy to meet the hon. Gentleman to discuss the matter further and see how we can take it forward.



BILLS PRESENTED

Protective Headgear for Cyclists Aged Fourteen Years and Under (Research) Bill





Presentation and First Reading (Standing Order No. 57)

Annette Brooke presented a Bill to require the Secretary of State to commission research into the merits of requiring cyclists aged fourteen years and under to wear protective headgear; to report to Parliament within six months of the research being completed; and for connected purposes.

Bill read the First time; to be read a Second time on Friday 12 September, and to be printed (Bill 74).

Amenity Land (Adoption by Local Authorities) Bill

Presentation and First Reading (Standing Order No. 57)

Annette Brooke presented a Bill to amend section 215 of the Town and Country Planning Act 1990 to allow local authorities to adopt areas of amenity land which are unregistered or vested in the Crown, for the purposes of maintenance; and for connected purposes.

Bill read the First time; to be read a Second time on Friday 12 September, and to be printed (Bill 75).

Sugar in Food and Drinks Bill



Presentation and First Reading (Standing Order No. 57)

Geraint Davies, supported by Jeremy Lefroy, Mr Mark Williams, Mrs Madeleine Moon, Mrs Linda Riordan and Dr Julian Lewis, presented a Bill to require the Secretary of State to set targets for sugar content in food and drinks; to provide that sugar content on food and drink labelling be represented in terms of the number of teaspoonfuls of sugar; to provide for standards of information provision in advertising of food and drinks; and for connected purposes.

Bill read the First time; to be read a Second time on Friday 7 November, and to be printed (Bill 76).

Tyres (Buses and Coaches)

Tuesday 15th July 2014 Commons Chamber

Motion for leave to bring in a Bill (Standing Order No. 23)

12:34

[Steve Rotheram (Liverpool, Walton) (Lab)]

I beg to move,

That leave be given to bring in a Bill to introduce limits on the age of tyres on buses and coaches; and for connected purposes.

The Bill would make it an offence to operate a public service vehicle with tyres that are 10 or more years old, give the traffic commissioners power of sanction and enforcement in this regard, and make it a requirement of the annual vehicle test that the age of tyres be checked and recorded.

Governments of all persuasions have presided over exponential improvements to the safety of passengers and road traffic users over many decades. Since the introduction of seat-belt legislation in the early 1980s up to the present day, there has been a 70% reduction in fatalities on our roads, and changes to the law of the land made in this place have been a significant contributory factor in forcing advancements in road safety, resulting in such a massive reduction in deaths, but sometimes, as in the case of seat-belt regulations, it takes a long time for Parliament finally to act.

When I was a teenager, public information films warned drivers not to mix crossply and radial tyres, and vehicle awareness has improved considerably in the intervening two decades, to the point where people are now more aware of ensuring that their car tyres are regularly checked and inflated to the recommended pressure. There are checks on the condition of tyres on buses and coaches, but many people will probably be shocked to learn that there are no age restrictions at all for tyres used on public service vehicles.

Why should the age of a tyre matter? Technological improvements under development have the potential radically to improve tyre wear, so some might ask whether there is a need for legislation that limits the age of tyres on PSVs. Even within the industry itself there is an ongoing debate regarding tyre decrepitude, with some arguing that modern advancements make an age restriction on a tyre unnecessary, while a great proportion of experts contend that it will be many years before technology can routinely be deployed in a way that would accurately predict the inner conditions of a tyre and negate the need for a tyre age restriction. That is the real issue today. While a tyre might look in perfectly good condition from an external visual check, and its tread be within the legal limits, that does not guarantee the condition of the whole tyre, nor give an accurate representation of the levels of danger that it poses to drivers and passengers.

Ahead of introducing the Bill, I have received support from Merseyside fire and rescue service, Kwik Fit and the National Tyre Distributors Association. I have also consulted other bodies, such as the British Tyre Manufacturers Association, which has provided information on non-destructive testing systems and real time in situ reporting. There are differences of approach to the issue, but the one thing that all parties have in common is the desire to ensure that passengers are transported on the safest tyres possible.

The Bill has three purposes: to raise awareness of tyre safety on buses and coaches, to promote consumer education on tyre ageing, and to improve road safety. According to the latest Department for Transport estimates, the last year our buses travelled roughly the same distance as a round trip to the moon—380,000 times. Between 2008 and 2012, the latest period for which figures are available, on average nearly 200 people were injured every week, and nearly 90 people were killed every month on our buses. Those figures are far too high, but it should be noted that not all of these accidents are solely caused by the age of tyres, and that is part of the problem. Due to the methodology of data capture, it is not possible accurately to estimate how many people needlessly die on our roads in accidents caused specifically by the age deterioration of tyres.

However, we know that in September 2012, as a coach was journeying back to the north-west along the A3, a fatal crash occurred in which two passengers and the driver were tragically killed. During the inquest into the deaths of Michael Molloy, Kerry Ogden and Colin Daulby, the coroner found that the primary cause of the crash was the age of the tyre on the front wheel axle. Michael’s mother—a constituent of my hon. Friend the Member for Garston and Halewood (Maria Eagle)—has become a courageous campaigner on the issue. The tyre in question was 19 and a half years old. Despite appearing to be in good condition externally, the dilapidation of its structure was such that it burst at speed, and three lives were lost as a result.

Fire chiefs have since made it clear to me, and to Michael’s mother, that the Bestival crash, as it has become known, was not an isolated incident and that the age of tyres is a regular factor in road traffic accidents involving buses and coaches. That means that even if a bus or coach is not operational every day for 10 years, and even if there are lengthy gaps in the vehicle’s use, a degree of dilapidation still occurs and the risk factors continue to increase simply because of its age.

There is an additional element to consider: climate change. My Bill will ensure that the law reflects the dangers that variations in British climatic conditions pose to road safety. Due to extreme environmental considerations, the degradable nature of coach and bus tyres is, according to experts, likely to accelerate, thus increasing the dangers associated with tyre age. I know that some Government Members might believe that it is not for Parliament to intervene in such matters, but I simply point to the unnecessary loss of life as a counter-argument to any accusations that this is the nanny state gone mad.

The Bill will offer road users and passengers a double guarantee with regard to safety. The primacy of the conditionality regulations will remain in place. In other words, all tyres on buses and coaches will have to continue to satisfy the use and construction regulations. However, at 10 years of age the tyres will have to be replaced, at least until technological advances are such that a tyre’s internal condition can be inspected to the same degree of accuracy as can its external condition.

However, although the Bill aims to put a limit of 10 years on existing tyres, I recognise that research and development is an ongoing process. The Bill would not be a barrier to that R and D and would act as a catalyst for the introduction of advanced manufacture. If the industry could demonstrate that a bus or coach tyre had been developed that was demonstrably safe beyond 10 years of age, the age restriction within the limits of the Bill could easily be increased in line with those guarantees and the supporting scientific evidence. However, the industry acknowledges that it is not there yet, so 10 years is a reasonable restriction at present.

Turning to monitoring and enforcement, my Bill will make it a requirement for the age of a tyre to be checked and recorded at the annual passenger vehicle test; at the moment, only its tread and external condition are considered. That will ensure that operators are aware of the age of the tyres on all their vehicles and, by extension, that they are aware of the risks posed by an ageing tyre to the safety of their passengers. It would also afford them the opportunity to plan the phased renewal of tyres reaching the end of their shelf life. Additionally, if a bus or coach operator continued to use tyres that were more than 10 years old, the traffic commissioners would have the power either to revoke or to limit their licence.

There are plenty of other rubber-related products that people would be rightly cautious about trusting if they knew that they were decades old, so why would anybody trust their safety to a 20-year-old tyre? I suspect that people would be extremely sceptical about allowing their child to ride to school on a bus with tyres that were probably manufactured before their child was born. Not only is that potentially the case, but it is not beyond the realms of possibility that there are tyres more than twice the age of the children they are transporting. That is simply wrong.

As many Members present will attest, deterioration is a consequence of age. We should no longer allow deteriorating tyres to compromise our safety on the roads, which is why I commend the Bill to the House.

Question put and agreed to.

Ordered,

That Steve Rotheram, Helen Jones, Bill Esterson, Derek Twigg, Ian Lavery, Pamela Nash, Mr Dennis Skinner, Dame Anne Begg, Mr George Howarth, Kerry McCarthy, Mrs Louise Ellman and Mark Hendrick present the Bill.

Steve Rotheram accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 28 November, and to be printed (Bill 77).

Data Retention and Investigatory Powers Bill (Business of the House)

Tuesday 15th July 2014 Commons Chamber

12:45

[The Minister for Security and Immigration (James Brokenshire)]

I beg to move,

That the following provisions shall apply to the proceedings on the Data Retention and Investigatory Powers Bill:

Timetable

(1) (a) Proceedings on Second Reading and in Committee, any proceedings on Consideration, and proceedings on Third Reading shall be completed at today’s sitting in accordance with the provisions of this paragraph.

(b) Proceedings on Second Reading shall be brought to a conclusion (so far as not previously concluded) at 5.00pm.

(c) Proceedings in Committee and any proceedings on Consideration shall be brought to a conclusion (so far as not previously concluded) at 9.00pm.

(d) Proceedings on Third Reading shall be brought to a conclusion (so far as not previously concluded) at 10.00pm.

Timing of proceedings and Questions to be put

(2) When the Bill has been read a second time:

(a) it shall, despite Standing Order No. 63 (Committal of bills not subject to a programme order), stand committed to a Committee of the whole House without any Question being put.

(b) proceedings on the Bill shall stand postponed while the Question is put, in accordance with Standing Order No. 52(1) (Money resolutions and ways and means resolutions in connection with bills), on any financial resolution relating to the Bill.

(c) on the conclusion of proceedings on any financial resolution relating to the Bill, proceedings on the Bill shall be resumed and the Speaker shall leave the Chair whether or not notice of an Instruction has been given.

(3) (a) On the conclusion of proceedings in Committee, the Chairman shall report the Bill to the House without putting any Question.

(b) If the Bill is reported with amendments, the House shall proceed to consider the Bill as amended without any Question being put.

(4) For the purpose of bringing any proceedings to a conclusion in accordance with paragraph (1), the Chairman or Speaker shall forthwith put the following Questions (but no others) in the same order as they would fall to be put if this Order did not apply:

(a) any Question already proposed from the Chair;

(b) any Question necessary to bring to a decision a Question so proposed;

(c) the Question on any amendment moved or Motion made by a Minister of the Crown;

(d) any other Question necessary for the disposal of the business to be concluded.

(5) On a Motion so made for a new Clause or a new Schedule, the Chairman or Speaker shall put only the Question that the Clause or Schedule be added to the Bill.

(6) If two or more Questions would fall to be put under paragraph (4)(c) on successive amendments moved or Motions made by a Minister of the Crown, the Chairman or Speaker shall instead put a single Question in relation to those amendments or Motions.

(7) If two or more Questions would fall to be put under paragraph (4)(d) in relation to successive provisions of the Bill, the Chairman or Speaker shall instead put a single Question in relation to those provisions, except that the Question shall be put separately on any Clause of or Schedule to the Bill which a Minister of the Crown has signified an intention to leave out.

Consideration of Lords Amendments

(8) (a) Any Lords Amendments to the Bill may be considered forthwith without any Question being put; and any proceedings interrupted for that purpose shall be suspended accordingly.

(b) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement; and any proceedings suspended under sub-paragraph (a) shall thereupon be resumed.

(9) (a) This paragraph applies for the purpose of bringing any proceedings to a conclusion in accordance with paragraph (8).

(b) The Speaker shall first put forthwith any Question already proposed from the Chair.

(c) If that Question is for the amendment of a Lords Amendment the Speaker shall then put forthwith:

(i) a single Question on any further Amendments to the Lords Amendment moved by a Minister of the Crown, and

(ii) the Question on any Motion made by a Minister of the Crown that this House agrees or disagrees to the Lords Amendment or (as the case may be) to the Lords Amendment as amended.

(d) The Speaker shall then put forthwith:

(i) a single Question on any Amendments moved by a Minister of the Crown to a Lords Amendment, and

(ii) the Question on any Motion made by a Minister of the Crown that this House agrees or disagrees to the Lords Amendment or (as the case may be) to the Lords Amendment as amended.

(e) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown that this House disagrees to a Lords Amendment.

(f) The Speaker shall then put forthwith the Question that this House agrees to all the remaining Lords Amendments.

(g) As soon as the House has:

(i) agreed or disagreed to a Lords Amendment; or

(ii) disposed of an Amendment relevant to a Lords Amendment which has been disagreed to,

the Speaker shall put forthwith a single Question on any Amendments that are moved by a Minister of the Crown and are relevant to the Lords Amendment.

Subsequent Stages

(10) (a) Any further Message from the Lords on the Bill may be considered forthwith without any Question being put; and any proceedings interrupted for that purpose shall be suspended accordingly.

(b) Proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement; and any proceedings suspended under sub-paragraph (a) shall thereupon be resumed.

(11) (a) This paragraph applies for the purpose of bringing any proceedings to a conclusion in accordance with paragraph (10).

(b) The Speaker shall first put forthwith any Question which has been proposed from the Chair.

(c) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown which is related to the Question already proposed from the Chair.

(d) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown on or relevant to any of the remaining items in the Lords Message.

(e) The Speaker shall then put forthwith the Question that this House agrees with the Lords in all the remaining Lords Proposals.

Reasons Committee

(12) (a) The Speaker shall put forthwith the Question on any Motion made by a Minister of the Crown for the appointment, nomination and quorum of a Committee to draw up Reasons and the appointment of its Chair.

(b) A Committee appointed to draw up Reasons shall report before the conclusion of the sitting at which it is appointed.

(c) Proceedings in the Committee shall (so far as not previously concluded) be brought to a conclusion 30 minutes after their commencement.

(d) For the purpose of bringing any proceedings to a conclusion in accordance with sub-paragraph (c), the Chair shall:

(i) first put forthwith any Question which has been proposed from the Chair, and

(ii) then put forthwith successively Questions on Motions which may be made by a Minister of the Crown for assigning a Reason for disagreeing with the Lords in any of their Amendments.

(e) The proceedings of the Committee shall be reported without any further Question being put.

Miscellaneous

(13) Standing Order No. 15(1) (Exempted business) shall apply so far as necessary for the purposes of this Order.

(14) (a) The proceedings on any Motion made by a Minister of the Crown for varying or supplementing the provisions of this Order shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.

(b) Standing Order No. 15(1) (Exempted business) shall apply to those proceedings.

(15) Standing Order No. 82 (Business Committee) shall not apply in relation to any proceedings to which this Order applies.

(16) (a) No Motion shall be made, except by a Minister of the Crown, to alter the order in which any proceedings on the Bill are taken or to recommit the Bill.

(b) The Question on any such Motion shall be put forthwith.

(17) (a) No dilatory Motion shall be made in relation to proceedings to which this Order applies except by a Minister of the Crown.

(b) The Question on any such Motion shall be put forthwith.

(18) The Speaker may not arrange for a debate to be held in accordance with Standing Order No. 24 (Emergency debates) on a day on which the Bill has been set down to be taken as an Order of the Day before the conclusion of any proceedings to which this Order applies.

(19) (a) Sub-paragraph (b) applies if the House is adjourned, or the sitting is suspended, before the conclusion of any proceedings to which this Order applies.

(b) No notice shall be required of a Motion made at the next sitting by a Minister of the Crown for varying or supplementing the provisions of this Order.

(20) Proceedings to which this Order applies shall not be interrupted under any Standing Order relating to the sittings of the House.

(21) (a) Any private business which has been set down for consideration at 7.00pm, 4.00pm or 2.00pm (as the case may be) on a day on which the Bill has been set down to be taken as an Order of the Day shall, instead of being considered as provided by Standing Orders, be considered at the conclusion of the proceedings on the Bill on that day.

(b) Standing Order No. 15(1) (Exempted business) shall apply to the private business for a period of three hours from the conclusion of the proceedings on the Bill or, if those proceedings are concluded before the moment of interruption, for a period equal to the time elapsing between 7.00pm, 4.00pm or 2.00pm (as the case may be) and the conclusion of those proceedings.

(22) At the sitting of the House on Thursday 17th July, the Speaker shall not adjourn the House until–

(a) any Message from the Lords has been received and any Committee to draw up Reasons which has been appointed at the sitting has reported; and

(b) the Speaker has reported the Royal Assent to any Act agreed upon by both Houses.

I will be brief, as I want to leave as much time as possible for the substantive debate on the matters before the House today. I hope that all right hon. and hon. Members appreciate the urgency of the issues contained in the Bill. As my right hon. Friend the Home Secretary made clear in her oral statement last week, it is crucial that we act now to ensure that our law enforcement and intelligence agencies have the tools they need to keep us safe.

[Caroline Lucas (Brighton, Pavilion) (Green)]

If the Bill is so urgent, will the Minister explain why it was not introduced three months ago, as soon as the European Court of Justice judgment was announced? Why are we debating it in one day, just before the recess?

[James Brokenshire]

My right hon. Friend the Home Secretary explained the situation clearly in her statement last week. The judgment was made in April and we have sought clarity on it. Indeed, the pressure brought to bear by other legal challenges and the industry itself has made it necessary to clarify these essential measures and tools relating to the ability of our law enforcement and security services to assure us of our national security and to combat crime. I am sure we will get into those issues in the substantive debate, so I do not want to detain the House too much on them.

[Sir Edward Leigh (Gainsborough) (Con)]

I support the principle of what the Government are trying to do, but, like many people, I would try to avoid pushing Bills through in one day. Why was this Bill delayed? Did the Liberals delay it?

[James Brokenshire]

My hon. Friend will know that proposed legislation is always given due consideration. No Government embark on fast-track legislation lightly. There is a pressing and urgent need to bring into force the Bill’s measures, to ensure that capabilities that are used day in, day out are maintained and that there is no risk to what are essential facilities for our policing and other enforcement agencies.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

Why was there no discussion with parties other than the Liberal Democrats, Labour and the Conservatives, even on Privy Council terms? For heaven’s sake, if there is an urgency, why keep most of the Opposition in the dark? It is absolutely disgusting, disgraceful and undemocratic.

[James Brokenshire]

We have engaged on the purpose and nature of the Bill and there have been discussions across the House. Clearly, there will be an opportunity this afternoon to talk through the issues and consider the Bill. I hope there will be a consensus across the House about the importance of the issues and the need to ensure that we have the legislative framework—the back-up—so that our police and law enforcement agencies can continue to do the job they do today in the way that they have hitherto done it.

[Duncan Hames (Chippenham) (LD)]

I recognise the urgency in starting consideration of this Bill, but was the Minister denied a deferment of the summer recess, which would have afforded us more time?

[James Brokenshire]

My hon. Friend needs to recognise—I am sure he does—the sensitivity and importance of communications data and how they are used for the prosecution of offences, and of interception and how we have reached a tipping point, which is why there is a need for urgent legal certainty and clarification in the light of the European Court judgment. We face two serious and urgent problems relating to both communications data and interception: first, the recent judgment of the European Court of Justice has called into question the legal basis on which we require communications service providers in the UK to retain communications data; and, secondly, the increasingly pressing need to clarify the application of our laws on interception, so that communications service providers that provide services to people in the UK are in no doubt that they are covered by the laws, irrespective of where they are based.

[Dr Julian Huppert (Cambridge) (LD)]

The Home Secretary was rather less than clear at the Home Affairs Committee yesterday, so will the Minister provide clarity? What would happen if instead of passing the Bill now, we passed it in September? Is there a definite risk, and if so, what risk do we definitely face?

[James Brokenshire]

There is a risk in relation to co-operation on the use of the powers; indeed, there may be legal challenge. The House must face up to the prospect that the powers we use—they are constantly used by our law enforcement agencies—are at potential risk, and we are seeking to address that risk through the Bill this afternoon.

That is why the Government have decided that a fast-track process is appropriate. We have not done so lightly; we would not consider the Bill in this way unless we thought that there is a real risk to such capabilities. We believe that the issues have reached a dangerous tipping point, and that we must act now. If we do not enact the Bill before the summer recess, we face the real prospect of a serious degradation in the ability of our law enforcement and intelligence agencies to investigate crime, preserve national security and protect the public. That is why the Bill requires a fast-track approach.

The motion provides for some nine hours of debate on the Bill. If the House approves the motion, we will move directly to the debate on Second Reading, which will take us to no later than 5 pm. The Committee of the whole House will follow until 9 pm, with the debate on Third Reading concluding no later than 10 pm. The motion also provides for programming of the later stages of the Bill in this House on consideration of Lords amendments.

I fully appreciate the restrictions that today’s timetable imposes. However, given the very specific issue that the House is being asked to consider, we are satisfied that the House—and, in due course, the House of Lords—will have sufficient time to scrutinise the Bill properly. I remind right hon. and hon. Members that the Bill does no more than maintain the status quo, and that it contains a termination provision, meaning that it will lapse at the end of 2016. I welcome Opposition Front Benchers’ continued support for expediting the Bill.

[Mr Brian H. Donohoe (Central Ayrshire) (Lab)]

Why will the Minister not extend the Bill’s provisions only to the autumn, when there could be a full and long debate and more time could be spent looking at the whole situation? Why does it go on to 2016?

[James Brokenshire]

I am sure that we will have plenty of opportunity to discuss the issues of timing and of why we judge it appropriate that the sunset or termination clause is until 2016. We will get to that debate, but simply seeking a limited period would pressurise the House into making substantive decisions without knowing the impact or import of the review that we have asked David Anderson, the independent reviewer of counter-terrorism legislation, to inform. The House will have the time and space to consider the issues properly, given that the Bill is simply to maintain the position—the status quo ante—in respect of capabilities for the retention of communications data and interception powers.

I hope that the whole House understands the need for fast-tracking the Bill and will therefore support the motion.

12:53

[Mr David Hanson (Delyn) (Lab)]

It is a pleasure to speak at the start of what will be a long day’s debate on this important piece of legislation.

I understand why the Minister has tabled the programme motion, but I, like my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), share some of the concerns about the fact that this problem and challenge first came to light in April, as has been mentioned, when the European Court of Justice struck down the Data Retention (EU Directive) Regulations 2009. I know from my time serving in government that that may not necessarily have come as a surprise to the Government—they may have anticipated such a challenge before April—so since the challenge in April, they have had a considerable time both to prepare a Bill and to introduce one for us to consider in dealing with what I accept is an emergency. In my view, there are good reasons why the legislation must now be passed very quickly, but it is incumbent on the Minister at least to recognise that he could have prepared legislation for the eventuality of the regulations being struck down in the European Court of Justice, and that he could have brought in legislation post-April.

From the new clauses and amendments that we have tabled, the Minister will know that we have some concerns and require some changes. First, we must ensure that provision for a wider review of the Investigation of Regulatory Powers Act 2000 is added to the statute book, with a guarantee that the whole House can understand. Secondly, we must have a regular examination every six months of the operation of any legislation that this House and the other place pass this week. I want to get on to those matters before the day is out, because we will have an opportunity to deal with them today. I am disappointed with the time scales, but the programme motion effectively gives us one and a half days of legislative time to consider such matters. As the Minister said, it is important to get on to discuss those matters.

[Mr Clive Betts (Sheffield South East) (Lab)]

On the six-month period, I understand that Opposition Front Benchers have accepted the Government’s argument that the Bill will do no more than clarify the previous situation and will not extend the Government’s powers in any way. If we pass the legislation and subsequently have doubts about whether powers have been extended, will it be possible for the six-month review to look at the legislation, or are we stuck with it once we have it? What are Opposition Front Benchers trying to achieve?

[Mr Hanson]

I am grateful to my hon. Friend for raising that issue, which is important on two fronts. We have tabled new clause 2 to provide a six-month review, which would be some time in December this year or in January next year. It would look at how the Act passed by this House and the other place had operated up to that time, as well as at other factors that the Minister may have examined following the European Court of Justice’s consideration and the lapsing of the current legislation.

We will then be into a general election campaign, and my hon. Friend will know that in the event of our being elected to government, we will look at some of the wider issues as a matter of course. I hope that we can accept the Government’s understanding of the emergency and help them to cover that emergency, while also leaving scope for looking at how the Act operates in practice. If other new clauses are agreed to today, we would also then be able to consider the wider issues about which I know right hon. and hon. Members have concerns.

Bluntly, investigations into online child sex abuse, major investigations into terrorism and into organised crime, the prevention of young people from travelling to Syria and many issues relating to attempted terrorist activity have depended on and will continue to depend on the type of access that we need through the Bill.

[Dr Huppert]

Will the right hon. Gentleman provide some clarification? In the event of a Labour Government —it is very hard to predict what will happen—will he assure us that if the review recommends changes to provide more privacy and civil liberties safeguards, he will want to implement them?

[Mr Hanson]

We are currently discussing the programme motion and the allocation of time, and I am trying to indicate to the House—including the hon. Gentleman and, indeed, Ministers—that we will support the motion, even though we are disappointed that there was not an earlier and more thorough examination of the Bill.

We recognise that, in the interests of fighting terrorism, child abuse and serious organised crime, the Government are seeking powers to meet their current obligations in the light of the judgment in April. On this occasion, the Government will have our support, and we hope that there will be an opportunity later today to consider in detail some of the new clauses that we have tabled.

[Several hon. Members]

rose—

[Mr Speaker]

Order. There is no time limit on speeches but, before I call the next speaker, I urge colleagues to bear in mind the interest of other colleagues in speaking in this debate on the business of the House motion and to reflect on the merits of getting on, without undue delay, to the central issues, which may be fully aired on Second Reading until 5 o’clock.

12:59

[Sir Malcolm Rifkind (Kensington) (Con)]

I shall abide by your request, Mr Speaker, and make just two brief comments on the points that have been raised.

First, Members needs to take it into account that the House is presented with emergency legislation in two sets of circumstances. The first is when a Government seek to extend their powers in some area. In such circumstances, the House has every reason to be very sceptical and concerned that it is being done through the medium of emergency legislation. There would have to be really exceptional circumstances to justify new powers of a kind that had not been used before.

We are told today—the House must make a judgment about this—that this is a different kind of emergency legislation, which has been seen in the past. Following a legal judgment, something that was thought to be lawful has potentially ceased to be lawful. The legislation is therefore necessary in order to continue with the status quo. That is, of course, a very different matter.

The second point that I want to make, very briefly, is about the concern over why the legislation was not prepared two or three months ago. It is obvious that there are two reasons. First, there are regulations that were made under the European directive. There is now uncertainty over whether those regulations might be successfully challenged. We therefore need clarification right away. Secondly, it is desirable to have all-party support if possible, particularly because it is emergency legislation. That takes time in the real world, particularly given that the Opposition have, quite reasonably, asked for additional announcements to be made in this area that are not specific to the legislation, but are relevant to it. Those factors point to why this process is not as unreasonable as it might otherwise sound.

[Mr Speaker]

Order. The right hon. and learned Member for Kensington (Sir Malcolm Rifkind) has just offered a tutorial in succinctness. I hope that he had a significant number of attentive students.

13:01

[Mr David Winnick (Walsall North) (Lab)]

I consider this to be an outright abuse of parliamentary procedure. I will certainly vote against the motion, and I hope that a number of hon. Members will do so as well.

Even if one is in favour of what the Home Secretary intends to do, to do it in this manner—to pass all the stages in one day—surely makes a farce of our responsibilities as Members of Parliament. When one considers the issues that are involved, how can one justify saying that the Bill must pass every stage by 10 o’clock? Does that meet our duty and responsibility to our constituents?

We must bear it in mind that, as has been said, the European Court of Justice made the decision in April. It is now July. The theatre of last Thursday—the Cabinet meeting at 8 o’clock, the television conference and the statement by the Home Secretary—was all well staged.

There has been no pre-legislative scrutiny by the Select Committees—none at all. This is the sort of issue that the Home Affairs Committee and other Select Committees that consider human rights should look at in detail. None of that has been done.

Today, we should try to persuade the Government to provide more parliamentary time, whether by extending this sitting or postponing other business, so that we can go through the stages. One thing is absolutely certain: every Member of this House must consider very carefully, if they are in favour of the measure or not, whether it is right and justified to go through all the stages in one day. Is that not a mockery of parliamentary democracy?

13:03

[Mr David Davis (Haltemprice and Howden) (Con)]

To follow on from my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), I think that we are looking at a third category: a piece of legislation that is being renewed, but that has fallen into disrepute over the years in which it has been used. That is why this Bill is more important than a simple renewal.

There is an emergency—a legal emergency—but it started on 8 April. It was eminently predictable because, as far back as 2010, the European data protection supervisor said that the data retention directive was

“without doubt the most privacy invasive instrument ever adopted by the EU”.

Data retention has been struck down in Germany and Romania, and there have been difficulties in other countries. The two requests to the European Court of Justice came not from bogus organisations, but from the Irish High Court and the Constitutional Court of Austria. Those were therefore serious revisions and it was entirely probable that we would find ourselves in the situation that we are in today.

Why has it taken three months? Why was the legislation not pre-prepared? Why was the deal with the Labour party not struck in advance? My understanding is that there was an argument inside the Government between the two halves of the coalition. That argument has gone on for three months. What the coalition could not decide in three months, this House has to decide in one day. That seems to me entirely improper.

[Dr Huppert]

Will the right hon. Gentleman give way?

[Mr Davis]

No, I am going to be very fast and finish on this point.

Parliament has three roles: to scrutinise legislation, to prevent unintended consequences and to defend the freedom and liberty of our constituents. The motion undermines all three and we should oppose it.

13:05

[Mr Tom Watson (West Bromwich East) (Lab)]

In the brief time that we have, I think that I should put it on the record that MPs had only 47 minutes to submit unstarred amendments to the Bill yesterday. Most reasonable people will conclude that Parliament has been insulted by the cavalier way in which a secret deal has been used to ensure that elected representatives are curtailed in their ability to consider, scrutinise, debate and amend the Bill. It is democratic banditry, resonant of a rogue state. The people who put this shady deal together should be ashamed.

13:06

[Sir Edward Leigh (Gainsborough) (Con)]

I would have thought that our fundamental duty was to protect the freedom of the individual. As it happens, I support the Bill. However, if I may say so politely to the Minister, he owes us a bit more of an explanation when he sums up.

It is fair enough if the Liberal party, with its traditions, has objected to many parts of the Bill. There should have been long arguments and objections. Why can we not just be told about them?

[Dr Huppert]

Will the hon. Gentleman give way?

[Sir Edward Leigh]

I will finish my point.

If it takes three months to agree to something in the coalition, the Government should come back to us honestly and say, “It has taken all this time. We have finally come to an agreement. Here it is.” What is the urgency? It seems extraordinary that, on a matter as fundamental as the freedom of the individual, we are rushing things so much.

13:07

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I am very concerned about this rush to legislate because, as we all know, if one legislates in haste, one may well repent at leisure. We are told that there is some urgency. While accepting that at face value, I do not think that limiting our debating time in such a savage way is appropriate.

The Minister, with support from the right hon. and learned Member for Kensington (Sir Malcolm Rifkind), said that the Bill is a continuation of the status quo. It is not. Even at a cursory glance, I found two reasons why that is inaccurate. First, at present, public authorities and public bodies are able to gain access to data for a broad range of reasons. Section 37 of the Protection of Freedoms Act 2012 requires judicial authorisation before local authorities can access communications data. That requirement is absent from the Bill.

Secondly, clause 5 extends the definition of a “telecommunications service”. The explanatory notes to the Bill state that the new definition covers companies that provide

“internet-based services, such as webmail”.

That means that internet service providers—even those based overseas and, hence, outside the UK’s jurisdiction—will be compelled to grant access to data. That is unprecedented. I have no doubt that there will be other examples when we have all had something like an adequate opportunity to look at the draft legislation.

In all honesty, I am appalled at the way in which Parliament is being ridden over roughshod. I repeat the point that I made earlier: the Minister could have come to the minority parties on Privy Council terms and included us in the discussions. It is all very well waving a hand and saying, “It is extremely urgent—security demands it,” but I do not accept that for one minute. I am in this place to scrutinise legislation, not just to listen and be rolled over by it.

[Several hon. Members]

rose—

[Mr Speaker]

Order. Notwithstanding what has been said about the truncated time that has been available for the tabling of amendments, I reiterate what I said yesterday afternoon in response to a point of order from the hon. Member for Rhondda (Chris Bryant), which is that Members will be free to table manuscript amendments for some time to come. If Members wish to do so, I am happy that that should happen, in recognition of the constraints under which they are operating. I hope that that is clear.

13:10

[Dr Julian Huppert (Cambridge) (LD)]

I intend to speak only briefly. I think that there is an urgency to passing this legislation, and I have spoken to a number of organisations and companies involved, who confirm there is a problem. I do not think, however, that that case was made by the Minister or by the Home Secretary yesterday at the Home Affairs Committee, and I hope that when summing up the debate they will give us something more to go on so that people can be persuaded that there is an emergency, not just that that is said to be the case.

A couple of comments have suggested that there may have been disagreement in the coalition about how to deal with this issue, and for the record and the interest of the House, I confirm that there is a disagreement. The Home Secretary was clear in her statement that she would like to bring forward the draft Communications Data Bill, which we managed to kill off. There is clear disagreement on that, and I am sure we will continue to explore that matter.

I accept all the concerns about the shortage of time, and I for one would be happy to stay longer into the recess to discuss the Bill. It is worth recognising, however, that when the data retention regulations were brought through this place, a total of no minutes were allocated for debate in this Chamber, and a total of 62 minutes were allocated for debate in Committee. That is what happened when the regulations were originally brought in many years ago, and it is interesting to note who voted for them on that occasion, but now thinks that they are heinous.

13:11

[Mr Jack Straw (Blackburn) (Lab)]

I support the timetable motion and will briefly set out why. I have been in the position of having to bring forward emergency legislation. It is never easy, and I am ready to give the benefit of the doubt to the Home Secretary, because she would not have done this without good justification, and neither would my right hon. Friend the shadow Home Secretary remotely have agreed to it without the closest scrutiny of what is being proposed.

I say to my hon. Friend the Member for West Bromwich East (Mr Watson), with the usual respect, that I have often thought that there is an inverse relationship between the extravagance of language used, and the strength—or otherwise—of the argument he has made. He was very pretty in his soundbites, but no case has been made as to why this legislation should not be dealt with today; nor have there been arguments in the briefings that suggest substantively for a second why and how the legislation goes beyond what everybody assumed to be the state of the law before the European Court of Justice judgment.

The ECJ judgment took place on 8 April, and those who have had the benefit of burning their brain out by reading it, as I have, will know that it is an incredibly dense text full of confused arguments, and it is not clear on the face of the text exactly what it meant—indeed, lawyers have now had to add glosses to it. Neither was it immediately clear whether or not it would require further amending legislation. That is the reality.

I was the Minister who brought forward the Regulation of Investigatory Powers Act 2000, which was supported across the House. Why? I did so because it strengthened parliamentary and legal scrutiny over the extensive surveillance powers of the state, not the reverse. Secondly, without this emergency legislation, those of us who are concerned to deal with sexual predators and other serious criminals and terrorists—as I know my hon. Friend the Member for West Bromwich East is, along with many others—will see a degradation in the ability of the police and other security agencies to deal with those threats. That is what is at issue. I do not like emergency legislation any more than anybody else, but I prefer it to allowing serious criminals and terrorists to go undetected.

13:14

[Sir Tony Baldry (Banbury) (Con)]

I want to ask a question. It seemed to me that the right hon. Member for Delyn (Mr Hanson) made a perfectly responsible and reasonable speech, and I want to ask the Minister when he sums up the debate whether the Government are minded to make concessions. The Opposition have set out a number of concessions that they would like the Government to consider. Will the Minister confirm whether the Government are minded, during the course of the day, to be prepared to make concessions? If so, perhaps we could move on to Second Reading when my right hon. Friend the Home Secretary will set out in some detail what concessions we are willing to make to the Opposition, so that the House can debate the detail of the Bill and emerge with the best possible Bill conceivable in the time available.

13:15

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

I want to speak to the timetable motion rather than to the content of the Bill, because it is an insult to the intelligence of the House. The whole House will know that guillotine motions are always undesirable, although increasingly common in recent decades, but to ram through legislation of this significance in a day must be wrong. We have had a Session with a light legislative programme, and for Ministers to come to the House and say, “We’ve only got a day to debate it”, when weeks have passed when we could have given it ample time is, I repeat, an insult to the intelligence of MPs.

The other point that I am afraid is not very pleasant about the way Ministers are handling this matter is their bringing the Bill forward a week before the Session ends. They know perfectly well that the Lords will be disinclined to keep sending it back if it means extending the Session when they will have made their own arrangements, and I believe—I hate to say this because they are all nice people—that those on the Opposition Front Bench have been rolled. All Ministers had to do was to raise in front of them the spectre of being an irresponsible Opposition, and that children will die if they do not vote for the Bill on this timetable, and they succumbed.

As for the Lib Dems—I do not want to sound naive, but their brand has always been that they are the defenders of the nation’s liberties, yet they are colluding with the Government on this guillotine motion. Whatever we think of the content of the Bill, the timetable motion has no justification after an exceptionally light Session and must bring the legislation into disrepute with the wider public, so I will be voting against it this afternoon.

13:17

[Steve Baker (Wycombe) (Con)]

The subject of the Bill is of profound importance to members of the public who care about such matters, and no wonder because it is the paradigmatic example of the conflict between the rights of the individual and the power of the state as enabled by technology. The Bill can be understood only in the context of the very worst crimes that our country and society face, but it is not hysterical for those who flatly oppose these kinds of measures to do so. The very worst crimes in all human history were perpetrated by states against their citizens, and we must be extremely careful about how we allow technology to infringe on our rights. If anybody wishes to see just how important that is, I recommend that they look at the transcript of the trial of Albert Speer at Nuremberg, which I put online with Big Brother Watch some time ago.

In any event, if somebody supports this Bill as an emergency measure, the key problem is that the timetabling will undermine the public’s confidence. Many people across the country think that the state is advancing too far and too fast in putting everybody under surveillance, and banging through this measure so quickly will undermine their confidence further. The Government will have more work to do to win them back, and I very much wish that they had given us far more time to discuss this measure.

13:18

[Caroline Lucas (Brighton, Pavilion) (Green)]

You rightly counsel us to be brief, Mr Speaker, and I will be of course, but it is important to challenge the timetable motion, particularly because with this Bill—perhaps above all others—process and content are absolutely connected. There is no justification for rushing through legislation without proper scrutiny and due process. The right hon. Member for Blackburn (Mr Straw) said that he thought there was no reason not to rush it through, but my answer would be that the reason is precisely that of parliamentary sovereignty and the importance of parliamentary scrutiny. That is what we are here to do. The European Court of Justice made its judgment about data retention in the Digital Rights Ireland case three months ago. Since then, no action has been taken to address the implications of that judgment until suddenly a few days before the parliamentary recess—apart, it would seem, from some secret talks that have been basically cooked up between the three big parties to bypass due process when it comes to the fundamental rights of UK citizens.

A number of organisations wrote to the Home Secretary at the time of the ECJ judgment to express the view that the regulations no longer stood, but this elicited a response that they were still legally in force and that service providers had been advised that they should continue to observe the notice obligation set out in the data retention regulations. In other words, the Home Secretary knew this point was coming, yet appears to have turned a blind eye. That she is now seeking to fast-track such controversial legislation is deeply concerning.

