Investigatory Powers Bill
Lord Strasburger Excerpts(8 years ago)
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Lord Strasburger
To ask Her Majesty’s Government whether clause 217 of the Investigatory Powers Bill will give them the power to force a company to break its own encryption in a similar manner to the United States Federal Bureau of Investigation’s abandoned attempt to make Apple break the security of an iPhone.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the Investigatory Powers Bill maintains and clarifies existing powers to ensure that terrorists and criminals cannot use technology to escape justice. The Bill provides our law enforcement and security and intelligence agencies with the ability to require communications service providers to remove encryption that they have applied themselves in tightly defined circumstances where it is reasonably practicable to do so.
Lord Strasburger (LD)
My Lords, Clause 217 of the Investigatory Powers Bill gives the Government almost unlimited powers to force, in secret, companies to remove “electronic protection” from their products. How do the Government intend to use this power in the increasingly frequent cases where a company has designed the security of its products so that even the company itself is incapable of unlocking the equipment or decrypting the data? Will Apple and others be required to redesign their products so that they can break into them, or will they be required to stop selling them in the UK?
Lord Keen of Elie
With respect to the noble Lord, Clause 217 does not provide anyone with unlimited powers with respect to these matters; it deals with technical capability notices—a notice which is given after discussion with the Technical Advisory Board to a company requiring it to retain the ability to decrypt information if and when an appropriate warrant is served pursuant to Clause 36 of the Bill. Therefore, it applies only to the extent that it is reasonably practicable for the company to comply. The relevant tests are clear in the Bill, as the noble Lord may recall, as he sat on the Joint Committee that considered the Bill between November 2015 and February 2016.
Draft Investigatory Powers Bill
Lord Strasburger Excerpts(8 years, 6 months ago)
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Lord Bates
Accountability lies in that it was the Secretary of State, first, who made the decision and that is then checked by a judge. That would be the element of public accountability in that circumstance, but we are talking particularly about warrants which are required in relation to intercept, which is the most intrusive form of investigation power, not necessarily the communications data.
Lord Strasburger (LD)
My Lords, shortly after being introduced to this House I had the temerity to start raising concerns about the plethora of unfit legislation covering digital surveillance powers and the ineffective controls and oversight over their use. Initially, my questions in this Chamber were met with a mixture of stonewalling by Ministers and ridicule from certain noble Lords connected to the security establishment.
Lord Strasburger
It will come. I am gratified to see that all parts of the House now recognise that the current laws are hopelessly flawed and that we need to start with a clean sheet of paper to build a fresh legislative framework to cover this important and contentious area. When I start to read this 370-page document I shall do so in the hope that the detail can live up to the billing the Home Secretary gave it a few hours ago. From listening to her replies to questions, I know already that there are several concerns, including a forthcoming deadly embrace with the industry over encryption.
Lord Strasburger
I shall save my questions for the Select Committee, but in the mean time I shall ask just one. What is the timetable for the forming of the Joint Committee and when do the Government hope to receive its report?
Lord Bates
The Joint Committee is in the process of being formed, through the usual channels. It is hoped that that will happen in the next few weeks. It is hoped that it will have produced its report by the spring and that a revised Bill, if it is necessary to revise the Bill, will then be published for consideration in the other place.
Investigatory Powers
Lord Strasburger Excerpts(8 years, 10 months ago)
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Lord Strasburger (LD)
My Lords, on behalf of those who sit on these Benches, I start by paying tribute to the dedicated and highly successful performance of the police and the agencies in keeping the people of this country safe from terrorism. While each successful attack is a severe personal tragedy for those involved and their families, we should reflect with some satisfaction on the fact that half way through the current decade, there have so far been only two fatalities in the UK due to terrorism. This compares very favourably with the last 40 years, when the death rate from terrorism was much higher. We know that, as in the past, there is currently no shortage of terrorist threats, so the low level of fatalities in the last five years can be explained only by the strong performance of the agencies and the police in detecting and preventing attacks before they happen. That is not to say that we can be complacent; in fact, we have to accept that whatever we do, however much money we spend and however much freedom and privacy we give up, some of these crimes will still happen. There is no such thing as 100% security.
We also need to realise that the closer we get to that unachievable 100% goal, the more expensive it is, in cash and in lost privacy, to achieve a very modest further improvement in safety. The law of diminishing returns comes into play. We must bear in mind the possibility of gaining at best only a marginal improvement in safety whenever we consider forfeiting any of our hard-won freedoms and way of life, or significantly increasing expenditure.
For years, everyone who has taken an interest in these matters has been able to see that the six Acts of Parliament that in some way cover surveillance in this country are an incoherent mess, out of date and not fit for purpose. The only exceptions—the only advocates for the status quo—have been in the Home Office. They have repeatedly asserted to us that RIPA is close to perfect, that Britain has the best oversight of its intelligence agencies in the world and that all surveillance is carried out within the law. We now know that none of these claims is true. The statutory regime is in fact deeply flawed, oversight has not been up to the job and multiple cases of lawbreaking have come to light, which may be just the tip of an iceberg. As a Conservative former member of the ISC said last week, there is a,
“suspicion that our security agencies are, on occasion, able to arbitrage the plethora of statutes to choose the easiest route in seeking authorisation”,—[Official Report, Commons, 25/6/15; col. 1099.]
for surveillance. I draw the House’s attention to the recent example of the Metropolitan Police using RIPA to evade the requirement for judicial authorisation under PACE when seeking the identity of journalists’ sources during the “plebgate” affair. Under heavy pressure from the former Deputy Prime Minister during the coalition negotiations over DRIPA, the Home Office made several important concessions, one of which was setting up David Anderson’s review. Mr Anderson has produced an excellent report—I think we all agree on that—which is based on facts rather than rhetoric and which opens the door to the informed public debate that is so badly needed.
Whatever your views on the behaviour of Edward Snowden, there is no denying that, without his revelations, none of this long-overdue public conversation would be happening. If it were not for Snowden, the Patriot Act in America would have been renewed again on the nod. The Freedom Act would not have been passed by senators, who joined forces across party lines to curtail for the first time in 40 years the ability of the US Government to engage in the bulk collection of their citizens’ data. Here in the UK we would be none the wiser about the mass indiscriminate collection of our data without any explicit consent from Parliament. We would not know that our computers and phones are being hacked by the agencies without independent approval or oversight. The Home Office would still be pretending that all was well and Mr Anderson would not have been asked to carry out his review.
The forthcoming investigatory powers Bill presents Parliament with a huge opportunity to get these important issues resolved at long last. We supported the Home Secretary when she said in the other place that she wants to take the new Bill forward on a cross-party basis. But, to make that possible, and to achieve the right balance between security and privacy, there will have to be a sea change in the Home Office’s attitude. For as long as I can remember, its response to anyone with the temerity to query what is going on with surveillance has been patronising in the extreme. It has been a mixture of the defensive “we neither confirm nor deny” or “we never discuss security matters”, the misleading “everything’s fine”, and the dismissive “don’t worry about it, leave it to us”—all hardly designed to engender the public’s trust and confidence.
