Investigatory Powers Bill

Lord Oates Excerpts

Report: 2nd sitting (Hansard - part one): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Oates (LD)]

My Lords, I support Amendments 100C, 100D and 100E. I am not at all naive about the threats that are faced by this country and the need to provide the tools to the security forces to deal with them. However, as the Independent Reviewer of Terrorism Legislation has made clear, the fact that powers might be useful is not in itself a justification for granting such powers; they must be proportionate, properly scrutinised and properly constrained. I agree with my noble friend Lord Paddick that the phrase “request filter” has a benign ring to it that is perhaps lulling some of us into a false understanding of what it is really about.

As my noble friend recalled, when we discussed this matter previously, the noble and learned Lord, Lord Keen, disputed the idea that the request filter would create a virtual database. He seemed to suggest that it cannot be described as a database simply on the grounds that the data will not be held by the Government. The data accessed by the request filter will be held by commercial entities, not by the Government, that is true, but it will be held on the instruction of the Government in the form that the Government determine, and it will be accessible by agencies of the Government by a means that the Government will determine. I make no claim to be an etymologist, but that seems to me pretty much the definition of a virtual database.

The House may wonder why the Government are going to such an effort to make this distinction between a database and a request filter, when it seems self-evident that they are effectively one and the same. The reason is simple: because they do not want people to realise that they are in the process of legislating into existence the power to create a vast virtual database of information on every person in this country.

As my noble friend mentioned, the Joint Committee on the draft Communications Data Bill stated at paragraph 113 of its report, which dealt with the request filter:

“The difference is that instead of one database there are many and they are privately owned. Although they are privately owned the Government can stipulate what should be held on them, for how long, and in what format it should be supplied. The differences therefore are not as great as the Home Office suggests”.

As my noble friend said, it concluded that,

“the Request Filter can be equated to a federated database”—

a database which will be accessible not only to the security services in the tireless work that they do on our behalf to keep us safe from terrorism, law enforcement authorities in their vital work tackling serious crime, or the police in dealing with crime in general. As my noble friends have said and the Government have confirmed, this vast, federated database will be available to all public authorities to assist in obtaining the communications data that they are permitted to use, subject to individual authorisation.

I do not think that the public have any idea of the sweeping powers that we are contemplating granting to the Secretary of State to establish this vast virtual database. I imagine that they will be horrified when they do, just as they were by proposals of previous Governments to create national databases, before this Government cleverly came up with a new name for it that sounds so eminently and hypnotically reasonable, but is as far from describing what it actually is as it is possible to conceive.

I hope that this House will not allow itself to be misled by the Government’s creative use of the English language, but, rather, aware of the practical reality of what is being proposed, will support the amendments in the names of my noble friends.

[Lord Rosser]

My Lords, we do not share the major concerns expressed in support of the amendment, in view of the Bill’s provisions. As I understand it, neither did the committees which considered the Bill, including the Joint Scrutiny Committee on the draft Bill. There are also downsides which would arise from the amendment, to which reference has already been made.

In Committee, we asked the Government to clarify that the general provisions in relation to privacy in Clause 2 affected every power in the Bill, in the light of the letter written by the noble Earl, Lord Howe, to me on 14 July stating that the new overarching privacy clause set out the privacy obligations which constrain the use of the powers in the Bill—which therefore must include necessity, proportionality and the protection of privacy. In their response, the Government confirmed that that was the case. For those reasons, we will oppose the amendment.

--- Later in debate ---

[Lord Oates]

My Lords, I will not detain the House too long and certainly do not want to repeat all the eloquent arguments that my noble friend Lord Paddick has outlined on this matter. I want to say two things about the previous two interventions. The utility issue—the fact that people may be prepared to give up their liberties—does not necessarily come into play here. I do not think that the vast majority of people have any idea whatever of what the Government are planning. I do not think they have any idea that regardless of whether they are regarded as innocent, suspect or anything else, every single person’s website visits will be held on databases on the instruction of the Government. Nobody is aware of that. They are not making a decision about whether they are prepared to accept that infringement, and I think they will be horrified when they understand it.