I am also worried that the Bill is an attempt to circumvent other legal proceedings, namely a judicial review, happening in this very week, that challenges the legality of the Data Retention (EC Directive) Regulations 2009 and could see the regulations declared unlawful by a UK court as well as by the ECJ. Any new regulations could also be subject to judicial review if they do not comply with the Digital Rights Ireland judgment.

As other hon. Members have said, it is outrageous that we have been granted one day in which to debate and scrutinise a Bill of such significance. It is even more outrageous that this is being blamed on a totally manufactured emergency and represented as doing nothing other than maintaining the status quo. That is not accurate. This is a huge power grab under false pretences. Notwithstanding the fact that the status quo has been ruled a breach of fundamental rights, the provisions in the Bill, specifically clause 4, extend the territorial reach of the laws relating to data retention. It brings overseas communication companies providing services within the UK into the scope of the Regulation of Investigatory Powers Act 2000. The implications of this are well understood by my constituents in Brighton, who have been lobbying me since last week. As one said, we have democratic process for a reason: to prevent such Bills from becoming law on the basis of a nod and a wink.

Finally, let us also not forget the ECJ judgment that the blanket retention of data is unlawful. Rushing through a Bill in one day is bad enough. To do so while inaccurately claiming that the proposals do nothing more than maintain the status quo is worse, but to do so when the contents of the Bill that do relate to the status quo have been unequivocally judged in breach of the EU’s charter of fundamental rights is nothing short of outrageous.

13:21

[Duncan Hames (Chippenham) (LD)]

I recognise the seriousness of the issues covered by the Bill and I understand why the Home Secretary considers it intolerable for us to not address this matter before the House returns from the summer recess in September. However, in considering the timetable motion, we have to consider the other options available to the Government. I hope the Minister will be able to address why he has ruled those options out.

Perhaps the most straightforward way to do that is to consider what would have happened if the Cabinet had not reached agreement on this matter at its emergency meeting on Thursday last week. In that scenario, would the Home Secretary be fuming at not being able to pass the Bill until autumn, or would she have found other means to take the action she considers necessary? Would we be looking at the business of the House for next Monday?

Colleagues will be well aware that we have the traditional end of term debate next Tuesday. I am sure Members covet their speeches in that debate, but they might recognise that for matters of national security and proposed legislation that the Government consider to be an emergency, it might be appropriate to move Tuesday’s business so that we could have more time to debate the Bill. Indeed, colleagues might even consider the necessity of the House rising on Tuesday, when we need to consider the Bill.

If there had been no agreement in the Cabinet last Thursday, I am absolutely certain that the Home Secretary would not have waited until September to pursue the Bill. I am sure that other decisions would have been taken to enable us to consider it next week. If it were the will of the House to have the time to scrutinise the Bill properly, such changes could still be made. That is why the timetable motion is unnecessarily restrictive, not just in the amount of time that Members have to debate these matters, but in terms of the timetable of the various windows of opportunity for proposing alternatives to the Bill.

I hope that in responding to the debate the Minister will tell us why it is not acceptable to give Members next week to consider House of Lords amendments. Forcing them to be considered on Thursday, when they will have been made only on Wednesday, creates an even tighter window for this House. I am not advocating that we should wait until the autumn, but I believe that Ministers should think again about curtailing debate and forcing it to take place on today only, with consideration of Lords amendments on Thursday.

13:24

[Jeremy Corbyn (Islington North) (Lab)]

I acknowledge your entreaties to be very brief, Mr Speaker. We would not normally be discussing timetable motions at any length at all, but this goes to the very lifeblood of what Parliament is about.

The Bill has been introduced in a big hurry. There has been no public consultation, no parliamentary scrutiny and very little public debate. It is a major piece of legislation that has global implications for what this country does. It relates to the surveillance of everybody’s telephones, internet and everything else. It is a massive intrusion into people’s lives. The Government are doing a great disservice to Parliament by insisting that we debate the whole of Second Reading by 5 pm, amendments by 9 pm and Third Reading by 10 pm, for the Bill to go to the Lords and come back here again on Thursday all done, and then have a sunset clause that goes on for two years.

This is not an appropriate way for Parliament to be treated and every MP should think very carefully. Why are we here? We have been elected to hold the Executive to account and to scrutinise legislation. This timetable motion is a travesty of what scrutiny of legislation should be about. I, for one, will oppose the timetable motion, so that we have a proper opportunity to scrutinise and debate the Bill.

13:26

[Ian Paisley (North Antrim) (DUP)]

I want to speak very briefly in support of the comments made by the right hon. Member for Blackburn (Mr Straw). I do not believe that this House has been walked over in a roughshod manner in some sort of North Korean despotic way, as some Members have implied. Honestly, I think that is foolish. I agree with my colleague from Wales, the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), that there could have been wider consultation on Privy Council terms with some of the smaller parties. There would still have been the same complaints raging from this place, but it should have taken place.

I saw none of the crocodile tears, righteous anger and indignation we have witnessed today when, year after year and decade after decade, four or five Members in this House debated emergency provisions relating to Northern Ireland. Hardly anyone turned up or gave a toss about what was happening, yet those provisions ran roughshod over Northern Ireland. The crocodile tears we have seen today are just that—crocodile tears. I hope we can move on to the substantive motion as quickly as possible.

13:27

[Chris Bryant (Rhondda) (Lab)]

I do not doubt for an instant the seriousness of the Government’s concerns about their present legislative situation. I also wholeheartedly want to ensure that the police and the prosecuting authorities have the powers they need, so long as they are proportionate, to be able to secure convictions in some cases, such as those mentioned by Ministers. However, I just say very gently to this House that the reason that we developed over centuries a process whereby every piece of legislation has to go through three readings in this House, a Committee stage and a Report stage, with gaps between each of those stages, was that people in the country had a concern about the overbearing power of the Executive over the individual citizen. The Bill is expressly about that relationship—that is all it is about—and that is why we should be very cautious about suspending and concertinaing the process.

The Home Secretary said last week that it was essential to have a fast track. Well, yes, but there are many different ways of having fast tracks. Everything does not need to be done in one day; it could be done over two days, so there could be a proper process of listening to the debate on Second Reading and then tabling amendments, rather than having to table amendments before the debate has taken place. The only reason this is in any sense an emergency is that the Government spent far too long making up their mind on what to do.

When the House of Lords considered in the previous Parliament the process of fast-track legislation, they put forward some serious and sensible suggestions. First, where there is to be fast-track legislation, the Government should, on a standard basis, publish the legal advice that they believe backs up their case. That has not happened in this case. Secondly, there should always be a sunset clause. I accept that there is a sunset clause in the Bill. The sun will take a very long time to set, but none the less that is a matter for us to debate later on. Thirdly, the Lords made it absolutely clear that wherever possible there should be a process of pre-legislative scrutiny. I do not believe that publication of the Bill last Friday in draft form and the Secretary of State appearing at the Home Affairs Committee yesterday was anywhere near adequate pre-legislative scrutiny of this because we are being asked to accept, on face value, the Government’s assurances that this is merely the status quo and that there is no change. We want to be able to test that, which is why I think we should always proceed very reluctantly when we concertina the standard processes that have been with us for centuries and which have stood us in good stead.

13:30

[Mark Durkan (Foyle) (SDLP)]

Like some other hon. Members, I will be opposing the motion. This House should not be microwaving legislation on to the statute book under the confected urgency about which we have been told. We seem to have had a muddle within Government, a huddle between Government and Opposition and now an attempt to hurry and befuddle Parliament under the guise of various arguments and scares.

The Government may have arguments in favour of legislating in response to the judgment. We still have not heard a proper explanation for why that has not happened before now. The assurances offered by Ministers today that this Bill is simply a carry-on data retention measure—that it is pure continuity with no extension—are not assurances that I can accept. The nature of the Bill’s provisions seems to extend the legislation in a number of areas. Ministers will say that that is simply to clarify but, in effect, it extends the effect and the strength of the existing legislation in ways that go beyond the assurances of Ministers.

Legislation that is the subject of soft consensus without due consideration usually turns out to be poor legislation and, as legislators, we find it hard to take ownership of such legislation in the face of public concern and criticism. Credible legislators in this House should send a clear message to the Government, and offer some assurance to their electorate, that we will not as a legislature be treated in this way. We can do that very simply by voting against the motion.

13:32

[Pete Wishart (Perth and North Perthshire) (SNP)]

What we have been asked to do today—to railroad the Bill through Parliament—is, given the sheer importance of what we have been asked to consider, nothing short of outrageous. Let us not forget that we are bringing forward emergency legislation because the European Court of Justice ruled that what the UK Government were doing was unlawful. That alone should at least take two days of debate. The Home Secretary says that this is just business as usual. It is not. There are significant and substantial new powers being added to the Bill, whether that is international ISPs being brought into the frame or whether it is, as we have heard, the inclusion of other webmail services such as Gmail. This should all be properly considered by this House.

What do the public make of this? If we are not getting an opportunity to debate this properly, the public are not getting that opportunity. They expect us to be here to debate these things properly. I do not know about any other right hon. and hon. Member but I have been besieged by members of the public this morning, asking me to come to the debate to make the points that they feel are very contentious and which should be raised. We have something like three hours to debate Second Reading, four hours in total to debate the necessary amendments and one hour for Third Reading. It is an absolute and utter disgrace that we have been asked to do this today.

What about the stitch-up we have between all the main parties? It is not just a question of the minority parties not being consulted on this; our devolved Administrations have not even been given the courtesy of one conversation about this. The Scottish Parliament is responsible for policing, justice and even parts of the Regulation of Investigatory Powers Act 2000. Not one conversation about the Bill has taken place with Scottish Ministers. They have had no opportunity to look and consider the Bill. It is an absolute and utter disgrace. I hope that we never, ever do this again on something that is so important, significant and substantial to the people who elect us to the House.

13:34

[James Brokenshire]

May I say to the hon. Member for Perth and North Perthshire (Pete Wishart) that the Government have had discussions with the Scottish Government in respect of these provisions? What this comes down to is the assurance of security for our citizens in England, Wales, Scotland and Northern Ireland. The Government would not be legislating on a fast-track or emergency basis if we did not think that it was necessary. That underpins the approach that we have taken on the motion.

This is about maintaining the status quo. I hope that we will be able to get into that debate and hear the Home Secretary and others, and then get into the line-by-line analysis to show that that is the issue at stake. It is about ensuring that the police and our other agencies are able to do the job that they do day in, day out; using communications data and the interception powers that they have had to ensure that the public are protected.

Yes, this is about responding to a Court judgment and about responding to the uncertainty that that judgement has created, but I say clearly that that judgment did not say that the actions of the Government or of our agencies were unlawful. It was focused on the directive itself, whereas our existing law takes into account a vast array of other issues on human rights matters. We assert, and continue to assert, that the data retention regulations remain in full force and effect. However, the uncertainty and the risk that the judgment has occasioned mean that the Bill is required. Yes, as the right hon. Member for Blackburn (Mr Straw) highlighted, it was a complex judgment. That is why I think it was right for the Government to consider these issues carefully before coming back to the House and to assess the representations made by industry on the uncertainty that the judgment has occasioned.

It is known that the House is able to bring forward fast-track legislation in circumstances where we have had adverse judgments. It is also why, in doing so, there are termination provisions, which the Bill sets out. There is a legal risk here. We believe that it is the responsibility of the Government to protect the public and to guard national security. That is why we are bringing the Bill before the House this afternoon and why we believe the fast track process is needed.

Question put.

13:37

Division 35

Ayes: 436

---

Conservative: 210
Labour: 181
Liberal Democrat: 38
Democratic Unionist Party: 5
Independent: 1

Noes: 49

---

Labour: 24
Conservative: 9
Scottish National Party: 6
Liberal Democrat: 4
Social Democratic & Labour Party: 3
Plaid Cymru: 3
Alliance: 1
Green Party: 1
Democratic Unionist Party: 1

Data Retention and Investigatory Powers Bill

Tuesday 15th July 2014 Commons Chamber

Second Reading

13:51

[The Secretary of State for the Home Department (Mrs Theresa May)]

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

In my statement to the House last Thursday, I made clear the urgent need for narrow and limited legislation on communications data and interception. There is no greater duty for a Government than the protection and security of their citizens when we face the very real and serious prospect that the police, law enforcement agencies and the security and intelligence agencies will lose vital capabilities that they need in order to do their jobs. 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 crucial to fighting crime, protecting children, and combating terrorism.

Communications data can be used to piece together the activities of suspects, victims and vulnerable people. They can prove or disprove alibis. They can identify links between potential criminals. They can tie suspects and victims to a crime scene, and they can help to find a vulnerable person who is at risk of imminent harm. Interception—which can take place only in limited circumstances, and with a warrant authorised by a Secretary of State—can prove vital to the investigation of the activities of suspected terrorists and serious criminals. Without those capabilities, we run the risk that murderers will not be caught, terrorist plots will go undetected, drug traffickers will go unchallenged, child abusers will not be stopped, and slave drivers will continue their appalling trade in human beings.

[Ian Paisley (North Antrim) (DUP)]

Will the Home Secretary put some flesh on the bones of what she has said, particularly for the benefit of Northern Ireland, which gives reality to this? I understand that in the past three years more than 300 people have been convicted of serious and organised crimes. Can the Home Secretary confirm that many of them were brought to justice as a result of this very type of intelligence activity?

[Mrs May]

The hon. Gentleman is absolutely right. The use of exactly this sort of data is important not just to the investigation of crime, but to the bringing of criminals to prosecution. Work done by the Crown Prosecution Service has shown that communications data have been used in 95% of serious and organised crime cases, and that that has been important not just to the investigation but to the prosecution. These are important data: they are vital to the fight against crime and the fight against terrorists.

However, as I explained last week, we currently face two immediate problems. First, the recent judgment by the European Court of Justice has called into question the legal basis on which we require communications service providers in the United Kingdom to retain communications data. Secondly, we face the increasingly pressing need to put beyond doubt the legal obligation for communications service providers who supply services to people in the UK to comply with our laws on interception, irrespective of where they are based.

[Sir William Cash (Stone) (Con)]

The Home Secretary has, I am sure, been advised that the Bill will be within the continuing scope of European Union law, and that the charter of fundamental rights and the general principles of European law will continue to apply. No doubt she will also understand that the Bill is itself subject to future challenge by the European Court of Justice. I draw attention to my manuscript amendment, which I hope will be selected, and which would remove any doubt about the fact that the Bill, if enacted, will have full effect notwithstanding the European Communities Act 1972

[Mrs May]

I note what my hon. Friend has said, but, having examined the judgment of the European Court of Justice, we believe that UK legislation already complies with many parts of it, and we have specifically ensured that other issues that were not addressed in the judgment are addressed in the Bill.

[Caroline Lucas (Brighton, Pavilion) (Green)]

The Home Secretary says that she has brought the Bill into line with the EU ruling. However, the ruling made it very clear that blanket retention of data was not permissible, and that retention of data must be specific to a threat regarding a group of people or a particular time. It is precisely that blanket retention that has been ruled illegal.

[Mrs May]

One of the issues that emerged from the ruling of the European Court of Justice was the scope of the data retention directive. The Court believed that it was too broad, and that it was necessary to be more specific about the purposes for which data could be retained. Our legislation was already specific, but we have looked at it again, and we are very clear about its focus in terms of how it will be operated and in terms of its scope. We are addressing the very issue that was raised by the Court.

[Chris Bryant (Rhondda) (Lab)]

Both today and last week, the Home Secretary has drawn a distinction between the data and the content. May I suggest to her that reliance on that distinction may not be legally valid in the future? For a start, she has already said that the data are often used to establish or disprove an alibi, and thus to prove someone’s whereabouts. They can be used to establish whether someone banks with a particular bank, or whether someone uses a particular doctor or dentist. I merely suggest to the Home Secretary that, in the world of Facebook and other even more modern ways of messaging, a reliance on the difference between data and content will not stick.

[Mrs May]

The hon. Gentleman is right in the sense that as technology changes and people use new methods of communication, we need to ensure that our agencies’ capabilities and powers, and the legal framework within which they operate those capabilities and powers, are indeed appropriate in relation to the technology as it develops. For that reason I considered introducing a further communications data Bill in this Parliament, but that is not to be, and it is definitely not what today is about. Today is simply about retaining the status quo.

As for the hon. Gentleman’s main point, the review of the capabilities and powers that are needed against the background of the threat that we face and the correct legislative framework will be important in that regard. It will, I hope, look ahead and ask what legislation the House needs to pass to ensure that we can deal with the environment in which we find ourselves.

[Chris Bryant]

Let me take the Home Secretary up on that point. Will she tell us now, at this early stage in the debate, whether she will accept new clause 1, which has been tabled by the shadow Home Secretary?

[Mrs May]

Obviously we shall come to that in Committee, but I am happy to say to the House now that I recognise the shadow Home Secretary’s desire to put the review in statute so that there is no question but that it will go ahead. I want to be clear about what the review will cover, and how we can ensure that it does the job that I think we all want it to do in looking at capabilities and powers and setting the right regulatory framework, and does it in a way—[Interruption.] The hon. Gentleman says “Just say yes”, but I do not say yes to an amendment if I do not think that it will deliver technically what everyone wants. [Interruption.] The hon. Gentleman says from a sedentary position, “Oh, come on,” but he was one of the Members who earlier stood up and talked about the importance of proper parliamentary process, so I am sure that he would not want to see amendments added to Bills if they did not deliver what everybody wanted them to deliver.

[Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

Given the breakneck pace at which MPs have been asked to come here and make decisions on the Bill, it is extraordinary that the Home Secretary cannot stand at the Dispatch Box and say yes or no about an amendment that has been tabled. What is the answer: yes or no? She wants MPs to make decisions today, but she cannot make decisions on amendments.

[Mrs May]

We have just had an hour-and-a-half debate in which Members have been talking about the importance of parliamentary process. We have a parliamentary process called Committee stage at which amendments to the Bill will be properly considered, and that debate will take place then. I have indicated to the House that I understand the desire of some Members to ensure that the review of the capability and powers that are needed and the regulatory framework is on the statute book to ensure that that does, indeed, take place. David Anderson, the reviewer of counter-terrorism legislation, has indicated that he will lead that review and there is widespread support for that given the excellent job he does in his current role. However, I want to make sure that, in looking to ensure we undertake that review, the Bill is drafted in a way that delivers what we all want to be delivered. I would have thought that that was entirely reasonable. That debate will take place at the Committee stage, when the hon. Gentleman will be free to wax lyrical about the nature of the amendment.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

May I bring the Home Secretary back to what she was talking about before, which is what is loosely described as blanket retention? It is not possible for the police to identify, before a crime has been committed, the range of telephone calls made and received about which it would be helpful for them to have communications data in order to pursue that crime. Therefore, the retention of data for a period is the only way the system can work.

[Mrs May]

My right hon. Friend is absolutely right. People often argue, “Actually, all you need to do is retain data from the point when you’ve identified a suspect or that a crime has taken place,” but when somebody has been murdered, for example, it may be necessary to go back and identify calls between the victim and a number of people. That is why it is important to be able to retain data from the past, but that is for a limited period. Previously, under the regulations that were agreed by this House, 12 months was the set period for retention. One issue that the European Court of Justice raised was that there should not just be one period of retention for all types of data. We are addressing that by making it a maximum period of retention, so it would be possible in any notice to a communications service provider to say that a particular type of data is required to be retained for a period of less than 12 months. We are, therefore, introducing the flexibility that the ECJ required.

[Richard Graham (Gloucester) (Con)]

Will my right hon. Friend confirm that the same point she has been discussing about the retention of data in criminal and terrorist investigations will be equally valid in the police’s pursuit of child abusers and paedophiles? In a month when this issue has been so important to so many of our constituents, will she confirm that the legislation will be a critical tool in the police’s battle against child abusers and give us an idea of the implications of our not passing it?

[Mrs May]

My hon. Friend is absolutely right and the use of communications data is often absolutely vital in tracking and identifying that group of criminals. Without this use of communications data we would not be able to do that, and I fear that child abusers would go free as a result. The director general of the National Crime Agency has already made it clear that capability is being lost in this area. From memory, I think that almost 50% of communications data used in child abuse cases are more than six months old, hence the need to be able to retain data for up to 12 months.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Judging by some of the questions asked, there is a lack of understanding as some Members seem to think that in some way the use of communications data is new. Will the Home Secretary confirm that as far as the Crown Prosecution Service, and indeed its predecessors, are concerned, such use has been an absolute staple of bringing prosecutions ever since telephones came into existence? In fact there is no difference between the nature of the communications data acquired today and that which was acquired in the past in terms of showing who contacted whom.

[Mrs May]

I thank my right hon. and learned Friend for his intervention, and what he says is absolutely right. He hits the nail right on the head. I know, Mr Speaker, that it is not normally the case that Ministers at the Dispatch Box refer to legal advice that is given to them, but may I say how much I valued the legal advice my right hon. and learned Friend gave when he was our excellent Attorney-General?

[Mr Clive Betts (Sheffield South East) (Lab)]

Will the Home Secretary give way?

[Mrs May]

Yes, but I do need to make some progress so that others can get in.

[Mr Betts]

The key issue is that the Home Secretary says this Bill does not extend powers beyond existing legislation, but I understand there is some doubt whether the Bill impacts differently from the current legislation on web-based e-mails. With regard to further scrutiny of these measures, as we have only limited time to discuss the Bill now, if we pass it and it subsequently becomes apparent that there are doubts whether it extends the powers of Government, what is the Home Secretary’s position? How can she come back to this House to get matters reassessed in that situation? That is a real concern for my constituents. If it is subsequently proved that powers are extended—despite her current assurances, which I accept—there must be some mechanism for dealing with that.

[Mrs May]

There is no change to the definitions that are already in existence in terms of the communications data that it is possible to access. That is why I say the Bill is about just replacing the situation we have at present. On the hon. Gentleman’s second point, I note that the Opposition have tabled an amendment suggesting that there should be a six-monthly review by the appropriate commissioner of the operation of this Bill. We are willing to accept that amendment, so that a process is in place that will reassure people that the Bill does exactly what the Government are saying: it merely replaces the powers already in existence.

[Mr Betts]

If the commissioner finds in the six-monthly review that there are concerns that the legislation is going beyond the current position, is there a mechanism for that to be reported back to this House for further discussion and action?

[Mrs May]

Yes. The commissioner currently reports annually on these matters, and the Opposition proposal, as I understand it, is that he would report on a six-monthly basis. He would, therefore, not just be looking at the situation, but reporting on what was happening. Were he to find that there was any extension of powers, that would be made clear to people. However, I remain of the opinion, because this is what we intend, that the Bill is purely about enabling the powers that we have today to be continued in future.

[Dr Julian Huppert (Cambridge) (LD)]

There is debate about whether the powers are new, and I personally do not think they are, but will the Home Secretary give the assurance I tried to get from her yesterday, when perhaps I was not clear enough in asking for it? If she were asked to sign a warrant—these are mostly warranted powers—which involved a power that it was obvious to her would not have been available other than from this Bill, would she refuse to sign it on the basis that a new power had inadvertently been created?

[Mrs May]

My hon. Friend says most of these are warranted powers: of course the lawful intercept section of the Bill is in relation to warranted powers, but communications data are not subject to warrants signed by a Secretary of State. [Interruption.] I am about to answer the question. I am not quite sure who said that. [Interruption.] Oh, the hon. Member for Perth and North Perthshire (Pete Wishart); I might have guessed.

Certainly, I would expect only warrants that would fall under current lawful intercept powers to come to me. On the issue of lawful intercept, it has been the contention of this Government—and, I believe, the previous Government when they passed the Regulation of Investigatory Powers Act 2000—that that had extraterritorial application. That has been legally questioned and we have continued to assert that that is the power that currently exists. The Bill puts that beyond doubt, by putting it clearly into primary legislation, so nobody can be in any doubt that the power that we have always said existed does in fact exist. That is the entire point, and I might add that I think a number of people may take comfort from the fact that my hon. Friend the Member for Cambridge (Dr Huppert) does not consider there to be an extension of powers in this Bill.

[Hazel Blears (Salford and Eccles) (Lab)]

I raised this issue when the Home Secretary made her statement last week, but she is aware that some of the service providers do not accept the extraterritorial application of RIPA. She is now asserting that RIPA does have extraterritorial effect under this Bill. If some of those communication service providers maintain their current position—that it does not—what powers does she have to enforce the extraterritorial nature of the Bill and what sanctions will be available to ensure general compliance with its extraterritorial effect?

[Mrs May]

The point about putting this beyond doubt in the legislation is obviously that it strengthens the ability to enforce in this area. The enforcement capabilities remain as they were previously—taking out an injunction against the company concerned, with the sanctions that that might entail. The position is not changing; what is changing is simply being absolutely without doubt that the extraterritoriality is there, because it is now in the Bill, rather than it being asserted by Government as having been the intention of the previous legislation.

I will now attempt to make some progress. I have made the point that urgent action is needed—

[Mr David Davis (Haltemprice and Howden) (Con)]

Before she moves on, will the Home Secretary give way?

[Mrs May]

I have been extremely generous, but I will give way to my right hon. Friend.

[Mr Davis]

This is more a philosophical than a practical point for the Home Secretary, but what is the implication of our demanding extraterritorial powers for the likes of Google and others for, say, China, Russia and other unpleasant powers claiming the same power?

[Mrs May]

What this Government are doing is putting into legislation the powers that we believe it is important for us to have so that we can protect the British public. I know that my right hon. Friend has some difficulties with some aspects of what the Government are doing. I think it is right that we continue with the powers that we have had to enable us to protect the public, keep people safe and ensure that we catch criminals, terrorists and paedophiles.

Action is needed to ensure that we maintain the capabilities that protect us from those who would do us harm. The Bill provides the legal clarity needed to ensure that the use of those capabilities can be maintained by doing two things: first, by providing the legal basis for us to oblige domestic companies to continue to retain communications data; and secondly, by putting beyond doubt the application of the law of interception to all companies that provide communication services to people in the UK, regardless of where they are based.

When I made my statement to the House last Thursday, I received considerable support from Members on both sides of the House. I am extremely grateful for that support and would like to pay tribute to everyone who has shown willingness to work together on an issue as important as the protection of the public. In doing so, let me also thank the right hon. Member for Leicester East (Keith Vaz), the Chairman of the Select Committee on Home Affairs, which I gave evidence to yesterday and which wrote last night to say that it supported the legislation. He indicated that he was sure that a successor Committee would want to look carefully at any legislation that was brought forward, but I am grateful to the Committee for its support on this particular matter.

[Mr David Winnick (Walsall North) (Lab)]

rose—

[Mrs May]

The hon. Gentleman is a member of the Home Affairs Committee, so I will allow him to intervene.

[Mr Winnick]

That was, of course, on a majority vote, and I was reminded that in the last Parliament the Home Affairs Committee endorsed 42 days’ pre-charge detention, which obviously I voted against. My right hon. Friend the Member for Leicester East (Keith Vaz) was the Chair at the time and, if I may say so, he is a very good chap indeed, but he knows where the wind blows.

[Mrs May]

That sounds to me like something that is best left between the hon. Gentleman and the Chairman of the Home Affairs Committee. Prudence suggests that I should move on rather than respond to that.

We have just had a debate on the business motion, in which my hon. Friend the Minister for Security and Immigration set out the reason for the timing of this legislation, so I will not go into that in detail, but I will talk about the provisions of the Bill. The Bill is short and narrowly focused and provides a limited response to a set of specific challenges. Clause 1 provides the clear legal basis for us to oblige domestic companies to retain certain types of communications data. Currently, those communications data are retained by communication service providers under the data retention regulations passed by Parliament in 2009, which implemented the EU data retention directive in the UK.

Although we are confident that those regulations remain in force, following the ECJ judgment, we must put beyond doubt the need for CSPs to continue to retain communications data, as they have been doing until now. If we do not do so, we run the risk of losing access to those data, which, as I have said, are vital for day-to-day policing. Our very strong data protection laws mean that, in the absence of a legal duty to retain specific data, companies must delete data that are not required beyond their strict business uses. The loss of those data would be potentially devastating. As I said earlier, it would impact seriously on the ability of the police, law enforcement agencies and our security and intelligence agencies to investigate crime, solve kidnappings, find vulnerable people in danger, uncover terrorist links and protect children.

[Mr Andrew Turner (Isle of Wight) (Con)]

Will my right hon. Friend explain for my benefit why it is legitimate to have the 12-month limit with the approval of Government, but not with the approval of the European Court of Justice?

[Mrs May]

The European Court of Justice did not say that a 12-month retention period was unlawful. It said that it recognised the need for access to and retention of the data, and it questioned the periods that were set aside. In fact, the data retention directive said that data could be retained for up to 24 months—we had previously used 12 months, rather than 24—but one of the issues was that it was said that requiring the retention of every type of data for the same period of time was not right and proportionate, and that it was necessary to be able to differentiate. We are introducing that differentiation by setting our data retention period at a maximum of 12 months, so that notices issued to CSPs for certain types of data can, if it is felt to be right, ask for retention to be for a shorter period.

As I have said, communications data are used in 95% of serious and organised crime investigations handled by the Crown Prosecution Service and have played a significant role in every Security Service counter-terrorism operation over the last decade. Clauses 1 and 2 will ensure that we can maintain the status quo by replicating our existing data retention regulations. As I have indicated, the Bill gives the Secretary of State the power to issue a notice to a communications service provider only if he or she considers the retention to be necessary and proportionate. As I said in response to my hon. Friend the Member for Isle of Wight (Mr Turner) and other hon. Members, the data retention notice will specify the duration for which data are to be retained, for up to a maximum of 12 months. If it is not proportionate to retain certain data for a full 12 months, a shorter period can be chosen. The data types that can be retained will be limited to the strict list of data types that are currently specified in the 2009 data retention regulations, and there will be a clear requirement for the Secretary of State to keep any data retention notice under review.

[Mr Nigel Dodds (Belfast North) (DUP)]

When it comes to the battle against terrorism, there is an ongoing, daily issue with the threat and carrying out of attacks in Northern Ireland, never mind all the other threats to national security. Does the Home Secretary agree that if this legislation were not passed, we would face an extraordinary situation, in that data retention powers would exist in the Irish Republic, because there they are in primary legislation, whereas in Northern Ireland, where the main threat exists, the Police Service of Northern Ireland and others would be deprived of a massive tool in the battle against terrorism and in co-operating with their neighbours down south?

[Mrs May]

The right hon. Gentleman makes an extremely important point. He highlights one of the reasons why it is important to pass this Bill and retain this capability in relation to communications data and lawful intercept. He is absolutely right: because the Republic of Ireland brought its communications data regulations into primary legislation, it does not have to respond to the ECJ judgment. It is because ours were in secondary legislation that we have to respond to the judgment.

[Michael Connarty (Linlithgow and East Falkirk) (Lab)]

Using headlines like “Terrorism” or “Organised crime” and so on obviously chimes with the public, but I have never understood why one of the reasons for retention, in section 22(2)(c) of the Regulation of Investigatory Powers Act 2000, is if it is necessary

“in the interests of the economic well-being of the United Kingdom”.

There are accusations that these data-gathering exercises are in fact used for industrial and economic espionage by countries in the “Five Eyes”.

[Mrs May]

One point that I mentioned earlier, which was made by the European Court of Justice, was in relation to the scope of the Bill. We are making it absolutely clear that the purposes are serious and organised crime, national security and economic well-being, and we are clarifying the definition of economic well-being in so far as it relates to national security.

[Michael Connarty]

It says in the Bill that a retention notice may be necessary for one or more of the purposes

“falling within paragraphs (a) to (h) of section 22(2) of the Regulation of Investigatory Powers Act 2000”.

It is, as I said, economic espionage.

[Mrs May]

Clause 3 (1) states:

“Section 5 of the Regulation of Investigatory Powers Act 2000 (power to issue necessary and proportionate interception warrants in interests of national security, to prevent or detect serious crime or to safeguard the UK’s economic well-being) is amended as set out in subsection (2).”

Subsection (2) reads:

“(economic well-being of the UK), after ‘purpose’ insert, ‘in circumstances appearing to the Secretary of State to be relevant to the interests of national security’”.

[Mr George Howarth (Knowsley) (Lab)]

It might be worth the Home Secretary adding subsection (4) of clause 3, which explicitly links economic well-being to national security.

[Mrs May]

I am grateful to the right hon. Gentleman. Indeed, subsections (2) and (4) define economic well-being in terms of the interests of national security.

The ECJ ruling in April was critical of the data retention directive because it said it did not contain the necessary safeguards in relation to retained data. I said that to the House last week and referred to it earlier this afternoon. Of course that ruling did not take into account the different structures, regimes and domestic laws that are in place in individual member states. Our communications data access regime, primarily governed by RIPA, has strict controls and safeguards in place. The data can only be accessed when it is necessary and proportionate for a specific investigation, and access is limited and subject to a strict authorisation regime, which was specifically endorsed by the Joint Committee on the draft Communications Data Bill. Clause 3 provides an important clarification in that it makes it clear that the statutory purpose of safeguarding the economic well-being of the UK can only occur when it is in the interests of national security. That is already the position, but the Bill puts that position beyond doubt.

Part 2 of the Bill deals with the question of interception. The House will know that interception can only take place when a warrant has been authorised by a Secretary of State, when he or she considers it to be necessary and proportionate and when the information sought cannot reasonably be obtained by other means.

[Mr Tom Watson (West Bromwich East) (Lab)]

The Home Secretary has been very kind this week. May I just ask her this question? The former head of GCHQ told me last week that the Wilson doctrine extended to all the digital communications of parliamentarians. Will she confirm that the effect of that is that only MPs and peers of the realm are excluded from this legislation?

[Mrs May]

Obviously, the Wilson doctrine applies to parliamentarians. It does not absolutely exclude the use of these powers against parliamentarians, but it sets certain requirements for those powers to be used in relation to a parliamentarian. It is not the case that parliamentarians are excluded and nobody else in the country is, but there is a certain set of rules and protocols that have to be met if there is a requirement to use any of these powers against a parliamentarian.

In relation to intercept, I mentioned the need for agreement from a Secretary of State. If the National Crime Agency wants to listen to the telephone calls of a drugs trafficker, or the Security Service wants to read the e-mails of a suspected terrorist, agreement is needed from a Secretary of State first. I see warrant applications day in, day out, and can personally attest to the care with which they are prepared, the seriousness which those applying for them attach to complying with the statutory restrictions and the gravity of the cases with which they deal. Warrant applications provide the detailed intelligence background that forms the basis on which a person is being sought.

Ministerial oversight, which I share with the Foreign Secretary and the Secretary of State for Northern Ireland, is a vital safeguard to ensure that this sensitive and intrusive power is used only when it is necessary and proportionate. But in the absence of explicit provisions in legislation, as has been mentioned in a number of interventions, some overseas companies have started to question whether the law applies to them. Indeed, as the Prime Minister said last week, some companies are already saying that they can no longer work with us on interception unless UK law is clarified immediately. This Bill does exactly that.

[Jeremy Corbyn (Islington North) (Lab)]

Will the Home Secretary reflect again on the intervention by the right hon. Member for Haltemprice and Howden (Mr Davis)? If a foreign Government who are routine abusers of human rights passed the same legislation through their Parliament, could they then intervene on an internet service provider based in this country to obtain data on their citizens, in the same way that the British Government take that power for themselves in another jurisdiction?

[Mrs May]

The power that we are taking is to be able to serve a warrant in relation to somebody who is based overseas. There would be implications for anyone attempting to apply to serve something into the UK in relation to the operation of that under UK law.

Clauses 4 and 5 make it clear that RIPA applies to all the companies that provide communications services to people in the United Kingdom, regardless of where those companies happen to be based. The final clause contains the sunset provision, which means that the legislation will expire at the end of 2016. I recognise that a number of Members have suggested that this sunset clause should be at an earlier stage. I say to them that the reason it has been put at the end of 2016 is that we will have a review by David Anderson which will report before the general election. It is the intention that a Joint Committee of Parliament will look at his work and that of the Intelligence and Security Committee. It will then be necessary to put the required legislation in place. If anyone stops to think about that timetable, it is clear that it could not be completed by the end of this year.

[Mr Geoffrey Robinson (Coventry North West) (Lab)]

Is the Home Secretary aware that many of us in the House feel that it is a very long time for a sunset clause and that, despite what she says, it could be earlier? That makes her acceptance of the Opposition’s proposal for six-monthly reviews all the more important and welcome. Will she confirm that those reviews—perhaps this is something that will be developed later—will specifically report on there being no extension to the powers in the Act?

[Mrs May]

Of course, that matter will be debated later when the Opposition amendment is debated. As I understand it, the intention of those reviews is to provide for a facility for the appropriate commissioner to report on the operation of the legislation such that if there were any extension of powers, it would be possible for that to be brought to the fore as a result of the work that was being done.

I talked about the timetable. If Members think about the processes that we want to go through to ensure a full and proper consideration of the capabilities and powers that are needed to deal with the threat that we face and then about the right legislative framework within which those powers and capabilities would be operated, they will realise that that requires sufficient time for consideration and then for legislation to be put in place. That explains the need for the sunset clause at the end of 2016.

I just want to make a brief mention of secondary legislation. In addition to the Bill, secondary legislation will be required to cover the detail of some of the data retention regulations. We cannot formally introduce the regulations in advance of the enabling legislation being enacted, but I have placed copies of the draft regulations in the Library—that happened, I believe, at the end of last week—for Members to scrutinise alongside the Bill. Our intention is to ensure that the secondary legislation can be scrutinised and approved by both Houses before the summer recess. The draft regulations mostly replicate the existing data retention regulations, which were approved by Parliament in 2009, but they also contain strengthened safeguards to respond to points raised by the ECJ judgment. They allow for data security requirements to be set out in the data retention notices, and ensure that this retention can be overseen effectively by the independent Information Commissioner. They also create a code of practice on data retention, thus putting best practice guidance on a statutory footing.

[Mr John Redwood (Wokingham) (Con)]

Given that the European Court of Justice was striking down a European directive as well as our legislation, what action does the EU propose to try to sort out this legislative muddle?

[Mrs May]

The European Union will consider the necessity of a further data retention directive in due course, but it will take some time to be put in place. As my right hon. Friend knows, the European Parliament has recently changed and the European Commission will be changing, so it will be some time before the issue is addressed. As anyone who has dealt with such matters at any stage knows, it can take some time for proposals to be considered and finally agreed.

Alongside the legislation, of which I have stressed the urgency and importance, it is right that we balance the use of sensitive powers against the public’s right to privacy. I have detailed the limits on access to communications data and interception that will be enshrined in the primary legislation. In addition, I announced last week a package of measures to strengthen safeguards and 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 establish a privacy and civil liberties oversight board. We will appoint a senior former diplomat to lead discussions with other Governments on how we share data for law enforcement and intelligence purposes. We will also publish an annual transparency report on the use of sensitive powers.

[Hazel Blears]

It is apparent to all in the House and has become increasingly evident over recent months that there is a problem with the low level of public awareness of the legislative measures, the safeguards and the framework. The interception of communications commissioner has produced an extremely good report on the use of these powers, in particular by GCHQ, rebutting many allegations about mass surveillance and considering targeting and warranting. However—I hesitate to say this—his report has probably been read by perhaps a handful of people in this country. What can the Home Secretary do to ensure that there is much more public awareness? Hopefully, the annual transparency reports and the new boards will help, but it is urgent and pressing that the public should understand exactly what the framework is, what the authorities and powers are and what the agencies are doing.