Only four months ago, the Government did it again by slipping through a new equipment interference code of practice to make it legal for them to hack private computers and phones. In my view, hacking enables the state to conduct the most comprehensive form of surveillance imaginable. My question to the Minister is to invite him to tell the House, why did the Government fail to draw Parliament’s attention to—let alone have any debate about—this hugely intrusive hacking power that they awarded themselves earlier in the year? The jury is out on Mrs May’s declared intention to achieve the right balance between security and privacy. That balance is vital to the success of the Bill’s passage through both Houses of Parliament and in gaining the trust of the people.
Mr Anderson reports a complete lack of detailed operational cases being presented to him for many of the proposed increased surveillance powers. He says that Parliament must rigorously assess and test any assertions about improved safety as a result of the new powers and expenditure being sought, in order to establish their lawfulness, likely effectiveness and true cost. That process must start during the promised pre-legislative scrutiny.
Turning to a few points in Mr Anderson’s report, I shall start, as the Minister did, with the proposal for judicial warrants. Mr Anderson does not put that forward as an optional extra; for him, it is a fundamental element of his proposals and was the easiest decision he had to make. He mentions judicial warrantry in about 50 of his 124 recommendations. For example, when suggesting that bulk collection might continue, he makes it conditional—in bold letters—on judicial authorisation by a new independent surveillance and intelligence commission, staffed 24/7 by judges and former judges. It seems that the Foreign Office argued in favour of retaining the current system of ministerial warrants because,
“judicial authorisation might ‘disadvantage the UK’ because judges would be liable to refuse applications that Ministers”,
might accept. Anderson’s perfectly reasonable response was that,
“Ministers might be tempted to issue warrants in circumstances where it is illegal to do so, that would seem to me a strong argument in favour of judicial authorisation rather than against it”.
It is my firm belief that a Bill that lacks full implementation of Anderson’s plan for the ISC and judicial warrants will not pass through this House or even the other place. Incidentally, on bulk suspicionless data retention under Section 8(4) of RIPA, Mr Anderson defers to the courts to determine its legality. Indeed, the European Court of Human Rights is currently deciding whether bulk collection is proportionate, and therefore legal, and this judgment may well resolve the future of bulk collection.
Anderson is in my view even more critical of two aspects of the draft snoopers’ charter than the Joint Select Committee that considered the draft Bill, and that is saying something. He says of the proposal to collect and store third-party data, such as Facebook or Twitter transactions, that,
“there should be no question of progressing this element of the old draft Bill until such time as a compelling operational case has been made”.
This is an extraordinary state of affairs for anyone who, like me, sat on the Select Committee. We were told firmly on several occasions that third-party data were an absolute necessity for public safety. Now Mr Anderson has discovered that no operational case has been made for it, and that law enforcement is not all that bothered about it.
The Select Committee was also told that web logs were essential, but Mr Anderson apparently was not told this. The committee was told that they consist simply of a record of every website visited up to the first slash in the address—for example, www.bbc.co.uk. However, when asked by Mr Anderson for a definition of web logs, the Home Office came up with something much, much broader—effectively, absolutely everything that we do on the internet. Even with the considerably more restricted definition of web logs given three years ago, the Select Committee could not agree on whether the Government should have the capability to access them because of how revealing they would be of a person’s private life.
I am sure that the much wider new definition would have been rejected out of hand by the Select Committee, and quite rightly so, since it would put us seriously out of step with the rest of the world. Anderson says:
“I was told by law enforcement … in Canada and in the US that there would be constitutional difficulties in such a proposal”.
The new Australian data retention law specifically excludes web logs precisely because the Australian police told their Government that it would be a disproportionate invasion of privacy.
Anderson is also very clear on another matter that I have raised more than once in your Lordships’ House—namely, that there must be special protection for the communications of journalists and lawyers. I believe that the Government now have no option other than to give privileged communications extra safeguards, including judicial authorisation for access to communications data, prior notification and the right to challenge disclosure.
I should also like to raise the recent revelations from the Investigatory Powers Tribunal that GCHQ has been spying on leading human rights organisations, including Amnesty International, which is from time to time the Government’s opponent in various court cases. As Anderson says in his report:
“There can be no fairness in litigation involving the state if one party … has the ability to monitor the privileged communications of the other”.
The IPT ruled that GCHQ had broken its own rules, and so had broken the law, even under the current lax legislative regime. This was the third verdict this year in which the IPT has concluded that GCHQ acted illegally. So, my second question to the Minister is: will the Government instigate an inquiry into how and why respected human rights organisations have been subjected to surveillance, and will the Government order the security services to cease?
To recap: we on these Benches fully support the use of targeted intrusive surveillance to detect, prevent and prosecute serious crime. It is high time for the shambles that is the legislative position on surveillance to be addressed with a new Bill. But for that Bill to command widespread support in this House and the other place, the Government are going to have to get the balance right between security and privacy, which they have shown no inclination to do so far. They could start by engaging with the civil society groups with which they have had no contact for the past three years. Anderson tells us that consultation with law enforcement and service providers also seems to have been non-existent in the past few years.
It seems to me that unless the Government adopt a more open, more collaborative, more transparent and less secretive approach to this, the Bill is going to have a very bumpy ride indeed. It could well end up, like its predecessors in 2009 and 2012, consigned to the dustbin of history. That is not at all what we on these Benches want to happen, and not what our country needs.
Lord Bates
My noble friend speaks with great authority and experience. He is right to urge us to move as quickly as we can, given the statements that he quoted from the Home Secretary, which were made before the last election under the previous Government, about every day that goes by without these powers. A process has been set out here and the Prime Minister and the Home Secretary have been very clear that because of the importance of taking people with us and, as far as possible, being able to bring this forward in a cross-party way—not just cross-party, but of course including the Cross-Benchers in this House—we ought to be seen to be going through a very thorough process. That involves basing it on the Intelligence and Security Committee, the Anderson report, the RUSI report which is to come and the debates that have been scheduled ahead of time in both Houses before the Recess. There will then be a period to reflect on that over the Recess and the Government can then come forward with a draft Bill that I hope, because it has been deliberated over, will not be subject to the type of criticism that the noble Lord, Lord Blencathra, levelled at the previous Bill. On the basis of that, one might therefore hope or think that the period of time for pre-legislative scrutiny might be shortened, and that the period of time for scrutiny through the House might be quicker than it otherwise would have been had it not been for all the evidence, reports and consideration that have gone before.
