Data Retention and Investigatory Powers Bill

Debate between Lord Davies of Stamford and Lord Hope of Craighead

Thursday 17th July 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, this amendment returns to a point that I raised yesterday at Second Reading. As the noble Lord, Lord Phillips, pointed out in moving his amendment, Clause 1(1) is crucial to the whole scheme in the Bill and it is extremely important to get the language of it right. I will not go back over the points that he was making in general support of that proposition, but it is with a view to trying to get the language right that I have raised this issue again.

The Minister will recall that I was drawing attention to the wording of the judgment in the case that has given rise to all these problems, and I will come back to that in a moment. I note that in his reply to my comment, at col. 664 of yesterday’s Hansard, he said:

“The noble and learned Lord, Lord Hope of Craighead, asked why Clause 1(1) does not use the wording of the ECJ judgment. The test in the Bill requires the Secretary of State to consider”—

personally, I would accept that as an appropriate word—

“whether it is necessary to require a provider to retain data, but also whether it is proportionate for that legitimate aim. This is in accordance with the judgment, which also makes it clear that it is necessary to verify the proportionality of any interference with a person’s rights when requiring the retention of data”.—[Official Report, 16/7/14; col. 664.]

The point that I raised, and to which I return, is that the wording of the judgment is more precisely targeted. The reasons for it are explained in the judgment in a certain amount of detail because they draw attention to the concern that members of the public would have—possibly more by rumour and suspicion than by reality, but concern nevertheless—that their private lives were the subject of constant surveillance. It is for that reason that the court went on to say that it was necessary for,

“clear and precise rules governing the scope and application of the measure in question”,

to be laid down. That was in paragraph 54.

The criticism of the directive was that the “clear and precise rules” that were required were not apparent in that directive. Paragraph 65 is the crucial one. It says:

“It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions”—

the word “provisions” is important—

“to ensure that it is actually limited to what is strictly necessary”.

My amendment picks up two points: the use of the words “objective reasons”, which are in the judgment; and also the phrase “the requirement is strictly” to be added before the word “necessary”. My concern is that, without words that match the judgment, those who seek to criticise or possibly even attack the measure will compare what is in the legislation with what is in the judgment. Lawyers do that all the time. I know that the future of the European courts is perhaps not entirely secure, but the fact is that for the life of this Bill if it becomes an Act, and up until the closure date, both of the European courts are capable of being appealed to. I am quite sure that the last thing the Minister would want is a challenge to this measure on those grounds in those courts.

My amendment is intended to be helpful. I am not trying to undermine the Bill. I am just trying to suggest that the language of it should be more precisely worded. I do not know where the phrase “necessary and proportionate” comes from. The ECJ judgment says that proportionality is part of necessity, so built into the idea of necessity is proportionality. I do not complain about the fact that they are both there—it is a useful combination of words—but it is the other bits, the strict use of this phrase and the need for objective reasons, that are necessary.

If one thinks through the way in which the exercise will be conducted, I have no doubt that the Secretary of State herself will not be taking all these decisions. This formula would, in fact, be instructing those on whom she relies to apply their minds to the requisite standard, and to provide convincing, objective reasons for the measure that is suggested should be taken.

I am grateful to the noble Lord, Lord Blencathra, for drawing my attention to an examination of the wording in the draft communications data Bill, as it then was, by the Joint Committee on the draft Bill. In paragraphs 62 to 67, there is a discussion about the language. One point that emerges from that discussion, which is very relevant to what I am trying to say, is that the wording is necessary, having regard to the fact that:

“Once a power is on the statute book”—

as this would be—

“it is available to be used, and also to be misused or abused, at any time in the future”.

Undertakings are all very well, as are all the various other protections that the Minister referred to yesterday as part of the United Kingdom’s system; but at the end of the day, it is the wording that directs the nature of the exercise to be carried out by those responsible for doing it that really matters.

That is why, in my experience, these courts are not all that impressed by what we tell them about how our system operates and the number of regulators and investigations that go on to check that everything is being conducted properly. They will look at the language in the statute. That is why it is so important to get the wording right if this measure is to stand up to scrutiny.

It is with that justification that I move this amendment, in the hope that the Minister will give further consideration to it, in the very short time available, to see whether it would not be wise to tighten up the wording. I think that it is in sympathy with what the Minister himself would wish to be done anyway. It is getting the wording on the face of the Act that matters so much. I beg to move.

[Lord Davies of Stamford (Lab)]

My Lords, I rise to support the noble and learned Lord, Lord Hope, in his amendment. Before doing so, I hope that it may be in order to say a word of appreciation to the Minister—on my behalf, but I dare say that I am speaking also on behalf of others who spoke in yesterday’s Second Reading debate—for obviously having worked late through the night with his officials. He produced a letter to my noble friend Lady Smith, a copy of which we all received this morning. I make that point because—given the circumstances of emergency legislation, which always, quite correctly, arouses scepticism, doubt and worry in people’s minds—it is particularly important that the Minister should give very careful answers to the many points raised in yesterday’s debate.

It would be wrong to say that the Minister has answered in this letter every question that was raised in the course of the debate. Indeed, he has not actually answered every question that was raised by the Constitution Committee’s report. For example, the Constitution Committee pointed out that the Joint Committee had said in 2012 that there was some difficulty or doubt about non-British companies being prepared to continue to co-operate, not so much on the retention of data but on the provision of communications content. The Government might have been advised to address that criticism and could simply have said, “Maybe we got it wrong, in retrospect, and should have taken notice of the Joint Committee’s observation back in 2012, rather than ignoring it”. However, that is just one point. I think that the Government have made an exemplary effort in a very short space of time to deal seriously with the matters that were raised in yesterday’s debate. It would be quite wrong for nobody who asked critical questions yesterday to recognise that effort and to thank the Government for it.