[Mrs May]

The right hon. Lady makes an extremely important point. She is right that Sir Anthony May produced a first-class report that set out the powers and how they are used and was clear about their rightful use. Sadly, perhaps because it was not a “shock horror” report, it did not receive an awful lot of publicity. I hope that the Government’s commitment to an annual transparency report will help in this regard. The Intelligence and Security Committee, on which the right hon. Lady sits, is carrying out its own review of privacy and security and I hope that it will get some publicity when it is completed. It therefore behoves all of us to try as far as possible to promote the message that effective oversight is in place.

[Steve Brine (Winchester) (Con)]

The Home Secretary is being very generous in giving way. As she said, little of the legislation is new; it is clarifying what needs to be clarified. However, the annual transparency report is something new that puts more information in the public domain than ever before. Is that correct?

[Mrs May]

Yes indeed. It will be the first time that Government have published and made such information available. People will therefore be able to see rather better exactly how the powers are used by, for example, seeing the number of requests made.

[Mr Jim Cunningham (Coventry South) (Lab)]

For clarification and to inform the public, would it not be better for a Minister to come along and at least make a statement and be questioned once every six months on the basis of the interception of communications commissioner’s report?

[Mrs May]

The hon. Gentleman makes an interesting point. Ministers, including myself and the Foreign Secretary, go in front of the Intelligence and Security Committee. The ISC produces an annual report as well as other reports on specific subjects. I can assure the hon. Gentleman that I am often questioned about such matters when I go before the Home Affairs Committee, so Ministers are held accountable in a number of ways.

I referred earlier to the review of the powers and capabilities that the police, law enforcement agencies and security and intelligence agencies need and to the regulatory framework under which they are regulated. The review will consider those matters in the context of the threats that we face. As I said earlier, David Anderson has agreed to undertake the initial phase of that review. The measures that I have set out are in addition to the considerable safeguards already in place, including the oversight, as referred to by the right hon. Member for Salford and Eccles (Hazel Blears), by the various commissioners and the Intelligence and Security Committee.

As I made absolutely clear last week, the Bill merely preserves the status quo. It does not extend or create any powers, rights to access or obligations on communications companies that go beyond those that already exist. It does not address the same problems or replicate the content of the draft Communications Data Bill, published in 2012. The use of modern technology and changes in how people communicate have caused a decline in our ability to obtain the communications data that we need. I continue to believe that the measures contained in the draft Communications Data Bill are necessary to bridge that gap, but that is emphatically not what we are considering today. Parliament will need to return to those issues following the general election. The review to be undertaken by David Anderson, to which I have just referred, will consider the issue and I hope it will inform the debate.

I want to express my thanks to both sides of the House for the support they have given to the Bill. I would like to emphasise once again the need to get this Bill enacted before the recess. If we delay, we face the appalling prospect that police operations will go dark, trails will go cold and terrorist plots will go undetected. If that happens, innocent lives may be lost. We cannot allow that, so I urge the House to work together within this time frame to ensure that the police, the law enforcement agencies and the security and intelligence agencies have the capabilities that they need to protect the public and keep us safe. That is what the Bill is designed to do and I commend it to the House.

14:36

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

The Home Secretary will recognise that Parliament has been put in a difficult position by this week’s emergency legislation. It has been left until the final full week of Parliament before the recess and must be published and debated in both Houses in a week, and it relates to laws and technologies that are complex and controversial. They reflect the serious challenge of how to sustain both liberty and security, and privacy and safety in a democracy. This is therefore not the way in which such legislation should be done. Let me be clear that its last-minute nature undermines trust not only in the Government’s intentions, but also in the vital work of the police and agencies.

I have no doubt that the legislation is needed, however, and that we cannot delay it until the autumn. After the European Court of Justice judgment in April, legislation is needed to ensure that the police and intelligence agencies do not suddenly lose vital capabilities over the course of the next few months and that our legislation is compliant with EU law. So Parliament does need to act this week so that existing investigations and capabilities are not jeopardised over the next few months, but this is a short-term sticking plaster. As we support the legislation today, we must also be clear that we cannot just go on with business as usual, when the powers and safeguards that keep us free and safe are rarely discussed and only debated behind closed doors. I want to set out today why this parliamentary debate needs to be the start of a much wider debate about liberty and security in an internet age, why we can only pursue this short-term legislation if it is the beginning and not the end of the debate, and therefore why this legislation is needed in the short term, but also why safeguards are needed, too.

[Sir William Cash]

Does the shadow Secretary of State accept that the legislation will be within the scope of EU law and the charter of fundamental rights, in which the previous Government got themselves into a pretty average muddle—if I may put it that way—and that the general principle of EU law will prevail? Does she therefore also accept that it is possible that the European Court of Justice could come back to this legislation, as it did with the Merchant Shipping Act 1988, and strike it down if in fact it takes the view that it is incompatible with EU law? Would she accept the idea in principle—

[Madam Deputy Speaker (Dame Dawn Primarolo)]

Order. This is an intervention. A large number of people want to speak. Interventions are getting a little too long and I would be grateful if they could be shortened.

[Yvette Cooper]

The hon. Gentleman will be aware that it is always possible for there to be court challenges and legal challenges to our legislation and to individual decisions. The Government have gone to some lengths to ensure that the legislation before us is compliant with the European Court judgment, with European law and with our own legal framework.

[Dr Huppert]

The shadow Home Secretary said that this will be the start of a debate about privacy and security, and those of us who have been campaigning on this issue for many years welcome her conversion. Does she accept that the debate has already started and that many of us have been pushing the issue for some time, much as we welcome her addition to it?

[Yvette Cooper]

The hon. Gentleman can always be relied on to pop up in these debates. I have heard that his support for the legislation has made some in this House question whether it is strong enough. Surely it cannot be, if he is supporting it.

The hon. Gentleman will know that I made a speech 12 months ago in which I talked about the need to strengthen the system for commissioners and for oversight in this area, and that I made a further speech at the beginning of March in which I raised specific issues about online security and liberty. The Deputy Prime Minister also made a speech that week which raised some of these issues. I am concerned because I think that, overall, the Government have not responded to some of the challenges. They still have not recognised the wider need for public debate and reform.

[Mr Redwood]

Does the right hon. Lady think that in striking down a directive that Labour agreed to, the European Court of Justice went too far, or does she think on reflection that the directive went too far?

[Yvette Cooper]

The right hon. Gentleman will know that the directive went considerably further than the regulations we passed in this country. As I recall, the European directive was drawn up in the wake of the 7/7 bombings in London and the terrorist attacks that took place at that time and was designed to provide a framework to ensure that different European countries could legally take the necessary action to investigate terrorism. However, the decision we took in the UK was to implement it much more narrowly, to ensure that safeguards were in place and to ensure that there were safeguards in the operation of the Regulation of Investigatory Powers Act 2000. I think that those safeguards now need to go further in the light of changing technology, and it is important that we do that.

I recognise that the Home Secretary wants only to maintain the status quo and to ensure that powers are not suddenly lost over the summer, but the problem for us is that the status quo is being challenged by the pace of new technology, by the struggle of police and agencies to keep up, by the limitations of a legal framework that dates back to 2000, by the weakness of oversight that does not meet modern expectations, by the Snowden leaks, by the global nature of the internet and by private companies that, in the case of most of us, hold, access and use far more of our private data than any police force or intelligence agency might do.

[Chris Bryant]

Although the Government keep on saying that the status quo is remaining as the status quo, 10 years ago it was the status quo that all electronic communications of MPs were covered by the Wilson doctrine. Earlier this year the Minister for the Cabinet Office and Paymaster General said quite the reverse when he stated that metadata about MPs’ communications was now being kept by the Government.

[Yvette Cooper]

My understanding is that the Government do not keep metadata on UK citizens and that the data retention directive is about the information that companies hold, but I would certainly be very surprised if companies were able to separate out the billing data for MPs, for example, from that of any other British citizen. It would be startling if they were able to do so. My hon. Friend is right that one would expect things such as the data retention directive to cover not just MPs but all UK citizens in that way, but my point is that the Government cannot take for granted the need to restore the status quo. We need to debate it and we need reform.

My real concern about how the Government handled the issue is not only about the delay in introducing the legislation after the Court judgment in April and the limited time we have to debate it. It is bigger than that. It is about the Government’s failure to rise to the bigger challenge and debate of the past 12 months. They have said almost nothing in response to the Snowden leaks, to provide either reassurance or reform. They tried to limit the debate over the draft Communications Data Bill, drawing it too widely, and have never been clear about what they really wanted and needed to achieve. They have not faced the new challenges of the digital age and recognised the importance of changing technologies and expectations. They have not started a serious review of the legal framework or the powers and oversight needed. The Home Secretary made a speech a few weeks ago that set out some of the safeguards needed, but it has taken time for Ministers to do that.

[Mr David Davis]

The right hon. Lady is making an interesting point. Is not the implication of her last six sentences that the Labour party should support the sunset clause being brought forward to Christmas of this year, which would force the debate that she is asking for?

[Yvette Cooper]

I want to come on to that point in detail, because it is an important one. The wider considerations, the detailed review of the legislation and the public consultation that we need will take longer than just five months, and it is important that this is not simply about repeated sticking-plaster legislation. We need to have a sustainable debate about how to get the right kinds of reforms to sustain the framework for the longer term and, crucially, about how we get public consent in this.

In the US, they have had a public debate. President Obama led a debate on liberty and security after the Snowden leaks, setting up an independent review group last summer. His response robustly defended much of the work that the US agencies do as vital to national security, but he also recognises the need for stronger safeguards. Our system has many more legal safeguards than the US system. For example, our warrant system is much narrower than theirs, and rightly so. We also have strong public support for the work of our intelligence services and the police, but that is no reason to avoid the debate and hope that it will go away. That is what I believe that the Government have done since last summer.

[Mrs Anne Main (St Albans) (Con)]

I want briefly to reinforce the right hon. Lady’s point. I have just come back from talking to St Albans Women’s Institute and the ladies made exactly that point. They asked what the difference would be, what it was all about and what it will mean to the public. There will be a problem in getting the message across through the media and the public will not understand why there has been this sudden rush to legislation

[Yvette Cooper]

The hon. Lady is right. Although we know that there are issues about the Court judgment and its implications over the summer, there will be considerable concern about the pace at which this Bill has been introduced and has been debated in Parliament. The short-term debate would be easier if there had been a wider longer-term debate about the question of a sensible framework in which the public could feel involved and have their say. If emergency issues came up, as they will from time to time—for any Government in any circumstances there will be court judgments that suddenly mean that an emergency response is needed—it would be so much easier to have the emergency debate against a backdrop in which the broader issues of security and liberty, and how we balance them in an internet age, are being properly debated and discussed, with public involvement.

Those of us who believe in the vital work the police and agencies need to be able to do should be the most ready to debate both the powers and the safeguards that are needed, because they must have public consent. We cannot hide behind a veil of secrecy. Of course, that debate must be handled with care so that we do not expose important intelligence capabilities that need to be kept secret to be effective, but we can have a debate about the legal framework, about the principles and about the powers and safeguards we need.

We know the vital work that we want the police and agencies to be able to do: building the intelligence that foils terrorist attacks; providing the fast response needed to find the last location of a missing child or murder victim; and stopping online fraud and cyber-attacks, which are escalating with every month. We also know that people will only continue to support those vital powers if they also know that there are proper safeguards: protection for innocent people’s privacy; public reassurance about what that protection really is; safeguards so that powers cannot be abused; safeguards, checks and balances on what the police and intelligence agencies can do; and a Government and Parliament that recognise that this is difficult and do not try just to sweep it all under the carpet and deny the public a say.

The lack of a wider debate is making it harder to have a short-term debate today. This is not the right way to have this debate. However, I also believe that we cannot reject this legislation now; it would be wrong to do so. We need to support it today, but we must also use it to get the wider debate that we need.

Let us be clear about what is at stake. The Court judgment means that the regulations on data retention need to be replaced; otherwise, they will fall altogether. This is about the requirement for companies to hold their billing data and other communications data for 12 months. This does not refer to the content of the calls and messages; it just covers the communications data. If the police are investigating a crime or pursuing an emergency that involves risk to life or limb, they can get a warrant and ask the companies to hand over the data relating to the suspect. As the Home Secretary has said, these data are used to identify conspiracies, prove alibis, locate missing children and find out who is committing online crimes or sending online child abuse. The police need warrants to do this, and the data do not tell us what people are saying. They cannot tell us the content of an e-mail—that is private—but they can help us to solve crimes.

These data are particularly important in dealing with serious and organised crime. For example, they can show that drug dealers who claim not to know each other have in fact been calling each other every week. They can show who the armed robber called to help him get away from the scene of a crime, or where a missing child was when their phone was switched off. They can also help to trace who a terror suspect contacted before they went to Syria, for example, and to work out who might be grooming or radicalising more young people to go there.

These data are used in court in 95% of the serious and organised crime cases that reach prosecution. They are particularly important in relation to online child abuse, because they allow the police to get warrants, to contact companies to find out the name and address of the person who has sent vile images of child abuse and to rescue children who are being hurt. A recent Child Exploitation and Online Protection Centre investigation resulted in the arrest of 200 suspects and identified 132 children who were at risk of abuse. The prosecutions and actions needed to rescue those children were made possible only through the use of communications data. A similar investigation in Germany, where communications data are not held, led to only a handful of cases being investigated.

The Assistant Commissioner of the Metropolitan police has described the importance of communications data to rape investigations. She has said:

“As to robberies and rapes, it is very usual for phones to be stolen. The stranger rapist, on many occasions, will take the phone from the victim and within 24 hours we find the rapist.”

The data also protect our children’s safety. In one case that the Joint Committee looked at, an online help service contacted the police, worried about a child who had posted on their website a threat to commit suicide. The police contacted the relevant companies, which helped to track down the service user’s name and address, then sent the local police to the door to find that the child had hanged himself but was still breathing. Fast action and communications data saved his life.

It is because we recognise how crucial this evidence is to so many investigations that we believe it would be too damaging to the fight against crime and terrorism for the police to lose this information this summer. The Government have rightly made changes to ensure that the new legislation can comply with the ECJ directive. They have narrowed the number of organisations that can access the data, for example, and introduced further safeguards to ensure that the process is necessary and proportionate.

The second part of the Bill is more complex, as it addresses the global nature of our telecommunications. Increasingly, the companies that help us to communicate with each other, with the family members we live with and with our neighbours and friends down the road, are based abroad. They should not be excluded from UK law just because of where their headquarters are based. International companies have been covered by and complied with RIPA for many years. Indeed, the legislation has always made it clear that companies should be covered if they provided services in the UK. We recognise, however, that other court judgments have made it more important to be explicit about legislation that has extraterritorial effect, rather than just leaving the arrangements implicit in the legislation. Again, it would jeopardise important intelligence if we were to ignore this factor.

Similarly, on telecommunications data, we have sought assurances from the Home Secretary that these measures are not an extension of powers and that they are only a clarification of the arrangements that already exist and of practices that already take place. It is important to recognise that this is not just about the legislation. The Home Secretary has now given the House assurances that the way in which she issues warrants will comply with that intention not to extend those powers, and that this is simply about maintaining the powers that are already in place.

This means that the safeguards are extremely important. The safeguards in the Bill and in the regulations are welcome. They ensure that the legislation is temporary, as well as restricting the purposes of the legislation so that it cannot be used only for purposes of economic well-being, and restricting the number of organisations that have access to data. We welcome the proposals for a privacy and civil liberties board, although we will need more debate about how that should work and how it should fit with our proposals to overhaul the commissioners and ensure that there is stronger oversight.

[Keith Vaz (Leicester East) (Lab)]

Does my right hon. Friend agree that it is important to have the widest possible consultation with as many groups as possible before the names are put forward for the new board?

[Yvette Cooper]

My right hon. Friend is right, and I would certainly expect the Select Committees to play an important role in that process. There needs to be a debate about the way in which the board should work. It has considerable potential. Wider, more substantial reforms of the existing framework are needed, including, for example, to the structure relating to the commissioners, who in theory have oversight of different parts of legislation, and to the role of the counter-terrorism reviewer, which is more effective than the work of some of the commissioners. We need to look at the whole framework in determining how the privacy and civil liberties board will fit in with the wider reforms that we need. That might need to be a two-stage process: the introduction of the board and reforms made to the commissioners’ structure in the light of the wider review that we are calling for. We have tabled amendments to secure such a review.

The review of the legislation is particularly important. For some time, we have been calling for an independent expert review of the legal and operational framework and in particular of the Regulation of Investigatory Powers Act 2000. As a result of the communications data revolution, the law and our oversight framework are now out of date. As my hon. Friend the Member for Rhondda (Chris Bryant) has said, new technology is blurring the distinction between communications and content, and between domestic and international communications, as well as raising new questions about data storage. We therefore need to reconsider what safeguards are necessary in an internet age to ensure that people’s privacy is protected.

We need stronger oversight, too. We need to know how far the new technology is outstripping the legal framework, and what powers and safeguards are needed for the future. We need to determine how warrants should operate, who should have access to data, and whether the police and intelligence agencies have the lawful capabilities that they need. The police need to be able to keep up with new technology, but the safeguards need to keep up, too. All those elements should be included in the scope of the first stage of the independent review by the counter-terrorism reviewer, David Anderson.

[Steve Baker (Wycombe) (Con)]

I congratulate the right hon. Lady on the long list of considerations that she wishes her party to look at, but has she considered the easy availability of strong cryptography? What is her party’s position on that?

[Yvette Cooper]

I will not pretend to be an expert on individual technologies or on the legal framework that is needed to safeguard them. That is exactly why we need an expert review. The honest truth is that most of us here in Parliament are considerably less expert on these technologies than our children, and we therefore need technological expertise as well as legal expertise as part of the review. That is the kind of review that David Anderson needs to lead.

We have tabled an amendment to put the review on a statutory footing and to outline some of the issues that it must cover, so that the House can be reassured that a sufficiently wide-ranging review will take place. It will need to look at the practice as well as at the legislation. We will also need to have a serious public debate about David Anderson’s conclusions, through the Joint Committee of both Houses and through taking public evidence. A public consultation must form part of that process. This is about getting the balance right, but it is also about ensuring that we have public consent. We cannot have any more sticking-plaster legislation; we need a serious and sustainable framework that will command consent for years to come.

[Bob Stewart (Beckenham) (Con)]

Forgive me, but I am slightly confused. It is perhaps because I am a bit thick, but will the right hon. Lady clarify the current situation for me? Do we have these rules and regulations now? If we do not pass this Bill into law, how long can the police and the security services continue to have access to these data?

[Yvette Cooper]

The Home Secretary responded to a similar question earlier. The advice that I have received is that the UK regulations are still in place, but that they are likely to be challenged and likely to fall as a result of the European directive having already been struck down. The consequence of that would be that we might risk losing some of those powers over the summer, before Parliament returns in the autumn, and we should not put the police and intelligence agencies in that position. The hon. Gentleman will have heard me argue for the wider reforms and wider debate that is needed, but in the short term we should not pull the rug from underneath the police and intelligence agencies this summer as a result of a European Court judgment.

The right hon. Member for Haltemprice and Howden (Mr Davis) said that the sunset clause should simply be moved to five months’ time. I understand the intention of the hon. Members who have signed the amendment, and I recognise their concern and their desire to increase the short-term scrutiny of the legislation, but I fear that if we do that, we will simply be stuck with another unsatisfactory sticking-plaster legislation process. We will not have the time to obtain the conclusions of the expert review, to consult on them, to debate, to take evidence or to draw up proper primary legislation with the more substantial reforms that I believe are needed. If we continue with repeated sticking-plaster legislation, we will undermine public consent in this process even further. That is why we must not rush things; we must do it properly. We are doing quite enough rushing this week, as it is, without trying to rush through the more substantial debate that we need within five months. That is why the longer period is needed.

Hon. Members are right that we need stronger safeguards in the short term, right now. We need more reassurance that the Bill is doing what the Home Secretary has made clear. That is why we have tabled a second amendment, and why I welcome the Home Secretary’s indication that she will accept it. It is about requiring the intercept commissioner in the mean time to report on the operation of the Bill every six months. During that period, we need to know whether the Bill is simply being used to continue the work that was being done before or whether it is being used to extend the Government’s powers against the will of Parliament. The six-monthly review will reassure the House that the Bill is being implemented in the way that Parliament intended.

We also want to see longer-term reforms, including strengthening the Intelligence and Security Committee so that it has the same powers as other Select Committees and an Opposition Chair, and we believe that an overhaul of the commissioners is needed. We currently have lots of different commissioners, and even when they do excellent reports no one notices them because the reports are not public-facing. Too often, they are limited to assessing compliance with existing legislation rather than looking at whether the legislation is still appropriate or effective.

This is a difficult debate for Parliament today. We have legislation that is urgently needed, but it is against the backdrop of us all knowing that a much wider debate is called for. So we have to make sure that that debate happens and that sustainable reforms are brought forward. Too often, this debate becomes polarised. The hawks say that we need stronger powers to protect national security, but they will not say what and why. The civil libertarians say that it is all a conspiracy; that they do not believe the scare stories; and that privacy is paramount. But most of us, and most of the British public want both—security and liberty, safety and privacy. We want to be kept safe from fraudsters stealing our identity or our money online. We want our children’s innocence kept safe from abusers, and paedophiles to be caught. We want the police and intelligence agencies to be able to track down murderers, fraudsters and terror suspects.

However, we also want to know that, unless we are suspected of a crime or terrorism, we have a right to protection of our information and privacy. We want to know that people will not be listening to our calls, reading our e-mails or checking out where we have been surfing on the web; to know that there are fair, up-to-date laws governing what Government agencies, the police and private companies can do; and to know that there are safeguards, checks and balances in place to make sure that those laws are upheld.

Yes, we need to pass this Bill today, because the powers that it retains are too important to the protection of public safety to lose carelessly one summer. But we also need a proper debate about the balance of privacy and safety, and how we maintain both liberty and security in an internet age, because both are essential to our democracy. Today must be the start, and not the end, of that debate.

[Several hon. Members]

rose—

[Madam Deputy Speaker (Dame Dawn Primarolo)]

Order. There is a six-minute time limit on all Back-Bench contributions. I remind Members of the timetable. This debate must end by 5 pm. On that basis, we have more speakers than time, unless we can make rapid progress.

15:04

[Sir Malcolm Rifkind (Kensington) (Con)]

I begin by paying tribute to the shadow Home Secretary and the Opposition for deciding to give their full support to this measure. It is always reassuring to the nation as a whole when political parties come together—we do not do it very often—on an issue of national security. Especially with emergency legislation, that has a powerful and beneficial impact, and reassures many members of the public who might otherwise be concerned.

The Intelligence and Security Committee has considered the Bill, and we have taken evidence from the intelligence agencies on its content. If we were concerned in any way that the Bill simply added to the powers available to the Government and that they were using a fast-track procedure to implement it, we would not be able to recommend its endorsement, but we are satisfied that that is not the case.

I have listened carefully to some of the comments by those on both sides of the House who are opposed to the Bill and have criticised it. Part of the argument is that it is shocking that, when the European Court of Justice has repudiated the directive, we should defy that decision. They have not taken the trouble to read properly what the Court said. It was clear. It did not oppose the retention of data under national laws based on the directive. I shall quote the judgment:

“the retention of data for the purpose of their possible transmission to the competent national authorities genuinely satisfies an objective of general interest, namely the fight against serious crime and, ultimately, public security.”

The Court’s objection—it was an understandable point—was that the directive contained insufficient proportionality and safeguards. The directive covers 28 countries, and some of them did not have previous legislation or experience in this area and simply implemented everything that the European directive seemed to permit them to do. However, as the shadow Home Secretary rightly said, that has not been the practice in the United Kingdom. Most of our safeguards had already been introduced, and continue to apply.

Let me remind those who have criticised the proposal what the safeguards include, which are far broader than the narrow approach of the directive. First, for any intelligence agency to use the powers, it has to satisfy not just itself but the Secretary of State and Parliament that to do so is in the interests of national security, fighting serious crime or protecting economic well-being, which is linked to national security. If it does not meet that requirement, the agency cannot use the powers in the first place.

Secondly, the European Court directive allowed data to be retained for up to two years. In the United Kingdom it has never been retained for two years; a maximum of a year is allowed. That is a considerable improvement. Many countries do not have the system that we already have of the interception of communications commissioner, who is able to examine the use of the powers and report both to Parliament and to the Secretary of State if he thinks that they are being used in a disproportionate way or not for the purpose that Parliament intended.

It is therefore an important consideration that the United Kingdom happens to have this experience and has used the powers in a proper and responsible way—we are not the only country, but it does not apply to all 28 members of the EU.

[Caroline Lucas]

The right hon. and learned Gentleman cites the interception of communications commissioner as some kind of safeguard, but is he aware that the commissioner has recently ruled that there has been

“significant institutional overuse of existing powers”?

That same commissioner is already warning us.

[Sir Malcolm Rifkind]

We will have to see the context in which the commissioner made that remark, but I have read his report and he gives a clean bill of health to the intelligence agencies on communications data, which is what we are talking about here. He has answered many of the criticisms that have been made elsewhere and said that they are unfounded and unjustified. I am sure that the hon. Lady has read that report. Perhaps she should re-read it and then she will remember the point that she momentarily forgot when she intervened.

The other important part of the Bill relates to questions of extraterritoriality. This is a difficult and sensitive issue, because obviously many communications service providers are not UK companies and would be reluctant or might refuse to recognise any restrictions imposed on them. I shall read out one sentence from the explanatory notes that have been prepared for the benefit of the House on this part of the Bill, which explains why this is an important and justifiable provision. The explanatory notes state on page 4:

“While RIPA has always had implicit extraterritorial effect”—

the Government themselves have said that it is extraterritorial—

“some companies based outside the United Kingdom, including some of the largest communications providers in the market, have questioned whether the legislation applies to them. These companies argue that they will only comply with requests where there is a clear obligation in law.”

In other words, up till now it has been implicit that the legislation is extraterritorial—that has certainly been the Government’s view—but that has never been spelled out explicitly. That is what the Bill now seeks to rectify, and we are told in the explanatory notes that some of the communications providers based outside the United Kingdom have said that that is what they are looking for. If it is an explicit obligation, they will be willing to comply with it. If it is not, they will have to consider whether they wish to do so or not.

There will be other providers which, even with that explicit statement, still decline to co-operate. Our Government have to decide what they will do to try to change that situation, because it is a very unsatisfactory one. We are talking about companies that operate within the United Kingdom. We are not talking about what they are doing in America, France, Germany or other countries. They should co-operate in the way that United Kingdom companies co-operate and in a way in which some overseas companies are prepared to co-operate. They recognise the public interest, and they recognise the need for these provisions in the battle against serious crime in particular, not to mention terrorism and such matters.

The House and the public can be reassured that what is in the Bill is not what we have been told is in it. Its purpose is to maintain the current situation. To oppose the Bill would create an enormous risk, if indeed the provisions, which are currently in regulations, were challenged before the courts and were then struck down. Therefore I certainly and, I think, my colleagues on the Intelligence and Security Committee, recommend these provisions to the House.

15:12

[Alan Johnson (Kingston upon Hull West and Hessle) (Lab)]

It is a pleasure to follow the right hon. and learned Member for Kensington (Sir Malcolm Rifkind). I am not sure whether he and I are the best people to support the Home Secretary. It seems to be de rigueur in some quarters to believe that members of the Intelligence and Security Committee and former Home Secretaries lose any sense of the need to support the noble causes of protection of privacy and promoting civil liberties as soon as they come into office. We are supposed to have all that sucked out of us as we walk down Marsham street.

Sometimes, as a non-tweeter, I am lectured about the importance of privacy by people who send a tweet every time they brush their teeth. Leaving that aside, I suppose that, just as it is impossible to imagine a new Foreign Secretary arguing for Britain’s withdrawal from the European Union, it is impossible to imagine a Home Secretary being caught up with the more fundamentalist wing of the civil liberties group. That does not mean that we do not care about civil liberties.

Leaving aside Home Secretaries and distinguished Chairs of the Intelligence and Security Committee, the people who work in the security services and the police and the Child Exploitation and Online Protection Centre are equally concerned about issues of privacy. The one thing that sometimes irritates me about this debate is the idea that we could direct them. In this country, with all our values, which we sometimes seem to believe exist only within this Chamber or within Members of Parliament and Ministers, that is a ludicrous suggestion.

For me, there is one test for the Bill—the Ronseal test: does it do what it says on the tin? Let me assure Opposition Members that the Home Secretary prior to 2010, who was me, operated entirely on the basis of this Bill. I have sprinkled rosewater on it, I have held it up to the light, I have closely examined all six clauses. Apart from the ambiguity, which others have referred to, we always believed that we had protection in respect of CSPs based overseas and that they were subject to the law on communications in the UK. We always operated in that way, and it is as well to make that clear. Would it not be ludicrous if it worked any other way?

[Sir Alan Beith]

It would not only be ludicrous; it would be an invitation to companies to re-site themselves outside the United Kingdom, for fear of placing themselves at a competitive disadvantage.

[Alan Johnson]

Of course. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) made a very important point earlier about the need for a blanket provision. We need to keep blanket information. How will we resolve the cases that the shadow Home Secretary set out so effectively without that provision?

I admit before this House that I believe these laws ought to go further. I have made that clear before. I agreed with the Home Secretary in the foreword to the draft Bill a couple of years ago, which says that we cannot allow continuing and new technologies to remove this capability, but I accept that this is not the place to argue for that. Indeed, I believe that the new provisions set up under David Anderson, the Privacy and Civil Liberties Oversight Board and the examination that David Anderson will carry out, make it more probable that we will have an informed debate when the matter comes before Parliament.

The right hon. and learned Member for Beaconsfield (Mr Grieve), who is not in his place, spoke about telecommunications, but before telecommunications, there was the Post Office. It has always been the case that we have used these kinds of powers to protect this country against our enemies. When I joined the Post Office as a postman in 1968—I know that is a long time ago—there was a whole unit in St Martin’s le Grand occupied by MI5, or the service, as it was called, where technicians wore rubber gloves and sat with very strong lights and large kettles, steaming open letters. I add, incidentally, that I was not one of those people. I know that by reading “The Defence of the Realm”, the splendid history of MI5 written by Christopher Andrew.

Christopher Andrew also tells us that in 1969, 221,000 postal items were opened in this way. There had been an increase of 135,000 on 1961. The interception of communications commissioner’s report in 2013 shows the total number of interception warrants authorised by the Home Secretary. Bear in mind that 221,000 letters were opened in 1969. The number of warrants authorised in 2013 was 2,670. That shows that, although there is a more complex problem, although the challenges are more complex and, I would say, the threats to this country are more severe—that our citizens are in a more perilous position than they were in the 1960s is arguable, but that is what I believe—it is incredible that we have a much greater grip on the issue now. We have far more surveillance and far more oversight of these matters than we had, and that is very healthy.

In my view, we are today defending what is there already. If there was an addition to those powers—I was pleased to hear the Chair of the Intelligence and Security Committee say that the Committee had looked at this—I would not support the Bill and I would not have supported the programme motion earlier. Members in all parts of the House see this as important. Let us not lose the capabilities that we have before we debate whether those capabilities need to be added to.

15:19

[Mr David Davis (Haltemprice and Howden) (Con)]

It is a particular pleasure to follow my old sparring partner from east Yorkshire on this as much as on any other issue.

As I have only a short time, I shall focus on one issue alone out of the four that affect the Bill. When this Government brought a different but related Bill before the House, the so-called snooper’s charter, it was, frankly, an embarrassment. It was pilloried by the Joint Committee on the draft Communications Data Bill and heavily criticised by both MPs and Lords. One clear fact that arose from that review was that many thought that RIPA, the Bill upon which this legislation is based, was simply not fit for purpose, that it was too loose, and that if the snooper’s charter came before the House at some later stage, many would use it to rewrite RIPA. Certainly many Liberals thought that, and a number of Conservatives too, and some Members of other parties. That may be one reason why the Government are uncomfortable about giving this Bill a full procedure over several weeks, with a proper Committee and Report stage, and so on; because they may find that they get a tighter definition of RIPA than they previously had.

The House knows that I am not a great fan of the British Government being told what to do by the European Court of Justice or the European Court of Human Rights. I much prefer that British liberties—our freedom, our privacy—are protected by Parliament. But the harsh truth is that Parliament has been a weak defender of our freedoms this past 20 years, and the process we face today, crashing the Bill through the Commons in a single day—even more poignantly on reshuffle day; I see the empty Benches around me—is an awful demonstration of that. One consequence of that slack attitude is that we have bumped more and more frequently into treaty obligations and international court judgments against us, where Britain should be the shining example, not the villain of the piece. The Bill does nothing to correct that.

The Court, as a number of speakers have mentioned, branded the untargeted mass collection of our data—European rather than just ours—as a

“wide-ranging and particularly serious interference with”

our

“fundamental rights.”

It is arguably the case that, in some ways, Britain is the most extreme example of that across western Europe. Because the Bill does nothing to correct that particular aspect, it is likely to face legal challenge, and may well fail as a result. It will not be beneficial to security in this country if that happens.

Much of this failure hinges on the fact that access to communication data in this country is not subject to judicial approval. It is one of the differences between ourselves and America and some other European countries. It is approved by officers of the same organisation that request it. The result of that—the point that I think the hon. Member for Brighton, Pavilion (Caroline Lucas) was referring to—is that too many people have too much access, too easily, to too much data. That is the core point. Therefore, we use this power in that respect more often than many of our international colleagues.

There were 514,000 authorisations and notices reported in the RIPA 2013 report. It is difficult to compare countries, but to give a partial comparison—

[Mr Jack Straw (Blackburn) (Lab)]

I thought I heard the right hon. Gentleman say that those who authorised communication data requests were the same people as those who checked it. I think that the right hon. Gentleman will find that that is not correct. There is a system of surveillance commissioners who are there to do the authorisation, and the checking is done separately.

[Mr Davis]

That is not correct, I am afraid. The authorisation process does not go to the commissioners. It comes back afterwards to the commissioners.

The point about this is the numbers. The Americans, with whom we can partially compare, use only 39,000 to 57,000 references in a given year. In Europe, the country that least admires the privacy of its nationals is France. Its total metadata approvals is 35,958—36,000. If we add in all the other approval processes, it still comes to less than half of ours. So access to our data has insufficient safeguards. There is no prior review to access by a court or independent body, and after-the-event oversight—the commission oversight—is incredibly under-resourced. The intention was that data be used only for the purposes of prevention, detection or criminal prosecution of offences that may be considered sufficiently serious to justify such an interference. There are 100,000 prosecutions for indictable offences that face custodial sentences in the UK each year. About 80,000 end up in prison. We are talking about 500,000-odd approvals to deal with fewer than 100,000 prosecutions.

The Government seek to diminish the importance and sensitivity of communications data by distinguishing it from the content of the communications. At one time this firm distinction stood up and was credible, but now, because of technology, rather than going the other way and making things more difficult for the agencies, the scale of the internet and mobile phone technology has provided an intimate picture of people’s personal lives. In the ECJ’s words:

“This data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented.”

In other words, it is an incredibly intrusive piece of information.

As I said, I do not like taking lessons from the ECJ, but on this they are absolutely correct. These measures are just not proportionate. They were badly designed in 2000—I am sorry to say to the right hon. Member for Blackburn (Mr Straw)—and they have got worse with the passage of time and technology. The Government have not listened, and accordingly have left themselves open to legal challenge. While the Bill may be law by the end of the week, it may be junk by the end of the year.

15:26

[Keith Vaz (Leicester East) (Lab)]

It is a huge pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis), who has an unrivalled knowledge of these issues. He is right that we should be cautious in dealing with legislation of this kind. The latest figures we have are that the number of tweets being issued every year is 150 billion, the number of mobile phone contracts has reached 82 million, the number of landlines is 24 million, and the number of broadband connections is 21.7 million. So a lot of data are flowing about. That is why it is extremely important that we consider these matters very carefully. I for one associate myself with the wish of all those who have spoken, including the Home Secretary, that we had longer to scrutinise this legislation so that we could raise the kind of issues that have been raised so far but in much greater detail.

Yesterday, the Home Affairs Committee took evidence from the Home Secretary, who was subjected to quite robust questioning from members of the Committee on this issue. In particular, the hon. Member for Cambridge (Dr Huppert), who is something of the expert in these matters, was able to raise a number of points that Members had concerning the speed of the legislation going through the House and its detail. Of course it is not satisfactory that we had only one session. We would have liked to have had more sessions. We would have liked to have had the Minister for Security and Immigration before us, but that was not possible given the time scale.

The Committee wrote to the Home Secretary supporting the Government’s view. My hon. Friend the Member for Walsall North (Mr Winnick) is right: he did not support the letter being sent, nor its contents, but every other member of the Committee did, representing every other major party in the House. As he knows, he often finds himself in a minority of one on issues that are voted upon in the Committee. That in no way means that we do not take his view seriously. Of course we do. He is a very distinguished Member of the House. But that was the view of the Committee, as I correctly reported to the Home Secretary in my letter last night. It echoed what the Prime Minister said to me and other Select Committee Chairs when he said that this was not a land-grab; that this was existing legislation and not about additional powers. I and the Committee support this on the basis of the assurances given by the Prime Minister to me at Downing street, and to other Select Committee Chairs, and to members of the Committee only yesterday by the Home Secretary, that no additional powers are being sought by the Government. I think that that is the basis upon which the shadow Home Secretary and the official Opposition also support the Government.

There are two issues that I hope the Minister will take on board in Committee. The first, of course, is the need to ensure that the scrutiny process is as robust as possible. The Home Affairs Committee recently published a report on counter-terrorism. Its conclusions—I will not go through them all because they are too long—talked about enhancing the role of Parliament and the various commissioners. We felt that it was unacceptable that at least one of the commissioners was part time, with a part-time secretary to deal with these very important issues. We felt that some of the commissioners should be amalgamated to produce full-time people who are able to scrutinise the work of the security services.

The second issue is that the Committee felt that David Anderson should be given additional resources. A feature of our reports over the past few years has been that we have praised the role of the counter-terrorism assessor and asked that he—only men have occupied the post—be given additional support in order to do his job effectively. We rate David Anderson’s work, but we think that he could do much better if he had more resources. He has not asked the Committee for more resources; it is our view, having looked at the evidence and heard from various parties.

That is why it is extremely important that we have a privacy and civil liberties board that is widely representative of those with an interest—all the stakeholders. I urge the Government to consult widely, including with the Select Committee and others outside Parliament, before the names of the board members are announced so that they can work with the independent assessor and do a job that is robust, fair and has the confidence not only of this place, but of the British public.

Reluctantly, given the time scale, we support the Government, accept the assurances that have been given and hope that they will return to Parliament frequently to inform us of any additional information or powers they seek so that there can be proper and appropriate scrutiny, which we have recommended should be conducted by our successor Committee once it is formed in the next Parliament.

15:32

[Simon Reevell (Dewsbury) (Con)]

I accept that the timing of the Bill is unfortunate. This is the second time in three years that a Court case that was known about well in advance has produced a result that has caught the Government flat-footed and necessitated emergency legislation. It is also unfortunate that this is being done so quickly, because there is great cynicism towards the state among the general public, and dealing with these matters in this way does nothing to address that problem. However, it is the content of the Bill, rather than the timing, that is the central issue.