I know my noble friend will not accept that answer fully but I hope he will accept that it is an answer and a position which we have taken with great care and consideration to ensure that, as we progress down this path towards reform and to new legislation, which will go much beyond RIPA’s sunset at the end of 2016, we will carry people with us, that it will be better legislation as a result, and that we will progress down that road in a position of trust between those who carry out those duties and the citizens of this country—
Lord Strasburger
My Lords, I am reluctant to delay us on an evening when there are some transport problems, but it may have slipped the Minister’s mind that I asked him a question concerning how the Government slipped through powers giving themselves the right to hack into computers and phones without any reference to or discussion in Parliament.
Lord Bates
I will check again in the record but I am pretty sure that the answer was that the powers to which the noble Lord referred have been laid before Parliament but will of course have to be approved by Parliament. An approval process will have to be gone through before they can come into effect. While I am looking at my notes, I can save my colleagues from the Home Office a letter by saying that the Interception of Communications Commissioner’s report, published in March 2015, said that there were 2,795 interception warrants in 2014, compared to 2,760 in 2013 and 3,372 in 2012.
Once again, I thank noble Lords for their contributions to this debate. It has been incredibly valuable and I will make sure that it is drawn to the personal attention of my right honourable friend the Home Secretary when the Official Report is prepared.
Communications Data
Lord Strasburger Excerpts(8 years, 10 months ago)
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Lord Bates
I will be as brief as I can. There is a specific issue here, in that, during the previous coalition Government, our coalition partners took a different view—I mean no detriment—so there was no clear government position on which to consult. That has changed. There is a very clear government view now that we need this, and fast.
Lord Strasburger (LD)
My Lords, there are half a dozen or so civil liberties organisations that could greatly assist the Government in coming up with a balanced investigatory powers Bill. Which civil liberties organisations have the Government consulted?
Lord Bates
They will have the same opportunity as anybody else to participate in the consultation process. There is also a statutory code of practice that has been introduced, and we are open to consultations. We will listen to them but I have to say that at present, when you see the threats that are faced by this country, I am going to listen more to the people who are actually trying to protect us and keep us safe.
Queen’s Speech
Lord Strasburger Excerpts(8 years, 11 months ago)
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Lord Strasburger (Non-Afl)
My Lords, we live in dangerous times—the danger of imported terrorism from various parts of the world; threats from newly aggressive Russia and China; and danger from rogue nuclear states such as Iran and North Korea. However, the biggest peril we face is losing, or throwing away, the freedoms, liberty, privacy and lifestyle that have set this country apart from others in the world—the very way of life that Islamic State, al-Qaeda and groups like them seek to destroy.
If we are not careful, we will allow misguided people within our country and Government to turn Britain into a country where the authorities know everything about the private lives of all of us. Even under a benign and well-meaning government, these excessive powers are vulnerable to misuse by rogue elements within it or by criminals at home or abroad. Worse still, the ability to know everything about everyone would be ripe for wholesale abuse by a less well-intentioned future regime, which would find that it possessed ready-made tools for repression.
We must deny the Home Secretary and her most ardent securocrat, Charles Farr, their attempt to have pretty well unlimited and untrammelled access to the most private data of everyone in our country. In fact, we should be reducing, not increasing, their reach into the lives of innocent citizens. They have shown no inclination whatever to consider the possible unintended consequences, if they are unintended, of the draconian powers they are demanding. They do not believe, and they cannot see, that there are compelling arguments to restrain those powers and that there is another side to the coin. They hardly engage at all with those who speak for the need for constraints on intrusive powers, for proper authorisation, for transparency and for oversight. When they are forced to enter the debate, they do so only in the most desultory and reluctant manner.
When the investigatory powers Bill is published, we can hope that it will bring the existing legislation up to date and clearly restrict the occasions when snooping is permitted. We can hope that the Bill will remove the hidden loopholes that have allowed the state massively to expand, completely in secret and behind closed doors, its prying into our private lives without the informed permission of Parliament and the people. We can hope that the Bill introduces more independent authorisation procedures which ensure that intrusions occur only when they are necessary and proportionate. We can hope that, for the first time, there will be meaningful oversight to ensure that non-compliance is discovered and punished. We can hope that the Bill contains these reasonable and essential provisions, along with others which are so important if these powers are to have legitimacy with the public.
I, for one, am not holding my breath. The Home Secretary and Mr Farr both have plenty of previous form, and it is not encouraging. They have demonstrated time and again that they are either incapable or unwilling to come to Parliament with a balanced package that protects the population from harm by permitting the most aggressive intrusion into the lives of major criminals and terrorists but which leaves the rest of us alone. The Government have repeatedly made the pro forma statement that all UK surveillance is conducted within the law. This has recently been shown to be untrue, and in any case it is a worthless claim because the legal structures surrounding surveillance are riddled with flaws and loopholes—some, I believe, inserted deliberately. For example, the Home Office has recently had to admit to the Investigatory Powers Tribunal that the flimsy protections that should prevent interception of ordinary citizens’ communications without a warrant are being circumvented on a wholesale basis. This is because the Home Office decided that anyone who uses popular services such as Google, Twitter, Facebook and many others are exempt from protection from unwarranted snooping merely because the servers of those companies are located outside the UK. With gaping holes like that in our legislation, who needs to break the law?
No sensible parliamentarian will deny our police and security services all the powers they need to investigate and prevent serious crime and terrorism, but these highly intrusive powers to pry into all aspects of a person’s most intimate and personal life must be very strictly targeted on individuals who are genuinely suspected of planning or perpetrating the most serious crimes, and no one else. The state has no right to snoop on the rest of us; it is as simple as that. The current legal framework fails to make the distinction clear, and for that reason it is not fit for purpose. It also fails to deliver an oversight process which works so that abuses of the rules, such as they are, will probably be detected and punished. For that reason, too, it is not fit for purpose. With the Conservatives no longer constrained by the principles and common sense of the Liberal Democrats, there is every reason to fear that the forthcoming legislation will be long on more intrusive powers and decidedly short on limitations on the use of those powers, and the oversight to make sure that those limitations are being observed.
Two days ago, American lawmakers made the historic decision, prompted by the Snowden revelations, to start reversing four decades of ever-increasing intrusion into their citizens’ affairs, and to introduce real transparency into the use of these powers. I put it to noble Lords that it would be perverse and completely unacceptable for our Government’s response to Snowden’s disclosures of secret and unauthorised mass surveillance in this country to be for the state to try to go deeper and deeper into places where it has no business.
With the sad lack of a substantial number of MPs who will fight for our privacy and our liberties in the other place, it will be up to Peers on all sides of this House to fill that vacuum on behalf of British citizens. We must stand firm against unbalanced and disproportionate prying into our lives. We must insist on clearly defined limits on the use of these surveillance powers and must diligently search out and destroy the loopholes that the Government will no doubt insert again. We must ensure that the oversight of the use of these powers is so effective and penetrating that it acts as a real deterrent to abuse. It will be our duty not just to stop but to reverse the hidden drift into more mass surveillance, more snooping on the innocent and more gratuitous prying into our lives by people who have no need and no right to do it.