A number of noble Lords have said that the fact that the law can be evaded is not a reason not to have a law. If a law can easily be evaded and that law requires a massive invasion of the privacy of people throughout this country, that has to be weighed in the balance. It has to be taken very seriously.

We have to be clear about what is proposed. The Government intend to take the power to compel the creation of databases of every single website that every single person in this country visits over a 12-month period. That is a huge amount of data, and it puts a vast amount of power in the hands of the Government. More to the point, it is a vast amount of power in the hands of whoever might manage to hack those databases. This is not some vague threat made up or exaggerated by opponents of these ICR powers to make a point. It is a real and present danger and a massive threat to the privacy and security of every single person in this country. We are all aware of the spate of state-sponsored and other hacking that has been taking place in the United States and elsewhere around the world. Every day, systems come under serious attack and none is entirely immune. If the US Pentagon can be hacked, then who on the Government Front Bench can say hand on heart that this vast new store of information that the Government are demanding be created cannot be hacked?

When I talk to people around the country about the powers that the Government are proposing to take in relation to ICRs they are almost universally shocked. They do not have any faith that such data will be held securely, and they cannot understand why the Government would put at risk their privacy and security unless holding such information was critical to the prosecution of the most serious crimes. As my noble friend Lord Paddick has pointed out, the security and intelligence agencies have consistently been clear that they do not need ICRs. There are very simple ways to evade the collection of ICRs, so those committing serious crimes are unlikely to be troubled. The strongest case cited for these powers is in relation to identifying and prosecuting paedophiles, and there is no doubt we should listen and consider this case very carefully because the protection of children from such people must be regarded as an absolute priority for every one of us. However, as my noble friend Lord Paddick has pointed out, in those serious crimes, including child exploitation, GCHQ can assist law enforcement and there is a joint unit for those purposes. Perhaps more to the point, the sort of people involved in the criminal activities we are discussing would easily be able to avoid their ICRs being captured.

The power the Government are claiming is extraordinary. It is a power that none of the other “Five Eyes” countries has. Indeed, to my knowledge, no even nominally democratic Government in the world have it. It is such an extraordinary power that my noble friend Lord Carlile, who is unfortunately no longer in his place and who is no slouch on counter- terrorism measures, wrote an article in the Mail on Sunday on 26 May 2013:

“I, Lord Reid, Lord West and others of like mind have never favoured the recording of every website visited by every internet user, though we have been accused of that ambition”.

Granting the Government a power to order the retention of the details of every website visited by every person in the country over a 12-month period will give us, at best, only false comfort. It may make some of us feel more secure, but it will not make us more secure. In fact, it will put at risk the security and privacy of every person in this country. I support the amendment in the names of my noble friends.

[The Lord Bishop of Chester]

My Lords, I was a member of the Joint Committee conducting pre-legislative scrutiny of the Bill, along with the noble Lord, Lord Strasburger—I am not sure whether anyone else in the Chamber was. I remember a discussion which was genuinely open and uncertain about the practicality of this above all. The issue of privacy has been raised very powerfully by the noble Lord, Lord Oates, and others from the Liberal Democrat Benches. We thought at the end of the day that the whole Bill was about reaching a balance, with a degree of compromise over issues of privacy alongside the really quite robust safeguards which are in the Bill, such as the role of the judicial commissioners, as all set out in Clause 86. Our real issue was over practicality and cost. When the Minister comes to respond, it would be helpful if we could have a bit more guidance as to what this is going to cost. The cost will not fall on the companies; it will fall upon the Government, who will have to fund it.

However, we were persuaded that under Clause 84, the retention notice may be more specific than has been suggested in the speech from the Liberal Democrat Benches. It is not necessarily every connection to every website: the provision could be targeted to particular websites, for example, which is all set out in Clause 84. We should also emphasise that these records would not be of the content of what was happening: it would be where you had made contact, not the content of the connection as such. That is an important factor which has not been mentioned in the contributions.

That said, a representative from Denmark came and explained to us why the Danes had given up on this, simply on the grounds of cost and practicality. It is the practicalities that I would like to hear about most from the Minister when he speaks, alongside of course acknowledgement of the points that have been made by others in the debate.