The content of the Bill maintains existing powers, and those powers are important where it counts, which is at the sharp end of these things; at the criminal trial of the person accused of serious criminal activity, where the sort of evidence that these powers produces can mean the difference between conviction and acquittal. I know that because I prosecute those cases and have used the evidence produced as a result of these powers.

It is worth bearing in mind the alternative. It is worth thinking about what would happen if it was not possible to have access to that sort of information. Imagine two alternatives. First, consider an individual who is stopped by the police and has his telephone on him. Nobody would suggest that his telephone should not be looked at. Nobody would suggest that it should not be plugged into a computer so that the content can be interrogated. Nobody would suggest that, if his telephone was known to be in his house, the police should not be able to go through his front door, break the lock on a cupboard and retrieve it if that was necessary for the purposes of evidence.

Secondly, consider another individual who has no telephone on him but in whose home the police find a telephone bill. Is the suggestion that they could not use the telephone bill to go to the service provider and see whether they can find the same sort of information that they would have been able to take from the telephone had it been in the individual’s jacket pocket? Is it really being suggested that we should not use technology at all in the investigation and prosecution of serious crime? If that is not being suggested, and there is therefore no difficulty about the use of the technology, the only issue is the extent to which that is fettered by regulation and law, and that is not a matter for this debate, because the Bill is about provisions that already exist.

In serious criminal trials up and down the country today, people are using evidence that deals with the fact of a text message and its content, the fact of a telephone and information that has been retrieved from answerphones, information from social media, and the fact of an e-mail and its content. However, there is a distinction between what can be taken from a computer, if a computer is found, and the data that can be retained and accessed if the hardware is not there, but that is a debate for another day.

As far as the Bill is concerned, its effect, which is to maintain powers that have previously existed, to allow access to data that have previously been accessed and to prosecute people in the same way they have been prosecuted in the past, does not deserve the general challenge that it is receiving from those who simply do not like the idea of retaining data, and the criticism that it somehow opens Pandora’s box as far as privacy is concerned. The idea that the police should be able to identify someone who might become a criminal so that only their data are retained is absurd. The idea that data need be retained for only a short period of time ignores the way in which drugs conspiracies, for example, are investigated, where the drugs are traced from the individual on the street back to the wholesaler, from the wholesaler to the central supplier, and then from the central supplier to the importer. That all takes time, and if the data are not retained for a period, by the time the importer is identified, all their data have gone and the link cannot properly be established.

It is all very well to talk about the importance of privacy—I completely understand and respect those who prioritise that—but there is a conflict between the effective use of data to prosecute serious crime and privacy in the sense that the fact of something or the existence of something will not be made available to law enforcement bodies and a recognition that with that will come an inability on the part of the police and the prosecutor to deliver convictions that, at the moment, go a long way to keeping people safe.

15:37

[Mr Jack Straw (Blackburn) (Lab)]

I am glad to follow the hon. Member for Dewsbury (Simon Reevell), because although none of us remotely underestimates the difficulty of finding a proper balance between liberty and security—some might come down in different places on that—I say with respect to those who are criticising the data retention practice in the United Kingdom, rather than the policy of the EU, which is greater, that there is a fundamental logical fallacy in what they are arguing, as the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) exposed powerfully. It is this: where there is a suspect for a crime, it is for a crime that has been committed in the past. The police will not know who that suspect is until they come to the police’s attention, at which point they have to get historical evidence. These days, part of that historical evidence will be in data records. They have to be able to access everybody’s data records in order to find those of one particular person, because the police, no more than the rest of us, are not given powers of clairvoyance with which to anticipate who is and who is not to be a suspect. Unless or until I hear from opponents of this Bill and of data retention how the police can be expected to identify in advance those who are going to be suspected of crime, I have to say that the whole logical basis of their argument completely falls away.

I always listen with interest to the right hon. Member for Haltemprice and Howden (Mr Davis). Indeed, there are areas where I have been in concert, if not conspiracy, with him. I think I am correct in saying that he said that Parliament has been a weak defender of our liberties in this field over the past 20 years. With respect, I beg to differ. Forty years ago, almost to this month, after six hours of questioning by former police officers as part of my security vetting procedure, I was interviewed by a senior officer of the Security Service. He explained to me that a file had been kept on my family since at least since 1961, when I was 15 and my sister, who was the subject of one of the original reports, was 17. In order to identify a discrepancy that had arisen between what I had said and what they thought they knew, he had to show me my file—a big, thick manila file was produced. He went on to question me as to what contact I had had as president of the National Union of Students at the end of the 1960s and the early ’70s with the student national organiser of the Communist party. I said that I had met this man from time to time at a pub in Covent Garden. “Oh yes,” he said, “You met that man at the Sussex Arms in Covent Garden on these dates, and this is what you discussed.” I mentioned that in my book and it is a great tribute to the modern Security Service that it and the Cabinet Office approved of my relaying of the story.

At that stage, however, we were in the area of the secret state. There was no parliamentary oversight whatsoever of the intelligence or security agencies. The telephone tapping that happened to me and my family was the subject of no statutory warrant whatsoever. The past 30 years have seen this House progressively doing its duty by the citizen—from the Telecommunications Act 1984 and the Intelligence Services Act 1994 through to, I am proud to say, the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000—to ensure that the necessary powers of the state to detect and prevent crime and to secure national safety are the subject of proper controls.

Of course, as technology changes, the law should take account of it—both sides of the House are agreed on that—but RIPA was a huge advance in terms of human rights, and that was how I introduced it to the House back in 2000. It is simply a matter of record that that Act applied overseas and there has been dispute subsequently about its exact wording. That is all that is being corrected by this Bill and I defy anybody to challenge that.

There is one area in which this Bill will, indeed, change the law. Clause 3 will change the basis for obtaining a warrant for intercept on grounds of economic well-being. At the moment, in RIPA, economic well-being is the sole criterion without condition. In future, it will be subject to the interests of national security.

[Sir Malcolm Rifkind]

The right hon. Gentleman may be unaware that there has been a European directive since the late 1990s that links economic well-being to national security issues. It has been implemented in the United Kingdom through a code of practice, which is unsatisfactory, and it is that code of practice that will now appear as primary legislation.

[Mr Straw]

I am aware of that, but the right hon. and learned Gentleman will be the first to accept that there is a world of difference between something in a code and something in a Bill. I note that not one critic can find the words to commend the fact that this Government, with support from the Opposition, are going to strengthen provisions, rather than diminish them.

As the right hon. and learned Gentleman has generously given me an extra few seconds, I will also address data records. Before the Telecommunications Act 1984 and the Intelligence Services Act 1994, data communications of all sorts were collected without any statutory control. That, too, has been the subject of repeated strengthening of the law, to protect the citizen. I hope this House will pass this sensible, necessary and very modest measure.

15:45

[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.

15:53

[Mr George Howarth (Knowsley) (Lab)]

It is a pleasure to follow the hon. Member for Esher and Walton (Mr Raab). I listened to him carefully, and there is a problem with what he said. His starting point was that something needs to be done, but he then listed a whole lot of reasons on why nothing can be done. Although he made a very fluent speech, I do not think that it took us any further, except in saying that he wanted more time to consider the Bill.

I will start by discussing the time we have to develop our arguments and consider the Bill. One factor to be borne in mind is whether there is enough time for this House and for concerned experts and members of the public to get their heads round what is being proposed and to have a say. That is an important question that needs to be answered.

My hon. Friend the Member for Ellesmere Port and Neston (Andrew Miller) reminded me earlier that I was responsible for a piece of legislation called the Disqualifications Act 2000, which you will remember, Madam Deputy Speaker. Although the content of that legislation has no bearing on this Bill, it is comparable because it was a five-clause Bill that went through all its stages in the House in one 26-hour sitting. The quality of the debate as we got into the 23rd, 24th and 25th hours was probably not that good. I am not convinced that we got better legislation after sitting for 26 hours than we would have done had we sat for five or six hours.

In the time left to me, I will cover two clauses of the Bill. The first is clause 3. I will not speak about it for too long, because I tabled an amendment to it, along with my right hon. Friend the Member for Salford and Eccles (Hazel Blears) and other hon. Friends, that will be debated later. Amendment 1 covers the whole issue of economic well-being. The only thing I want to say at this point is that we at least need to have a debate about the scope of economic well-being. The purpose of amendment 1, which is a probing amendment, is to get the Government to give us some idea of the dimensions of economic well-being. The amendment tries to restrict it to three main areas, but there may well be other areas that should be considered. If there are, we ought to hear about them.

Clause 4 is the extraterritoriality provision. I well understand the need for it and will not speak against it, but I just fear that it might prove to be unworkable. I am looking for reassurance about how it will be carried out in practice. Let us imagine that there was a billing office for Google in Liverpool and that some relatively junior person in the organisation turned out to be the sole representative of Google in the United Kingdom. I am sure that that is not the case, but I am using it as a hypothetical example. My fear is that somebody who is well down the pay grades could, by virtue of being in an office that is owned by a parent company that is registered in Ireland or the United States, be the person on whom the notice is served to enact the warrant. That would be disproportionate. I might have misread clause 4. I will be quite happy if the Minister can ease my mind on the subject, but it does pose a bit of a worry for me.

In conclusion, when we are debating issues such as this, a couple of considerations must be borne in mind. The first is the amount of time that is available, which I have covered. The second is whether the provisions break new ground in policy terms. My reading of the Bill—I have read it carefully several times—is that it brings the Regulation of Investigatory Powers Act 2000 up to date slightly to address the problem that arose as a result of the European Court of Justice decision. In so far as it breaks no new policy ground, I do not think that there is necessarily a problem with what is proposed. I am quite prepared to support the Bill on Second Reading.

[Several hon. Members]

rose—

[Madam Deputy Speaker (Dame Dawn Primarolo)]

Order. I am setting the time limit at five minutes in the hope that everyone in the Chamber will get their five minutes before the winding-up speeches start.

15:59

[Dr Julian Huppert (Cambridge) (LD)]

I will do my best to comply with that, Madam Deputy Speaker—[Laughter.] Sorry, I meant to say that I will indeed definitely comply with that.

This is a difficult issue for those who, like me, have massive concerns about civil liberties and privacy. It is a pleasure to follow the right hon. Member for Knowsley (Mr Howarth). We do not always agree on these issues, but I care passionately about the abuse of surveillance that has taken place, and seeing the state have more control. I expressed that view when we got rid of the draft Communications Data Bill in calling for our only debate to consider the post-Snowden situation, and in the digital Bill of rights that my party passed. There is much we need to do, and I have called for many years for reform of the Regulation of Investigatory Powers Act 2000, and of other legislation such as the Telecommunications Act 1984, which has some really amazing powers in section 94. I therefore start off instinctively concerned about anything proposed in this way.

Communications data and lawful intercept are very important, although we need improvements in how they are dealt with—for example, communications data should be collected for a much shorter time. We could have a system of retention for a short period followed by preservation orders to address many of the concerns raised. Accessibility should be limited; there is definitely too much access with 500,000 requests a year. I believe we should have judicial warrants for lawful intercept, as that is a much better way to proceed. We can improve those measures, but we need them because it is clear that we face a problem now.

I raised this issue on 8 April when the Home Secretary appeared before the Home Affairs Committee on the day of the European judgment. I pressed her on the matter and she insisted that the regulations were still valid. I understand why she feels she has to say this, but I do not think it is correct. I think the Home Office is continuing on a hope and a prayer, and at some point that will end, and that is the emergency that persuades me. I am also very aware of the circumstances around the lawful intercept drop-off. That is true and I have spoken to many people, so I do not entirely trust the Home Office when it says there is a problem in some areas. I think the Home Office is largely to blame because of the way it has conducted itself in its interactions with other companies. When we considered the draft Communications Data Bill, we expressed concern that the way the Home Office misportrayed what companies were saying might drive some of them overseas, and we have seen that.

On new powers, the data retention regulations are as before but with more constraints; the Bill is slightly less powerful than what it gets rid of. Is lawful intercept a new power? We have had interesting discussions about whether we knew it was applicable overseas, and when we considered the draft Communications Data Bill we published a report that highlighted the fact that it appeared to impose no limits on the telecommunications operators to whom it applied. We heard from different companies about how they complied with the requests they receive. That should not be a surprise given that two years ago we published a report on that. I know that other hon. Members have been here longer. We knew this measure was there; it is not a new power.

What is not allowed is what was in the snoopers charter—the draft Communications Data Bill. We will not allow website logs; that is clearly not allowed by anything in that provision. There is nothing in the Bill that would allow domestic companies to be forced to collect information on third-party overseas companies, which was in the Communications Data Bill. Such things are not allowed and will continue not to be allowed.

There are safeguards, and if it were not for those there is no way I would support the Bill. I have called for these safeguards for many years. The Liberal Democrats made them a condition of acceptance of the Bill, and I am pleased that we have secured them. There is a sunset clause with no possible extension, and the RIPA review, which we desperately need.

[Duncan Hames (Chippenham) (LD)]

Does my hon. Friend agree that, contrary to remarks from those on the Opposition Front Bench, it is not only the passage of time and the advance of technology that has discredited RIPA?

[Dr Huppert]

My hon. Friend is partly right. RIPA was an improvement on no regulations, but it gave far too much power to far too many people, and we needed to fix that situation much earlier. The approach taken by the previous Government to try to collect more and more powers with the interception modernisation programme and so forth is not the right way to go.

We have a number of safeguards. The Privacy and Civil Liberties Oversight Board that I and other hon. Friends have been mentioning for a while is an important safeguard and will be written into law. We are reducing by hundreds the number of bodies that are able to get direct access to data. Councils used to be able to get direct access to communications data to find out whether somebody was applying to the right school for their child. That is no more. This Government are ensuring not only that councils cannot get direct access, but that they also have to get a magistrate’s say-so. We have annual transparency reports—a key requirement—and the trimming of powers for access to communications data. A huge amount in the Bill provides safeguards and we are in a better place as a result, although we are not in a perfect place. I would like to see a much more substantial rewrite of RIPA, with many more limitations and a new approach. That is what I hope we will get from the RIPA review. We would certainly want any improvements that could be implemented to be implemented.

People often talk about the trade-off between security and privacy or civil liberties. I do not think it is a trade-off; I think we can have more of both at the same time. The Bill preserves the security we currently have, which is a good thing, and, because of the safeguards and the changes, it actually supports privacy and is a pro-civil liberties measure. The Guardian highlighted the fact that the Bill could

“prove a major opportunity to bring the relentless rise of the surveillance state under democratic control.”

The Independent said that:

“the law may in fact, in a few years, benefit the civil libertarian cause.”

Having seen sustained assaults over many years on this issue, I support that and hope we can achieve a better balance.

16:05

[Dr Hywel Francis (Aberavon) (Lab)]

It is a pleasure to follow the hon. Member for Cambridge (Dr Huppert). He is a valued member of my Joint Committee on Human Rights, as was the hon. Member for Esher and Walton (Mr Raab). I was delighted to hear him quoting the banner of the Tower lodge miners, a great bastion of trade union freedom. The quote has been attributed to Franklin—it may well be—and to the Lord Mayor of Dublin, but today it has been made famous by the Tower miners. The opening statement by the shadow Home Secretary, who is not in her place, really did sum up that sense of the need to protect our liberties and the security of all our citizens. That is very much in the spirit of “eternal vigilance is the price of freedom”.

I am conscious that we have very little time, so I would like pose three questions to the Minister and then make reference to public confidence in Parliament. First, why was draft legislation not prepared during the two-year period in which the Government knew of the risk of the directive being ruled invalid, and why was Parliament not given a proper opportunity to scrutinise and debate the detail? Secondly, what exactly is the urgency that requires the complex issue of extraterritoriality to be dealt with by emergency rather than ordinary legislation? Thirdly, I will be writing to the Government, on behalf of the Joint Committee on Human Rights, to ask for a more detailed explanation of how our law meets each of the criticisms of the European Court, but there is one central question I would like the Minister to answer today. Why, in the light of the case law, do the Government consider that it is compatible with the right to respect for private life to continue to authorise blanket retention of communications data?

Let me turn to the vexed question of public confidence in Parliament. Emergency legislation such as this has the potential to undermine the public’s confidence in Parliament’s capacity to do its job of holding the Government to account. In the wake of the Snowden disclosures, there is widespread mistrust of the Government and the intelligence agencies when it comes to surveillance. Detailed scrutiny of the Government’s justifications for interfering with people’s privacy must involve civil society. To be democratically legitimate, that scrutiny must take place here in Parliament. The Government need to recognise that they do not have a monopoly on wisdom or expertise in these matters. They need to heed the views of parliamentarians and specialist parliamentary Committees, and the views of wider civil society.

Courts are also more likely to uphold laws that have been properly scrutinised by Parliament. Lack of effective parliamentary scrutiny makes it more likely that courts will find laws to be in breach of fundamental rights. This only feeds the public perception that Parliament is disempowered in relation not only to the Government, but to the courts.

Let me give a good example of that. Last year the Jobseekers (Back to Work Schemes) Act was passed as emergency legislation only days after it was introduced. My Committee was unable to report before the Bill received its Royal Assent but we expressed grave reservations about the Bill’s compatibility with two particular human rights: the rights of access to court and to peaceful enjoyment of possessions. For that reason, we would have liked to scrutinise it in more detail. Last week, the legislation was declared incompatible by the High Court on the very grounds identified by my Committee. While, no doubt, the Government will be appealing against the judgment, it illustrates well the vulnerability of emergency legislation to successful legal challenge on human rights grounds.

The Government are now taking the same risk with this Bill. From my perspective as the Chair of the Joint Committee on Human Rights, I can see a clear pattern emerging: very widely drafted powers to counter terrorism and serious crime, with too few safeguards to guarantee that they are only used when necessary and proportionate, give rise to concerns about their indiscriminate overuse. We have seen it with powers to take and retain, for example, DNA—

[Madam Deputy Speaker (Mrs Eleanor Laing)]

Order.

16:10

[Pete Wishart (Perth and North Perthshire) (SNP)]

I have massive concerns about the Bill. I do not like the way in which it has been brought to the House. I do not like the way in which we have to rush through this process at breakneck speed, even though this is an issue that was flagged up to the Government some three months ago. I am suspicious about the reasons why we are doing all this now. I do not like the fact that it seems little more than a half-hearted attempt to get around a European Court of Justice ruling that declared the European directive invalid and thereafter practically everything that the Government are doing on data retention probably illegal.

I am suspicious about the way in which all the UK parties and party leaders have been brought into line around these unspecified threats. That is reminiscent of the dark days of the creation of the anti-libertarian state by new Labour; unspecified threats were the things we had to address then. I particularly do not like the fact that the Scottish Government, who have responsibility for the judiciary, policing and even delivering parts of RIPA in Scotland, were not consulted about the Bill. Most of all, I do not like the way in which the Government are trying to pretend that this is just business as usual when it clearly is an extension of what the Government can do in the collection and retention of an individual’s personal data.

I want to take that last concern first. I listened very carefully to all the party leaders last week when this was presented. The Prime Minister said that the Government were not introducing “new powers or capabilities”, but clauses 3 to 5 make significant amendments to the range of powers included in RIPA. The Bill extends the Government’s surveillance powers in two very important ways. Clause 4 clearly extends the territorial scope of RIPA, and the Government can now issue interception warrants for communications data to companies outside the UK. It also extends the definition of what “telecommunications services” means within RIPA to include webmail services such as Gmail. The hon. Member for Esher and Walton (Mr Raab), who is no longer in his place, said that the most fundamental change is in that relationship between ISPs and the state.

The Government must now come clean with the British people. This is not business as usual. These are significant and substantial new powers. The Bill is more than the sum of its parts. It is a statement of intent. The Home Secretary said as much last week when she introduced it. Her real intention is, of course, to reintroduce her much-coveted snoopers charter in this Bill. The way in which the Bill brings on board the overseas ISPs is little more than a paving Bill for the reintroduction of that most unwanted anti-civil libertarian measure.

There has been a lot of talk about what is and what is not included in the Court judgement. The Government have had three months to address the Court’s findings. It is not the threat of terrorism or of criminal activity that has forced the Government’s hand in bringing this forward today. It is the threat of legal action by organisations such as the Open Rights Group and others that has prompted this emergency legislation. The Government should not mislead us about the urgency of the Bill. Given its significance and the issues it raises about our civil liberties, it should not be passed without proper parliamentary scrutiny. Truncating consideration of the Bill in this way is nothing short of appalling. It does a massive disservice to our constituents who have taken a real interest in this.

We all agree that the targeted retention of communications data can help the police to tackle serious crimes such as terrorism and child abuse. We all want to ensure that our communities are safe. But it has to be done proportionately and responsibly, and first and foremost, it should be legal.

What the European Court of Justice said was that we have a very low threshold for the retention of data, and it made it clear that the retention of data of every single person strikes the wrong balance between the need to tackle serious crime and our right to privacy and a private family life.

What most disappoints me is the total disrespect shown to Scottish Ministers. The first any Scottish Minister got to hear about this Bill was several hours after the statement was made in this House about its introduction, yet Scottish Ministers are responsible for policing and justice. It is Scottish Ministers who sign off any request for intercept on serious crime grounds. Part of RIPA required an Act of the Scottish Parliament and it puts in place the authority to conduct directed surveillance, undercover intelligence and intrusive intelligence. It is therefore staggering that this Government would proceed with this measure without exchanging even the slightest word with Scottish Ministers.

We believe that it will always be necessary to collect and retain the personal data of individuals in the pursuit of serious crime and we will take those responsibilities very seriously as an independent nation, but because this Government have got the balance so badly wrong, we will oppose the Bill today.

16:15

[Mr David Winnick (Walsall North) (Lab)]

My right hon. Friend the Member for Blackburn (Mr Straw) said that the security services are far better than they were many years ago. That is because over many years and particularly in the ’70s and ’80s, there were campaigns both inside and outside the House for proper scrutiny of the security services, so I think we can take some credit for the improvement.

As to the Bill before us, the European Court of Justice set out in what I consider to be a wise decision 10 principles that have already been mentioned and need to be emphasised. What it did not do was say that the data retention carried out under the 2006 EU directive was wrong in itself. That it was necessary to have such data retention was not in question. What the Court did say was that certain circumstances should be recognised when directives are given to internet companies and that these needed to be related to a particular threat to public security, a particular time and a particular geographical area. In my view, that is absolutely right.

What the Government have done is to say, “Well, we do not agree with it, and to show that, we are going to bring in a Bill that simply legislates on the basis of the very factors that the ECJ said were wrong.” I see no reason to disagree with the ECJ. I see no reason why the 10 principles set out by the Court should not be enshrined in British legislation, but that is not happening. What will happen if this Bill is passed is that we will carry on as normal, regardless of the ECJ. It would be just the same, except for certain words being added and the sort of extension that can be seen in clause 4. What sort of reaction to the ECJ is that? It is understandable why so many of us—yes, a minority, but a significant number—have such reservations. I hope that further consideration will be given to what is happening.

The very fact that this measure is being rushed through in one day denies the opportunity—certainly for the Home Affairs Committee and for other appropriate Committees, too—to scrutinise it properly. If there were ever a measure that required detailed scrutiny by the relevant Committees, it is this one, yet any scrutiny that takes place will be post-legislation. That is not a wise course for us to follow.

To me, if not to others, this makes a mockery of what Parliament should be doing. When Labour was in office, the Conservative party was highly critical of its legislation on various matters—pre-charge detention, identity cards and so forth—and claimed that it would be the champion of civil liberties. There is not much evidence of that in any way, shape or form. The Home Secretary ought to recognise that there must be quite a lot of disappointment —not among Labour Members, because we did not expect any better, but among those people in the country who thought that a Conservative Government would follow a path that really respected civil liberties.

In a forceful speech, my right hon. Friend the shadow Home Secretary said that we needed to establish the right balance between civil liberties and security. I could not agree more. None of us who are critical minimise for one moment the acute terrorist threat to our country. We recognise the need for the security services. We recognise that there are evil people who want to do the maximum damage to others in this country. We would have no illusions even if there had been no 7/7, and the crimes and atrocities that that were committed nine years ago had not occurred. However, I do not believe that we have arrived at the right balance, although I hope that we shall do so in due course.

16:20

[Mark Durkan (Foyle) (SDLP)]

As I said earlier, my concerns—like those of others—are not just about some questionable aspects of the provisions in the Bill, but about its presentation as emergency legislation. The ruling from the European Court of Justice followed a case that had lasted two years, and the flaws and weaknesses that it revealed had been identified by, among others, a Joint Committee of both Houses of Parliament. Moreover, a judicial review that is pending in the United Kingdom courts was lodged some three years ago. It is clear, therefore, that the Government should have been aware of the susceptibility of the existing legislation to a court challenge of that nature. There is absolutely no reason why good, due, careful parliamentary consideration should not have been given to the issues before now. Furthermore, it has still not been properly explained to us why—although the judgment of the European Court of Justice was issued as long ago as April, and despite the long notice that is provided by cases that last so long—legislation is being scrambled, or microwaved, through the House just before the summer recess.

The Government have made several claims today. At one point, we heard that the Bill was intended to clarify, or strengthen, the focus of RIPA. In some respects the Bill actually widens that focus in a way that arguably extends its implications, yet the Government are trying to tell us that it narrows the focus, and also contains new protections and new qualifications. As other Members have pointed out, the Bill wears some new words here and there like badges, pretending to recruit the judgment of the European Court of Justice, but the fact is that the existing powers are not being narrowed as Ministers have claimed.

The other assurance that we have been given relates to the sunset clause. It is supposedly emergency bridging legislation, intended to prevent a serious situation in which existing powers are challenged and cannot be used to close a dangerous gap. However, the expiry of the sunset clause is nearly two and a half years away. That appears to be quite a lengthy emergency. If we are saying now that we are happy to pass this legislation on the basis of a two-and-a-half-year sunset clause, and on the basis that it merely continues the data retention provisions that we already have in RIPA, does anyone really believe that, in two and half years’ time, Parliament will do anything other than say, “Well, we must carry on with what we have already had, and what we have already put up with, because if it has been done before and if it has been done up until now, and if it is what the security services and others say they need, we shall just have to stick with it”?

As for all the other paraphernalia that we are being offered—the furniture of the various reviews that will take place, the privacy and civil liberties oversight boards and all the rest—none of it will convince the public that, when it comes to it, when the security services and others say that they want the essence of these powers and these arrangements to be renewed in 2016, and indeed, if they wish, to be extended, deepened and widened, Parliament will not say that that is OK. Again, the senior parties will feel they have no choice but to go along with it on this basis, and we will have a consensus based on poor consideration by Members who feel they have been whipped by some of the threats, suggestions and inferences that come from the security services.

This House, which often raises questions about the respect in which politics and Parliament and this Chamber are held, has to ask how the public are meant to have any respect for an elected Chamber that is not showing a lot of respect for itself, in the way in which we are receiving and passing this Bill. We are even offering to the public that the things that will protect them will be outside Parliament—that there are going to be those commissioners and oversight boards. That is because we know that the public no longer believe in Parliament as the protector of their civil liberties and of good democratic order.

We should be a chamber of scrutiny and accountability. That is why we should be questioning the way in which we have received this Bill, and it is why we should be pressing the Government further through debating amendments at the next stage of this Bill’s passage.

16:25

[Andrew Miller (Ellesmere Port and Neston) (Lab)]

I understand where my hon. Friend the Member for Foyle (Mark Durkan) is coming from, but I disagree with him that it is not possible to create vehicles to build trust with the public. We need to look at examples of work that happens in other sectors. My Select Committee, the Science and Technology Committee, has recently been taking evidence on the way data analytics are managed within social media networks, and it is interesting to consider how the banking card systems create a vehicle of trust between customer and bank, with the customer sharing an enormous amount of information with those organisations.

My hon. Friend is absolutely right that the body that is trusted least is Government, and it is our job as Parliament to find ways, in this very serious area, to rebuild that trust in the system. Our next period of work on this subject must be the hugely important job of creating confidence in the independence of the oversight process of the Government and the security forces.

The David Anderson review gives us an opportunity to do something important. Clearly, David Anderson’s work goes substantially beyond counter-terrorism. Mention has been made of many other types of crime, and on my last visit to my constituency police headquarters I looked at how forensic computing is being developed in that police force. I was horrified at the proportion of work they are doing on child abuse images. With that in mind, we need to ensure that the David Anderson review takes into account expert advice from people involved in all those areas.

I encourage the Minister, when thinking about the privacy and civil liberties oversight board, to think broadly. The Minister should not think of a board and structure that fits the technology of today alone. We need to think of a structure that is technology-neutral, which both deals with the philosophical points that have rightly been raised from both sides of the debate in the House today and is structured in such a way that it can continue its work and evolve with the technologies. Twitter is here today, but it will be gone tomorrow, and something else will take its place that will be bigger, faster and better, enabling greater analysis of data for all sorts of commercial, or criminal investigation, purposes.

The other point I would like to make concerns warrants. I have discussed this with my wife, who as a magistrate has had to sign many warrants. It has always seemed to me that the missing link in public confidence has been the ability to be sure that when a warrant is signed, the person responsible for signing it—in this case the Home Secretary—is continually pressing the investigating officer, to show that the warrant was issued with just cause, so that there is some confidence building in the process of warrant granting. There would seem to be a place for almost an online equivalent of magistrates taking some of the Home Secretary’s role in this complicated area, because one would need to be logging the intrusions into personal data in a way that we have the technology to achieve, as we have demonstrated in other Departments. There is still a lot to be done in confidence building.

With those observations, I fully support the aims and objectives of the Bill, but urge that oversight is considered carefully.

16:30

[Helen Goodman (Bishop Auckland) (Lab)]

The underlying issue that we are discussing in this important debate is whether we want the online space to be a law-governed area.

The radical libertarians, who seem to want the online space to be completely free, without boundaries, rights or responsibilities, would, I fear, unwittingly lead us into an anarchic place, where those with power and aggression dominated and where the weak and vulnerable suffered. Even the Swedish Pirate party told me that it wanted some rules of the game. We do not want a retreat into what I would call mediaevalism. When I say that, I mean that the internet should not be like the forest in the 13th century, which was completely outside the law. I know that there are some geeks who explore the dark net who see themselves as latter-day Robin Hoods, but the rest of us do not see them in that way.

One of the reasons for that is that we have seen an explosion in crime online and in particular crime against children. It is vital that we tackle that more energetically. The police believe that 60,000 people in this country are downloading illegal images of children all the time. We need to do more to tackle them, not less. That is the context in which we are looking at this legislation this afternoon. Given that, the requirement for telecommunications companies to keep comms data is necessary. The Mobile Operators Association told me that after Snowden and the European Court of Justice judgment, it wants legal certainty. It is no longer prepared to continue with a voluntary approach.

Our object with this legislation is not to shift the power of the state and the citizen; it is to reproduce in the online, telecoms spaces the rights and responsibilities of the real world, as my right hon. Friends the Members for Blackburn (Mr Straw) and for Kingston upon Hull West and Hessle (Alan Johnson) pointed out. Therefore, disclosing content to a limited number of public authorities with a warrant in pursuit of serious crime seems to me to be reasonable. This solution may be rather clunky, but at the moment it is the only practical one available.

If I may say so, this whole arena has been bedevilled by the problem of extraterritoriality. Whether companies are located in the US or Latvia, we see them evading their taxes or not having proper child protection standards. One of the useful things in the ECJ judgment on the Spanish man and the right to be forgotten was that it asserted that such companies are subject to European law. However, it is right that this piece of legislation puts that beyond doubt. Furthermore, it would be helpful to do more work to build the international consensus in this area. Just as we had to spend many years developing the international law of the sea, we now need to look at having a treaty basis for international co-operation in the online space.

As the timetable has been so rushed, it has not been possible to look at this area in a more comprehensive way. There are two areas in which we need to do further work. The first is on the issue of anonymity. I am talking not about people having nicknames on Twitter but about ensuring that we have a correspondence with people’s real and virtual identities, possibly using the device media access control address. That would help us to tackle crime in a less clunky way, and reduce it as well.

Finally, my right hon. Friend the Member for Delyn (Mr Hanson) has tabled an amendment to improve the oversight of the public authorities, but we still do not have good oversight of the use put by private companies to all this data, and we need to beef up legislation in that area. It is clear that those companies think that they are entitled to sell on this information without people’s consent. I am disappointed that the Secretary of State for Justice, who has held on to his position in this reshuffle, has described as “mad” proposals to do more in that area.

16:36

[Caroline Lucas (Brighton, Pavilion) (Green)]

The straw man—or straw person—has been evident in this debate this afternoon. Several Members have suggested that those of us who oppose this Bill somehow oppose the retention of data per se. I wish to make it clear that I have not heard anybody say that. Everything is about the terms on which the data are being retained.

The right hon. and learned Member for Kensington (Sir Malcolm Rifkind) gave the impression that I had suggested that the Court of Justice of the European Union had said that the data could not be retained. Of course it did not say that. What it said was that the terms under which data are retained have to be proportionate. The right hon. and learned Gentleman, who unfortunately is not in his place, suggested that I had not looked at the ruling. I can confirm that I have. Paragraph 59 makes it clear that what the Court of Justice is asking for is an end to blanket retention. It says that

“retention must relate to specific threats, and be confined by specific criteria, such as a time period, geography, or a set of people of interest.”

We are talking about the terms and the conditions of that data retention. Let us consider the fact that there are plenty of countries that seem to be able to tackle serious crime without undermining their citizens’ civil liberties through blanket data retention. I am talking about Austria, Belgium, Bulgaria, Germany, Greece and Sweden.

The hon. Member for Cambridge (Dr Huppert), who is in his place, tried to reassure us that there were all these safeguards that would make us feel comfortable. One of those safeguards, and the only one that is actually written into the Bill, is the sunset clause, which is two and a half years away. Many Members have already said why that does not give us comfort, which is why I am supporting the amendment that would bring it forward to six months. None of the other measures to which the hon. Gentleman referred is in the Bill.

An awful lot of people watching this debate will be absolutely staggered that the Liberal Democrats, who have, to their credit, been upholders of civil liberties in the past, are here undermining them. What we see here is a willingness to trade off this blanket retention of data, which many people believe will be deemed illegal, with concessions that may or may not be forthcoming in the future. We have always known that new Labour had an authoritarian streak, but we had hoped that the Liberal Democrats would stand up for civil liberties. Many people today will be sad to see the way in which they have caved in on this issue.

We have been repeatedly told that the Bill simply maintains the status quo, and there are plenty of legal experts who will argue that that is not accurate; we have heard many of their statements repeated in the Chamber this afternoon. Notwithstanding the fact that the status quo has been ruled a breach of fundamental human rights, the provisions in the Bill, specifically clause 4, extend the territorial reach of the law relating to data retention, bringing overseas communications companies that provide services in the UK into the scope of RIPA.

Even those parts of the Bill that do not constitute going further than the status quo are deeply worrying. It has been confirmed that they breach fundamental human rights in their scope and in their totality. There are also more specific concerns with many of the Bill’s provisions. Clause 1, for example, retains authorisation for hundreds of public authorities to acquire communications data while the framework for granting access to that data is worryingly open to abuse. Barring local authority access, there is no requirement for independent prior judicial authorisation when communications data are sought by public bodies.

That means that the potential for ongoing and wide-scale privacy infringement is enormous and has been realised in the shape of roughly half a million requests a year from public bodies since 2009. The actual scale of infringement is difficult to assess. We still do not have a full picture across all the public bodies that are able to access communications data of the type of investigations for which data are accessed, the extent of access and the number of individuals affected. The European Court of Justice has however confirmed that privacy is being breached even though to what extent is unfortunately still a secret.

Moreover, while we are told that communications data played a role in 95% of all serious criminal investigations over the past decade, we have no idea about the exact nature of that role. That makes it difficult to judge exactly how significant the blanket retention of data is in averting terrorist attacks, for example. When crimes are successfully prevented, we are not told whether communications data are central or peripheral to the operation; nor are we told whether data lead to successful prosecution or whether prosecution could have been secured without access to the data. That is why we need a proper debate. The interception of communications commissioner has already warned that far too many requests for data are being made and that he is struggling to keep up with them. The idea of loading more on to the commissioner is unsustainable. We should not be pushing this legislation through in a day; we should be having a proper and full debate.

16:40

[Mr Michael Meacher (Oldham West and Royton) (Lab)]

I feel uneasy about the Bill on several grounds. As I am sure that we all do, I clearly accept that there is a need for a new law in order to establish a proper legal foundation to balance the right to privacy with the requirement to ensure security, but it should not be done in this way. The Official Secrets Act 1911 was rammed through this House in just one day in an atmosphere of fear and we have had to live with the undesirable consequences of a national security concept with blanket coverage ever since. Has the House really not learned that telescoping proper parliamentary scrutiny is nearly always dangerous and can lead to unexpected outcomes as we helplessly watch the law of unintended consequences kick in?

The Government’s first argument for emergency legislation does not stand up. As many have said, the European Court of Justice ruling was on 8 April. The Government wasted more than three months without taking any action before suddenly, seven days before the recess, alleging that it is critical that the Bill be passed by the House in one day. That is either panic or a deliberate attempt to blackmail the House into undiscriminating compliance.

The Government’s second argument, namely that foreign-based phone and internet companies were about to stop handing over the contents of individual communications in response to a UK warrant, does not stack up either. It has been reported that communications service providers have said that they did not know of any companies that had warned the UK Government that they would start deleting data in the light of legal uncertainty. Indeed, the Home Office, according to the Financial Times, instructed companies to disregard the ECJ ruling and to carry on harvesting data while it put together a new legal framework. The Government’s alleged anxiety that they might lose access to stored data overnight is wilfully overdrawn.

The Prime Minister’s assurances are neither convincing nor effective. He stated, as echoed several times by the Home Secretary today, that the legislation will merely maintain the status quo. That is not true. It will impose for the first time a duty on foreign-based internet companies with subsidiaries in the UK to co-operate with surveillance requests by UK agencies. We were also assured by the Home Secretary last Thursday that the Regulation of Investigatory Powers Act 2000

“ensures that access to communications data can take place only where it is necessary and proportionate for a specific investigation.”—[Official Report, 10 July 2014; Vol. 584, c. 457.]

Again, however, that is misleading. Charles Farr, the lead Home Office official in this area, argued in his legal witness statement last week that general intercepts are permitted under RIPA because they are “external”, by which he meant that because communications travel via foreign server, largely based in the US, they can be intercepted indiscriminately even when there are no grounds to suspect any wrongdoing.

Lastly, the Prime Minister offered a number of specific measures to assuage the deeply held concerns about the Bill, but they do not really inspire confidence. He proposes a privacy and civil liberties board, which is of course welcome in principle but, considering that the Intelligence and Security Committee was not told about and did not find out about the indiscriminate tapping of overseas communications under the Tempora system, it is difficult to have trust in oversight boards having the resources, capability and access to scrutinise and deal with what is really happening within the security services’ manipulation of fast-changing communications technology.