Serious Crime Bill [HL]
Lord Strasburger Excerpts(9 years, 2 months ago)
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Lord Strasburger
That this House do agree with Amendment 11A as an amendment to Commons Amendment 11.
“(aa) shall include provision designed to protect the confidentiality of personal information obtained in connection with a person’s acting as a minister of religion, as a healthcare professional or as a Member of Parliament;(ab) shall include provision about the circumstances in which notice of legal proceedings relating to notices and authorisations under Part 1 of this Act in respect of data should be given to persons to whom the data relates;”
Lord Strasburger (LD)
My Lords, when this Bill was last debated in another place, the Home Office rejected a new clause tabled by Julian Huppert and backed by cross-party Back-Benchers that was very similar to this Amendment 11 but had a number of key differences. My amendment seeks to probe the justification, if there is any, for the Government’s omission of those provisions.
The first of these relates to the protection that is due to other privileged material, as it is rightly intended to be provided for journalistic material. This is what might be called medical privilege, religious or spiritual privilege and elected representative privilege. When an individual makes contact with a doctor, priest or MP, they are entitled to a higher level of confidentiality than applies to other matters. Therefore, just as journalistic material should be subject to a process involving judicial authorisation before communications data are accessed by the police, so should this sort of communications data.
The justification for providing protection in respect of journalistic material in RIPA, provided by the Government when they eventually agreed, was that it was necessary to protect whistleblowers who could be identified by the police accessing the communications data of journalists. Surely the same applies in respect of the communications data of Members of Parliament, and their equivalent in the European Parliament, the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. Why are the Government in their new clause providing only that the code of practice should protect whistleblowers’ identity when they go to the press and not when they go to their MP to reveal serious wrongdoing?
The second justification given by the Government for judicial authorisation before the police could access journalists’ communications data was that there was confidential information inherent in the “metadata” that would be obtained; namely, that someone identifiable had contacted a journalist. Exactly the same applies in respect of communications data relating to medical practitioners. The fact that a certain person has been in communication with a healthcare professional with a specific specialty in itself reveals confidential information. Obvious examples are mental health care professionals, STD clinics, obstetricians and so forth. The Home Office has provided no justification for failing to provide protection for such data, nor indeed has it provided for safeguards to be written into the code of practice, which the amendments before us deal with. This is even more peculiar when one sees that the Government’s proposed change to the code of practice, which was all they were offering before the IOCCO’s report was published, makes specific reference to the types of privilege—medical, spiritual and Member of Parliament—which my amendment would require a code of practice to deal with. It is not good enough for the Home Office to say that it wants to go no further than the recommendations in the IOCCO’s report because that report in several places made reference to the equivalent public interest that attaches to the confidentiality in these areas.
The second matter that my amendment deals with is the question of notice for journalists of an application to a judge when their confidential sources’ identities may be revealed. Under PACE, when the journalist holds the confidential material—called “excluded material” under PACE—the default position is that the journalist is given notice; that is, that the application is heard by the court inter partes. When it comes to RIPA and communications data, the person who holds the material will in general be a telecoms company or an ISP. They are not going to be in a position, of course, to contest any application. They have no significant interest in protecting the confidentiality of any of the information they provide to the police, providing that the police are acting within the law. It is only the journalist who can and should, if circumstances permit, assist the court in identifying the degree of public interest in identifying any of his or her sources.
By analogy with the provisions in PACE, it seems only right that there should be provision in the new legislation that the Government have promised after the election to provide for judicial authorisation for journalists to be given notice of the application. No doubt it will be appropriate also to provide that that notice does not have to be given when there is a risk that such notice might significantly prejudice a criminal investigation because, for example, the journalist, himself or herself, is a suspect, or, if given notice, could destroy evidence, or because the journalist might tip off a contact who was a suspect in a criminal investigation that might lead to the suspect destroying evidence or absconding.
That is why my amendment seeks to require that the code of practice makes provisions for the circumstances in which the journalist could and should be notified of an application to access communications data that is likely to lead to the identification of a confidential source. It should make no difference to the question of whether, without prejudice to an investigation, a journalist can have the opportunity to make his or her case to the judge when the data in question are held by a third party telecoms company.
The courts have found it extremely useful to hear representations from the media about non-broadcast footage when the police had applied under PACE for the release of that material. The protection of whistleblowers requires that the only people who can speak up for them in court before they are identified under this legislation are given notice of the application, subject to not prejudicing the investigation. This is a concern for my party and the National Union of Journalists.
Before I finish, I should like to raise a number of questions to the Minister on this area. After Julian Huppert tabled his new clause, which would provide for judicial oversight in RIPA for applications relating to journalistic sources, the Government agreed to make a temporary arrangement that the police would be directed to use PACE when such circumstances arose, and that this would be achieved by a change to the code of practice. My first question is: when will the Government bring forward the proposed code of practice, because time is short before Parliament prorogues? Secondly, will my noble friend and officials meet urgently with me and the National Union of Journalists to discuss the form of that code of practice? Thirdly, is it intended that the code of practice will, as I have indicated by this amendment, set out the circumstances in which journalists can be given notice of an application under Schedule 1 of PACE, even though the existing PACE provisions do not provide that they be given notice because they are not holders of the data or material? Fourthly, will the Home Office take the opportunity in this code of practice to make it clear that the police should use PACE procedures for other forms of privilege before obtaining communications data relating to the other forms of privilege that I have set out, as well as to communications data that might reveal contact between a lawyer and his or her client? As I explained, the Government’s previously proposed change to the code of practice did specify that consideration needs to be given to these other forms of privilege on the same basis as that given to journalistic privilege.
The Government, in response to Mr Huppert’s proposed new clauses, also published draft clauses that they said would be included in any update of RIPA legislation following the report of the Anderson review, early in the next Parliament. Those draft clauses were made available to Members of the other place only about an hour before the debate on Mr Huppert’s new clause. It therefore seems appropriate to use this opportunity to ask the Government to explain some of their provisions before this legislation goes through, given that Members of the other place were not given that opportunity before deciding not to press Mr Huppert’s new clause.
My first question is why there is a provision in the draft clauses to bypass judicial authorisation for RIPA requests for telecoms data in the circumstances of “imminent threat to life”, when such provision does not exist in PACE. Why is the threshold used by the Government to decide when the journalistic privilege requirement to put the application before a judge is triggered higher in their draft clauses than in PACE? The draft clause states that the requirement for judicial authorisation is triggered when the purpose in whole or in part is to identify a journalist’s sources, whereas in PACE the threshold or test, much more appropriately, is that the application is likely to reveal the source. As I have explained, I believe there should be circumstances in which a journalist should be notified of an application to access their communications data, and that this should be included in the new legislation.
The Government’s draft clause, unlike PACE, does not even provide for notice to be given to those who hold the data. Will the Government explain this or reconsider it? The Government’s draft clauses do not contain the same provision as in PACE for it to be an offence to destroy material sought under an order granted by a judge. Will the Minister please explain this? Finally, will the Minister explain why in the draft clause there is no provision for the judge making the decision to have regard to the public interest in maintaining the confidentiality of journalistic sources? This was proposed by the amendment in the other place. I beg to move.
