Investigatory Powers Bill

Debate between Lord Harris of Haringey and Lord Rooker

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[Lord Rooker]

My Lords, if I could be convinced that the same rules applied everywhere on the globe—because we are talking about a global function—in respect of the rule of law, freedom, transparency and privacy protection, then I might have a bit of sympathy with the business operators, as we will call them.

I had the privilege of being among those serving on the RUSI panel. We had a discussion with the providers, but they did not all want to come and sit round the table at the same time—I recall two or three sessions—because they are competitors. We put it to them—it was not original; it had come up elsewhere—that not one of these companies, whether Apple, Google, Facebook, Twitter, Yahoo or Microsoft, would ever have been able to start what is now their global business in countries such as Russia, Iran and China. Yet they have become global and make enormous profits, although I will not go into the issue of them paying their taxes.

These providers hide behind the fact that the countries where they are able to start and function have the rule of law and are democracies where you can challenge Governments in the courts and get redress, yet they then go and operate in countries where they cannot do that. If they all said, “When we operate in China, we’re going to produce all our phones fully encrypted, exactly as we do for everybody else. The Chinese Government are allowing us to close end to end. They don’t want to know what their citizens are saying”, then fine, but I do not believe that that is the case, and that is part of the problem.

My noble friend Lord Harris touched on the issue of other Governments, but we can legislate only for the UK. I fully understand that, yet half of an email sent from my office upstairs to a colleague here might be split and end up travelling through the rest of Europe or America or half-way round the world. That is how the system works. Just because you are emailing someone in this country from within this country, you cannot guarantee that the entire message will stay in this country while it is being whizzed round the world. The system does not work as I originally thought it did. So we can legislate only for this country and messages get split up around the world.

The fact is that the business plans and business operations of these companies depend on open, transparent and democratic countries with the rule of law, yet they are willing to work in countries where there is no rule of law and where there are corrupt regimes, such as in Russia, or undemocratic regimes, as in China. These are countries with huge populations and the companies can do business there according to a different business plan from the one that applies here. From the point of view of those who are there to protect us, that has to lead to a suspicion that at some point we might need a bit more information than we have and that we might need to ask for that to be provided.

I take second place to no one on the protection of privacy, but the fact is that you cannot discuss this issue just in the context of the UK or Europe; it is global, and the rules do not apply equally across the globe. If we take that on board, I think we ought to have a fair degree of sympathy with how the Government will operate these measures.

I have listened to other people and have read more about this matter since finishing our work on the RUSI panel, and the fact is that there is a great reluctance to have these powers. In a democracy there is an incredible reluctance for private information to be treated in this way, but at the end of the day there will be proportionality and our people will be tested on the need for these powers. One of the raisons d’être of the Bill is to put in second and third checks, so those with the powers will be watched and the watchers will be watched, and that is how we can give the public confidence. I do not think that we ought to write the Bill to suit the business operators’ original business plans, because they are not implementing them on an equal basis across the globe. Therefore, I hope that the Government will reject these amendments.

[Lord Harris of Haringey]

Before my noble friend sits down, to be honest I think that he has slightly misunderstood the point that has been made. I am not putting this forward because of the business models of particular companies; I am proposing it because of the inherent weakness that could conceivably be created. His argument, if I understood what he just said, is that because Russia or China may require, or may force because the business there is so valuable, a communications service provider to put in one of these back doors, therefore we need to have the same facility. The point is that, because it is a global provision, if a back door is built in—because Russia or China or wherever else has demanded it—then a technical capability notice would operate because the operator would have that existing facility. That is precisely the circumstance in which a technical capability notice could be served. This amendment seeks to exclude a requirement from our Government that it should be created at our behest, which other people would then use.

[Lord Rooker]

I take on board what my noble friend is saying. I fully accept the distinction he makes but, basically, although I am a customer of some of these companies, I do not trust them—they will tell us that this has been built in and is secure, but do deals with those other regimes.