The review of RIPA is long overdue and very welcome, but it is not a good omen that the circumvention of the RIPA rules to allow the indiscriminate mass surveillance that exists today is to be allowed to continue for another two and a half years without any attempt in the Bill to circumscribe those powers. The restriction of the number of bodies that can directly contact phone companies and demand access to data is, of course, right, but the current number is about 600, I think, and we are not told by how much it will be restricted. I welcome the sunset clause, but the end of 2016 is far too late. It should be for the end of 2014. For all these reasons, I cannot support the Bill as it stands.

16:45

[Mr David Hanson (Delyn) (Lab)]

We have had a useful debate today, in which the House has had to reach a balance in making a judgment on the Bill. The balance has been between two main concerns: the privacy of information and the need for agencies such as the police and others to know about that information and access it; and the need not to let criminals off the hook. There is a real dilemma that I know all hon. Members are examining, but I hope that it is one that the Bill can resolve.

As you know, Madam Deputy Speaker, we are here because of the European Court of Justice and its decision to strike down regulations to enable internet providers to retain communications data for law enforcement purposes for up to 12 months. That is an issue we must address for the reasons the Home Secretary and the Minister have outlined. We also need to ensure that the Government respond to the needs of the companies calling for a clear legal framework. The Home Secretary also outlined that view.

Members on both sides of the House have shared the Government’s balanced view, including my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper). The right hon. and learned Member for Kensington (Sir Malcolm Rifkind), the Chair of the Intelligence and Security Committee, has endorsed that balanced approach, as has my right hon. Friend the Member for Leicester East (Keith Vaz), the Chair of the Select Committee on Home Affairs. Indeed, the Home Affairs Committee has written to the Home Secretary today saying:

“The Committee’s view is that the retention of communications data, subject to appropriate safeguards, is an important tool in the fight against terrorism, organised crime and child sexual exploitation, and the Government is right to bring forward urgent legislation”.

I accept that my hon. Friend the Member for Walsall North (Mr Winnick) has dissented from that view and in his speech he clearly put his dissent on record. However, the points made by my hon. Friend the Member for Aberavon (Dr Francis) about the protections and freedoms that his Committee has examined are also important. He has put on record his concerns while, again, taking a balanced approach.

There are those in the House today who have fallen more on the side of privacy than of crime fighting, and I respect that view and understand why it is taken. I do not necessarily share it, but the right hon. Member for Haltemprice and Howden (Mr Davis) talked about ensuring that we have safeguards in place and the hon. Member for Esher and Walton (Mr Raab) argued for the sunset clause and about the question of what national security is, and those are issues that we should explore. I hope that Ministers will deal with these issues not just now but as the Bill goes through the House today and through the other place, so that there are safeguards and powers to review the legislation. I hope that later in our consideration the proposals put by my right hon. Friend the Leader of the Opposition, supported by my right hon. Friend the Member for Normanton, Pontefract and Castleford and other Opposition Members, will be considered seriously.

Members such as my right hon. Friend the Member for Oldham West and Royton (Mr Meacher) have expressed real concerns and might not support the Opposition’s view in the Lobby tonight. I respect that view, but I cannot share it today, and I urge my right hon. Friend, even at this late stage, to consider supporting the Opposition as well as the Government. I paraphrase what the hon. Member for Perth and North Perthshire (Pete Wishart) has said on other occasions, when he said he was not happy, he was not happy at all. That broadly summarises his position today. It is shared by the hon. Member for Foyle (Mark Durkan). I accept his point that smaller parties—I represent a constituency in Wales—need at least to be involved in the discussion on these matters, even if the hon. Member for Perth and North Perthshire remains not happy, not happy at all.

The hon. Member for Brighton, Pavilion (Caroline Lucas) has raised the terms of engagement, and she made a good, solid contribution, but ultimately the Opposition have to make a judgment, and the judgment that my right hon. Friend and I have formed supports the Government’s view on these matters. Even though we think that the Government should have looked at this earlier, we support that judgment for the reasons given by my right hon. Friends the Members for Kingston upon Hull West and Hessle (Alan Johnson) and for Blackburn (Mr Straw), who are former Home Secretaries and know the difficulties that the Home Secretary faces now. They have been in office in the Home Office, as indeed have I, and have seen the challenges that we face. They have understood that the retention of data records is important. I am pleased that that view was also shared by, for example, the hon. Member for Dewsbury (Simon Reevell), who made a strong case from a criminal prosecution point of view that retention of data was necessary for court cases.

My right hon. Friend the Member for Knowsley (Mr Howarth) made some important points, which he will raise again in Committee. He recognised, again as a former Home Office Minister, the importance of the Bill in the round. My hon. Friend the Member for Bishop Auckland (Helen Goodman) drew an interesting analogy with Robin Hood and being in the forest. I hope that I am not Friar Tuck in this, Madam Deputy Speaker. She made the point that it is a simple regulation of dark issues in relation to the use of evidence in court.

The hon. Member for Cambridge (Dr Huppert) made important points in support of the legislation, as did my hon. Friend the Member for Ellesmere Port and Neston (Andrew Miller). In summary, all investigations into online child sex abuse, major investigations into terrorism and organised crime, and the prevention of young people from travelling to Syria would be severely jeopardised if the legislation did not pass in its current form. Without it, the police would not be able to catch paedophiles sharing child images. Mobile phone records helped the police find out about the attempted terrorist attack on Glasgow airport in 2007. Without the legislation, those records would no longer be available. The security services would not have been able to check who the Woolwich attackers had contacted when they undertook that murder.

The Minister has our support. We will examine the Bill in Committee, but on Second Reading we give him our unqualified support.

16:53

[The Minister for Security and Immigration (James Brokenshire)]

I thank all the right hon. and hon. Members who have contributed to a vibrant and valuable debate. I note that some comments were made about the role of the House in defending liberty and ensuring that we strike a balance between collective freedoms and individual liberty. The speeches this afternoon have brought that to the fore, and I understand and recognise the significance of the legislation before the House this afternoon. The Government have to work quickly to address the problems created by the judgment of the European Court and declining co-operation from communication service providers. The Bill has undergone some good debate and challenge this afternoon.

I welcome the fact that, almost without exception, right hon. and hon. Members who have spoken have understood the importance of interception and communications data in the fight against terrorism and other serious crime and have therefore supported the Bill. Several hon. Members highlighted its import in confronting child abuse and safeguarding children. It will play a crucial role in enabling our law enforcement agencies to bring crimes to justice.

Sometimes this debate can be framed round security—what the intelligence agencies are doing. Actually, much of it is about what our police and law enforcement agencies are doing to identify, prosecute and bring to justice those who would harm our constituents; about how the use of communications data is such an integral part of that; and obviously, as we all understand, about the importance of intercept. I was struck by the speech of the right hon. Member for Kingston upon Hull West and Hessle (Alan Johnson), who referred back to the year that I was born and his role at Royal Mail, reflecting on how interception played such a role even then, but in a different way, and on how technology has moved on. We have discussed the vital importance of this Bill in ensuring that those who work to keep us safe can continue to have the tools that they need. That is at the heart of our debate.

Some speeches were framed on the basis that this Bill is extending powers. I reiterate, yet again, that it is not about extending powers but about maintaining the powers that already exist to retain data, including under the Regulation of Investigatory Powers Act 2000, in order that our police and law enforcement and security agencies, and others, can continue to do the work that they do now.

A number of Members mentioned the European Court judgment. Let me briefly go through some of the issues that were highlighted. On scope, the Bill will limit any data retention to a strict list of data types specified in the data retention regulations. It will enable the Secretary of State to issue data retention notices to communications services providers, on a selective basis, only if she considers the obligations to be necessary and proportionate.

On duration, each notice will have to specify the duration for which data is to be retained, up to a maximum 12-month period. If it is not proportionate to retain certain data for a full 12 months, that enables a lower period to be chosen. Again, that reflects some of the comments made in the European Court judgment, with a clear requirement for the Secretary of State to keep any notice under review. Access will be limited to that which is necessary and proportionate under RIPA.

On storage, the UK already imposes strict data security requirements on our communications service providers. These will become part of the notice requiring a CSP to retain data and will therefore be enforceable. It is right that we have reflected on the European Court judgment, but we retain our focus on what the powers are today as well as reflecting on some of the points that the Court made.

[John McDonnell (Hayes and Harlington) (Lab)]

Part of the judgment proposes that the Government provide exceptions for persons whose communications are subject to an obligation of professional secrecy. That does not seem to be covered in the Bill or in the draft regulations.

[James Brokenshire]

I hope that in Committee we will be able to get on to the role that the statutory code of practice may play in that regard. The hon. Gentleman will note that there is reference to that in the Bill, and we will be able to discuss it shortly.

It is important to note that the Intelligence and Security Committee has endorsed these proposals, with one notable exception. Indeed, the Home Affairs Committee has done the same, obviously recognising that there may not have been unanimity in that respect. It is important to say that Committees have reflected on and examined this and seen that it is about protecting the status quo.

[Keith Vaz]

It was 7-1, like Germany and Brazil.

[James Brokenshire]

The Chair of the Committee has made his point in his inimitable fashion.

It is important to understand that this is about protecting powers, not adding to them. It is about ensuring that our law enforcement agencies and security agencies have the powers that they need. That is what the proposal in this Bill is about. While I note the clear concerns over the balance between security and liberty, this is about protecting powers, not enhancing them. I commend the Bill to the House.

Question put, That the Bill be now read a Second time.

16:59

Division 36

Ayes: 498

---

Conservative: 246
Labour: 197
Liberal Democrat: 46
Democratic Unionist Party: 6
Independent: 1

Noes: 31

---

Labour: 15
Scottish National Party: 6
Conservative: 4
Social Democratic & Labour Party: 3
Plaid Cymru: 3
Independent: 1
Alliance: 1
Green Party: 1

Bill read a Second time; to stand committed to a Committee of the whole House (Order, this day).

Further proceedings on the Bill stood postponed (Order, this day).

Data Retention and Investigatory Powers Bill (Money)

Queen’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Data Retention and Investigatory Powers Bill, it is expedient to authorise the payment out of money provided by Parliament of—

(1) any expenditure incurred under or by virtue of the Act by the Secretary of State, and

(2) any increase attributable to the Act in the sums payable under any other Act out of money so provided.—(Anne Milton.)

Question agreed to.

Data Retention and Investigatory Powers Bill

Tuesday 15th July 2014 Commons Chamber

Proceedings resumed (Order, this day) .

Considered in Committee (Order, this day).

[Mrs Eleanor Laing in the Chair]

Clause 1

Powers for retention of relevant communications data subject to safeguards

Question proposed, That the clause stand part of the Bill.

17:15

[The Minister for Security and Immigration (James Brokenshire)]

As the House has heard, communications data are information relating to the who, when, where and how of communications, but not to their content. These data are crucial to the work of both law enforcement and the security and intelligence agencies.

As a result of the recent European Court of Justice judgment, we need to ensure that communications companies in the UK continue to retain this key information. The Bill will replace the data retention regime currently set out in the UK’s Data Retention (EC Directive) Regulations 2009, and preserve the status quo in relation to the retention of data, while responding to certain points made in the European Court judgment. Let me make it clear that the Bill will not create any new powers or obligations on communications companies beyond those that already exist.

Clause 1 will create a power for the Secretary of State to give notices to communications service providers to require them to retain relevant communications data. As my right hon. Friend the Home Secretary has already made clear, the Bill does not enable the retention of any data which cannot already be retained by communications service providers under the existing data retention regulations.

[Dr Julian Huppert (Cambridge) (LD)]

Will the Minister make it absolutely clear that there will be no change for data retention by overseas providers and that overseas companies will not be ordered to retain data?

[James Brokenshire]

As I have said, the law will be exactly as it now stands. My hon. Friend will know that there are provisions relating to extraterritoriality, and we will come on to the relevant clause later. He will understand that we have a relationship with communications service providers in the UK about their retention of data and that, in the regime under the Regulation of Investigatory Powers Act 2000, the Security Service, the police and listed bodies can make specific requests for the purposes set out in RIPA.

It is important to stress that those defined purposes are contained in existing law. To emphasise a point I made on Second Reading, the Bill is not about extending the current situation. Although the European Court of Justice commented on the data retention directive, we had already legislated in a number of ways to ensure that issues of proportionality and necessity are considered in framing requests. We have obviously reflected carefully on the judgment; hence some of the provisions, which I am sure we will come on to in Committee.

[Dr Huppert]

I just want to ensure that I understand the Minister’s answer. Perhaps I did not phrase my question well. Does the clause provide the power to issue a retention notice to an overseas provider in respect of information that is flowing overseas? That would be something new and I would be grateful if he could rule it out. That is not currently the practice and I hope that he will confirm that it will not be the practice.

[James Brokenshire]

It is certainly not our plan or intention—indeed, it is not part of our process—to make those sorts of requests. As the hon. Gentleman knows, we make requests for communications data to be retained by companies in the UK. He knows of the processes and the safeguards that exist in respect of the specific requests that are made by the different agencies, and of the tests that need to be satisfied.

[Sir William Cash (Stone) (Con)]

Does my hon. Friend accept that the impact of the European Court of Justice judgment is enormous because, in a nutshell, it will continue to be the law of the European Union irrespective of whether we pass the Bill?

[James Brokenshire]

Obviously, we have considered carefully the impact of the European Court of Justice judgment, the European convention on human rights and other parts of the law in examining the position. That is why we have considered the Bill so carefully. The additional safeguards and provisions that have been written into the Bill reflect that consideration. We remain confident that the provisions meet the legislative requirements.

[Sir Edward Leigh (Gainsborough) (Con)]

May I refer the Minister back to the question that was asked by my hon. Friend the Member for Stone (Sir William Cash)? Does this debate not underline the importance of the report of the European Scrutiny Committee on establishing the supremacy of Parliament? I am afraid that the Minister’s response was not absolutely clear. I think he said that the Government are “confident”. Surely on matters as important as the freedom of the individual and national security, we should be more than just confident; we should be sure of the supremacy of Parliament.

[James Brokenshire]

As my hon. Friend knows, legislation is always subject to court challenges. That is the nature of our constitution. The House often reflects on changes that are made to the law as a consequence of decisions that are made in our courts. There is a separation of powers between the legislature, the Executive and the judiciary.

We have reflected carefully on the European Court of Justice judgment on the directive. It is important to state that that judgment related not to our domestic legislation, but to the directive. Obviously, the Data Retention (EC Directive) Regulations 2009 were made to implement the directive. We believe that the regulations remain in full force and effect, but the questions, doubt and risk have arisen because of how the industry and others have looked on the judgment and the regulations. Although we assert that the regulations remain extant and in full force and effect, it is essential, given the questions and points that have been raised, to deal with the risk and put the matter beyond doubt.

[John McDonnell (Hayes and Harlington) (Lab)]

The Chair of the Joint Committee on Human Rights made the extremely valid point that it would have been useful if the Government had published details of how the legislation complied with each of the points that was raised in the judgment. May I take the Minister back to the point that I made earlier about paragraph 58 of the judgment? Will he point me to the place in the legislation, the regulations or the Bill that addresses the point in the judgment about providing exceptions for

“persons whose communications are subject…to the obligation of professional secrecy.”?

[James Brokenshire]

I know that point has been raised, and the hon. Gentleman will see that clause 1(4)(f) enables the provision of

“a code of practice in relation to relevant requirements or restrictions or relevant powers,”.

The intent is to have a statutory code of practice that will sit alongside the regulations, and there is scope to ensure that the issues relating to confidence highlighted by the hon. Gentleman are addressed in that manner. We are putting in place a legal mechanism to address his concerns and the points raised by the court.

[John McDonnell]

I am trying to be helpful. When will that code be published, and how will it be scrutinised?

[James Brokenshire]

We are seeking to ensure that the code is drafted effectively, and we are looking at ways that that scrutiny can take place, given the import we have mentioned. We will certainly look to engage appropriately to ensure that issues such as those highlighted by the hon. Gentleman on confidence, professional positions and matters such as legal professional privilege are contemplated and reflected on. Codes of practice already exist and it is now about putting that on a more statutory footing to give it statutory teeth, but I recognise his point.

[Sir William Cash]

My hon. Friend referred to our courts, and I am sure that by that he meant our domestic courts. Unfortunately, that is not what we have to grapple with here. The issue is what our courts may be able to do, because they are bound by section 3 of the European Communities Act 1972, which states that we must have regard to, and indeed implement as an obligation of European law, judgments of the European Court. The data retention directive is European Union law, so the regulations and replacement regulations are all derived from that assertion of the supremacy of European law. As my hon. Friend will know, I am deeply concerned about that and I hope we will come on to it later. The bottom line is that we are not able to ensure that the Bill will be effective against any European Court judgments.

[James Brokenshire]

Part of the reason we are introducing the Bill is to give that fundamental statutory underpinning in primary legislation. The questions raised have been as a consequence of the linkage between the old data retention regulations, and whether they are reliant on the data retention directive being in force and effect. We have asserted clearly that we do not accept that that is the case, but because of those questions we judge it important to deal with that uncertainty and risk, and ensure that that is stated clearly in primary legislation.

[Lady Hermon (North Down) (Ind)]

I am happy to support the legislation, but I would like to clarify one small but important point in relation to Northern Ireland. The Bill makes it clear that it extends to Northern Ireland, but the Minister will be aware that policing and justice are devolved matters. Which aspects of policing and justice or reserved matters does the Bill cover?

[James Brokenshire]

Given the nature of the legislation, we are clear that it is reserved, so it does not require a legislative consent motion, for example, to be passed. It clearly has that approach, given the interception powers and the communications and national security issues inherent in the powers under RIPA and reflected in the Bill. We are clear that it is a reserved piece of legislation, so it will be passed by the House without the additional requirement that may otherwise be the case.

[Dr William McCrea (South Antrim) (DUP)]

In the light of that, the Government accept that this is a reserved matter and I am happy that that is so, but were discussions held on that with the Northern Ireland Executive before the Bill was brought to this House?

17:30

[James Brokenshire]

We have kept the Northern Ireland Executive up to speed with the proposals, sending them details and setting out our legal analysis. As this is a reserved matter, we have a slightly different relationship than might otherwise be the case if it were a devolved matter. I hope that that is helpful. It is important to state the benefits of the clause and the regulations that will sit underneath it in respect of the whole of the United Kingdom. It has effect in Northern Ireland, Wales, Scotland and England, and will be instrumental in guarding our security and bringing those who may harm us to justice. I recognise the particular interests that have, understandably, been raised by representatives from across the United Kingdom.

The clause creates a power for the Secretary of State to give notices to communications service providers requiring them to retain relevant communications data. As my right hon. Friend the Home Secretary has made clear, the Bill does not enable the retention of any data that cannot already be retained by communications service providers under the existing data retention regulations.

[Steve Baker (Wycombe) (Con)]

Clause 1(2)(b) states that it will

“require the retention of all data or any description of data”.

Should the Bill have said, “require the retention of all communications data or any description of communications data”? As drafted, it seems broad and completely open to interpretation.

[James Brokenshire]

My hon. Friend needs to understand that clause 1(2) is framed in the context of clause 1, which makes it clear that it relates to “relevant communications data”. It has to be read in the context of the interrelationship between clause 1(2) and clause 1(1), which I think provides the necessary clarification and context.

The Secretary of State may give a notice only where she considers the retention requirements are necessary and proportionate for one or more of the purposes set out in RIPA. These include national security, preventing or detecting crime, and the interests of public safety. The clause also enables the Secretary of State to make regulations that will replace the existing data retention regulations. Those regulations will, among other things, set out the process for serving a data retention notice and the safeguards that must be put in place to protect the data. To give Parliament the opportunity to scrutinise the details of our proposals, we have published a provisional draft of the regulations. They are available in the Vote Office and have been made more widely available.

[Sir William Cash]

Is my hon. Friend aware that Professor Steve Peers of Essex university—he is an expert in this field, as I am sure my hon. Friend knows—has drawn attention to the objection by the Court of Justice to the requirement to retain all communications data? The fact that the directive required all data to be retained from all subscribers was the first of the considerations taken into account by the Court in reaching its conclusion that the directive was disproportionate.

[James Brokenshire]

If my hon. Friend reads the judgment, he will see that the Court upheld the principle of retention of data as contemplated in the Bill. A number of frameworks on the purpose for which data are retained were referred to, but we are clear that the regime the House is contemplating this evening, in the context of the Bill and how it sits alongside the existing regime of the Regulation of Investigatory Powers Act 2000, does provide a legally robust approach to enable our police, law enforcement and security agencies to combat organised criminality and to provide the national security that is needed. The powers we already use are intrinsic to delivering on that. The Bill makes it clear that regulations cannot specify a retention period longer than 12 months. We reflected on the judgment of the Court. As the Home Secretary said in her opening statement on Second Reading, different time periods could be allowed in relation to specific types of data.

We are maintaining that focus on proportionality and necessity not simply in terms of giving a notice, but in keeping it under review. The European Court considered that the period of retention should be based on objective criteria to ensure that it is limited to what is strictly necessary. On the basis of law enforcement surveys in 2005, 2010 and 2012, we consider that a maximum period of 12 months strikes the right balance between the ability of law enforcement and intelligence agencies to investigate crimes and an individual’s rights to privacy. Unlike the current regime, under which all relevant communications data is retained for 12 months, this approach will mean that data could be retained for a shorter period than 12 months if considered appropriate, and that different types of data could be retained for different periods.

[Mark Field (Cities of London and Westminster) (Con)]

My hon. Friend is making a perfectly good and sound case and I am pleased that he used the phrase “the necessity of proportionality”, which is crucial. But does he accept that there is no longer a clear-cut distinction between data and content? The worry of many outside this House, therefore, is that there will be an opportunity for ever more power to be retained by CSPs and thus by the state. Can he give us some assurances that the Government will keep this matter constantly under review?

[James Brokenshire]

My hon. Friend has expressed his views on a number of occasions on the need for continued focus on the balance between individual freedoms and collective freedom, because that collective freedom relies on our being able to conduct our affairs and to live our lives free from those who would do us harm. Sometimes people have sought to describe them as if they were in parallel, but I see them as mutually reinforcing; security and liberty must go hand in hand to develop and defend the fundamental principles that we have as a society, so to frame it separately misses the point.

My hon. Friend raises the important issue of how technology is evolving; it is constantly changing. That is why we see the import of the review by David Anderson, the independent reviewer of counter-terrorism legislation, to look at the issues more broadly, and at existing legislation and capabilities. We will come on to that, I am sure, in some of the subsequent debates in this Committee where that might be teased out in further detail, but my hon. Friend makes an important point.

[Sir William Cash]

May I make one last intervention?

[James Brokenshire]

One last go.

[Sir William Cash]

I am extremely grateful. My hon. Friend is pursuing doggedly what I believe to be a fundamentally and ultimately erroneous assumption, as will be discovered in due course, Does he accept, as everybody else appears to, that this Bill will be within the scope of EU law and that the charter of fundamental rights and the general principle of EU law will continue to apply, and that, as he correctly pointed out when he referred to primary legislation, the only way in which we can avoid running into difficulties with European Court judgments that we do not want—which, clearly, is what the Bill is about—is by using primary legislation, such as this Bill, to disapply the provisions of European law that come through sections 2 and 3 of the European Communities Act, and that it has to be notwithstanding those provisions?

[James Brokenshire]

I know the clear position that my hon. Friend has enunciated on many occasions in the House. There will be wider debates and discussions on the position of the European Convention and a British bill of rights, with which my hon. Friend is very familiar and which I personally support to ensure that our domestic law is framed properly in the context of convention rights. However, we have reflected carefully on the judgment—the right hon. Member for Blackburn (Mr Straw) described it as dense and complicated—which the Bill reflects on in the nature of the obligations set out therein. We have judged that primary legislation to avoid any uncertainty is appropriate and necessary, given the huge reliance that is placed on communications data and the right to be able lawfully to intercept for the prescribed purposes. I am sure that the wider debate—and the Select Committee that my hon. Friend chairs—is focused on the jurisdiction of the European Court of Justice over matters that are opted into and the position post-December 2014. We have reflected carefully on the application, scope and enforceability of the Bill and its compliance with relevant legislation of whatever kind, and we are confident that it meets that challenge.

Given that the European Court was considering only the data retention directive and not how member states implemented it, it did not take into account the rigorous controls in place in the UK as part of its judgment. Access to communications data in the UK is stringently regulated and safeguarded by the Regulatory and Investigatory Powers Act 2000. Data are retained on a case-by-case basis and must be authorised by a senior officer, at a rank stipulated by Parliament, from the organisation requesting the data. The authorising officer may approve a request for communications data only if the tests of necessity and proportionality are met in the particular case.

Our system was examined in detail by the Joint Committee on the draft Communications Data Bill, and it was satisfied that the current internal authorisation procedure is the right model. However, to ensure that communications data cannot be accessed using information-gathering powers that are not subject to the rigorous safeguards in RIPA, the Bill ensures that data retained under this legislation may be accessed only in accordance with RIPA, a court order or other judicial authorisation or warrant.

Hon. and right hon. Members who followed the discussions surrounding the draft Communications Data Bill will be aware that communications service providers are also able to retain communications data on a voluntary basis under a code of practice made under the Anti-terrorism, Crime and Security Act 2001. This clause ensures that the regulations made under this Bill can apply the same security safeguards and access restrictions to data retained under that code. I therefore believe that the clause should stand part of the Bill.

[Mr David Hanson (Delyn) (Lab)]

I welcome you to the Chair of this important Committee, Sir Roger. I shall not detain the Committee for long because, given that we broadly agree with the Government’s approach on this key issue, the Opposition have not tabled any amendments to clause 1.

As the Minister said, the stated context for the Bill is the continued threat from serious organised crime and potential terrorist activity. Given that the European Court of Justice struck down the regulations because they were neither proportionate nor objective, we have taken the view that we need to look at how to frame legislation that will be proportionate and objective in respect of the retention of data.

[Sir Edward Leigh (Gainsborough) (Con)]

I would be interested to know the Opposition’s view on the issue of our laws being trumped by section 3 of the European Communities Act 1972, as suggested by my hon. Friend the Member for Stone (Sir William Cash) in the report of the European Scrutiny Committee. Does the right hon. Gentleman believe that, in the event of a Labour Government, there might be a case for passing legislation to proclaim the supremacy of Parliament so that we can protect ourselves from European legislation?

[Mr Hanson]

I take the view that we are part of the European Union, so we have to respect our obligations within it. I come to this particular piece of legislation, however, on the basis of what will best prevent activities by terrorists, child pornographers, paedophiles or serious organised criminals. Given the actions of the European Court of Justice, we have to examine our obligations as the United Kingdom Parliament and to frame legislation that we believe will have the support of the Government—and, in this particular case, of the Opposition—to ensure that we meet our European obligations but in a way that also meets our obligation to tackle the serious and organised criminals and others who would damage the fabric of our society. I will probably have disappointed the hon. Member for Gainsborough (Sir Edward Leigh) with that answer, but I believe it is consistent with our positive approach to Europe and our involvement in the European Community.

I believe that clause 1, which is the main focus of our debate, meets those obligations. It gives the Secretary of State powers to issue a retention notice requiring organisations that have data to hold those data, with which they will have to comply. Strict criteria are set out in subsection (2), which specifies who the operator could be, what the data being retained should be, for what periods the data should be retained, and whether there is different proportionality within different types of data.

17:45

Clause 1 includes two important words to which we shall return later: “necessary” and “proportionate”. It allows the Government to set minimum requirements for a retention notice. It specifies

“the maximum period for which data is to be retained”.

It also “firms up” an important constitutional aspect, confirming that access to data information sources is possible only in terms of notification rather than content, and must be supported by

“a court order or other judicial authorisation”.

I think that, for those who have been concerned about these issues, the clause clarifies the powers that the Government will have, the time for which data must be retained, and the circumstances in which a court order will be needed.

[Sir William Cash]

Let us assume for the sake of argument that all the provisions in subsections (1) and (2) are desirable, although some people will disagree. Surely what is most important from the Opposition’s point of view is to judge whether the provisions will be effective. The right hon. Gentleman says that he wants all this because it is a good idea, but if—as is more than likely—the provisions are challenged in the European Court, where will the Opposition stand if the European Court judgment that follows the implementation of the Act eventually overturns the Act itself?

[Mr Hanson]

I think that the hon. Gentleman would expect me to say that if we were the Government and the legislation were in force, we would defend it in the European Court, and would put up a case for our arguments. Ultimately, however, we are part of the European Union, and the European Court is considering the impact of legislation of this kind throughout the EU. We must defend our parliamentary procedures, defend the decisions that we make and defend the legislation that we have, and we must argue for our the position in court. Ultimately, however, we must also take on board our European obligations.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

I wonder whether, at this point, we are pursuing the personal obsession of the hon. Member for Stone (Sir William Cash). This is emergency legislation. Surely, if it were struck down, a Labour Government would introduce, in a timely manner, properly considered legislation that would deal with the problem.

[Mr Hanson]

My hon. Friend has made an important point. As the hon. Member for Stone (Sir William Cash) will observe, further amendments have been tabled, and I hope that the Government will consider them. We cannot discuss them now, but they would ensure that the provisions in clause 1 would be reviewed regularly, and that we would have an opportunity to make representations to the European Court if it chose to mount a challenge. However, let me respectfully say that I think we are being sidetracked into issues that do not concern the Bill as such. I consider that it fulfils an obligation to ensure that we give powers to the police and other authorities to check data and examine the conduct of that data. It establishes a definitive time scale for the holding of the data, and enables us to frame in legislation, in this United Kingdom Parliament, the mechanisms that are required to achieve that through court orders. That is why I support the clause and why the Opposition have tabled no amendments to it.

[Sir William Cash]

The European law on which this legislation is ultimately based is a retention directive. We anticipate there will be replacement regulations, but it does not matter whether the original regulations or replacement regulations are involved. Ultimately, the authority on which this Bill is based, and on which the whole of this general issue is based, is European law and the charter of fundamental rights and principles of European law which apply. As the shadow Minister just said, it so happens we have voluntarily accepted the obligations imposed under section 2 of the European Communities Act 1972 in respect of compliance with a directive and any further directives that may or may not be made, and we have also voluntarily accepted that the United Kingdom will accept all judgments of the European Court under section 3 of that Act.

It so happens that we are providing in our own domestic legislation for certain safeguards, modifications and changes—based, it would appear, on the fact that we are now discussing a Bill of this Parliament—which interfere with, cross over, interweave with and—

[The Temporary Chair (Sir Roger Gale)]

Order. The hon. Gentleman knows me well enough to know that I know that we are discussing clause 1, not the Bill as a whole.

[Sir William Cash]

In respect of clause 1, we are also stating that a retention notice may relate to particular operators, and there is a whole set of subsections and paragraphs dealing with the basis on which a retention notice can be provided. It also goes on to say, in subsection (3), that the Secretary of State can

“by regulations make further provision about the retention of relevant communications data.”

Subsection (4) deals with certain provisions relating to

“requirements before giving a retention notice”,

and a code of practice and a range of other matters regarding

“the integrity, security or protection of, access to, or the disclosure or destruction of, data retained by virtue of this section”.

I entirely accept your point, of course, Sir Roger, that this is a debate on this clause, but this clause contains the essential powers that are being proposed under this piece of domestic legislation, and I am certain—this is not an assertion—that this has to be compliant with European law and it has to be compliant with the charter.

All I am saying is simply that there is an opportunity to make sure this law is effective—that clause 1 is effective. If Parliament wants clause 1 to be effective, it will want to be sure that it is bomb-proof against any challenges that may be made in respect of powers being conferred by clause 1, and in order to do that we have to get around the problem of the European Court, which has already issued an objection to the original proposals—the original regulations and the original retention directive on which the regulations are based, and, indeed, on which any subsequent regulations will be based, because I have not heard anyone yet say that the retention directive, which is the subject of clause 1, is going to be repealed by the European Union. There was some talk from the Home Secretary that she was looking at it, and there was talk about consultation, but I have not heard anybody suggest that the retention directive is going to be repealed in whole or in part. It may be that that will happen, but we are considering this Bill as it is now, and as we speak clause 1 is derived from European law and the charter of fundamental rights.

In a nutshell, this is what I am saying: section 2 of the 1972 Act requires the implementation of the requirements prescribed by the European directives and European law, and the Bill falls within the scope of European law, and the charter and the general principle of EU law will continue to apply. I will respond to the shadow Minister and the Minister in one simple statement, and it is this. If they want the legislation in clause 1 to be effective, it is imperative to make certain that arrangements are made in the primary legislation that the House is now discussing to ensure that sections 2 and 3 of the European Communities Act 1972 do not apply in this context, because that is the only way—by primary legislation—to ensure that the powers in clause 1 will not be vitiated by a further Court challenge in future. This is a fundamental question that pertains to the supremacy of Parliament. We want the legislation to pass—or many Members of the House do, judging by the majority that we have just witnessed—but if that is the case, why not insert the formula

“notwithstanding sections 2 and 3 of the European Communities Act 1972”

to ensure that clause 1 will survive? Otherwise, I fear that it is at risk.

The Home Secretary talked about wanting to remove the risk of uncertainty. All I would say is that what we are doing on the Floor of this House is compounding and creating the very uncertainty that she said she wanted to avoid. The uncertainty will come simply and solely because of the ideological obsession with not making provision in an Act—which otherwise would make it a good enactment—to include the words

“notwithstanding the European Communities Act 1972”,

and then legislating on our own terms. If we do not do that, this clause and all that follows from it will be at risk, and there will indeed be uncertainty arising from it.

If I may make this final point, Sir Roger. When the charter of fundamental rights was going through, I tabled an amendment to include the words “notwithstanding the European Communities Act 1972”. The charter applies to this clause, and as I said to the Prime Minister the other day—and it is understood—the only thing we can do is either to accept that the charter is applicable in the United Kingdom or to displace it. By including in the Bill the words “notwithstanding the European Communities Act 1972”, the charter will not apply. I tabled such an amendment to the Lisbon treaty legislation. That amendment was declined and the result is that we now have a series of European Court judgments saying that the charter does apply to the United Kingdom. If my amendment had been accepted—back in 2008, I think it was—we would not be having to face the fact that the charter is now applicable.

The charter arises in relation to this provision, and all I am asking is for the Minister and those on the Opposition Benches to listen and to act to ensure that we are not trumped by a challenge by the European Court, guided through the legislation and case law, to override legislation that is passed in this House of Parliament. It is very simple.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

This clause is about retention; it is not about access. That distinction is an important one, not least to anybody reading these debates or drawing conclusions from them. It is also something that might profitably have been considered at greater length by the European Court when it reached its judgment.

There is a big difference in the impact on somebody’s human rights between the retention of data and having access to those data, which we will deal with in subsequent clauses. Of course, companies retain data for their own commercial purposes, such as billing and a variety of other reasons. They are constrained by the Data Protection Act—they have to have a legitimate purpose for doing so—but they have many purposes that can enable them to keep data. It is important to recognise that the problem from a human rights and privacy point of view arises when access is made—when a Government body can go into that mine of data and discover a lot of things about somebody’s life. It might have a number of good reasons to do that—to identify whether that person is involved in a serious crime—but those reasons have to be justified by some kind of procedure. We can consider that aspect later, but we must recognise that this part of the Bill is confined to the power of retention.

The Government’s answer to the argument advanced by my hon. Friend the Member for Stone (Sir William Cash) is that, in framing the retention provisions, they will not be obliged to make the same provision for every kind and every aspect of data. That should satisfy the European Court provision. If ever this comes to a legal challenge, I hope that there will be some attempt to make the Court think a little more carefully about the fact that retention and access are not the same thing.

18:00

[Sir William Cash]

My right hon. Friend has been in this House for many years. Does he recall that a situation similar to the kind that I have been describing arose in relation to the Factortame case? The European Court, through our own courts, ended up by striking down the Merchant Shipping Act 1988 because the Government did not get the legislation right, which they could do this time round.

[Sir Alan Beith]

I have only remembered the case because my hon. Friend made the same point on a previous occasion. He has not been slow to point that case out. It is worth remembering—this may not be an approved thing to say—that the European Court is not always entirely consistent from one judgment to the next in the way that it applies its principles. It is important that we make it absolutely clear that we have a set of rules to ensure that the Government only require the retention of data when they have good purpose for doing so, and they only retain those kinds of data for which there is good purpose. Access to that data should be the subject of stringent conditions. In essence, that was what the European Court judgment was about, and the Government are meeting those conditions in the way that they have framed this legislation. That is not to say that they could not be open to challenge; perhaps they will be at some point. If that challenge is made, we should make it quite clear how important the distinction is between retention and access to data.

[James Brokenshire]

My right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) makes his point well. He talks about the retention of data, the security and assurance that is provided and the separate regime that relates to access to data and how that is reflected in the Bill’s provisions. Those provisions relate to the retaining of data, the safeguards that exist and some of the steps that we propose to take in relation to the Information Commissioner and the powers that he has to ensure that the data are retained securely. Then there is the separate regime that relates to the rights of different agencies, as set out in legislation, to gain access to that data. My right hon. Friend understands that concept and expressed it well.

My hon. Friend the Member for Stone (Sir William Cash) has highlighted the point about seeking to put beyond doubt that any legal challenge to this Bill should be considered by this Parliament and by the courts of the United Kingdom. Given the backdrop to this legislation—the data protection directive—and the approach that the European Court of Justice has taken in striking down the directive, I suppose I can understand why he is motivated to raise these issues in the Committee this evening. His comments raise broader points about the European Communities Act 1972. Our membership of the EU is wider than this Bill, and I respect the consistent way in which he has advanced those issues in the House.

We have considered carefully the existing law and legislation, and we have reflected on the European Court of Justice judgment in seeing what further measures can be put into effect to reduce the risk of challenge. That risk of challenge is most likely to heard within the UK courts than the European courts, as that is where challenge to the legislation might be flagged up in the first instance. Legislation is challenged in our courts from time to time. We believe that we have considered carefully the compliance of the Bill with the necessary regulatory requirements and remain confident that it meets those requirements.

[Sir William Cash]

I simply ask the Minister whether he accepts—he has more or less done so—that there is a risk that the sort of principles that were applied in the case of the Merchant Shipping Act could apply to the Bill as drafted, and that the only way of dealing with that would be to employ the “notwithstanding” formula to ensure that the Bill actually survives for the reasons of terrorism, national security, child pornography and child abuse that were properly mentioned earlier. Does he accept that what I am proposing is effectively to sustain the provisions of this domestic enactment and that I am not just making a general speech about the sovereignty of the UK Parliament?

[James Brokenshire]

I understand my hon. Friend’s points. I am always sympathetic to the aim of having clarity in legislation, which is why we are taking the Bill forward this evening. I do not want to discuss an amendment that we have not yet reached, so I hesitate to engage further in that context, because it would be inappropriate. However, amendments need to be considered carefully for their unintended consequences. Legislation is always subject to legal challenge of whatever kind. I am talking about not only this Bill, but all forms of legislation. The separation of powers between this place, the Executive and the judiciary is part of our constitution and part of how legislation, of whatever nature, can be challenged in our courts. While I understand his desire to try to avoid that through express language, I do not think he is able to rule out challenges before our courts for a whole host of different reasons.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

[The Temporary Chair (Sir Roger Gale)]

Before we move on to clause 2, I should inform the House that the Home Secretary has tabled new clause 7 and amendments 7 and 8, which the Chairman of Ways and Means has selected. They will be debated with the amendments and new clauses relating to clause 6. I am advised that copies are available in the Vote Office.



Clause 2

Section 1: supplementary

Question proposed, That the clause stand part of the Bill.