Lord Bates
My Lords, in responding to my noble friend Lord Strasburger, I pay tribute to him for the way he has engaged with this issue. We have had some conversations about this, and I know that this is a subject he feels very passionately about. He also brings a great deal of expertise to the role, and a knowledge of how communications actually work.
The special case being made for journalists here is the fact that not only did the Interception of Communications Commissioner confine his particular examination in his report to looking at journalists, but someone who speaks to, say, a lawyer does not reveal what was said. If someone is trying to establish the source of a leak, knowing who spoke to a journalist may be more important than actually knowing what was said. This does not extend in the same way to other professions. That is what we are trying to say. It is a different way of looking at the particular situations in which journalists find themselves. I also say to my noble friend that we will very shortly lay before Parliament for approval the draft acquisition of communications data code of practice, following the public consultation. That will provide another opportunity to look at this.
My noble friend asked some specific questions about when the Government will bring forward the proposed code of practice. As the Minister for Modern Slavery and Organised Crime made clear in the House of Commons last week, the Government hope that the code of practice will be in place as soon as possible, but obviously this will be subject to parliamentary approval. My noble friend asked whether the Minister and officials will urgently meet with him and the National Union of Journalists to discuss that code of practice. Officials have already met with the National Union of Journalists early in the process. The NUJ has also responded to the consultation, and we have considered their response. Following the consultation, we have implemented significant changes in the code, as I have stated, and will publish it shortly. However, I am of course very happy to meet my noble friend and any others from the NUJ whom he wishes to bring with him.
It was also asked whether the code of practice will set out the circumstances in which journalists can be given notice of an application under Schedule 1 of PACE. My honourable friend Karen Bradley addressed the issue of providing notice in the House of Commons when considering these amendments in another place last Monday. It has never been the practice in this country that those who are subject to a communications data application are notified. There are obvious reasons for that, given that the crime may be under active investigation. We do not intend to depart from that, but we are of course very happy to listen to concerns.
Lord Strasburger
My Lords, I gave my noble friend the Minister advance notice of my questions. He has made a very good attempt at answering them and I thank him for that. Obviously, the devil will be in the detail of the code of practice. I will very gladly accept his invitation to come and discuss that with him. Clearly, we will all return to this subject in the new Parliament when the Anderson review is delivered. For now I am very happy to withdraw my motion.
Counter-Terrorism and Security Bill
Lord Strasburger Excerpts(9 years, 3 months ago)
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Lord Armstrong of Ilminster (CB)
My Lords, the issue raised by this group of amendments, long as it is, is straightforward enough. We rely on the police and the intelligence and security agencies to protect us and our liberties from the threats to our way of life presented by terrorism. Their ability to do so depends to a large extent on their ability to have access to the data derived from the use of communications by the would-be terrorists.
The regulation of the use of communications data was last reviewed 15 years ago. Since then there have been great changes, as many speakers have said, in the technology of communications, the significance of which, for the regulation of communications, needs urgently to be reviewed.
The threat from terrorism has unquestionably increased. The sophistication of those who use communications for malign purposes has also increased. As we have been told, the efficacy of the activities of the police and intelligence and security agencies in this area have been impaired by the activities of Mr Edward Snowden.
The Government published the draft of a new Communications Data Bill earlier in this Parliament, two or three years ago. That was scrutinised by a Joint Committee of the Houses of Parliament, chaired by my noble friend Lord Blencathra—since I was a member of that Committee, perhaps I may call him that. That committee made extensive criticisms of and recommendations for the draft Bill and the Government accepted almost all of them.
There is reason to believe—indeed, as my noble friend Lord Blencathra has already said, he and I have seen—that the Home Office produced a revised version of the draft Bill, to take full account of the Joint Committee’s recommendations. Unfortunately that revised Bill has not been allowed to see the light of day, let alone been submitted to Parliament for consideration. That will not now happen until there is a new Parliament. If a revised Bill is not introduced until after the election, it might be that it cannot be passed until well into 2016. That would be another year’s delay, which we can ill afford.
The present Counter-Terrorism and Security Bill provides an opportunity to put into effect, within the next few months, the measures proposed in the revised Communications Data Bill, insofar as they affect the response to the enhanced threats from terrorism and the agencies responsible for countering those threats. That is what the amendments seek to achieve. The amendments also provide for a sunset clause that would ensure that the whole matter is reviewed early in the new Parliament. Since we do not have the revised version of the draft Communications Data Bill, those responsible for these amendments have had to rely on the original Bill. No doubt the amendments are to that extent defective. But Parliament should not be denied the opportunity of considering whether and how to achieve the changes required immediately and without the delay consequent upon waiting until the next Parliament.
I expect—though I cannot commit them—that those who are putting forward these amendments would be prepared to withdraw them if the Government would undertake this evening to introduce on Report revised versions, taking account of the criticisms and recommendations of my noble friend Lord Blencathra’s pre-legislative scrutiny committee, but also adopting the proposals in the amendments for confining the changes to the police and intelligence and security agencies and providing a sunset clause ensuring that the issue has to be considered in the wider context of a review of the regulation of communications data by the new Parliament. With that qualification, I fully support the amendments proposed by the noble Lord, Lord King, and his colleagues.
These amendments provide an opportunity to address without delay acknowledged shortcomings in the effectiveness of the present regime. It is suggested that they would be an unacceptable intrusion on the liberty of the citizen. That can be much exaggerated. It is not government agencies that will store the data, and those agencies will be able to obtain access to the stored data only subject to demonstrable need and justification and subject to rigorous procedures and controls that were examined and found fit for purpose by the committee—as my noble friend Lord Blencathra has said.
Even so, they will of course represent some potential interference with the freedom of action of those whose data are extracted from the store. But those are or may be the people whose freedom of action we wish to limit or restrain, because their intentions are malign and, if realised, will compromise the life, liberty and happiness of the rest of us. The price of liberty is eternal vigilance, but if vigilance fails or is frustrated, it is life, liberty and the pursuit of happiness that pay the price.
Lord Strasburger (LD)
My Lords, I confess that I do not really know where to start. I think it is true that all the previous speakers are former members of what I would call the security establishment: they are former policemen, former Home Office Ministers or former spies—I am not sure in which category I would put the noble Lord, Lord Armstrong. I think I am the first to speak more as an individual and a non-politician; my history before I came to this House was quite outside of politics, in business.
