Data Retention and Investigatory Powers Bill

Lord West of Spithead Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, I support the amendment of the noble and learned Lord, Lord Hope. After what he said yesterday I did some swotting last night. It is important for the legislation to get this sort of wording right. It is quite divisive legislation because of the speed at which it has taken place. This is a sensible amendment.

[Lord Paddick (LD)]

My Lords, I also support the noble and learned Lord, Lord Hope of Craighead. At Second Reading, the noble and learned Lord made a compelling case for addressing the precise wording in the European Court judgment. With the greatest respect to my noble friend the Minister, his response to that assertion did not quite come up to the level of the case made by the noble and learned Lord. I also support the comments of the noble Lord, Lord Davies of Stamford, in that it would not only help lawyers to avoid court cases as a result of not addressing strictly the wording in the judgment but it would also be reassuring to the public to have the wording as suggested in the amendment.

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[Lord Carlile of Berriew (LD)]

My Lords, I support what has just been said by my noble friend Lord Howard of Lympne. I speak not as a judge but as someone who has drafted many skeleton arguments to take before senior courts, and given a phrase such as “strictly necessary”, I would spend my time in preparing a case by looking for authorities decided by the courts in which there was a difference between the terms “necessary” and “strictly necessary”. I have spent some time doing so this morning, and I have failed to find such a case so far—although of course I will defer to the noble and learned Lord, Lord Hope, if he can find one for me. Judges are often so much better informed than those who appear before them, and I feel a little as if I am in that situation now.

However, speaking for those of us who are paid, sometimes a great deal of money, to create a difference where none exists between a phrase such as “strictly necessary” and the mere word “necessary”, I would say to the Minister: please avoid tautology. It is expensive, and not terribly helpful.

[Lord West of Spithead]

My Lords, the point made by the noble Lord, Lord Howard, is important, and I accept it. There is a danger of raising a precedent here. On a point of clarity for a simple sailor, may I ask: if an amendment is taken today, is there a mechanism within this urgent high-speed way in which we are doing things to get the change back to the Commons to get it sorted out, or are we talking in a vacuum, because nothing has been organised to achieve that?

[Lord Taylor of Holbeach]

I am sure the usual channels make arrangements for any such potentiality. I am very grateful to my noble friend Lord Howard of Lympne for the way in which he presented the important point that the British Parliament and British law lie at the bottom of all this. We have had a chance to consider this matter. I do not know whether beliefs have been changed by our consideration of the previous amendment, but at least that consideration has been valuable. However, I still urge the noble and learned Lord to withdraw his amendment.

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[Baroness Kidron (CB)]

My Lords, my name is also on this amendment. The question of public trust has been raised, and this amendment is an attempt to restore public trust. The Minister referred yesterday to the overwhelming support in the other place for this emergency legislation. Of course if one looks at the vote in terms of numbers alone he is completely correct. However, the most cursory glance through the past two days of Hansard reveals that even those who support this Bill have grave reservations about a system of warrants that very experienced legal colleagues are suggesting may prove unenforceable, and about whether this Bill has answered all the findings of the ECJ reservations over whether Clause 4 represents an extension of powers. Very importantly, there are also reservations about the level of understanding of the technology itself, and exactly what gathering “who, what, when and where” can mean for the individual. These reservations have been expressed in other places, such as the Constitution Committee and the Law Society, and among senior legal experts as well.

Like others, I absolutely accept that the noble Lord has done his utmost to reassure the House on all points. Even if he is completely correct that this indeed represents business as usual, there remains the outstanding case that this Bill is a response to the ECJ ruling hurried through in fear of an impending judgment in the domestic courts, and that it is sitting on top of RIPA legislation that is generally accepted as inadequate. This Bill has gone through the House so rapidly that it is impossible for it to incorporate effectively all the expertise and views that have been given.

It is not overwhelming support for the legislation that has resulted in there being only four amendments this morning. It was the lack of time to articulate and design useful and necessary clarifications without undermining the needs of the security and intelligence services, which, I say again, nobody present would wish to do. A sunset clause two and half years hence gives no comfort to those who suspect that this Bill came to the House deliberately without time to challenge it. December 2015 is a reasonable time for review, parliamentary scrutiny, public debate and collective agreement. Three days certainly were not. I commend the amendment to the House.

[Lord West of Spithead]

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

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

[Lord Butler of Brockwell]

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

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

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

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

[The Earl of Erroll (CB)]

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

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

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

[Lord West of Spithead]

My Lords, I am sure that the noble Lord is not for a moment suggesting that corruption is involved in this. I understand why there needs to be proper oversight, but surely the noble Earl does not mean to mention words like corruption in connection with the way in which this matter is being approached.

[The Earl of Erroll]

I am sorry; I am not suggesting that there is any at the moment at all. There has been historically—the Cambridge set. There are problems with people at the top from time to time.