[James Brokenshire]

Clause 2 sets out the meaning of various terms used in clause 1 and includes provisions that underpin and support the application of the powers contained in that clause. In particular, the definition of “relevant communications data” in clause 2 limits the communications data that can be retained to those specified in the existing data retention regulations: the data that are already being retained by service providers in the UK. To be absolutely clear, the Bill does not extend in any way the types of data that we will be asking service providers to retain.

The capability gaps identified and discussed during scrutiny of the draft Communications Data Bill will not be addressed and will continue to grow, impacting on UK law enforcement. As important as that matter is, I am sure that the Committee will agree that fast-track legislation is not the appropriate vehicle for considering addressing such gaps. The Prime Minister has made it clear that it is important that the issue is addressed in the next Parliament.

The clause also provides that the regulations made under clause 1 must be made under the affirmative procedure. We have placed in the Library a draft of the regulations that we intend to make, which will give Parliament the maximum possible opportunity, given the urgency of the matter, to consider the detailed contents of the regime before secondary legislation is taken through.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Grounds for issuing warrants and obtaining data

[Mr George Howarth (Knowsley) (Lab)]

I beg to move amendment 1, page 4, line 19, at end insert—

‘(5) In section 25 (interpretation of Chapter 11), subsection (1), after “in accordance with subsection (2);”, insert— ““economic well-being of the United Kingdom” is defined as the security of critical national infrastructure, the conduct of defence contracts, the development, manufacture and design of UK defence systems, and the stability of the UK currency, banking and financial systems.”

[The Temporary Chair (Sir Roger Gale)]

With this it will be convenient to discuss clause stand part; there will be no further debate on clause stand part.

[Mr Howarth]

It was said on Second Reading, but it bears repeating that clause 3 does move things on slightly on the question of economic well-being. We keep saying that the Bill is based on the Regulation of Investigatory Powers Act 2000, but explicitly relating economic well-being to national security is progress, because the relationship was previously implicit. I accept that clause 3, even as it stands, is progress from where we stood previously.

I constructed this amendment, which is intended as a probing amendment, because I thought it was as well to have a debate about the range and scope of the term “economic well-being”. I wanted to try to work out the range of concerns that should be taken into account when it comes to that concept. In the amendment, I have effectively highlighted three areas that I think are of concern and that ought at least to be taken into account in this context. The first is critical national infrastructure, and I shall say a little more about that in a moment. The second is the conduct of defence contracts and the development, manufacture and design of UK defence systems. The third is the stability of the UK currency, banking and financial systems.

On the question of critical national infrastructure, an organisation that has some responsibility in this regard is the Centre for the Protection of National Infrastructure, which provides protective security advice aimed at reducing the vulnerability of critical national infrastructure to national security threats. It categorises national infrastructure into nine sectors: communications, emergency services, energy, financial services, food, government, health, transport and water. Not everything in that list is considered critical in nature, so the CPNI contends that within those nine sectors

“there are certain ‘critical’ elements of infrastructure, the loss or compromise of which would have a major detrimental impact on the availability or integrity of essential services, leading to severe economic or social consequences or to loss of life.”

It draws attention to broad descriptions of the types of infrastructure that would be categorised at different levels. That infrastructure can be physical, which means sites, installations or pieces of equipment, or it can be logistical, which includes information networks or systems. It is important that economic well-being takes into account critical national infrastructure, because it directly relates to the continuation of daily life that electricity, water and all the things that go with them should be available.

I do not propose to speak for long about defence, but I am aware, as I am sure others listening to the debate will be, that there have been attempts in the past by hostile nation states or individuals to compromise defence systems. There have been attempts to break into companies’ design systems and so on. Without proper controls to deal with that, there could be serious consequences for our national security. It is therefore self-evident that we should take into account defence systems and their design, manufacture and so on when we consider this matter.

The amendment also refers to

“the stability of the UK currency, banking and financial systems.”

It is interesting to look at what the Serious Organised Crime Agency has to say. It concludes by talking about cybercrime and the effects that it can have. It says:

“Financial crime can jeopardise the integrity of our financial markets and institutions.”

That is not just a question of protecting individual firms or interests. It really is related to our national security. It is interesting that the International Monetary Fund has said that

“Money laundering, terrorist financing and the related…crimes can undermine the stability of a country’s financial system or its broader economy in a number of ways and may have adverse spillover effects on global instability.”

18:15

So SOCA and the IMF have stated their concerns. The National Security Council has talked in terms of

“Transnational organised crime which threatens economic interests and can cause significant damage to the world financial system through its subversion, exploitation and distortion of legitimate markets and economic activity”.

It lists such things as bribery of key officials, money laundering, disruption of global supply chains, criminals leveraging their relationship with state-owned entities, industries or state-allied actors, allowing them to gain influence over key commodities markets, and potential exploitation of the transportation sector.

I have tried to illustrate that this issue is not something that only I am concerned about. National and international agencies and, indeed, the Government are on the record as expressing concern. I would be interested to hear from the Minister, if he thinks my definition of “economic well-being” is defective, examples of things that should be covered that are not encompassed by the amendment.

[Sir Alan Beith]

The right hon. Gentleman serves on the Intelligence and Security Committee, and I used to serve on it. When I did, I was a little concerned that the definition of “economic well-being” was extremely broad and could refer to things that might generally promote Britain’s economic interest, rather than matters related to national security, as the Bill helpfully defines economic well-being, or things that should be dealt with under other categories such as serious crime. There are serious threats, and the right hon. Gentleman is right to identify them. They are what this should be about.

[Mr Howarth]

That intervention was helpful. I said at the outset that the wording of clause 3 took us slightly further. It relates economic well-being explicitly to national security, whereas previously it was related implicitly. The right hon. Gentleman is right to say that that is the conditional element of it all. I do not think that I am drawing the definition too broadly; the interpretation could be even broader. My purpose is to find out what other factors fall under that broad heading of economic well-being. I do not for one minute think that I have included all the considerations in the short amendment that I have put together; it is merely a vehicle to allow us to discuss matters more fully.

It was interesting when we discussed the timetable for the Bill—you may rule this comment out of order, Sir Roger—that everyone said that there would not be enough time to discuss it. As far as I am aware, nobody else is due to speak on my amendment, and I do not think any other speeches are intended on clause 3, so perhaps we do have enough time.

[Mr Tom Watson (West Bromwich East) (Lab)]

rose—

[Mr Howarth]

I see that I have tempted my hon. Friend into intervening.

[Mr Watson]

Does my right hon. Friend accept that perhaps most of our colleagues have not had time to read his amendment because of the timetable that has been set?

[Mr Howarth]

I am interested to hear my hon. Friend’s concern. I went to the Vote Office at half-past 8 this morning just to make sure that the amendment had been tabled. Anybody who was interested enough would have been able to see it from half-past 8, and it was tabled in accordance with the procedures of the House yesterday evening. I do not want to labour the point, but there was enough time, if anybody was interested enough, to check what amendments had been tabled. I am sure that my hon. Friend, as the author of another amendment that we will discuss later, took the trouble of checking this morning that his had been included as well. We do have a responsibility to check what we are debating.

This is my small attempt to bring further enlightenment to the proceedings, particularly as regards clause 3. I hope that the Minister will be able to allay my fears that the provision may be too widely drawn.

[Mark Field]

I fear that it was wishful thinking on the part of the right hon. Member for Knowsley (Mr Howarth) to assume that there would be no other speakers on this matter. As he will know, because we discussed it yesterday as members of the Intelligence and Security Committee, I wholeheartedly approve of this amendment.

[Mr Howarth]

The hon. Gentleman’s contribution is very welcome.

[Mark Field]

I am grateful. I will keep my contribution as short as possible, because other Members want to get on to some of the more important amendments to clause 6 and it is clear that there is no appetite to divide the Committee on this matter.

As the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) said, it is worrying that, all too often, the “economic well-being” head has been drawn so widely that many aspects of it could be seen as part and parcel of something that could fall within the ambit of RIPA and this Bill. One need only look at the controversy around the alleged bugging of the German Chancellor, Angela Merkel, by the National Security Agency, if the Snowden reports are to be believed. On the grounds, presumably, of economic well-being, there was an opportunity to listen to particular conversations. That is not a healthy state of affairs.

Many of the public concerns about the Bill that are close to all our hearts reflect an understanding and an appreciation from many of our constituents that certain intelligence needs to be picked up, but the process needs to be necessary and proportionate. Therefore, trying to draw a narrow view—not an overly restrictive view, but as narrow a view as possible—will command more public confidence.

“Economic well-being” is one of the various heads that come under the auspices of RIPA—the 2000 Act that controls most of the surveillance that is dealt with in the Bill. Rather worryingly, permissible purposes under the Bill, as under RIPA, will include

“any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State.”

That is almost a Henry VIII-type provision that relates to the issue of public confidence that is close to all our hearts.

I agree with the right hon. Member for Knowsley that we should be trying to define the terms more narrowly. Perhaps now is not exactly the right time to do it, but I hope we will be able to do so in the months and years ahead when it comes to having a fully fledged Bill on these very important matters.

I agree that we have to look at economic well-being as focusing on the security of the critical national infrastructure, defence contracts and—something close to my own heart—the stability of the UK currency, banking and financial systems, particularly with the ongoing and likely to become more acute issue of cybercrime, and cyber-security issues that will come as part and parcel of that.

I do not wish to detain the Committee any longer. It is important that we put some of these concerns in place. As I say, they have a more general bearing on the idea that if we are to get a sense of public confidence about this sort of legislation, we need to try to define it as narrowly as possible rather than having broad definitions in place. I think that that is what the right hon. Gentleman had in mind in tabling the amendment and I look forward to hearing the Minister’s response.

[Dr Huppert]

I have heard several comments that clause 3 does not need to be in fast-track legislation, and it does not relate to an impending emergency, but I would not like to see it removed. It is a good, pro-civil liberties, pro-privacy clause, which just trims down what was always quite a bizarrely broad definition. It restricts the issuing of interception warrants on grounds such as national security—fair enough; serious crime—or the UK’s economic well-being, which is a broad concept, as was being discussed. The wording is taken from article 8(2) of the European convention on human rights, which is why we have that idea, but it could be interpreted broadly. There have been a number of discussions about whether, for example, it would enable lawful intercept to be used to find out what other companies are bidding against British companies. That is something that I think the House would be clear now is simply not acceptable—the Government have a stated policy on that—but it is not excluded by law. I think we would all say that it is simply not appropriate, so I am pleased that we are taking the opportunity of this legislation to trim this down; to try to make sure that it is only economic well-being as it relates to national security.

I appreciate that this is a probing amendment, but I have a number of issues with it. In particular, I am concerned that some of the language around

“the conduct of defence contracts”,

and the

“manufacture and design of UK defence systems”,

sounds worryingly as though it is saying that the House believes that it is okay to have interception to win defence contracts against a foreign bidder, or to make sure that we do well. I hope that that is not what is intended.

[Mr George Howarth]

indicated dissent.

[Dr Huppert]

The right hon. Gentleman shakes his head, so that is clear. But I would be very worried about anything that suggested that.

[Mr Howarth]

My concern was not to empower interception for those purposes, but to empower countermeasures in cases where hostile states or hostile individuals sought to break into those systems. I think I did say that. As I said, I do not claim for one moment that it is a perfectly worded amendment, but that was my intention.

[Dr Huppert]

That is helpful. There is general agreement, but it was something that struck me when I read the amendment earlier this morning. I note that there are not many Members in the Chamber. Sadly, the House is often like that, however much time has been given for debate or however much notice.

There is a question as to whether it is helpful to define economic well-being. It may be that it is just too hard. Perhaps scholars of the future will look at this discussion and many others to try to work out what is meant. It should relate to things that would be catastrophic; where the effect of failing to stop something would be equivalent to a national security problem or a serious crime. It is that sort of level.

[Katy Clark (North Ayrshire and Arran) (Lab)]

There is a huge amount of concern that the legislation as it was previously and has been presented today could be used for political or industrial purposes. For example, it could be used to intercept information when a trade union was organising industrial action. Is his reading of the amendment such that it could be used in a situation such as the miners’ strike of 1984-85?

[Dr Huppert]

I do not know the answer to the hon. Lady’s question. That would seem inappropriate if it was about a trade union problem. If it was about ensuring that there was not a catastrophic failure of national infrastructure, there might be some grounds, but I would be alarmed if it was used for what were clearly political arguments. From my perspective, the miners’ strike would seem to be an inappropriate use of anything like this. I do not think we should ever see anything like that.

[Mr Howarth]

I am grateful to the hon. Gentleman for giving me the opportunity to reassure my hon. Friend the Member for North Ayrshire and Arran (Katy Clark) that it was certainly never my intention that it should be used for the purposes she described. I believe strongly in free trade unions and can think of no circumstances in which the state should intervene in that way.

[Dr Huppert]

I am always delighted to enable two Labour Members to talk to each other. Having facilitated that conversation, and as I agree with what both of them said, I will end my remarks there.

18:30

[Mr Hanson]

I will make a short contribution in support of my right hon. Friend the Member for Knowsley (Mr Howarth), who I think made some extremely valid points in relation to amendment 1. I believe that the Government should at least look at it favourably and give a positive response covering the issues he raised. He indicated that issues such as defence contracts and national infrastructure are crucial to the United Kingdom’s infrastructure. I simply want to endorse his points.

I have one question for the Minister on clause 3. I think I know what it means, as I think most people do, but it would be helpful if the Minister outlined what he believes the statement

“relevant to the interests of national security”

means in practice. The clause gives the Secretary of State powers

“in circumstances appearing to the Secretary of State to be relevant to the interests of national security”.

An explanation from the Minister would be helpful, because I have received some representations on what it means, and my hon. Friend the Member for North Ayrshire and Arran (Katy Clark) has made the point that it could be defined very widely. I think that it would help to reassure those outside the House if the Minister could give some clarity today by putting on the record what I think we already know.

[James Brokenshire]

I thank the right hon. Member for Knowsley (Mr Howarth) for tabling the amendment and giving us an opportunity to look in detail at clause 3 and at the importance of the economic well-being purpose currently retained in RIPA. Let me set out a little more context. Clause 3 translates into primary legislation a constraint—it is intended to be a constraint—on the exercise of this purpose that is already provided for in the codes of practice issued under section 71 of RIPA. It effectively puts those statements into primary legislation. It requires that an interception warrant is only issued, and access to communications data only authorised, for the purposes of economic well-being where there is also an independent national security justification for the authorisation. It is intended to be read in that context. I hope that explanation is helpful as we explore some of the language in the Bill.

Clause 3 does not mean that economic well-being for the purposes of RIPA is synonymous with national security, but the amendment gives us the opportunity to underline the fact that there has to be that connection between the two, which obviously is relevant in determining whether or not the powers under RIPA can be exercised for the statutory purposes. Along with national security and the prevention and detection of serious crime, protecting the UK’s economic well-being is one of the statutory functions of the security and intelligence agencies, which are set out in the Security Service Act 1989 and the Intelligence Services Act 1994.

I understand and recognise the points made by the right hon. Member for Knowsley. I think that this debate has been quite useful in airing some of the cyber-security and cybercrime issues that I know he has raised in the House on a number of occasions. It has also highlighted our reliance on information communications technology, which is now a core part of our national infrastructure. I think that there is read-across into other legislation. I understand that he tabled the amendment on a probing basis, but I think that it requires careful thought.

A definition of economic well-being is reflected in the legislation I have mentioned—RIPA being the key focus for this evening’s debate—but it is also important to acknowledge its context as a well-established principle in law. Its origins lie in the European convention on human rights, which provides for exceptions to article 8—the right to a private and family life—when it is in the interest of the economic well-being of the country. Many aspects, therefore, are wrapped up in the broad context of how the definition has come about and the interpretations of it. Case law may also sit alongside this provision in determining the scope and ambit of the definition, so seeking to clarify it may have unintended consequences.

[Katy Clark]

The Minister will be aware that in the past the security services have taken a great interest in political campaigns and, indeed, industrial matters. I mentioned the miners’ strike in my previous intervention. Will he give an assurance that the proposed legislation will not be used against political activists or, indeed, trade union activists in situations similar to last year’s Grangemouth dispute and the miners’ strike?

[James Brokenshire]

It is always difficult for Ministers—not just me; this has been the case with successive Governments—to comment on security and interception matters. Perhaps it will help the hon. Lady if I explain that what we are doing tonight is strengthening the position by underlining that the purpose has to be connected to national security, so it is not simply a question of economic well-being. The fact that we are putting that into legislation is an important development, as my hon. Friend the Member for Cambridge (Dr Huppert) has said.

I am sympathetic to the amendment in principle, as it seeks to provide clarity on the meaning of economic well-being in law. In many ways, I think it seeks to address some of the points raised by the hon. Member for North Ayrshire and Arran (Katy Clark). David Anderson may wish to reflect on it in his review of existing legislation and new legislation capabilities. Indeed, the privacy and civil liberties oversight board may also wish to address the issue of clarity. My simple point is that it needs to be done with care, given the other legislation I have flagged up and the broader context of the European convention on human rights.

[Sir Alan Beith]

Ought we and the hon. Member for North Ayrshire and Arran (Katy Clark) not to be celebrating the fact that for the first time in statute we are narrowing and specifying the circumstances in which economic well-being can be used as a justification? In other words, there has to be a national security element to it, not just a general feeling that some piece of information would be helpful for our economic well-being.

[James Brokenshire]

The right hon. Gentleman makes an important point. We are putting this provision front and centre in primary legislation. I hope that that is helpful in giving an assurance. National security is clearly a pretty high bar to reach, so framing the economic well-being argument in those terms should give an assurance that this is not something that would be relied upon lightly.

[Katy Clark]

The concern that many have is that, in the past, national security has been considered to be a catch-all. Indeed, the miners were considered to be the enemy within, and much of the rhetoric we hear from Government Members considers trade union activity and people who use democratic means to assert their rights to be a threat to the state. That is what I am trying to seek assurances about from the Minister. He is asking us to pass emergency legislation, but he seems unable to provide any assurances as to how it will be used in industrial situations.

[James Brokenshire]

I am genuinely surprised that the hon. Lady has made her point in that way, because the Bill is about strengthening governance and oversight. Sitting alongside the Bill in relation to the retention of communications data, there will, in addition, be a statutory code of practice, while the Information Commissioner has the right to look at further audit and oversight of data retention, and the interception of communications commissioner can consider the use of the powers. That should give independent assurance to not just the hon. Lady but others who, reasonably and legitimately, want to know that such powers are not abused or expanded.

Our governance and oversight of communications data and interception have been strengthened and enhanced over the years, as the right hon. Member for Blackburn (Mr Straw) said on Second Reading. Equally, in relation to wanting to know that the tests are adhered to in relation to a Secretary of State effectively authorising a warrant for interception, the oversight of the interception of communications commissioner should provide a great deal of assurance.

I have always recognised that people should be able to uphold their industrial rights, including the right to form a trade union. I certainly do not in any way intend this debate to get into such an issue. Indeed, from his speech, the right hon. Member for Knowsley understands that the Bill’s provisions will tighten important rights in existing law. The point concerns whether there is a need for any further clarification. The comments of the hon. Member for North Ayrshire and Arran on the right hon. Gentleman’s amendment highlighted the tricky nature of trying to frame the Bill correctly and the potential for unintended consequences in that context.

[Sir Alan Beith]

May I just hammer the point home? Economic well-being would not be mentioned in the Bill were we not providing a greater safeguard than has ever existed before or under RIPA to ensure that the power is used only in relation to national security.

[James Brokenshire]

Absolutely. My right hon. Friend makes a very good comment for me to conclude on. Clause 3, which will provide such strengthening, has given us the opportunity to have a constructive and helpful debate.

[Mark Field]

rose—

[James Brokenshire]

I will give way one last time before I sit down.

[Mark Field]

The debate has been worth while. I have some sympathy for the hon. Member for North Ayrshire and Arran (Katy Clark), who made a legitimate point. Equally, however, it is quite right that the Minister cannot give a categorical assurance along the lines that she ideally wants. Clause 3 tries to ensure that economic well-being must be underlined by national security. I hope that it goes some way to giving confidence not just to the Members in Committee, but to our many constituents who feel very strongly about this matter—trying to narrow the scope of the Bill and therefore of the power of the state.

[James Brokenshire]

My hon. Friend makes his customary point about ensuring that there is such clarity. I am sure that we will return to this issue, but for the reasons I have outlined, I hope that the right hon. Member for Knowsley is minded to withdraw his amendment and that the clause will stand part of the Bill.

[Mr George Howarth]

I will be brief. I am happy to withdraw amendment 1, which I tabled as a probing amendment. The Minister’s last point is perhaps the most significant one. I do not think that we have a clear enough understanding of the scope of economic well-being, although it is reassuring to know that in this context it must be related to national security. We have had a reasonable debate. We have not reached any firm conclusions, but I am comforted by the fact that the issues will be discussed by David Anderson and others, and I hope that we can move the issue further along before there is any fresh communications data legislation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4

Extra-territoriality in Part 1 of RIPA

Question proposed, That the clause stand part of the Bill.

18:45

[James Brokenshire]

The Regulation of Investigatory Powers Act 2000 allows the Secretary of State to issue interception warrants and allows those warrants to be served on persons who can assist in giving effect to them. Anyone who is providing a public telecommunications service who is served with a warrant is obliged to give effect to it. It has always been the case that that applies to any company that offers services to customers in the United Kingdom, irrespective of where it is based.

The territorial extent of RIPA has perhaps never been as explicit as it should have been. As a result, some overseas companies have started to question whether they are obliged to comply with warrants that are served on them. Our judgment is that that situation has reached a dangerous tipping point, and that it is necessary to put it beyond doubt that RIPA applies equally to public telecommunications services that are located overseas and those that are headquartered in the UK.

The clause makes clear Parliament’s intention that RIPA should have extraterritorial jurisdiction. It does that in three ways. First, it specifies that an interception warrant may be served on a company that is located overseas, and that a company providing telecommunications services to customers within the United Kingdom, but which is located overseas, has a duty to provide assistance when served with that warrant. Secondly, it specifies that a notice that is issued under section 12 of RIPA may be given to a company that is providing telecommunications services to customers within the UK, but that is located outside the UK. Such a notice would require the company to put in place the necessary infrastructure to give effect to interception warrants. Thirdly, it specifies, as has always been the case, that a notice under section 22 of RIPA for the provision of communications data may be served on a company outside the UK.

The clause specifies the means by which the serving of a warrant or the giving of a notice may be effected. It also makes clear the obligation to comply with a warrant or notice, and the means by which that obligation may be enforced.

[Dr Huppert]

Will the Minister make clear what consequences the clause might have for overseas providers? Is there any possibility that a section 12 order could require a foreign company to install surveillance equipment on its network? Does the Minister have the powers to do that?

[James Brokenshire]

I hope that the hon. Gentleman will understand that I cannot comment on surveillance techniques. However, I restate clearly that the Bill and, in particular, clause 4 do nothing more than is already the case in respect of the requirement to serve notices and the ability to issue warrants to overseas providers.

[Mr Jack Straw (Blackburn) (Lab)]

May I confirm, for the benefit of the Committee, that what the Minister has just said about the intention being that RIPA should extend extraterritorially in these respects is entirely accurate? If hon. Members look at RIPA itself, they will see that section 2(1), which provides definitions, states that

“‘telecommunication system’ means any system (including the apparatus comprised in it) which exists (whether wholly or partly in the United Kingdom or elsewhere)”.

That is but one example—there are many to which I could point—that shows that the clear intention of this House and the other place was to make this part of the Act extraterritorial. Indeed, we thought that that would be the effect of the Act.

[James Brokenshire]

I am very grateful to the right hon. Gentleman for providing that clarification and for highlighting that provision in section 2 of RIPA, which gives a sense of the extent and nature of the provisions that were contemplated when it was introduced. It was thought that it would have extraterritorial effect. Given legal challenges, other court cases and the language used in the legislation, we think it right to put that beyond doubt. That has always been the intent and practice for this measure; I repeat that the Bill does not extend the position but restates and asserts what has always been the case in the legislation. Those who may be subject to notices or warrants should understand clearly that it will apply to them if they are outside the UK.

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

I am interested in the practical application of this measure. What happens if a foreign IT provider refuses to comply, and uses encryption or another security mechanism effectively to flout the relevant order? What practical steps will the Government seek to take?

[James Brokenshire]

The approach we have taken is to promote co-operation, and stating as clearly as possible that the legislation has extraterritorial effect is a key part of that. Ultimately, given the clarity provided in the legislation, a company that did not comply with a warrant or notice served on it would be open to court challenge.

[Dr Huppert]

Perhaps my previous question was not clear. A number of companies are concerned about the important issue of how section 12 orders would be interpreted. RIPA currently deals with powers to enable companies to make lawful intercepts. Will the Minister confirm that if a company—a webmail provider, or whoever—can provide legal intercept, he is not claiming powers to require them to put specific equipment on their networks?

[James Brokenshire]

Perhaps I did not explain this clearly to the hon. Gentleman, but we are not intending to add additional powers to compel. I suppose he is trying to elicit whether the measure is a means of getting more data retained outside the UK—he raised that point in the previous debate on this issue, and again I may be misunderstanding him. I reassert that the Bill contains nothing that in any way extends the existing reach of section 12 of RIPA. Other than reasserting the position on extraterritoriality, it does not in essence change section 12 at all. If that does not answer his point, he may wish to write to me on the matter.

The clause provides that where a warrant has been served on a company outside the UK, the law in the country where the firm is located must be taken into account when determining whether it is reasonably practicable for that company to give effect to the warrant. The clause also makes it clear that the court should consider what steps the company has taken or could take to avoid such a conflict arising. It does not extend the powers of law enforcement or security and intelligence agencies. It simply puts beyond doubt the fact that sections 11, 12 and 22 of RIPA apply to telecommunication service providers that are based outside the UK but provide services to customers in the UK.

[Mr George Howarth]

I raised this point on Second Reading but I do not think the Minister had an opportunity to respond. In clause 4(6), proposed new subsection (3B)(a) and (b) covers the circumstances of delivering a notice to the sort of companies he has just described. Paragraph (a) states

“by delivering it to the person’s principal office within the United Kingdom or, if the person has no such office in the United Kingdom, to any place in the United Kingdom where the person carries on business or conducts activities,”

and (b) states

“if the person has specified an address in the United Kingdom as one at which the person, or someone on the person’s behalf, will accept documents of the same description as a notice, by delivering it to that address.”

I am sorry to read that out, but it provides the context.

The example I used earlier was of a relatively junior member of staff in a billing office in Liverpool for Google or one of the other communications service providers, and my concern is that they could end up having a notice served on them and be put in an invidious legal position. I hope that I am wrong about that and that the Minister will be able to reassure me. The provisions seem entirely appropriate for a senior member of staff.

[James Brokenshire]

Provisions on a person having a specified address, such as proposed new subsection (3B)(b), refer to a situation where lawyers accept service, proceedings or notification on a person’s behalf. In essence, the Bill gives effect to such clarification.

[Mr George Howarth]

The Minister has provided the reassurance I was looking for, so at this point I can say that I am perfectly happy with the clause as it now stands.

[Dr Julian Lewis (New Forest East) (Con)]

My hon. Friend the Member for Esher and Walton (Mr Raab) asked an important question: what will the Government do when a company does not wish to co-operate? I would like to put on the record something that I cannot attribute to a particular individual, other than to say it was a comment made by a very senior member of one of the main communications services providers in modern media. In relation to the question of his medium being abused for serious criminal or terrorist purposes, he said:

“We don’t want to frustrate the access of law enforcement agencies; only, that they should come through the front door and ask us, not sneak in by the back door.”

The companies want something that is clearly laid out in a proper legal format, so that they can fulfil that promise not at the whim of some private or backstairs approach by some unnamed Government official, but through a proper on-the-record procedure.

[Mr Raab]

My hon. Friend makes an extremely important point. There has been a lot of talk about privacy, but if we do not get this right and the providers are not comfortable, the risk is that the Bill will be flouted. If that happens, the use of foreign providers by every paedophile and jihadist group would drive a coach and horses through clause 4 and render it utterly useless.

[Dr Lewis]

I entirely agree with my hon. Friend, who is a fierce defender of the rights of individuals. I hope he agrees that if we can build on the attitude I have described from one of the most senior providers, then, by consensus, we ought to be able to set an example of an agreed arrangement whereby providers can be satisfied that they are assisting the law enforcement authorities in a proper, open and legitimate way, with no question of their being party to underhand arrangements.

Finally, may I apologise to the House for my late entry to this important debate, and, indeed, for my attire? I spent the entire day at the Farnborough air show, where the screaming of fast jets must have excluded the noise of my telephone ringing repeatedly from Downing street, offering me an alternative way to serve the nation.

[Dr Huppert]

I have two questions and I would be grateful if the Minister provided a written response to them, to ensure we get a clear answer. First, may we have a written confirmation that there would be no power to force foreign companies to install surveillance equipment on their networks if they are able to provide the intercept that is needed? Secondly, will he confirm the impact of subsection (4) and make it clear that, if a foreign company is under an obligation not to provide such data—if it would, in fact, be a criminal offence for them to comply—no such requirement would be made by the Government? That would put people in the invidious position of having to face criminality on one front or the other. If the Minister wrote to me with confirmation on those points, that would be very helpful.

[James Brokenshire]

I will respond briefly to the points made in the debate. On the latter point, I hope that my hon. Friend the Member for Cambridge (Dr Huppert) will have noted the reference I made to companies’ reasonable ability to comply and the consideration that would have to be given in particular to conflict of law issues, but I will see if I need to supplement that in some way.

19:00

My hon. Friend the Member for New Forest East (Dr Lewis) highlighted the point of having proper procedures and being able to make proper requests. Putting the extraterritoriality provisions in the Bill to allow notices and warrants to be given to overseas providers strengthens that position and the ability to make requests, which would specify further details. I see this as a means of strengthening the regulatory regime, and I hope that clause 4 will stand part of the Bill.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clause 5

Meaning of “telecommunications service”

Question proposed, That the clause stand part of the Bill.

[James Brokenshire]

Clause 5 is a simple but necessary part of the Bill that puts into law an important clarification. Today people communicate using a range of web-based services and applications. As the scale and diversity of these services have grown, there should not be any uncertainty about whether a communications service provider to users in the UK is covered by the definition. RIPA was written in a technologically neutral way to allow for developments in the way in which services are delivered. We believe that web-based services such as web-based e-mail, messaging applications and cloud-based services have always been covered by the nature of the definition. Clause 5 simply clarifies how this definition should be interpreted and makes it clear that these services are covered by the definition of a telecommunications service.

Some have asked whether this is extending the definition in some way. I want to make it absolutely clear that that is not the case. We are not changing the existing definition, which remains absolutely as it stands in RIPA. The Bill clarifies how the current definition should be interpreted, but a clarificatory provision of this kind cannot change or extend the meaning of the definition in RIPA to capture new services. This provision simply makes it explicit that the existing definition includes so-called over-the-top services such as webmail and instant messaging for the purposes of that interception. In many ways, it has been the industry itself that has welcomed this clarification and restatement of the existing legislation, which is why I think it is important to give that clarity to the House and to the industry generally. It does not extend the scope of RIPA; instead, it restates and provides clarification in terms of the existing definition, which remains as it was before.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6

Commencement, duration, extent and short title

[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.

[Guy Opperman (Hexham) (Con)]

Instagram?

[Mr Hanson]

My daughters tell me that I should get involved in Instagram, but it is a foreign country to me at the moment.

The point that I am making—perhaps in a jocular way—is that new clause 7 refers to “changing technologies”, which include technologies that we would not have envisaged even a few years ago, and others that may be coming down the line over the next few years. Those are the technologies that the independent reviewer should be considering.

I am warming to new clause 7. It also refers to “proportionality” in relation to

“the effectiveness of existing legislation”,

and requires the independent reviewer to make a case

“for new or amending legislation.”

Helpfully, the new clause requires the independent reviewer to report to the House by 1 May 2015. Mr Hood, I suspect that you and I will be focusing on other matters on that day, given the potential date of the general election, but it is handily placed in that any incoming Government, of whatever colour and composition, would be able to pick up the report. I hope that that helps my hon. Friend the Member for West Bromwich East. The report would be published by the Prime Minister of the day, it would be possible to ensure that it was open to the public and laid before Parliament, and any new Government could act on it in a way that I hope would be proportionate to whatever Members wanted to happen at that particular time.

Let me say, in summary, that there are two issues that I want the Committee to examine. First, may we have a regular review of this Act? There are many options, and I hope that the Minister will respond positively to one of them shortly. If we can agree on that, we shall have taken a major step towards meeting some of the concerns that have been expressed by people outside the House who have contacted us today.

The second issue relates to the longer-term review. My right hon. and hon. Friends and I have tabled new clause 1, and the Home Secretary has tabled new clause 7. My warm feeling towards new clause 7 suggests that the Minister could persuade me to support it. All that remains is amendment 2, tabled by my hon. Friend the Member for West Bromwich East, which would shorten the life of the Act by changing the welcome sunset clause date of 2016 to 2014. I do not want to say too much at this stage, because my hon. Friend has not yet spoken, but I will make one point that I think deserves consideration and a response from him.

We are engaging in what is admittedly a very speedy procedure, involving a day and a half of debate, and the House of Lords will do the same when it debates the Bill over the next two days. My hon. Friend is proposing that the sunset date should be, effectively, December this year. That means that we would go through this procedure again in December, and in January and February next year, after only a short period during which the new arrangements will have been in place.

I suggest to my hon. Friend that the amendment that we have tabled, in three forms, proposing a formal review by the independent reviewer in December and every six months thereafter, would meet the concerns about the legislation and any flaws and faults that we see in it. I accept that my hon. Friend may not take the same view, but I am making him that offer. I think that there is a mechanism that can enable a report to say, in six months’ time, “This has worked well”, or “This it has worked badly”, and to suggest tweaks that can be made.

[Jeremy Corbyn (Islington North) (Lab)]

The Prevention of Terrorism (Temporary Provisions) Act 1989 was also subject to a six-monthly review, but it went on for 10 years having six-monthly reviews before eventually being replaced by the Terrorism Act 2000, so that did not actually end the Act at all.

19:15

[Mr Hanson]

My hon. Friend has done long service in this House and will have been through many debates on that topic, but I say to him again that there is currently a sunset clause in the Bill until 2016. The two amendments and new clauses that I have tabled give a review in December 2014 and a six-monthly review after that on this legislation. If the Government are minded to move new clause 7—they must be as they have tabled it—we will have a wide review of the legislation to report by 1 May 2015. We will have a general election presumably on 7 May 2015 after which a new Government can look at the review new clause 7 will bring forward, and they will have the benefit of an independent review, if any or all of the relevant amendments are approved by the Government today, after six months of the operation of this legislation. Both of those give an opportunity in nine months’ time for any new Government to review the whole gamut of this legislation and the operation of this Act should the Bill be passed in both Houses of Parliament shortly.

I say to my hon. Friend the Member for West Bromwich East that the effective impact of his amendment 2 would be to bring the sunset clause forward to December of this year, but that would not give sufficient opportunity for us to consider the impact of this legislation or the implications of the very difficult issues the Government face. Although he may not heed me, despite the fact that we went to the same university and have known each other for a long time, I urge him—[Interruption.] I am just trying my best on this. I urge him at least to consider whether the two measures we have brought forward would meet his objections. At least he can say I have tried, if nothing else!

[Mr Watson]

It is a pleasure to serve under your chairmanship, Mr Hood, and to take part in this debate and speak to amendment 2, which has been tabled by about 25 MPs across the House, representing seven different parties.

We have been told that there is a legal emergency and this Bill needs to be passed through both Houses of Parliament in three days. This huge Government steamroller has revved up the engine and driven into town with my right hon. Friend the Member for Delyn (Mr Hanson) in the back seat and Liberal Democrat Members in the passenger seat, and we have been told we have very little choice. It has been hard to have time to consider this Bill, to pass amendments and to have proper debate and scrutiny, yet a curious thing will happen when this Bill is finally steamrollered through on Thursday or Friday, which is that the Government will take out the keys of the steamroller and say, “Relax, this legal emergency will only last for two and a half years.” That seems peculiar to me.

A little earlier the shadow Minister, who went to the same university as me, but many years before—I will not share the rumours about him that were passed down for many years—said he was new to social media and that his metadata footprint was smaller than those of many other citizens in this country, but many people are deeply concerned about their data being held in this way and they are following this debate. What they might not know is that if we do not complete this debate by 9 pm, even on the timetable we have, the amendments we are discussing now will fall, so I cannot speak for too long without jeopardising an amendment that has been supported by MPs representing seven different parties and a significant minority in this House.

What our amendment does is say to the Government: “Okay, we’ve not seen what you’ve seen; we will compromise with you. We will let you say you have a legal emergency and give you these powers for the summer.” That would allow the time for proper debate and scrutiny in the normal way that this House debates legislation. Earlier my good and hon. Friend the Member for Rhondda (Chris Bryant) made a powerful case for why we have the systems we do in this House—proper Bill Committees that can scrutinise, pre-legislative scrutiny, Select Committee scrutiny, Second Reading followed by a period in which people can reflect on the debate, a decent time for people to table amendments, Third Reading, and the like. A six-month sunset clause would allow for that.

A six-month sunset clause might also allow for a little bit of research to be done over the summer and for civic society to engage in a public debate. The shadow Home Secretary declared that this was the start of a debate in the country about the lines that could be drawn between privacy and liberty, and security. For me, six months is a long time for us to do that.

[Mr Charles Walker (Broxbourne) (Con)]

I agree with the hon. Gentleman. What our constituents really want is proper scrutiny of legislation in this place. Having scrutinised the Bill properly, we may find ourselves in disagreement with our constituents, but at least we would have the opportunity to exercise our judgment and to reflect on that exercising of judgment.

[Mr Watson]

I completely agree. It has been mentioned that there have been few MPs in the Chamber for some of the debate—the hon. Member for Cambridge (Dr Huppert), who has been in his place all day, reflected on that. The honest truth is this: are we really surprised at that, when Back-Bench MPs have been treated in this way by the Executive, when MPs did not even know that this Bill would be published until last Thursday and when they had 47 minutes to table amendments when the business motion was passed last night? Thankfully the Speaker has said that he would accept manuscript amendments today, under these unusual circumstances. If it is baffling for Back Benchers, how on earth can our constituents have any comprehension or faith in today’s process?

What our amendment would do is simple. It does not ask for a report—I know that the shadow Minister has said we can have a report, but that is not the same as discussing clauses in Committee and allowing elected representatives to tease out the issues. He knows what this is: it is a fudge, and it is an unacceptable one. What I am saying is that we should give the Government the benefit of the doubt tonight with a six-month sunset clause, which would give us plenty of time to discuss a Bill in the proper way.

[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.

[Mr Watson]

May I parry the hon. Gentleman with another Act? The Academies Act 2010 was introduced on 26 May and received Royal Assent on 27 July. The complex Terrorist Asset-Freezing etc. Bill had First Reading on 15 July 2010 and received Royal Assent on 16 December. If we can pass legislation in three days in an emergency, it is not beyond the wit of man and woman to pass legislation in six months.