As we have heard, these amendments regurgitate large parts of the utterly discredited draft communications data Bill. They seek to slip into the Bill large parts of the highly controversial snoopers’ charter, word for word. With just one exception, the amendments fail to correct any of the many significant, fundamental and deal-stopping flaws identified by the Joint Select Committee on the draft Bill that reported at the end of 2012. I had the honour of being a member of that Select Committee under the very able chairmanship of my noble friend Lord Blencathra. The committee sat for five months; it met 20 times, including three times in the Recess; it interviewed 54 witnesses and received 19,000 e-mails from members of the public. As we have heard, its members included two former Cabinet members, Lady Thatcher’s Cabinet Secretary, one noble Lord who has since become a government Minister, an ultra-loyal Conservative MP and a former Conservative Home Office Minister. That was hardly a hotbed of lefty liberals. The committee reached a unanimous verdict that the draft Bill was badly written, far too broad in scope and badly costed, and noted that the security agencies would do better to make better use of the information they already had.
That last observation is made particularly pertinent by the revelations following the atrocities in Woolwich and Paris, in which all the terrorists were well known to the security agencies long before the events. In all, there were about 100 criticisms of the draft Bill in the Select Committee’s report and many of them were serious and fundamental. As far as I can see, these amendments deal with just one of those criticisms, which means that they are still infested with the remaining 99 flaws. I will not detain the House by going through each of them, but noble Lords may read about them at their leisure in the report, which I commend to the House.
When Edward Snowden released his revelations, about six months after the Select Committee reported, we learnt that GCHQ’s Project Tempora is the world’s first “full-take” data interception system, collecting 100% of internet traffic—content as well as metadata. Former committee members were surprised, and some were angered, by that revelation because during the committee’s proceedings Home Office officials had three times claimed that there was a 25% capability gap in what the agencies could collect—although those same officials were not able to justify that figure of 25%, even in private sessions. Snowden showed that the 25% so-called gap probably does not exist at all and that in fact the agencies are already, and have been for some time, acquiring far more data than the draft Bill would have delivered—and without the knowledge or consent of Parliament and the people.
Serious Crime Bill [HL]
Lord Strasburger Excerpts(9 years, 6 months ago)
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Lord Strasburger
“Investigatory powers and crime: legal privilege and journalistic source material
(1) In section 22 of the Regulation of Investigatory Powers Act 2000 (obtaining and disclosing communications data), after subsection (9) insert—
“(10) Subject to subsection (11), nothing in this section shall authorise the obtaining and disclosing of—
(a) items subject to legal privilege, or(b) journalistic source material,for the purpose of preventing or detecting serious crime. (11) The obtaining and disclosing of the items and material referred to in subsection (10) may be authorised by a judge in accordance with the procedure set out in section 22A.
(12) In this section—
“items subject to legal privilege” has the same meaning as in section 10 of the Police and Criminal Evidence Act 1984;
“journalistic source material” means material which may identify a confidential journalistic source.”
(2) After section 22 of that Act insert—
“22A Authorisation by a judge to obtain communications data: legal privilege and journalistic source material
(1) This section applies to an application for a warrant or authorisation under section 22(11).
(2) A person designated for the purpose of this Chapter may apply to a judge for an authorisation.
(3) The application must be made in writing and must set out the grounds on which the application is made.
(4) An application for an authorisation under section 22(11) must be made on notice to any person to whom the authorisation or notice which is the subject of the application relates save that notice of an application is not required if the service of such notice may seriously prejudice the investigation to which the application relates.
(5) Where notice of an application for an authorisation has been served on a person, he shall not conceal, destroy, alter or dispose of the material to which the application relates except with the leave of a judge until—
(a) the application is dismissed or abandoned; or(b) he has complied with an authorisation given on the application.(6) An authorisation shall only be issued or granted if the judge is satisfied that—
(a) it is necessary for the purpose of preventing or detecting serious crime, and(b) the conduct authorised is proportionate to what is sought to be achieved by that conduct, having particular regard to the importance of the protection of legally privileged communications and journalistic sources.(7) In this section “judge” means a Circuit Judge.
(8) In this section and in section 22(10) “serious crime” means the committing or suspected committing of one or more of the offences in England and Wales specified in Part 1 of Schedule 1 to the Serious Crime Act 2007.””
Lord Strasburger (LD)
My Lords, Amendment 49B seeks to repair a serious flaw in the Regulation of Investigatory Powers Act 2000, a defect that has emerged only recently. Your Lordships will recall that many people inside and outside this House have been warning for years that RIPA as a whole is not fit for purpose because, among other things, its scope is far too broad; it has large built-in loopholes; its oversight provisions have proved to be hopelessly ineffective; and it has been left behind by several generations of new technology.
Perversely, the Government have been claiming for years that RIPA is the best thing since sliced bread so far as the regulation of intrusive powers is concerned. But in July this year, the Government finally bowed to the inevitable and accepted that all is not well with RIPA. They set up a review of the Act under David Anderson QC, the independent reviewer of terrorism legislation. His report is due before next year’s election, with a view to legislation in the next Parliament, but the particular problem that has just appeared will not wait two years to be dealt with; it needs to be addressed immediately. It concerns the misuse of RIPA by the police in two ways: to uncover journalists’ sources and to access legally privileged information.
The problem with journalists’ sources was brought to light by the Met’s report on Operation Alice, which was its investigation into the “plebgate” affair. It revealed, presumably by accident, that Met officers had secretly used RIPA to get their hands on the phone logs of the Sun’s news desk and its political editor, Tom Newton Dunn. They then proceeded to trawl through a year’s worth of phone calls to find the source of the paper’s stories about “plebgate”. By the way, not a single prosecution has ensued from Operation Alice.
It then emerged that this was not an isolated case. We learnt that Kent Police had used RIPA to obtain the phone records of journalists working for the Mail on Sunday, and that the Suffolk Constabulary had used it against a journalist at the Ipswich Star. It would seem that there are many more cases but the police are very reluctant to reveal details. The Met commissioner steadfastly refuses to let on how many times his force has used RIPA in this way, or when or why, despite many demands that he come clean about this in his regular so-called transparency sessions, the most recent of which was in September.
Why does this matter? There is a well established tradition throughout the world that journalists do not reveal their sources, and many journalists have ended up in jail or worse—much worse—defending this principle. If potential whistleblowers in this country conclude that journalists can no longer guarantee their anonymity because the police can secretly identify them, a lot fewer whistles are going to be blown. They and we know what would happen to them if their cover was blown. They could be arrested; they would be intimidated; they would be ostracised; and they would lose their job and their pension. If insiders who know about wrongdoing stop coming forward because they can no longer be guaranteed anonymity, important information that deserves to be in the public domain will never see the light of day.
I will give the House a few recent examples. In uncovering the phone hacking scandal, the Guardian was helped by sources in the police, who provided important information on the condition that they remained unidentified. They did this in the public interest, knowing that senior ranks were promoting a false version of events to the press, the public and Parliament. If those sources had been identified, they would have faced the loss of their careers and their pensions.
In another example, two anonymous whistleblowers from inside BAE revealed wholesale corrupt payments by the arms company and that BAE had set up secret subsidiaries in the British Virgin Islands, which it was using to channel corrupt payments to Swiss bank accounts. Even more to the point, it was a third anonymous whistleblower, in an official position, who revealed to journalists that Prince Bandar of the Saudi royal family had been paid a total of £1 billion, plus a gift of a personal Airbus, in order to promote arms sales.
