Data Retention and Investigatory Powers Bill

Lord Butler of Brockwell Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Taylor of Holbeach]

I am sorry but I have to ask the noble Lord to read in Hansard what I have just said if he fails to be convinced as to why the Government are legislating now. I will leave it at that because I do not suppose that I will convince him on the principle, whatever I say.

[Lord Butler of Brockwell (CB)]

My Lords, I rise in defence of the Minister because the Intelligence and Security Committee discussed this point with the director of GCHQ on Tuesday morning in the short time available. There have been developments since 2012 that have affected the attitude of the providers—for example, the activities of Mr Snowden. The committee was satisfied that there is a serious risk of loss of visibility of people who ought to be under observation and that the Government’s arguments that this is an urgent matter were justified.

[Baroness Smith of Basildon (Lab)]

My Lords, I rise briefly because I think that perhaps my noble friend Lord Davies has been misunderstood. I do not think that he doubts for one instant the emergency situation that necessitates this legislation. His argument is that the Government could have acted sooner. I will not enter into a debate as we had a long debate yesterday, but it remains our contention that the Government could have acted sooner on this issue. But there is a time imperative now on this legislation.

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, having supported the Minister on the point made by the noble Lord, Lord Davies, may I now say to him that he is being unnecessarily negative about this? He has explained why he thinks the amendment is unnecessary, but he has not explained what the positive arguments are against it. It seems to me that it can only be helpful. Unless there is some positive reason for rejecting the amendment, I would urge him to consider again before Report. The problem is that we cannot repeat this amendment exactly on Report, and it would be difficult to improve on the wording already suggested by the noble and learned Lord, Lord Hope. I ask the Minister whether he could consider again the idea that this amendment is designed to be very helpful to the Government. The fact that it may not, in the Government’s view, be strictly necessary, does not seem to me a convincing argument as to why it should be rejected.

[Lord Armstrong of Ilminster (CB)]

My Lords, we are talking about what the Secretary of State considers. I wonder whether the difficulty could be resolved if the Minister were to state formally, on the record in Hansard, that the Secretary of State must consider that,

“for objective reasons the requirement is strictly”

necessary.

--- Later in debate ---

[Lord West of Spithead]

My Lords, the noble Lord, Lord Phillips, spoke to me before the debate to ask if I would be supporting this amendment, so I have thought about it in some depth, and the answer is that I cannot. I am very supportive of my noble friend Lord Rooker’s comments. What he said about that toxic word “snooper” is exactly what I said in my speech yesterday at Second Reading. It is a very bad and emotive term, for the reasons that I gave then. I support a number of the other things that my noble friend said as well.

Both Houses are clearly in accord that the maintenance of these powers is critical for the safety and security of our people. Removing this provision before something has replaced it is an absolute nonsense. Having been involved over a number of years in this sort of legislation and this sort of work, it is clear to me that, in reviewing something like RIPA, if we are to do it properly, there is no way that we can achieve something in place of this provision in such a short time, because it will be removed. As the noble Lord, Lord Carlile, mentioned, it will have gone before we could do it. Actually, it will be tight to achieve it even by December 2016. We need to do a proper review. We will need something like a new communications data Bill. We so nearly got one before political shenanigans stopped it happening, but we need to look at this and go into great detail in reviewing RIPA. All this has to be done. It is extremely dangerous to try to shorten these timescales. It would be a dreadful mistake to make it any earlier than December 2016.

[Lord Butler of Brockwell]

My Lords, having supported the Minister in response to the noble Lord, Lord Davies, and having criticised him in response to the noble and learned Lord, Lord Hope, in this case I support the Government and agree with those who oppose this amendment.

If we pass this amendment we would find ourselves in exactly the same danger as we are with the provision of this Bill. We would be presented with a Bill in the latter part of 2016 that would be very urgent and the House would have inadequate time to consider. Although two and half years seems a long time, let us consider what is going to happen in the mean time. The independent reviewer of terrorism legislation has been asked to carry out a thorough review of the RIPA legislation. I understand that his timetable is to try to complete that by the time of the Dissolution of this Parliament, by May of next year.

The Intelligence and Security Committee is similarly carrying out a review. This autumn we plan to have public hearings where those who are critical of the legislation can have their say. I hope that that will generate a public debate and allow these issues to be widely discussed; that will be very valuable. We also hope to reach a conclusion by the end of the Parliament. Indeed, we had better, because there will be a new committee after that. The election will be in May of next year. The new Government will come in with quite a short time before the Summer Recess, when there will be other urgent things to do. It has been suggested that there should be a Joint Committee of the two Houses to look at the conclusions of the reviewer of terrorism legislation, and those of the Intelligence and Security Committee. It will want to have time to consider that. It really will not be practicable to reach a position where properly considered legislation can be introduced until we are well into 2016.

Two and a half years may seem a long time, but when one considers that those are the sensible and necessary steps before legislation is introduced and passed, it follows that the end of 2016 really is the earliest possible date when we can expect to have properly considered and satisfactory legislation in place of the Bill that we are passing today.

[The Earl of Erroll (CB)]

My Lords, I have not intervened earlier because I have been doing lots of other things, but I wanted to intervene on this amendment and say that I think that this is a sensible approach. I cannot believe that you can produce this Bill within a couple of weeks and then say that we cannot do something better in a year and a half. It seems that we are trying just to push the boundaries out, and the question is why. It tends to be the people who can see the challenges, who come from a senior executive background, who are trying to get this sorted out, and I can see their point.

We need to consider some of the principles behind the amendment, which is why I fully support it, and we need to discuss those principles very early on. The issue is not the technicalities in the Bill, the definitions of communication data and metadata; we know that we need to do this for the purposes of finding terrorists, enforcing the law and stuff like that. The real challenge is posed by that old bit of Latin—which I might as well use, as we are now using Latin—sed quis custodiet ipsos custodes? Who watches the watchers? Who guards the guardians? We should remember the line that is supposed to come after that, which I will say in English: they keep quiet about the girl’s secrets and get her as their payment. Everyone hushes things up. That is the trouble. If corruption runs high enough, you get the Cambridge set—was it four or five by the end of it all? You get J Edgar Hoover.

That sounds as if I am painting a hugely black picture, but there is danger there, even more so now that we have rolled together—for the purpose of catching terrorists and people in serious and organised crime, which we have had to do—what used to be our external forces, GCHQ and MI6, responsible to the Foreign Office, and our internal police, which was MI5 and is now basically the NCA. In America the CIA and the FBI were kept separate. We have started to bring our forces together because of things falling between the cracks. This means that we are potentially giving huge powers to internal police. Therefore, how those at the top are to be watched is of vital importance.