[Dr Huppert]

I agree that it could take six months, which is shorter than the normal time scale, but it still means that we would have to start very soon. I passionately want to see—I think the hon. Gentleman and I agree completely on most of the issues around this space—something better than what we have with RIPA and with lawful intercept. I am clear about that. I have outlined on other occasions where I would like to see substantial improvements, some of which we have secured now but the vast majority of which we have not. But I do not think that that work can be done in time. Even if we were to wait until after the summer, we would still have a very short period to get a Bill through on the normal timetable. That is my big concern. I do not think that we could have the review that the Royal United Services Institute is doing at the Deputy Prime Minister’s request. I do not think that we can have the review that we all want to see from David Anderson QC, who has done such a great job. We would not be able to have that done in time. What we would find—I know that this is not what the hon. Gentleman wants to see—is that it will be exactly the same Bill being taken through again at a slightly slower pace.

[Mr Raab]

The hon. Gentleman is trying very hard on this. I am stuck with the very basic point of why, if he and other Members can vote through something in three days, we could not possibly wait six months at least to improve it substantially this side of a general election. Is that not what his constituents and mine would expect of us doing our day-to-day job in this House?

[Dr Huppert]

As I have said, I would be very happy to stay longer and have a less rushed Bill. We need to get this passed properly, with enough time to get the review going before the summer. I am happy to stay here next week; I have said that quite publicly and I have said it in this place. I take my hon. Friend’s point on that issue.

[Jeremy Corbyn]

rose—

[Dr Huppert]

Let me make a little more progress. The type of change that I want to see is fundamental to how RIPA works. I wish to have a system that retains communications data for a very short period—a week or a month—so that we can find out, say, what happened just before somebody died yesterday. It should not be available for any longer unless a preservation order is applied for. That sort of system would massively reduce the amount of evidence that is kept on people, but would allow it to be available for those very serious cases that all of us want to see investigated. That is the sort of system that I would like to see, but that is not an easy thing to write down. It would take many, many months of work to try to write that into a form that we can make work.

There is another problem, which runs right at the base of this. It is what I hope to talk about when we get on to the next collection of amendments, my new clauses 3 and 4. The Home Office simply does not have evidence on how this information is used and for what purposes. As I understand it—I am sure the Minister will correct me if I am wrong—the only information on how communications data are used is based on a two-week snapshot survey of police forces. What sort of crime is it? We know that data are used and we know of many examples. It is only that small survey that tells us exactly what sort of things they are used for. We need to have that data to make a sensible decision. The more data we retain, the more things we can do to combat crime, but the more invasive it is. We cannot set a sensible balance without that data. The Home Office urgently needs to collect that data but it will not have it in the next couple of months.

I worry—I have seriously considered and agonised over this—that what is being suggested would not put us in a better place. The alternative to having a Bill that started almost straight away would be to wait a bit longer—until November—and have a new Bill. We could use that time to get a bit of information for a review, but then we would again be forced to fast-track the legislation. We would go through exactly the same process, with not that many Members here debating it, and we would have exactly the same problems. That would not help and would not take us to where I want to be, because I am passionate about getting rid of the awful system that we have and coming up with something better. As I said earlier, we can have more security, more civil liberties and more protection, which is something that I have debated on many occasions.

[Jim Sheridan (Paisley and Renfrewshire North) (Lab)]

Will the hon. Gentleman give way?

[Dr Huppert]

I promised the hon. Member for Islington North (Jeremy Corbyn) that I would give way to him first. I will then give way to the hon. Member for Paisley and Renfrewshire North (Jim Sheridan), and then I will stop, because I want to let others speak.

19:31

[Jeremy Corbyn]

I do not wish to be unkind, but the hon. Gentleman is confusing me. He says that he would sit until next week to ensure that we considered the Bill properly. I agree with that, but it will not happen. However, what is the difference between that and having a six-month sunset clause? That would give us six months in which to hold a consultation and a debate. The Government would then have the opportunity to bring forward legislation in the light of the responses received during the consultation.

[Dr Huppert]

The answer to the hon. Gentleman’s point is that we simply do not have the time to make that happen. We cannot take account of the detailed reviews that are necessary. I totally accept that we could do a bit more, but it would not fundamentally change where we are. It would not allow for the data collection and information gathering to work up much better proposals, which is what we need to make progress.

[Jim Sheridan]

The hon. Gentleman will be aware that there is already a significant amount of criticism from people north of the border about the purpose of this place. If the Bill goes through in the time scale suggested, other people will say, “What is the purpose of that place down there when they do not even have time to scrutinise the legislation?”

[Dr Huppert]

That delves into subjects that I am unable to get too involved in. It is a shame that the matter is being dealt with so late. I raised this issue with the Home Secretary on the day that European Court of Justice ruling came out. I questioned her and challenged her on the time scale then. All of us were surprised by the announcement and I wish that we had been able to start sooner. I worry that those within the Conservative and Labour parties who have made it clear that they continue to want to have the measures in the draft Communications Data Bill will bring that back instead of introducing something that some of us would prefer. I wish I could believe that there was a liberal majority in this House—both with a capital L and a small l—but I am not sure that that is the case.

On the other amendments, I am glad that we seem to have reached an agreement on wording. I hope that the Government clause to write the details of the review into legislation will be supported by Members on both sides of the House. I very much want that to happen and for us to reach a place where we can improve. I hope that the Minister will be able to confirm that at least one version of the oversight clause will be adopted, because it would be a useful addition. I think that having it on the face of the Bill was always intended, which can only be a good thing.

Some of us have been trying to get a proper review of RIPA and all the associated legislation, such as the Telecommunications Act 1984, for many years. We have that chance now. I want a proper review, proper pre-legislative scrutiny and a Bill that will be properly debated in the House. The question is how best to get there.

[Mr Straw]

I will deal first with the point made by the hon. Member for Cambridge (Dr Huppert) and others about the Regulation of Investigatory Powers Act 2000. I was the Minister responsible for RIPA. It was a carefully constructed Act that was preceded in 1999 by a lengthy consultation process. Everybody recognised at the time that it was a major improvement on the legislative regime for intercepting communications, data retention and other matters. As I said earlier—and I introduced the Regulation of Investigatory Powers Bill on this basis—its purpose was to make the intrusive powers of the state compatible with the Human Rights Act 1998, which came into force more than two year later on 2 October 2000. I am proud of the 1998 Act and—to reassure and provide therapy to the hon. Member for Cambridge—of the fact that it was indeed a liberal measure, but I of course accept that the world of telecommunications has changed radically in the 14 years since. Interestingly, it has not changed as much as it had changed in the preceding 15 years, which followed the Interception of Communications Act 1985, but it has still changed a great deal and for sure it would be worth while for RIPA to be reviewed. However, that is not a case for not proceeding with this measure tonight.

I also accept, as my right hon. Friend the shadow Home Secretary said eloquently in her speech, that even if we accept the need for emergency legislation, as we do, it would have been far better for our consideration to have been extended over two or three days in the Commons rather than just one. Indeed, if we had not been up against the buffers of the summer recess that might easily have been possible and we would have avoided the process of manuscript amendments.

My hon. Friend the Member for West Bromwich East (Mr Watson)—who, parenthetically, is not that much younger than my right hon. Friend the Member for Delyn (Mr Hanson), as he is in his fifth decade and my right hon. Friend is in his sixth—asked rhetorically whether we were surprised that relatively few Members had taken part in the debates today. He then tried to provide an answer, but I must say that it was not that convincing. He said that the reason was the pressure of time. I have been present in the Chamber when debates on Bills or other subjects have been subject to time pressures. When they have been very controversial this place has been packed and Ministers have had a hard time. I would suggest that the more convincing explanation for the fact that not many Members have been present for all or any part of the debates today is that most are convinced by the arguments that are being made by the Government, with the support of the Opposition; that the measure clarifies the law in the light of the ECJ judgment; and, in so far as it changes RIPA, that it does so in one respect only—through clause 3, which has the effect, which I hope would be supported by every Member, of restricting the basis on which warrants can be made in relation to economic well-being and qualifies that with reference to national security.

Let me turn to the amendment tabled by my hon. Friend the Member for West Bromwich East, which would repeal the Bill by the end of this year rather than by the end of 2016, as the final clause of the Bill proposes. My hon. Friend said by way of justification for his amendment, in a very delphic comment, that we had not seen what the Government had seen. By definition, we have not seen that which the Government have not shown us and that might be secret or classified, but in justifying this measure the Government have not come along and told us that there are plenty of reasons for it but that they cannot let us in on them.

My right hon. Friend the Member for Knowsley (Mr Howarth) made a very witty speech earlier in which he spoke of the Disqualifications Act 2000. That measure changed the basis for the disqualification of Members to allow members of Sinn Fein to sit in the Dáil, the Northern Ireland Assembly and this place. My right hon. Friend was not allowed to explain that, so that really was a situation in which Members of the House had not seen what the Government had seen. That is not the case here. We have seen what the Government have seen. The hon. Member for Cambridge referred to it—it is the ECJ judgment and everybody can read it and understand its consequences. That is the basis for this Bill. I say to my hon. Friend the Member for West Bromwich East that I do not accept what the hon. Member for Cambridge is suggesting, which is that we can only have legislation either in a day or in six months. If this House wanted to, it could consider legislation over a two-week period and that would be preferable in this case.

[Mark Durkan (Foyle) (SDLP)]

The right hon. Gentleman says that we have all seen what the Government have seen of what is behind the Bill. One thing continually cited about the extraterritorial extensions is that companies have said that they want such provision so that they are in a clearer position, but there have been questions about that. Does the right hon. Gentleman know who these companies are? Which companies have said that they need or want such things to be covered? Which companies would, as the Government are telling us, act outside this provision and act in defiance? We have been told about that several times today, but we have not been given any details.

[Mr Straw]

I do not know in precise detail. I used to know when I was responsible for these matters as Home Secretary and Foreign Secretary. Even when I was Foreign Secretary and Home Secretary, when there were fewer telecommunications providers, the ones that were wholly UK-based inevitably had a different and closer relationship than those based overseas but which were providing telecommunications services in this country. The latter were, for reasons one understood, much less willing to enter into voluntary arrangements than those based in the UK.

I do not know whether the hon. Member for Foyle (Mark Durkan) was in the Chamber when I drew attention to the fact that this provision is genuinely a clarification of the extraterritorial application of the RIPA Act and not an extension of it. I refer him, for example, to a definition of a telecommunications system in section 2:

“any system … which exists (whether wholly or partly in the United Kingdom or elsewhere)”.

The clear intention of that Act was that it extended extraterritorially. The legal advice is that the wording has not worked quite as intended and that overseas telecommunications providers particularly want more clarification.

[Mark Durkan]

If we are to believe that that is the only effect of clause 6, and that companies have said that they want such provision, should we not be told which companies have said that?

[Mr Straw]

That is a matter for the Minister. Sometimes, companies do not wish to be named; sometimes they do. If they did wish to be named—they are not slow in coming forward in other respects to let us know their views—they would have named themselves.

[Jim Sheridan]

My right hon. Friend seems to be making the case that the lack of attendees in the Chamber suggests that the vast majority of colleagues on both sides of the House support the legislation. If that is the case, why not have a free vote? Then people could vote whatever way they wanted.

[Mr Straw]

If I started discussing the importance of the party system, I think Mr Hood would pull me up short. My hon. Friend knows that the party system is fundamental to the way our democracy operates. I was elected not as J. Straw, an individual of obvious talent, or not, but because I was a member of the Labour party. In doing that, I accepted and signed up for, among other things, the standing orders of the parliamentary Labour party and the whipping system, and the authority system that we have. Of course, there is loads of scope for going against that. I am sitting next to my hon. Friend the Member for Hayes and Harlington (John McDonnell), who has voted against his party probably more often than he has voted with it—and a very fine constituency member he is, too, if I may say so. I have voted against my party once—

[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.

19:45

[Steve McCabe]

I started out today very much in the same place as my hon. Friend the Member for West Bromwich East (Mr Watson), but I am beginning to wonder whether this is not a matter of a short period of review that leads us straight back into an argument for another similar piece of emergency legislation, versus a longer period of review where we could get the matter right for once.

[Mr Straw]

My hon. Friend puts it much better than I did. That is the truth. We have a compressed programme and there will be complaints again about that, but the House usually rises in the middle of December, and if the Bill were to be repealed at the end of December and the House wanted proper time to consider this legislation, we would need to start on it in early November at least, which is only a few months away. I cannot see that we would be in any better position at that stage than we are now.

[Caroline Lucas]

Apart from the fact that the right hon. Gentleman cannot count his months, I make the serious point that it would make a difference in the sense that during the summer we could be having the public debate. The public care about the Bill. They could be speaking to their MPs about it. They have been left out of the process. If we started in October, we would still have three months—two and a half months—in this place to have a proper debate.

[Mr Straw]

Of course I accept that the public are concerned, but from my long experience they have a clear view of how to balance the interests of liberty and their own personal security—that is what this is about, not the security of the state—and they implicitly acknowledge that, although the systems that we have built up during the past 30 years may not be perfect, they do provide that balance. They provide a level of control over Ministers and the intelligence, security and police services, which is pretty unparalleled in most other countries.

Let us consider the abuses that take place in Europe. I think of what has happened in France in recent years, where one Minister intercepted the telephone calls of another Minister—all kinds of abuses by Ministers and the judiciary. That has never happened here and it could never happen here under our system—[Interruption.] Yes, it used to happen. It is right that trade unions were wire-tapped. Many others, thousands of people, were subject to intrusive surveillance. I know that to be the case because an officer of the Security Service told me that and showed me my file. I know that to be the case in respect of my family as well. But that was under a system where there was no statutory regulation whatsoever of telephone intercept, or data retention, which was available then, and when the very existence of the security and intelligence agencies was itself denied. That has rightly changed to take account of our duties and public concerns. It is not perfect, but we are much closer to a system that properly balances those things.

I hope that the Committee will not accept, for the reasons I have suggested, what my hon. Friend the Member for West Bromwich East suggests, which will lead to a truncated, abbreviated review that will not work, and that instead we will have the longer review, proposed by my right hon. Friend the Member for Delyn, and sober consideration of a new Act to replace this one and RIPA before the end of 2016.

[Mr Charles Walker]

I rise to support amendment 2, tabled by the hon. Member for West Bromwich East (Mr Watson). This really is a ridiculous way to transact legislation in this place—to sit here and listen to a lot of nonsense from some quite respectable people. The idea that we should put something so important and worth while through in a day just takes the biscuit.

I am sure that there is a huge amount of worthy content in the Bill, and I am sure that it is extraordinarily important that business is transacted as quickly as possible, but we have a duty of scrutiny and reflection in this Chamber. We represent 65 million people. This is not simply a rubber-stamping process. The idea that doing this in a day is somehow no worse than revisiting it in December just does not hold water. That argument will have no resonance out there with our electorate.

There is a slight undertone in the debate that those in the Chamber who express concern about the way business is being done today are somehow complicit in putting the nation’s safety at risk. That really is the last hiding place of scoundrels. I do not mean that anyone in this place starts from that basis, but we have a moral duty here to scrutinise legislation. I totally and honestly agree with the hon. Member for West Bromwich East that we need to revisit this sooner, rather than later.

[John McDonnell]

I hope that my hon. Friend the Member for West Bromwich East (Mr Watson) has formally requested a vote on amendment 2. If he has not, I would like to do so. I will deal quickly with some of the points that have been made. I think that the House is open to derision in putting such important legislation through in this time scale. The argument that the time is limited because we are abutting the summer recess and MPs are about to go on holiday opens us up to even more derision, so we will be held in contempt yet again. I say to the hon. Member for Cambridge (Dr Huppert), for whom I have a lot of affection, no matter how infuriating he can be at times, that the argument that a piece of legislation that could be undertaken in the next five months is somehow not as good as one that we will put forward in 24 hours simply does not hold water.

The point is that we are appealing to the Government today to give us the opportunity not only to have a thorough debate in this House, but to go back to our constituencies, as the hon. Member for Brighton, Pavilion (Caroline Lucas) said, and consult the people who put us here. With such a technical piece of legislation, I want to ensure that I consult my constituents and all those voluntary organisations and experts in the field. That includes taking expert legal advice on its exact meaning, because I no longer accept the argument—it has become confused today—about there being no new powers. I think that there are new powers, but I would like that to be verified by external advice. We have had no chance to do that. We have received, at best, a couple of briefings and a curtailed Select Committee hearing. My hon. Friend the Member for Aberavon (Dr Francis), who chairs the Joint Committee on Human Rights, appealed to the Government and said that all we need is the original judgment from the European Court of Justice and the points it raised, matched with the legislation and with clarification on which points the legislation addressed. We do not even have that.

Furthermore, we have the draft legislation before us, but not the guidance, which is the really meaningful part. It will specify who will be included and how it will be implemented in detail. That is still to come, so we are passing this legislation virtually in the dark. On the argument that there will be review after review, the Government’s new clause 7 simply means that a report of the review will be sent to the Prime Minister, but if it

“appears to the Prime Minister that the publication of any matter in a report under subsection (4) would be contrary to the public interest”—

not just prejudicial to national security—the Prime Minister can ensure that it is not given to this House. The definition of the public interest can be as wide as the Prime Minister determines. That is unacceptable. That is not open or transparent.

We have all been in this House long enough to know that having review after review is almost meaningless unless, at the end of the day, the Government decide to legislate or change legislation. A review process is usually used to put something on the back burner so that we can all ignore it as though it has gone away. The reason for a sunset clause is to give the whole exercise of reviews some bite. Without that bite, I am afraid that Governments do not act. The idea of having some bite at a distant point at the end of the following year means that this country will labour and languor under what I think will be an unjust piece of legislation for a long period, which could result in miscarriages of justice and an imposition on our freedoms. It is too long to wait. That is why the short curtailment of the sunset clause is critical to ensure that we give the matter serious attention; otherwise, it will drift further away.

The next five months give us the opportunity for full consultation, proper advice and full display of information, particularly on the Government’s statutory code. We could then come back after the recess and examine new legislation in detail, which may address some of the points that have been raised about the operation of RIPA. As the hon. Member for Broxbourne (Mr Walker) has said, this is no way to legislate and create laws that could have significant consequences for our constituents.

I have raised the issue of the secrecy of professional advice, which was provided for in the European judgment. That is supposed to be covered by the code of practice, but we have yet to see it. That advice could relate not just to lawyers, but to the operations of journalists who wish to expose matters of public interest and to trade unionists and others. This is a risk to civil liberties that I am not willing to support. That is why I support amendment 2.

[Dr Julian Lewis]

Having made a brief intervention earlier that was largely helpful to Members on both Front Benches, I will now rectify the balance by saying that, however one looks at this debate in terms of whether or not enough time has been made available for those who want to speak to have their say, the overall impression that has been given to the public has been unfortunate, to put it mildly. My understanding is that this Bill has been made necessary because of an ECJ judgment that was arrived at in April. It is now mid-July. Why on earth has it taken so long to get from that judgment all those weeks ago to the position now, whereby it appears to the public that we have to make what I believe to be very necessary changes in a terrible rush? They are under the impression—in the context, it must be said, of the paranoia over the Edward Snowden affair—that we are doing this in a desperately swift and ill-considered way.

Personally, I accept that there is some strength in the argument that the time the Government have made available at this very late stage is probably enough for most of the people who are likely to contribute to the debate in the Chamber to do so; but not enough time has been given to those in the country who want to develop the wider public argument. One would not like to give the impression that one was trying to get this Bill through in a rush before a suitable momentum of public concern had the opportunity to build up, but, if that was not the reason for the delay, what was?

[Mr David Davis (Haltemprice and Howden) (Con)]

My hon. Friend says, quite properly, that there is time for those of us who are concerned to make our points, but there is no time for us to research those points. There are significant legal and practical issues involved, and some of the issues are difficult to research because most of them are secret. One weekend is a ridiculous time scale in which to consider something that goes to the heart of the fundamental relationship between the state and the citizen.

[Dr Lewis]

I hope my right hon. Friend accepts that the nub of my short contribution is to say that we should not have found ourselves in this position. When the ECJ judgment was made we should immediately have swung into action so as to give people reasonable warning that this debate was going to take place, and then they could have done the degree of research necessary to avoid the impression that things were being rushed through in unseemly haste.

[Steve McCabe]

If we are all trying to be open and straight with people, why do we not just own up to the fact that this problem is of the coalition Government’s making? They could not get to the point where they agreed on a Bill, so we now have to consider a bit of bounced legislation as an emergency because of the coalition’s problems.

19:59

[Dr Lewis]

I always love it when an Opposition Member precisely anticipates my final point. My love, affection and esteem for coalition politics are legendary. I want Ministers to give me the explanation—so far, we have been denied it—that there is indeed a rational alternative to the paranoid belief currently abroad that all this is being rushed through because we wanted to stifle debate, were afraid what the public would say and feared the context of all the revelations of secrets.

Let us get to the heart of it: if the truth is that it took this long for the Conservatives and the Liberals to agree what they wanted to introduce, there is nothing to be ashamed of in saying so; it is a natural downside of coalition politics. I appeal to my hon. Friend the Minister, who does these things with such panache and dependability, to put his head above the parapet and simply say that this was one of the many disadvantages of coalition politics—which Conservative Members and Labour Members look forward to seeing the back of in a few months’ time.

[Jeremy Corbyn]

I support amendment 2, which was tabled by my hon. Friend the Member for West Bromwich East (Mr Watson), who made his case extremely well.

Surely the issue is simply this: Parliament is here to scrutinise what the Executive do and to try to represent public opinion. We need to take advice from the public, organisations, lobby groups and so on, but all I have managed to find was an interesting and quite useful briefing from Liberty that came in yesterday—all credit to Liberty for getting a reasonable briefing together in a very short time—and a series of articles in The Guardian and one or two other newspapers.

But this Bill has massive implications in relation to the ability of the state to dip in and out of people’s telephone and e-mail accounts. Because it takes on itself a global reach, it has huge implications all around the world. If we are to take the global reach to dip into e-mail accounts all around the world, what are we to do, as the right hon. Member for Haltemprice and Howden (Mr Davis) said in an intervention, when an unpalatable regime decides to do the same and pitches up in a British court and says, “Well, you’ve taken these rights unto yourself. Why shouldn’t we do exactly the same?”? The implications of the Bill go a very long way indeed.

I am always suspicious when the House is summoned in an emergency and told, “This is an absolutely overriding, desperate emergency, so we’ve got to get this thing through all its stages in one day,” and Front Benchers from both sides of the House get together and agree that there is a huge national emergency. I am sorry, but what is the emergency?

There was a court decision some months ago, about which the Government have since done very little and made very few statements. There has apparently been an interesting debate between the Liberal Democrats and the Conservative party in the coalition. In the interests of public scrutiny, we should be given the minutes of the discussion between the Deputy Prime Minister and the Prime Minister, and of all the sofa discussions that have no doubt taken place. I thought that sofa politics ended with new Labour, but apparently it still goes on in Downing street. We need to know the nature of that debate.

What is the objection to a sunset clause that would bring the—to me—very unpalatable Bill to a conclusion in six months’ time? Such a clause would at least give lawyers an opportunity to make a detailed case, and the Government an opportunity to explain their case a bit better. It would give the Home Affairs Committee a chance to discuss it, and the Joint Committee on Human Rights a chance to examine it, which we as Members of Parliament would also be able to do.

In an age of social media, it is interesting to see the numbers of people following the debate online and live. They are interested in social media, privacy and communication, and they all have views and opinions. I have no idea what all their views and opinions are. All I know is that as an individual Member of Parliament, I, like all colleagues in the Chamber, must vote on this piece of legislation without having had the chance to reflect or consult.

This is not a good day for Parliament. It is not a good advertisement for Parliament. It is not a good advertisement for democracy. The very least that we can do is to agree that this wrong-headed piece of legislation will expire by the end of this year and force the Government to come up with something more palatable, more carefully thought out and more sensible in respect of the protection of privacy and civil rights for all. That is why we were elected to Parliament. We should be given the opportunity to do our job, and should not have to lie down in front of a steamroller and accept something that we know in our hearts to be ill thought out and wrong.

[Caroline Lucas]

I spoke a lot in the debate earlier and was not going to speak again until my colleague, the hon. Member for Islington North (Jeremy Corbyn), reminded us of how this debate looks to the public outside this place.

As we have all said, this issue is of huge importance. Almost no issue that we deal with affects people as directly as their personal communications, and, therefore, is as sensitive. That is why it is so negative that we have given the impression that we simply do not care what people think. The public are pretty disengaged from MPs and Parliament, and do not have much respect for what goes on in this place. Today was an opportunity to begin to build bridges with them and to demonstrate that we can take these issues and their concerns seriously, and I feel so sad about the fact that Parliament seems to have flunked it. We have decided not to build bridges and have given the public the impression that we do not take ourselves seriously, so why should they take what we do in this place seriously?

Many arguments have been advanced on why it is not necessary to pass the Bill in such a short time. There is no serious argument that this is an emergency. If there were, it would have been dealt with three months ago. People can see through that. Their concerns and disillusionment with this Parliament will be redoubled by this process, instead of being addressed by it.

One reason why I support amendment 2 to the sunset clause is that it would rescue something from this unhappy state. If we at least said that over the coming months, we will do this piece of work properly and a review will happen, we could build some confidence among the public. As it is, I regret to say that we have lost yet more public confidence today, at a time when we can least afford to do so.

[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.

20:15

[Mr Davis]

The Minister is conflating two issues that amendment 2 seeks to deal with. First, this House has not had the time to research, consult and debate this issue. Secondly, the technology underlying the problems we face is changing. It is not mutually exclusive to address the first issue—lack of debate, consultation, research and knowledge—through, in proper, slow time, a consultative process in September and a proper Bill procedure in the autumn, and later, if he thinks it fit, to come back to the House with another review. That would at least allow the House to make its decision on a proper basis. If he allowed that, I would be happy to vote for Third Reading today. If he does not allow it, I am afraid that this is an undemocratic process that none of us can support.

[James Brokenshire]

We are going back over ground addressed on Second Reading and in the programme motion debate, but it is worth restating the fact that the Bill does not extend powers that this House has already granted through RIPA. It effectively restates what is already existing law. The legislation does not, therefore, seek to create something new, but simply restates what is already being operated, giving it clear legal underpinning in the context of the ECJ decision and the pressures from industry and others in terms of challenge.

On the need to act now, I say again that no Government embark on emergency legislation lightly. No Government seek to use fast-track legislation unless they judge that it is necessary. Our real concerns are that we have reached a tipping point regarding co-operation on lawful intercept and the risk that our essential powers on communications data, which are used day in, day out by law enforcement and the security agencies that protect this country, will simply not be available. That could occur at any time between now and the long-stop date that the right hon. Gentleman and others are suggesting in relation to December 2014. That is why the Government have judged that emergency legislation is appropriate and why we think it necessary to have a review: to ensure that this House is properly informed of all the issues to legislate carefully in a sensible way by no later than 31 December 2016, when this legislation would cease to have affect.

These are complicated matters. We need to act swiftly to deal with the particular challenge we face and to avoid the damaging loss of capability that confronts us. However, I do believe a longer-term considered approach is appropriate, hence the reason for having the review and for providing assurance in relation to the commissioner for the interception of communications and his reports on operation. There are already a number of reviews in the system. The Intelligence and Security Committee is conducting an inquiry, as is the Royal United Services Institute.

There is also the further review, which is to be led by David Anderson, of the communications data and interception powers we need, and how they are regulated in the light of the threats we face. As I have indicated, the Bill will set this out in legislation in terms, but he needs to be given some time to conduct this work. New clause 7 asks him to complete his work by 1 May 2015. That being so, I can see no point in requiring Parliament to return to these issues almost as soon as we return from the summer recess, without the benefit of the work we have set in train. Any such legislation would also inevitably require an accelerated timetable. Rather, we believe that Parliament needs to consider these issues properly after the election, drawing on the outcome of the reviews that are in train and with the ability to consider everything at a normal parliamentary pace. Accordingly, I invite the hon. Member for West Bromwich East (Mr Watson) to withdraw amendment 2, so that we can have this process recognising the needs now and recognising the need for further review and for the House to return to these matters in the light of that informed basis.

[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

20:21

Division 37

Ayes: 56

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Labour: 27
Conservative: 15
Scottish National Party: 6
Social Democratic & Labour Party: 3
Plaid Cymru: 3
Liberal Democrat: 2
Independent: 1
Alliance: 1
Green Party: 1

Noes: 454

---

Conservative: 224
Labour: 185
Liberal Democrat: 39
Democratic Unionist Party: 5

Clause 6, as amended, ordered to stand part of the Bill.

New clause 7

Review of investigatory powers and their regulation

‘(1) The Secretary of State must appoint the independent reviewer of terrorism

legislation to review the operation and regulation of investigatory powers.

(2) The independent reviewer must, in particular, consider—

(a) current and future threats to the United Kingdom,

(b) the capabilities needed to combat those threats,

(c) safeguards to protect privacy,

(d) the challenges of changing technologies,

(e) issues relating to transparency and oversight,

(f) the effectiveness of existing legislation (including its proportionality) and the case for new or amending legislation.

(3) The independent reviewer must, so far as reasonably practicable, complete the review before 1 May 2015.

(4) The independent reviewer must send to the Prime Minister a report on the outcome of the review as soon as reasonably practicable after completing the review.

(5) On receiving a report under subsection (4), the Prime Minister must lay a copy of it before Parliament together with a statement as to whether any matter has been excluded from that copy under subsection (6).

(6) If it appears to the Prime Minister that the publication of any matter in a report under subsection (4) would be contrary to the public interest or prejudicial to national security, the Prime Minister may exclude the matter from the copy of the report laid before Parliament.

(7) The Secretary of State may pay to the independent reviewer—

(a) expenses incurred in carrying out the functions of the independent reviewer under this section, and

(b) such allowances as the Secretary of State determines.’—(James Brokenshire.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 3

Transparency on data collection

‘(1) To require any public authority requesting data requested from a communications service provider to maintain proper records including—

(a) the category of offence being investigated;

(b) the length of time the data had been retained by the CSP when it was requested;

(c) the type of data requested, as per the definitions in section 21 of the Regulation of Investigatory Powers Act 2000.”—(Dr Huppert.)

Brought up, and read the First time.

[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.

[Dr Julian Lewis]

I warmly endorse what the hon. Gentleman is saying. Does he agree that if more examples were given of a collated nature—such as those we read about frequently in individual criminal court cases—about the vital role that such data play, that would go a long way to allaying unnecessary public suspicion about the importance of having such data available for the forces of law and order?

[Dr Huppert]

The hon. Gentleman is absolutely right. Unfortunately, the approach taken for, I believe, many decades has been not to tell people. We have always been told, “We can’t tell you what’s being done at the moment, but we need more.” If we were told and there were transparency, the public could make a much more sensible judgment about what was needed.

New clause 3 highlights what I would expect to see as part of new transparency reporting. It contains requirements to ensure that information is available about the offence being investigated, so that we can find out if it is about children applying to the wrong school or speeding offences, as opposed to national security matters, how long the data have been requested, so that we can work out how long they should be kept for—is it usually used after a week or a year?—and what sort of data they are, so that we know whether we are talking about reverse directory look-ups or rather more personal information. I hope the Minister will be able to reassure me that that is his intention.

I should say that both my new clauses were inspired by Big Brother Watch, which I have been working with on this whole Bill and which particularly wanted to make these points clear. New clause 4 deals with the problem that a number of organisations feel they cannot publish their transparency reports and say what they have been asked to do for fear of violating the legislation against tipping off. I understand why there is a concern. The Government do not want companies to say, “The following things we are reporting to the Government, but these things are perfectly safe; we will not tell the Government about them.” We want companies to be able to publish that anonymised information, so I hope the Minister will be able to confirm that companies can safely publish it as part of their transparency reports without fear of being prosecuted.

I look forward to hearing the Minister’s reassurances on both those aspects.

[James Brokenshire]

I thank my hon. Friend the Member for Cambridge (Dr Huppert) for tabling these new clauses to enable a debate about transparency and the information provided in the exercise of powers under the Regulation of Investigatory Powers Act 2000. He will know that the Government—the Prime Minister and the Deputy Prime Minister—announced last week that we intend to introduce annual transparency reports relating to the exercise of powers under RIPA. That report will provide as much detail as possible, but without undermining the effectiveness of the agencies or posing a risk to national security.

The point I would make to my hon. Friend is that if we had individual companies giving details, that might give an indication to those who would do us harm, who might ask themselves, “Well, which ones aren’t doing that and which direction should we go in?” This therefore has to be done with care, given the nature of transparency, but I endorse his point about the need for more information to be provided, so that the public and this House can have confidence in the utilisation of the powers set out in the legislation.

[Dr Julian Lewis]

Will my hon. Friend take on board the point I made in my intervention a few moments ago? Although one fully accepts that one cannot give full statistical data about these sorts of activities as they relate to national security, the point that the hon. Member for Cambridge made—that the majority are about serious crime rather than national security—ought to give us the opportunity to set out many case studies that would improve the public’s understanding of why it is so important that we have these data.

[James Brokenshire]

I know that my hon. Friend understands the importance of communications data in the fight against organised crime, as 95% of the organised crime cases that have been brought before the courts have relied on those data. He will also be aware of some of the surveys that have been run to indicate the proportions of communications data that are used and how they are broken down. For example, a survey in 2012 showed that 51% of communications data used to investigate sexual offences were older than six months. It is that type of information that, if we had further detail, would give that sense of how communications data are used to reassure the public and others in respect of the utility of the powers that are there. That certainly touches on one of my hon. Friend’s points.

20:45

Yes, we have had annual surveys, but the question is what more can be done to strengthen the process? That is something that the interception of communications commissioner raised in his last report and that we are now reflecting on, especially with regard to the detail that can be provided through the transparency report.

[Dr Huppert]

The Minister talked about that two-week snapshot from 2012. Is that the most recent survey that looked at the age of the data? Does he agree that it would be really helpful to have more up-to-date information about the age of the data are that used?

[James Brokenshire]

My hon. Friend argues for a different approach. He talks about a limited period and then about the need to safeguard that information following an event. I do not agree with him on that, as that is a separate debate. However, I agree that where we can see accurate data being provided, we seek to surface that as much as possible as part of the approach on transparency.

As the commissioner made clear in his report, the Home Office was working with him to improve the statistics collected by public authorities. He identified a number of further elements in his report, including the total number of applications submitted, the total number of items of data requested, the total items of data broken down by statutory purpose for which they were required and the total items of data broken down by crime type or other purpose for which they were required, which is the point that my hon. Friend has just made.

We are working with public authorities to ensure that most of these statistics are already being collected by them, and are progressing work to agree on the relevant practicalities such as agreed nomenclature that would enable those that had not already been collected to be collected. Transparency is important in ensuring continued public trust in the agencies and police forces that have been granted intrusive powers. However, transparency does have limits. We should not commit to such transparency that would publicise police and other sensitive investigative methodology, because explaining exactly how our investigators do their job will naturally lead to terrorists, criminals and others who wish us harm knowing how to avoid detection. We must also be careful not to weigh down investigators with too much bureaucracy such that they cannot perform the important function of preventing and detecting crimes and keeping us safe.

[Dr Julian Lewis]

I appreciate that my hon. Friend is mainly talking about the gathering and publication of statistical data, but it would not involve much effort for police forces to collate even half a dozen or a dozen cases per year that are reported in the press to show how these communications data are used in individual cases. A few good examples that have already been published would go a long way to help the public understand how important this methodology is.

[James Brokenshire]

In highlighting case studies, my hon. Friend makes an important point. A number of case studies involving serious murders have already been referenced in the debate this evening. Indeed, the shadow Home Secretary highlighted a case in which a young person who was safeguarded was effectively prevented from killing themselves. Such examples highlight the absolute import and value of communications data and the way in which our emergency services, police and others rely on them, not just to solve crime and to protect the public from those very real threats that we understand from a criminal law and a counter-terrorism perspective, but to protect children and vulnerable adults from harm. The ability to identify where someone may be through tracking the communications data can literally be a matter of life and death. My hon. Friend is therefore right to suggest we can draw on case studies to provide greater explanation. In the appalling Soham murders, for example, communications data were instrumental in bringing those responsible to justice. Such cases highlight the significance of the use of the powers.

I recognise the point made by my hon. Friend the Member for Cambridge, but I am unable to accept his new clause tonight. I can make it clear, however, that I do not resist increased transparency; indeed, it is the reason we have agreed to bring forward annual transparency reports. Such a level of detail can be considered in different ways, and in amending the code of practice on the acquisition and disclosure of communications data later this year, we can ensure that the appropriate text is included in statutory guidance, for example. Parliament will have a chance to return to the issue soon in that context. There are perhaps other ways in which we can reflect further on getting the balance right.

My hon. Friend made another point that may in fact relate to section 19 of RIPA, rather than to the section he suggested, concerning the illegality of disclosing the existence of a warrant under that section. To do so would risk exposing the existence of an interception capability and, crucially, the potential lack of such a capability, which would indicate to criminals and terrorists, who may wish to exploit such a gap, which communication services they may be able to use to conduct their illicit activities without detection. I believe that my hon. Friend seeks to ensure that where such a disclosure is made as part of an annual transparency report issued by the major service providers, a defence will be available to them in any subsequent legal proceedings.

The Government believe that, as at present, it is for the interception of communications commissioner to publish the total number of interception warrants. The commissioner has expressed his concern about the nature of the transparency reports, particularly with reference to requests for communications data. In his annual report for 2013, the commissioner is clear that statistics from transparency reports should “be treated with caution” as they may “lead to misleading comparisons”. Indeed, it would not be helpful to the public for there to be numerous sources of information on the number of requests or warrants when there is a lack of clarity and consistency as between each source. We are doing everything that we can, working with the independent commissioner, to improve the transparency of how such powers are used, but the additional provision would not help to give the public greater clarity, so I invite my hon. Friend to withdraw new clause 3.

[Dr Huppert]

I thank the Minister for his comments. The move towards greater transparency will benefit us all, including the Home Office. I do not quite agree with some of the points that he made towards the end of his speech. Many companies are doing well publishing transparency reports, which is helping to move the agenda forwards, but in the interests of time, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 5

Effect and justiciability of this Act

‘For the avoidance of doubt and notwithstanding sections 2 and 3 of the European Communities Act 1972, this Act shall have effect and shall be construed as having effect and shall be justiciable by the courts of the United Kingdom.’—(Sir William Cash.)

Brought up, and read the First time.

[Sir William Cash]

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

I am grateful to be called at this late hour. This new clause is important. I look to the Home Secretary; she knows exactly where I am coming from and where I am going. She may believe that we will be defeated on this new clause, but nothing will prevent me from making the point, which is that the Bill could become pointless. The difficulty, which she understands—I am sure that her advisers have already explained it—is simply that clauses 1 and 2 will enable the Home Secretary to serve a data retention notice on public telecommunications operators and to make secondary legislation governing such notices. However, there is a real possibility that the precise meaning of the European Court of Justice’s Digital Rights Ireland judgment has the effect of potentially eviscerating the Bill.

Professor Peers of Essex university draws attention to the objection by the Court to the requirement to retain all communications data. The fact that the directive required all data to be retained from all subscribers was indeed the first of the considerations taken into account by the Court in arriving at the conclusion that the directive was disproportionate. The problem is that it is within the framework of European law. This Bill is within the scope of EU law and so is the charter of fundamental rights, and the general principle of EU law will continue to apply. What that means in practice is very simple: sections 2 and 3 of the European Communities Act 1972 have the effect of ensuring that the retention directive, its replacements and all that follows from it are and have to be implemented in UK law. The United Kingdom also has an obligation under the voluntarily enacted 1972 Act to accept the jurisdiction of the European Court.