If it were not for whistleblowers, patients at NHS trusts such as Mid-Staffs would still be dying unnecessarily and police such as those at Hillsborough would still be covering up their failings, as would corrupt politicians, dishonest businessmen and child-abusing celebrities.
Prying into journalists’ sources is not what RIPA was intended for, as has been confirmed by David Blunkett, the Home Secretary who took it through Parliament. Two weeks ago, when talking about RIPA, he said that no one at the time imagined that,
“legislation secured through parliamentary debate would be used to fetter the right of a free press in a democratic nation to do a responsible job”.
RIPA was supposed to be a weapon against terrorism and other serious crime, not for investigating internal police disciplinary matters and the like.
Baroness Williams of Trafford
My Lords, I am grateful to my noble friend for explaining the purpose of this amendment. I do not believe there is any difference between my noble friend and me, or indeed any of your Lordships who have contributed to this debate, on the key issue at stake here. We all agree that a free and fearless press is fundamental to a democratic society. A key element of journalism is the protection of sources, and I can assure your Lordships that the Government do not wish to do anything which would undermine the operation of the vibrant and independent press that operates in this country.
The amendment which my noble friend has moved seeks to require public authorities who acquire communications data under the Regulation of Investigatory Powers Act 2000 to seek the authorisation of a judge when the material requested is subject to legal privilege or relates to journalistic sources. However, this is unnecessary, given the strict regulation RIPA already contains and the additional safeguards we are already putting in place.
Communications data—the who, when and where but not the content of a communication—would reveal the telephone number a journalist or lawyer calls, but would not reveal any of what was said or written in a communication. Last month, the independent Interception of Communications Commissioner issued a statement in which he said that communications data,
“do not contain any details of what was said or written by the sender or the recipient of the communication. As such, the communications data retained by CSPs”—
communications service providers—
“do not contain any material that may be said to be of professional or legal privilege—the fact that a communication took place does not provide what was discussed or considered or advised”.
None the less, I recognise that this is a sensitive issue. It is personal information and RIPA already applies rigorous controls on its acquisition.
Communications data can only be obtained when their acquisition is necessary for a specified purpose, such as preventing and detecting crime, and then only when it is proportionate to do so. Anyone can complain to the Investigatory Powers Tribunal if they think the powers have been used unlawfully against them. The whole system is presided over, and reported on, by the Interception of Communications Commissioner, a senior judicial figure.
These controls apply to all requests for communications data, and I believe we have one of the most stringent systems to be found anywhere, with both strict internal controls and independent oversight. If any of your Lordships have doubts on this point, I would recommend reading the annual report of the Interception of Communications Commissioner. Sir Anthony May’s report, published in April of this year, includes a detailed account of how the system works and a full statistical breakdown of communications data requests.
However, we recognise the special considerations that apply to journalists, lawyers and a number of other professions which may involve access to sensitive information. We have announced plans to update the Acquisition and Disclosure of Communications Data Code of Practice. These changes will make clear that specific consideration must be given by the senior authorising officer to the level of possible intrusion in cases likely to involve the communications data of those engaged in certain professions who may have obligations of professional secrecy. These professions include journalism, as well as those of lawyers, doctors and Members of Parliament, and will also include those known to be close contacts of members of these professions. Any application for communications data that are known to be the data of members of these professions or their close contacts will have to state this clearly in the application. It will also require that relevant information is available to the authorising office when considering necessity and proportionality. This change will make clear in the statutory code what is already existing best practice.
We will publish the updated draft code of practice for public consultation as soon as possible, noting the acting Interception of Communications Commissioner’s request to expedite publication of the code. It is also worth pointing out that on 6 October the acting Interception of Communications Commissioner, Sir Paul Kennedy, announced that he had,
“launched an inquiry into the use of RIPA powers to determine whether the acquisition of communications data has been undertaken to identify journalistic sources”.
It would certainly be premature to take any legislative action in advance of knowing his findings.
The noble Baroness, Lady Smith of Basildon, asked whether David Anderson’s review of RIPA would cover this area. I am sure that David Anderson will wish to look at all aspects of RIPA interception and communications data, including this issue.
In the light of the protections already available, the very clear commitment to strengthen these through the code of practice and the ongoing inquiry by Sir Paul Kennedy, I invite my noble friend to withdraw his amendment.
Lord Strasburger
My Lords, it has been an interesting debate. The House seems to have one view and the Minister seems to have another. I thank noble Lords who have partaken in the debate: my noble friends Lord Black and Lord Thomas, and the noble Baronesses, Lady Cohen and Lady Smith.
I do not think that the Minister was listening to what I said. Everyone outside the Home Office and the Foreign Office knows that the safeguards in RIPA have been proved ineffective time and again. I rather anticipated that the Government would try to fob us off with some tweak of the code of practice. Tweaking the code of practice is not going to offer the certainty that journalists need; it is not going to offer the transparency. All of this is still going to carry on in secret. We will not know what on earth is going on, and it will not give the press, the journalists or the media the opportunity to challenge the police’s intention to seek their phone records and others from the phone companies. So it will not take us any further forward at all.
I have to say that, as you might have detected, I am more than somewhat disappointed with the Government’s response. They have not listened to the debate. I hope they will reflect on the debate and come back with something more substantive. If not, I am quite sure that I and others, including those in another place, will return to this issue with a vengeance. However, for the sake of good order, I will withdraw my amendment.
Data Retention and Investigatory Powers Bill
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Lord Taylor of Holbeach
That is not the deadline that has been agreed by the party leaders. After all, 1 May is a deadline; it does not mean that the independent reviewer will not report before then if he feels that it is satisfactory to do so. It is important to remember that the presence of a sunset clause, while it is absolute in its end date, does not mean that legislation could not be considered before that time if a Government decided that they were in a position to present it in Parliament.
Creating a committee is entirely appropriate and democratic, but it will take time. I do not believe that committees are stuffed with placemen. My noble friend Lord Strasburger, who holds very strong views on this issue, was part of the joint scrutiny committee chaired by my noble friend Lord Blencathra which considered this Bill.
Lord Strasburger (LD)
For the past year or so, the Minister has resisted all the efforts by me and others to engage in a conversation or debate on these matters. I congratulate him on his sudden and total conversion to the idea that there should be a national debate and a review of RIPA.
Lord Taylor of Holbeach
I take that chiding. I am big enough to cope with it. I do not think I have ever failed to answer this House when it has asked me to consider a matter of this nature.
Clearly, Parliament will want to judge both the report of the Joint Committee and the new legislation that replaces this Bill. It will be a new Parliament; it will be a new committee. It will not be the committee chaired by my noble friend Lord Blencathra. The amendment would make it difficult for this to happen. It would also curtail proper public debate about this issue. I am not a last-minute convert in the way that my noble friend Lord Strasburger has described. I believe in transparency; I believe in talking about issues that concern the public. That new legislation will set out new powers and capabilities for the future—potentially wide-ranging powers. The legislation that we have before Parliament today just maintains the status quo, and we have heard the understandable concerns about the pace of its passage.
Perhaps I might say something in response to the speech by the noble Lord, Lord Rooker—I nearly called him my noble friend; I should not say that. He talked about language and the way we communicate difficult ideas. He referred to the problems that elites and those of us with responsibility have in talking to the public as a whole—the use of language. I could not agree with him more. All Governments and all Parliaments must seek to identify through language. It is the thing that we have in common; it is the way in which we communicate with each other; it is the way in which I hope that I am convincing the noble Lord, Lord Judd, of the reason for having this particular date. Language is important.
Data Retention and Investigatory Powers Bill
Lord Strasburger Excerpts(9 years, 10 months ago)
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Lord Strasburger (LD)
My Lords, I start my contribution to this debate with the words of Benjamin Franklin, in a letter to the colonial Government more than 250 years ago:
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”.
Having said that, nobody in this House more than I wants the people of this country to be safe—to be safe from terrorists, safe from paedophiles, safe from drug barons, safe from anyone who would do us harm. I am sure that every noble Lord feels the same way.
I am also confident that we all agree that there are some limits on the price we are prepared to pay to nudge the threats to our citizens closer to zero. For example, not many of us would be happy to see the Government installing equipment in everyone’s home to continuously record video and sound. We would not like it if all our letters were being steamed open by the authorities, and then scanned and recorded for no better reason than that we might one day go off the rails and commit a serious crime. Although these measures would probably reduce crime of all types, most people would consider the level of intrusion too big a price to pay. We all have a privacy red line we would not cross in return for some sort of reduction in the threat to our safety. It is a matter of where that red line is that we are debating.
By the way, some noble Lords may not realise that so far as our use of the internet is concerned, the red line has already been crossed. GCHQ’s Project Tempora is doing the digital equivalent of steaming open our e-mails and web browsing, and recording it all, with no differentiation between metadata and content. I have tried on many occasions in this Chamber to raise this huge invasion of our privacy, which is without the people’s consent, but have just been stonewalled by the Home Office, which would rather that we talk about something else and leave it to get on with trampling on our liberty and our privacy.
To return to this Bill, some will be surprised to hear that I support it, for two reasons. The first is that I accept that the ECJ judgment could leave our police and intelligence agencies with no communications data about those who have committed, or are about to commit, serious crime. We do not have time to discuss and agree a Bill to replace RIPA that would deliver the data on the bad guys and leave the innocent alone, and would provide the extra security and control that is needed. So we have no option but to pass this Bill to temporarily fill the gap. Although that means that vast numbers of suspicionless citizens will have their metadata collected and stored, I am reassured that this Bill, when it is enacted, will start life under a sentence of death in 29 months. I will come to my second reason for not opposing this Bill in a moment.
Although other noble Lords—in fact, every noble Lord—has referred to it in this debate, I cannot stand here without drawing the House’s attention to the scandalous affront to democracy that is the timetable for this Bill. The Home Office and everyone else knew about the ECJ judgment on 8 April. Despite being told by many specialists in the field that there was a consequential effect on the validity of the UK’s 2009 data retention regulations, the Home Office repeatedly asserted that there was no problem. Then suddenly, 13 weeks after the ECJ judgment and two weeks before the Summer Recess, the Home Office now tells us that there is a problem and an emergency Bill has to be passed within a week.
There are only two possible explanations for this chain of events. The first is pure incompetence and a failure to understand the judgment; the second one, to my mind, is that it is a ploy by the Home Office to suppress scrutiny of important and complex legislation. Last Tuesday I watched the Home Secretary struggle to explain the sudden panic to the Home Affairs Select Committee. Perhaps my noble friend the Minister could have a go when he responds to this debate. Why was this Bill not mentioned in the Queen’s speech, which took place eight weeks after the ECJ judgment? Was it a mistake or was it a conspiracy? No wonder there is such cynicism about and distrust of politicians out in the country.
RIPA was deeply flawed for many reasons when it was passed. Today it is also out of date, having been passed seven years before the first smartphone was introduced to the market—Apple’s iPhone—and internet on the move became ubiquitous. It allows too many public authorities to delve into too much of our data for too many reasons. While the equivalent in America is used less than 60,000 times a year, there are more than half a million access requests a year in the UK. But the biggest problem with RIPA is that it contains a deliberate and well concealed loophole that is used to claim legal cover for Project Tempora’s hoovering up of everything that everyone does on the internet and storing it. The British people were never asked, via their representatives in Parliament, “How do you feel about the Government helping themselves to all your private data?”. I presume that they were not asked because the Home Office knew what the answer would be—and it would not have been, “Yes please”, especially if it had been explained that it is as if there is a man or woman from the Ministry looking over your shoulder and making notes whenever you use the internet, at home or at work or on a train, or wherever you are. So instead of getting the permission of the British people, the Home Office used legislative sleight of hand to slip it in under the radar. That must ring alarm bells about related legislation such as this Bill being rushed through without proper scrutiny.
Parliament, too, must take its share of the blame for this state of affairs. For too long, parliamentarians have been asleep at wheel when it comes to watching our spies or resisting Home Office land grabs. Is it not to Parliament’s shame that it took an ECJ judgment to point out that the European directive on data retention, which the UK was heavily involved in promoting, fails to comply with human rights law in many ways? Many specialist lawyers are saying that existing UK law and regulations, after amendment by this Bill and its accompanying regulations, fail to answer at least two of the ECJ’s concerns, which leaves them vulnerable to challenges. As a former Conservative chairman and shadow Home Secretary said in the other place yesterday:
“While the Bill may be law by the end of the week, it may be junk by the end of the year”.—[Official Report, Commons, 15/7/14; col. 731.]
What then—another emergency Bill?
I said earlier that there was another reason why I am supporting this Bill. It is that the Deputy Prime Minister has been very astute in extracting a high price for his co-operation. I am particularly pleased that the long overdue review of RIPA will now happen and that Mr Anderson’s report will go to a Joint Committee for consideration. The new Government will have to take notice because RIPA will be heading for the buffers when this Bill expires in 2016. As other noble Lords have said, it is high time that there was a full debate in this country on how much privacy we are prepared to sacrifice for a bit more security. The setting up of a privacy and civil liberties council has the potential to redress the balance in favour of the citizen versus the state. Time will tell. The small but meaningful decision that the chair of the ISC must be from an opposition party will make a difference.
Finally, I am not a politician, but I hope that noble Lords will forgive me for making a political point. None of these important steps forward, and others that I have not mentioned, would have happened without Nick Clegg’s steadfast insistence. None of them would have happened without the Liberal Democrats being in government.