The European Court has already adjudicated on this matter, but the problem is that within the framework of this Bill there are grave uncertainties that have already been expressed by myself and others during these proceedings. The bottom line is therefore whether we are to make uncertainty more uncertain by providing for a situation in which we enact a Bill that might be challenged by the European Court through arrangements that some people who do not like its provisions might decide to entertain. If they do so, it will go back through the Court of First Instance and then the Court of Appeal before going to our own Supreme Court and being referred to the European Court of Justice. As with the Merchant Shipping Act 1988, which was struck down by our own High Court in pursuance of the European Communities Act 1972, which is a voluntary Act, the net result if the European Court of Justice makes such a determination will be that the United Kingdom will be faced with this Bill being struck down as enacted.

I do not need to say any more, because I have made the point throughout our proceedings. I implore the Government to take note of the new clause, which has been carefully considered by some very senior lawyers, both academics and practising lawyers. They are convinced that the Bill is at risk and so, as I did with the enactment of the Lisbon treaty, I tabled a provision that said that notwithstanding the European Communities Act the charter of fundamental rights would not apply. The Home Secretary might smile now, but I have to say to her that that is now a serious choice for the Government. Either they except the charter of fundamental rights or, through amendment of the 1972 Act, they should ensure that the charter of fundamental rights does not apply. That also applies to these provisions and I need say no more for the moment. I sincerely trust that the Minister will give a positive response.

[James Brokenshire]

My hon. Friend has raised these points during the course of the debate and I note the points that he makes, but I restate my previous points. The Bill is intended to give greater legal certainty through the statutory underpinning it provides rather than by relying on secondary legislation with the challenges and risks that might face in the future. We have framed the legislation in the context of the ECJ judgment. We have reflected on it carefully and believe that it is robust in its construction. I note that my hon. Friend will continue rightly to challenge on these European issues, but I hope that in the context of today’s debate, he will be minded to withdraw his new clause.

[Sir William Cash]

I wish to press my new clause to a Division.

Question put, That the clause be read a Second time.

21:00

Division 38

Ayes: 25

---

Conservative: 17
Democratic Unionist Party: 5
Labour: 2
Alliance: 1

Noes: 440

---

Labour: 195
Conservative: 193
Liberal Democrat: 42
Scottish National Party: 5
Social Democratic & Labour Party: 3
Plaid Cymru: 3
Green Party: 1

21:15

Proceedings interrupted (Order, this day).

The Chair put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Order, this day).

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,”.’.—(James Brokenshire.)

Brought up, and added to the Bill.

Amendments made: 6, in the Title, line 7, after “Act;” insert

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

Amendment 8, in the Title, line 7, after “Act;” insert

“to make provision about a review of the operation and regulation of investigatory powers;”.—(James Brokenshire.)

This amendment is consequential on NC7.

The Deputy Speaker resumed the Chair.

Bill, as amended, reported.

Bill, as amended in the Committee, considered.

Third Reading.

21:14

[The Secretary of State for the Home Department (Mrs Theresa May)]

I beg to move, That the Bill be now read a Third time.

We have had a lively and constructive debate today on the urgent need to ensure that communications data continue to be retained, and to clarify the law in respect of interception for communications service providers.

I thank all those who have contributed to the Bill during its various stages so far. I also want to place on record my gratitude to those who have recognised both the need for this legislation and the reason it is so important that we see it enacted quickly.

We discussed the Bill earlier today on Second Reading and it has just been scrutinised in Committee. I thank the Opposition for the support they have given to the Bill and their recognition of the importance of the issues it deals with. I also thank the Clerks of the House and all those involved in supporting us and enabling us to do this business in one day. Particular thanks are due to my hon. Friend the Minister for Security and Immigration for the excellent job he has done in taking the Bill through its Committee stage, and to the right hon. Member for Delyn (Mr Hanson) for his contributions on behalf of the Opposition.

I do not want to rehearse in detail all the arguments that have been made, but I remind Members that the Bill deals with two urgent issues, including the response to the European Court of Justice decision in April, which struck down the European data retention directive. That has created uncertainty among communications service providers about the legal basis for the retention of communications data in the UK, which is a crucial resort for law enforcement and intelligence agencies.

[Dr Julian Lewis]

I am sure the Home Secretary knows that I am, in general, supportive of the Bill, but, in the light of the vote we have just taken, what sort of guarantee can she offer the House that the same European Court that struck down the previous situation will not strike down this Bill as well?

[Mrs May]

As I indicated earlier, and as I think others have indicated during the course of the various debates we have had today, the European Court of Justice did not strike down the ability to retain data. It recognised that the ability to retain data was necessary and it recognised purposes for which those data could be retained. What it did in its judgment was say that the data retention directive was drafted too broadly and it challenged its scope.

Of course, it was always the case that regulations here in the United Kingdom had been drawn more tightly and narrowly than the data retention directive. We are able to put through this Bill with confidence because not only were our data retention regulations drafted in a way that met many of the issues that the ECJ raised, but we have made some changes to ensure that we meet the extra requirements that the ECJ made on us. That is what gives us confidence in the future of this legislation.

We have heard a number of examples today of how important it is to have the ability to retain and access communications data. It is vital for piecing together the activities of suspects, victims and vulnerable people, and ensuring that serious criminals and terrorists can be brought to justice. This Bill will clarify the legal basis for us to oblige communications service providers to continue retaining communications data.

At the same time, we need to put beyond doubt the legal obligation on companies that provide services to people in the UK to comply with our laws on interception, regardless of where they are based. As we know, the communications services used by us all are increasingly provided to the UK by companies based outside the country. Interception, which can take place only within strict limits and with a warrant authorised by the Secretary of State, can prove vital when investigating the most dangerous criminals or defending the security of the United Kingdom.

In the absence of explicit provisions in legislation, some overseas companies have started to question whether the law applies to them, so we are clarifying the law. The Regulation of Investigatory Powers Act 2000 was always intended to apply to any company providing communications services to the UK, as the provisions in the Bill make absolutely clear. The Bill does not introduce new powers, or extend the reach of law enforcement or security and intelligence agencies in any way. It responds to the European judgment, clarifies the existing provisions of RIPA and ensures that the police and security and intelligence agencies can maintain essential capabilities to fight crime and protect the public.

The Bill does not replicate the draft Communications Data Bill. As I have said several times, I continue to believe that its measures are absolutely necessary, but this Bill is not about what was in the draft Bill; it is about ensuring that we retain the capabilities we have at the moment. It will be for the next Parliament to debate other extensions in relation to communications data, as in the draft Bill. We know that that debate will take place because this Bill has been “sunsetted”. It will therefore be necessary for the Government to look at the issues after the election. Indeed, that will be on the basis of informed debate, following the review undertaken by David Anderson, as agreed.

The Bill will ensure that the job of those who protect us does not get even more difficult; that they can continue to use powers that are part of everyday policing; that they remain able to find vulnerable people at risk or in danger; and that they can maintain the use of vital capabilities to solve crime, save lives and protect the public from harm. It will ensure that our police, law enforcement agencies and security and intelligence agencies have the capabilities to do that. I now invite the House to pass the Bill and send it to the other place, and I commend it to the House.

21:22

[Yvette Cooper (Nomanton Pontefract and Castleford) (Lab)]

We have had the Second Reading and four hours of debate in Committee, and we have now reached Third Reading. I, too, pay tribute on behalf of the Opposition to my right hon. Friend the Member for Delyn (Mr Hanson), who has been in the Chamber since 12.30 pm, as well as to the Minister for Security and Immigration, who has probably not even had a chance to have a cup of tea, and to the hon. Member for Cambridge (Dr Huppert), who when not popping up and down to speak, has been glued to his seat for many hours.

Many hon. Members have been present for several hours of a very thoughtful debate on such important legislation, but inevitably the debate has been limited. Many of the concerns raised today have been about the process—about the lack of time not only to debate the Bill, but to consider it further. I hope that the Government recognise that the process has undermined confidence. For that confidence to be restored, it will be particularly important for the Government to take steps on the implementation of the review and the wider safeguards.

Some Members have raised concerns about the retention of any data at all. The vast majority, however, have recognised the value of data retention in tackling serious crime, abuse and terrorism, and in protecting our children, but want the right kinds of safeguards to be put in place. Most Members recognise the need for Parliament to take action and to pass legislation before the summer break, because we do not want suddenly to prevent the police and the intelligence agencies from having access, under warrant, to the information on which they normally depend in investigating organised crime and fraud, identifying those abusing children online and building intelligence to foil terrorist activity.

I do not want to repeat the points I made on Second Reading about the Bill, the safeguards and the wider debate, but I will briefly cover some of the points made throughout the debates this afternoon. Some have raised concern about whether the Bill does what it says on the tin, to use the words of my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson)—whether it simply replicates existing capabilities or extends them. The Government have repeatedly made it clear that the purpose of the Bill is to maintain existing capabilities and, indeed, to restrict them in line with the ECJ judgment. I am glad that the Government agreed to our amendments that were designed to ensure that that is the case. They require six-monthly reports on the operation of the Act to ensure that its implementation does not go further in any way.

As I argued earlier, many of the areas of concern that hon. Members have raised are not about the specifics of the legislation, but about the wider framework that governs communications data and interception. That is why we have called for a much broader review of the powers, safeguards and operations in the light of changing technologies and threats. I am glad that the Government agreed to our proposal that the review that we called for should be put on a statutory footing.

Nobody should underestimate the importance of that review, because we cannot keep passing sticking-plaster legislation, we cannot carry on with business as usual, and we cannot carry on with the current framework when new technology is overtaking it. Nor should anybody just hope that these issues will go away once today’s debates are finished, because they will not and they cannot. The changing technology, changing attitudes, changing expectations and changing threats mean that Parliament needs to keep up.

I hope that Members who have argued about the different aspects of the legislation, who have taken different views on aspects of the legislation or who have even disagreed with the legislation will come together to contribute to the review, to decide what the next steps should be and to take part in the wider debate that we need about security and liberty in the internet age. In the end, these issues go to the heart of our democracy. We need both security and liberty. If we do not feel safe or secure on our streets or online, we are not free, but if security is absolute, we lose that precious freedom for which people have fought for generations. We will not all agree on how to sustain both, we will not all agree on how to get the balance right, and our constituents will not all agree either. However, the debate itself is healthy and vital, and I suspect that there will be rather more consensus than most people think.

I hope that we can finally agree on three things today: first, that the wider debate is needed to keep up with the changing world and to ensure that there is public confidence and consent for the vital work that the police and agencies do; secondly, that this last-minute process has not been a good one, and that we really should not do it again; and thirdly, that this temporary legislation, with its safeguards, really is needed in the short term, and that we should pass it tonight.

21:27

[Dr Huppert]

At the end of this rather long day, I want to reflect briefly on where we are in this area. There is a tension between privacy and security. As I have said, it is not a question of having one or the other; we can have both. I do not believe that those who are more concerned about security want to ride roughshod over privacy and civil liberties. Equally, those of us who are passionate about privacy and civil liberties care about security. We can have both and we need to work on both. There will be differences in the relative weighting that we place on each.

Let me go back to 2012, when we had the Home Secretary’s draft Communications Data Bill, which was the son of the previous Government’s interception modernisation programme. The Home Secretary has been very clear that she believes that we should have that Bill. We, as partners in the coalition Government, insisted that it be only a draft Bill. A Committee went through it carefully—a process that took many months—and we vetoed it because the Committee was very critical. Had we not had that process, there may well have been no need for this piece of fast-track legislation, because we would have had the communications data Bill and it would have covered many of the things that were required. However, it would have been far more intrusive and of questionable security value.

All that was before the Snowden period, when we found out what was happening. What has the House done to reflect the concerns that people have about privacy, data and surveillance? We have had one debate in Westminster Hall, which I managed to secure, in which neither Front Bencher supported the calls for massive reform of RIPA, although many Members from all parties did so. There has been one Bill in the House on this subject, which was introduced by my hon. Friend the Member for Somerton and Frome (Mr Heath). Of course, like most private Members’ Bills, it did not make any progress. This House has failed to have the discussions and debates that have happened in the US, Germany and many other places.

That leads directly to the scepticism about the Bill that many people feel. There is a track record and people have developed concerns over many years. For decades we have had claims from the Government, again and again, about what is needed for security. So many clichés—the old lines: if we have nothing to hide, we have nothing to fear. Every reference to everything is justified by a reference to terrorists or paedophiles. Of course those matter and are serious, but they are not the same as proper evidence-based arguments about what is needed and is proportionate.

I understand the concern that many members of the public and in the House feel about this subject and this legislation, but the Bill deals with a genuine problem and replaces existing powers that the state already has with powers that are the same or lesser. Ministers have been clear that that is the intention. There is no question that somebody in the future will look back at this debate and believe there has been any intention to widen powers, and time after time we have heard that on the record. There has been debate about whether the law can be challenged under the ECHR. It can certainly be challenged; laws can always be challenged, and if it turns out that there are problems with it, I am sure they will be addressed. However, I do not think that will happen.

On the flipside, we have covered what would be a genuine crisis to ensure that we can continue with our security levels, and we have made extra gains that put us in a better place from a privacy and civil liberties perspective. The sunset clause will focus people and force the review to happen, and we will finally get a proper long-term detailed piece of work on how we can have better legislation. That will take years to get right, but we must get it right.

We have a privacy and civil liberties oversight board to ensure that those concerns are seriously considered as policy is developed and looked after, developing the existing role of David Anderson QC. The Bill will be more powerful than he has been able to be. A senior diplomat will try to come up with a better way of dealing with the international problems that we are all struggling with. We would all like a better model, and pushing ahead with that will make a big difference. We will see reductions in access. Fewer organisations will be able to get access to information which, coupled with a reduction in the maximum time limit for which data can be held, will mean more protection for all of us overall. We will have transparency reports so that we know what is going on and why, and can have far more informed debates here and in public.

This has not been an easy process and I pay tribute to everybody involved, of all different views. I had the privilege of being involved in a number of those discussions, and it has been difficult for many people in this House. However, I think the Bill has dealt with security problems while boosting—a bit at least to start with—privacy and civil liberties. As has been reported in many places, this will be seen in years to come as a time when the House said, “We must tackle this and ensure we get it right.”

21:32

[Caroline Lucas]

For the sake of completeness I want to say a few words having sat here for not quite as long as some of my honourable colleagues, although it feels like a long time. Those of us who opposed the process and content of the legislation have clearly lost the debate tonight, but none of us has been convinced by the arguments we have heard. We have not been convinced that there is a case for the kind of emergency that would require legislation being railroaded through the House in one day, and we have not heard anything that persuades us that the Bill does not go further than the status quo. We believe that it does go further than the status quo, particularly where extraterritoriality is concerned. Blanket data retention not being permitted by the European Court of Justice is the key element to many of the debates over the past few hours. Many of us who have stood by the position that it is precisely the blanket data retention that is not permitted by the ECJ are still concerned that the Court’s position will be contradicted by the Bill, and I imagine we may find that that is a problem in the months to come.

The shadow Home Secretary said that she hoped we would agree on three things. First, she hoped we would agree that this debate is needed for public confidence and consent. I certainly agree that this debate is needed, but not in the space of a day. I argue that precisely by trying to rush this Bill through in a day, we are utterly undermining public confidence and consent. I certainly agree with her second point that the last-minute process was not good.

The shadow Home Secretary’s third point—her claim that this temporary legislation is necessary—was her most important point. I argue very strongly that, in all the debates we have heard this afternoon, that case has not been made. The case for a six-month sunset clause not being effective has not been made. Others have made the case that a sunset clause is supposed to concentrate minds and that in two-and-a-half years it will suddenly deliver things that a six-month sunset clause could not deliver. That position does not stand up to scrutiny. A sunset clause in December would concentrate minds in the same way and we should have focused on that.

What I worry about most of all is that the debate will have lost some of the confidence in this place. I think that many people who have been watching this debate are deeply concerned about what they perceive to be an issue of such importance being treated with such contempt and about the Orwellian doublespeak that we have heard throughout the past few hours.

21:35

[Sir Edward Garnier (Harborough) (Con)]

Following on from the hon. Member for Brighton, Pavilion (Caroline Lucas), I fear that there is no such thing as a perfect piece of legislation. None the less, what we have produced today, albeit with some considerable speed, is a Bill entirely worthy of the support of the entire House. I hope that the other place will permit it to get on to the statute book as soon as possible. I just have one point of interest that I wish to raise with those with on the Front Bench. I am not sure whether a member of the Home Office team will be responding to the debate, but perhaps somebody could write to me when they have a moment.

Under clause 4, which deals with extraterritoriality, it is quite clear that there are companies providing telecommunications services that will have a place of business or somebody in this jurisdiction who will be able to accept service of an interception warrant and so come within the terms of the statute. My only concern—it is not a concern that will destroy the Bill in any way at all—is practical. There may well be some telecommunications providers external to this jurisdiction that do not have a place of business in this country and do not have someone on whom an interception warrant can be served. Therefore, they will, like so many other aspects of extraterritorial law, not be susceptible to this legislation.

I am assuming—I put this in the interrogative—that my right hon. Friend the Home Secretary will be having discussions, or has already had discussions, with her overseas counterparts to make sure that overseas jurisdictions will co-operate, if we ask them to, to ensure that those overseas companies comply with the terms of this legislation as a matter of comity, if for no other reason. It strikes me that there is a lacuna, perhaps a very small lacuna, which may not be capable of being dealt with, but which none the less needs to be thought about.

21:38

[John McDonnell]

The hon. Member for Brighton, Pavilion (Caroline Lucas) said that those of us who oppose the Bill lost the debate today. I do not think we did. We lost the vote, but the debate will continue on a number of fronts. That Parliament can countenance legislation as important as this going through in such a hurried and ill-informed way—to be frank—has opened up a debate about its relevance and role. It will open the debate on the detail of the Bill: the regulations and the guidance we have yet to see—it was not published in advance of the debate—but it will be significantly important to its implementation. It will also open up the debate on whether the Bill meets the compliance criteria set out in the judgment against the previous directive. I think we will very quickly see a further challenge. We may be back here soon with more proposals for emergency legislation to address a further legal challenge.

I do not, therefore, think that the debate ends here. I think it actually starts here. It would have been more effective if we had had the time to have a proper debate and a sunset clause with a short period of time. That would have focused the attention of Parliament, rather than the drift into what I think will be the first stage in a wider debate on, perhaps, the resurrection of the communications Bill proposals that the Government, or one element of the coalition, brought forward earlier in their period of office.

[Mr Frank Field (Birkenhead) (Lab)]

I have a constituent who came down to London from Liverpool airport, where he worked, to try to gain knowledge about how one could increase access to the airport for people with disabilities. That was on the day of the London bombings. He was a great rugby player but when he finally went back to Birkenhead, he did so without both of his legs. How do I justify to him a Bill that says that phone records should be kept in case they form some pattern that somebody wishes to investigate? How could I, preciously, say that that issue is more important than my constituent’s legs?

[John McDonnell]

We have to clarify whether the implications of the Bill would have persisted in that case. A number of us are not convinced that there is a case. More importantly, in terms of parliamentary process, we could be in a situation where, literally within weeks, this legislation could be struck down again. We have rushed a procedure where we have arrived at legislation in which many do not have confidence but which is also seriously vulnerable to a challenge again. If we had taken the time and had a sunset clause that forced the pace to an extent—such as by the end of the year—we could have come back with more effective legislation that would have given my hon. Friend’s constituent more of an assurance that it would be effective in tackling those sorts of terrible crimes. That is why a number of us were offended by the speed of the legislation, which can result in ineffective legislation at the end of the day.

[Sammy Wilson (East Antrim) (DUP)]

The hon. Gentleman expresses a lot of the concerns that are felt even by those of us who wish to see effective security legislation in place. Does he agree that had the Government acted when they knew that there was a challenge to the legislation, all of what he is asking for now could have been done?

[John McDonnell]

What I found extraordinary was the argument that a sunset clause for the end of this year would not have given us sufficient time to produce adequate legislation. Yet that is almost the same passage of time that the Government had to produce today’s Bill—from April to July. If we cannot produce adequate legislation in the next five months, how have the Government managed to produce adequate legislation within that three-month period?

If the Government and coalition had been more open and transparent, and had undertaken a full and open consultation—and brought a draft Bill to the House—we would have had an opportunity to secure legislation that I believe would have been effective and would have had the support of the wider community. That would have given confidence to the constituent of my right hon. Friend the Member for Birkenhead (Mr Field) that we really were tackling terrorism, rather than simply going through an exercise to comply with a European Court of Justice judgment.

I repeat what a number of Members have said. This is no way to legislate. I agree with my right hon. Friend the shadow Home Secretary that this must be the last time we ever address an important issue in this way. If this is about coalition partners falling out, that is the weakest excuse for not being more open and transparent to the House about the problems we have to address.

I am fearful also that this is the foot in the door towards bringing back the communications legislation that was proposed previously. Many of my constituents have expressed the view that this is the start of widening the vista of snooping legislation. On that basis, I think it was important to have had the debate today and to put the Government on guard that the House will not tolerate being bounced into this type of legislation again.

Question put, That the Bill be now read the Third time.

21:43

Division 39

Ayes: 449

---

Conservative: 214
Labour: 191
Liberal Democrat: 38
Democratic Unionist Party: 5

Noes: 33

---

Labour: 16
Scottish National Party: 6
Conservative: 3
Social Democratic & Labour Party: 3
Plaid Cymru: 3
Liberal Democrat: 2
Independent: 1
Alliance: 1
Green Party: 1

Bill accordingly read the Third time and passed.

Business without Debate

Tuesday 15th July 2014 Commons Chamber

Delegated Legislation

Tuesday 15th July 2014 Commons Chamber

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Employment

That the draft Gangmasters (Licensing Authority) Regulations 2014, which were laid before this House on 9 June, be approved. —(Gavin Barwell.)

The Speaker’s opinion as to the decision of the Question being challenged, the Division was deferred until Wednesday 16 July (Standing Order No. 41A).

[Mr Speaker]

With the leave of the House, we shall take motions 6 to 8 on legal services together.

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Legal Services

That the draft Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (Institute of Chartered Accountants in England and Wales) Order 2014, which was laid before this House on 9 June, be approved.

That the draft Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (Chartered Institute of Patent Attorneys and Institute of Trade Mark Attorneys) Order 2014, which was laid before this House on 9 June, be approved.

That the draft Legal Services Act 2007 (Approved Regulator) Order 2014, which was laid before this House on 16 June, be approved. —(Gavin Barwell.)

Question agreed to.

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Terms and Conditions of Employment

That the draft Paternity and Adoption Leave (Amendment) Regulations 2014, which were laid before this House on 23 June, be approved. —(Gavin Barwell.)

Question agreed to.

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Housing

That the draft Redress Schemes for Lettings Agency Work and Property Management Work (Requirement to Belong to a Scheme etc) (England) Order 2014, which was laid before this House on 23 June, be approved. —(Gavin Barwell.)

Question agreed to.

[Mr Speaker]

With the leave of the House, we shall take motions 11 and 12 on banks and banking together.

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Banks and Banking

That the draft Financial Services and Markets Act 2000 (Excluded Activities and Prohibitions) Order 2014, which was laid before this House on 25 June, be approved.

That the draft Financial Services and Markets Act 2000 (Ring-fenced Bodies and Core Activities) Order 2014, which was laid before this House on 25 June, be approved. —(Gavin Barwell.)

Question agreed to.

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Video Recordings

That the draft Video Recordings Act 1984 (Exempted Video Works) Regulations 2014, which were laid before this House on 30 June, be approved. —(Gavin Barwell.)

Question agreed to.

Electoral Commission

Motion made, and Question put forthwith (Standing Order No. 118(6), and Order, 2 July),

That an humble Address be presented to Her Majesty, praying that Her Majesty will reappoint as Electoral Commissioners–

(1) Lord Horam with effect from 1 October 2014 for the period ending on 30 September 2018; and

(2) David Howarth with effect from 1 October 2014 for the period ending on 30 September 2018. —(Gavin Barwell.)

Question agreed to.

Attempted Suicides (Police Responsibilities)

Tuesday 15th July 2014 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(Gavin Barwell.)

22:00

[Mrs Madeleine Moon (Bridgend) (Lab)]

Let me take this opportunity to welcome the Minister for Policing, Criminal Justice and Victims to his new role and congratulate him on his promotion. If ever there was a Minister who will understand the issues I want to raise, it will be this Minister, who in his previous role as a firefighter will have come across the very issues that I hope he is eager to support me in addressing.

Let me set the background for the Minister. For the past few months, in my role as chair of the all-party group on suicide and self-harm prevention, I have been leading an inquiry into how suicide prevention strategies have changed since the passing of the Health and Social Care Act 2012, two years ago. Unfortunately, one of the many aspects of that Bill was the change to suicide prevention strategies in England. At the time, the all-party group recommended that local suicide prevention strategies be placed at the heart of the national suicide prevention plan. When led by committed local champions and given sufficient resources, local suicide prevention plans are seen as by far the most effective way of preventing suicide.

The new national suicide strategy, however, included no statutory requirement for local suicide prevention plans. The Samaritans reported that the lack of a statutory requirement created a “major barrier” to the survival of local prevention plans. The report from the all-party group is due this autumn, but from our conversations with the directors of Public Health England, health care professionals, experts in suicide prevention from the devolved Administrations and representatives from the police, it has already become clear that the lack of clarity about responsibility for suicide intervention, post-intervention and prevention is creating problems that must be resolved.

Three weeks ago I attended one day of the five-day course by the hostage negotiation trainers at the Hendon police college. The course is intensive and difficult, and I was impressed by the calibre of the officers attending from around the country. There is thankfully not a great call for hostage negotiations, but officers are frequently called out to deal with people contemplating suicide who need to be talked down from a roof, a bridge or the top of a car park. The frustration of those officers is great when, having spent hours talking someone down and taking them to A and E, they are told that there is no help because the person does not have an identifiable mental illness, but is depressed or anxious, or has a personality disorder or a learning disability.

[Jim Shannon (Strangford) (DUP)]

In Northern Ireland last year we had 303 suicides and numerous attempted suicides. Does the hon. Lady feel, as I do, that community and beat police officers should receive more help from the staff of suicide prevention charities? That valuable support and expertise could help police officers at a critical time when they are trying to save lives.

[Mrs Moon]

That is the whole tenet of my speech—the hon. Gentleman has stolen some of my best lines. He is correct: there is the lack of the support that police officers, who take on the most difficult job of saving a life, should have—and that the person who has attempted to take their own life should have—in order to ensure that they are not back in the same situation within 24 hours, trying to save a life.

This is not the first time I have raised the issue. On 26 June, I asked the Leader of the House for a debate on

“the responsibility gap faced by British Transport and Home Office police when they find an individual in emotional and mental crisis attempting suicide”.—[Official Report, 26 June 2014; Vol. 583, c. 480.]

Police officers are estimated to spend 40% of their time dealing with mental health problems, including suicide. In their research, Murphy et al acknowledged that 80% of police time is devoted to social services issues rather than to crime prevention.

I am told that considerable work is being done to look at the interaction between police services and the NHS, particularly in sensitive areas relating to mental health. What is clear from the evidence that I have heard is that there is new money and new engagement in mental health; that is happening. Sadly, however, someone giving evidence to the inquiry said, “If I call a meeting to discuss mental health, the room is full. If it’s suicide, nobody wants to know. It’s too difficult.”

[Dr Julian Lewis (New Forest East) (Con)]

Will the hon. Lady tell the House whether her research has revealed any increase in the problem since some health service foundation trusts, such as the one that serves Hampshire, closed up to 35% of their acute mental health in-patient beds? With the closure of some units—such as the state-of-the-art Woodhaven unit in my constituency—we have also lost the special facilities that were available to the police to house those who were found in mental distress.

[Mrs Moon]

I can say that the police increasingly have difficulty finding beds for people who need help and support. Although I cannot comment on the specific situation in Hampshire, the inquiry will reveal whether a suicide prevention action plan is in place and whether there is active engagement with the police in relation to that plan. I hope that that will assist the hon. Gentleman in assessing his local problems and issues.

The role of the police in dealing with mental health issues, mental health crises and suicide is growing. The figures from British Transport police on mental health incidents and suicide are shocking. I appreciate that the Minister will tell me that he has no responsibility for British Transport police, but they have been able to give me the most illuminating breakdown that shows the depth of the problem that we face. For every sexual offence dealt with on the railways, there are 15 mental health incidents, four of which are related to suicide. For every offence of robbery, there are 39 mental health incidents, 10 of which will relate to suicide. For every non-sexual assault, there are two mental health incidents. Last year, there were more calls to British Transport police relating to mental health incidents than there were reports of robbery and assault combined. In fact, British Transport police currently prevent more people from taking their own life every year than there are robberies every year. Those statistics show the size of the problem that we have drifted into.

The British Transport police are not alone in dealing with mental health issues. The Metropolitan police are reporting large increases in the number of people in mental health crisis committing offences deliberately for the purpose of getting into prison, because they believe that they will be safer in a cell than on the streets. At least in prison, they will have access to mental health support. Police say that they are told by local authorities that they are using section 136 powers too regularly, but they do not have any viable alternative to the place of safety that a police cell represents.

The British Journal of Psychiatry reports that in the north-east of England, a total of 205 cases of suicide were identified, 41 of which had a documented contact with the police within three months prior to the suicide while an additional seven cases had impending court appearances. In almost a quarter of suicide cases, the person had been in direct contact with the criminal justice system within the previous three months. Figures taken from the national confidential inquiry into suicides showed that in 24% of suicide cases, the person had been in contact with mental health services within 12 months of their death, compared with 70% who had been in contact with the police.

In my previous Westminster Hall debate on the subject, the former policing Minister told me:

“It is obvious that the police have, and will continue to have, a key role in dealing with mental health issues as they arise.”

That is undoubtedly the case, but is it right for the police always to be the point of engagement for those who are at risk of suicide? Those with mental health issues are three times more likely to be the victim of crime, and half of those with some form of mental ill health experienced a crime in the last year alone. The former policing Minister told me that the police

“are not and cannot replace health professionals. Both types of professionals should be left to do the job that they are best at doing and trained to do”.—[Official Report, 28 November 2013; Vol. 571, c. 161WH.]

Unintentionally, the Minister described what is wrong with the current situation. The police are increasingly replacing mental health professionals.

I am worried by the fact that when a police officer comes into contact with an individual whom they suspect is experiencing a mental health crisis, if that person goes on to take their own life, the officer will be investigated. They are often requested by social services to call on someone who is seen to be at risk, but it is the police officer and not someone from social services who is subject to an internal investigation. Police officers feel particularly aggrieved that they, who have no specialist training in identifying mental ill health, are expected to be accountable should someone with a mental health problem ultimately take their own life.

In my Westminster Hall debate, the former policing Minister spoke positively of the benefits of joint working. Many directors of public health and other suicide prevention professionals have said that the only really successful approach to the issue is multi-agency working. They see police and health professionals working together in a well-defined manner. Will the Minister tell the House what progress the Government are making on such an approach? In particular, what efforts are being made to log incidents of suspected and attempted suicide and to provide that information, in agreement with the coroner, as timely, current examples of the problems and risks faced locally, rather than prevention services having to wait three years for the national statistics to be released?

The Minister will be aware of MARACs—multi-agency risk assessment conferences—in relation to domestic violence. They have been piloted in some Metropolitan police areas to highlight the suicide risk of individuals and to provide a supportive package. I was told a wonderful story from a MARAC involving a lady with dementia who had been burgled 30 years earlier and was ringing the police several times a day to report a burglary. The initial response was that she should be given an antisocial behaviour order, but the MARAC pointed out that that was not the best way of dealing with her and a support package was put in place. Police time was saved and an elderly lady was saved huge distress. Will the Minister examine how MARACs are working and whether they can be rolled out as an exemplar across the UK?

We all agree that the police play an important role in dealing with mental health issues, but post-attempted suicide support should not be a police responsibility. British Transport and Home Office police recognise that their primary responsibility is to those whose life is at risk, but that responsibility is not placed on other statutory agencies, which are able to walk away when the police cannot. It is imperative that health, voluntary sector and local government agencies, as mentioned by the hon. Member for Strangford (Jim Shannon), work together to establish a joined-up strategy, with a primary responsibility to those whose life is at risk, that both prevents suicide and deals appropriately with those who have survived a suicide attempt, ensuring in the best way possible that they do not go on to make a further attempt.

Police officers are there to deal with crises, risk to life and crime. Sadly, too much of the Minister’s budget and officer time is taken up filling gaps that health, local government and appropriate funding of the voluntary sector should be filling. I look forward to hearing how the Minister plans to free police time and responsibility for those attempting or contemplating suicide once the immediate crisis has been resolved.

22:15

[The Minister for Policing, Criminal Justice and Victims (Mike Penning)]

When I woke this morning, I did not expect to be responding to such an excellent Adjournment debate on such an important subject as the Minister responsible for policing in the United Kingdom and with responsibilities in the Ministry of Justice for child protection—among other things, I believe, which we will see once the final list comes out.

I congratulate the hon. Member for Bridgend (Mrs Moon); may I call her my hon. Friend? We have dealt with many things together in the past and this is an appropriate opening debate for me, not least because of my previous ministerial duties at the Department for Work and Pensions as the Minister responsible for disabled people and, as she mentioned, my time on one blue-light facility as a fireman in the Essex county fire and rescue service. I was also a paramedic, when I was in the military, and a battlefield medic. When we are not on operations, the military look after the communities where they are and, sadly, I remember responding to all too many suicide attempts when I was in both the military and the fire service.

Sadly, as the police are on the front line, they often bear the brunt of what is going on, emotionally as well as in terms of their physical time. It is right and proper that as this is my first speech in this role, I should pay tribute to the work that all police do in this country. The hon. Lady has mentioned the British Transport police and the police in the devolved Administrations. I worked closely with the police in Northern Ireland when I was a Northern Ireland Minister, and there are also myriad other police services, such as the ports police, and the nature of ports means that they often sadly see a lot of suicides and attempted suicides.

When I was the Minister responsible for disabled people, one thing I did with the permission of the Prime Minister was start a joint ministerial forum for Ministers from all Departments. I nearly said that they were required to attend, but actually I cajoled them into doing so. For the first time in 40 years, since we first had a Minister responsible for disabled people, Ministers from all Departments came together not to pat ourselves on the back for what we had done for the disabled community but to see how we could improve things in the short and long term. It is spooky that one thing we were talking about at that forum was the whole question of mental health. The previous policing Minister, my right hon. Friend the Member for Ashford (Damian Green), discussed this very subject with me. We started to work very closely with the Health Minister with responsibilities in this particular area, who has been enormously helpful.

One thing we discussed extensively was not just what to do at the time of the incident, but how we could prevent people from getting to that position in the first place. My hon. Friend the Member for New Forest East (Dr Lewis) alluded to mental health issues in his constituency and I hope that we have all been to mental health facilities in our constituencies to see the excellent work they do. One of the biggest problems we have is ensuring that when someone is presenting, not to a police officer but to a health professional, the knowledge and skills are there to recognise that there is a mental health issue, not least at accident and emergency. I know from my own experience that people were presenting at A and E or being presented by the police, but there were not staff on hand with the skills to diagnose and understand those people’s conditions, which would involve either mental health or learning difficulties—another issue that often comes into play.

[Dr Julian Lewis]

In my intervention, I did not make it clear enough that what happened in Hampshire appears to be happening in other parts of the country as well. We are going through one of those fashionable phases in which there has been a swing away from in-patient acute mental health beds, which is having an effect as the facilities are not available for the people in acute distress whom the police are discovering or with whom they have to deal.

[Mike Penning]

My hon. Friend raises an important point. That may well be a useful Adjournment debate for us to have, with Mr Speaker’s permission. Even in our front-line acute accident and emergency departments, it is crucial to have staff with the skills to diagnose exactly what is going on.

I could not agree more with the hon. Member for Bridgend that, while the police will always be the front line—always be the people who are there for us—at the end of the day, even though there is mandatory training, their response is not what we really need to happen. We need to prevent as many suicide attempts as possible. I have myriad figures before me, which the Department has kindly provided, including from the British Transport police. The nature of their job means that they come across people who really intend to commit suicide rather than make a cry for help—although sometimes a cry for help can go too far. Suicides are unbelievably distressing to the police and the British Transport police as well as drivers, the excellent facilitators of our transport system. I have been with drivers of trains and buses that people have jumped in front of, and I know it causes them untold stress because they feel responsible, although clearly they are not.

We need to do more. In the short time that I have had this portfolio, I have had the chance quickly to look at the multi-agency risk assessment conference—MARAC—scheme, which is being piloted. I will look at it in detail. The Select Committee is pursuing its own investigations, and I look forward to assisting the Committee in that work. The hon. Lady touched on other areas where the police may well be involved. The prevalence of people with mental health issues or learning difficulties in our prison system across this great country of ours is very sad, and often the police are called to incidents within prisons. Tomorrow at 9.30, I am meeting the Metropolitan Police Commissioner—on my second day in, he is coming through my door. I will be talking to him about this issue.

[Jim Shannon]

The Minister will be aware from his position as Minister of State for Northern Ireland of the close co-ordination between the Police Service of Northern Ireland and the local health authorities. The two work together whenever people with suicidal tendencies and mental health conditions are presented. There is a system in place which I know that the Minister will be aware of, and which reacts quickly. Does he feel that that system could address the issues that the hon. Member for Bridgend (Mrs Moon) has raised tonight?

[Mike Penning]

In Northern Ireland I worked closely with the Chief Constable, Matt Baggott, who has retired now—I wish him well, and I wish the new Chief Constable well, too, in a difficult time. Only the other night, we said how pleased we were about how quiet the marching season was.

I want to look at the MARAC scheme to make sure that it is evidence-based. The crucial thing is that, with the limited funding available, agencies must work more closely together so that we not only intervene earlier but, once we have intervened, make sure that we get the decisions right. As the hon. Member for Bridgend said, we get people to what we think is the right place, then release them and sadly the situation recurs. I do not have this written down in front of me—it is anecdotal evidence—but people who commit suicide tend to have tried before. It is sad that as a society we have not managed to pick up on that. If I am wrong about that, I apologise to the House, but it seems to me from my time in the emergency services that that is what happens, and I will look for evidence that I am correct.

The police do a fantastic job no matter where they are in this great nation of ours, and the various police forces all carry out their roles in an exemplary way. It is important that we use their resources correctly. The police will always, rightly, be on the front line. They may sometimes be the first to arrive and in certain circumstances they will be the only people to arrive. It is important that paramedics are trained in understanding health issues and learning difficulties, which are often linked—something that is sometimes not fully understood. We must use our police and their resources correctly. They should not be the first resort but the last resort when it comes to looking after people with these sorts of conditions and those attempting suicide, so that we can improve matters. It is getting better, but I will not drown the House with data. One life lost is one too many, and I hope to work closely with the hon. Lady because I want police arresting criminals and for criminals to be convicted, and wherever possible, not to be put in a difficult position, as is often the case in this particular arena.

Question put and agreed to.

22:25

House adjourned.