Data Retention and Investigatory Powers Bill

Baroness Clark of Kilwinning Excerpts

Tuesday 15th July 2014 Commons Chamber

[Dr Huppert]

That is helpful. There is general agreement, but it was something that struck me when I read the amendment earlier this morning. I note that there are not many Members in the Chamber. Sadly, the House is often like that, however much time has been given for debate or however much notice.

There is a question as to whether it is helpful to define economic well-being. It may be that it is just too hard. Perhaps scholars of the future will look at this discussion and many others to try to work out what is meant. It should relate to things that would be catastrophic; where the effect of failing to stop something would be equivalent to a national security problem or a serious crime. It is that sort of level.

[Katy Clark (North Ayrshire and Arran) (Lab)]

There is a huge amount of concern that the legislation as it was previously and has been presented today could be used for political or industrial purposes. For example, it could be used to intercept information when a trade union was organising industrial action. Is his reading of the amendment such that it could be used in a situation such as the miners’ strike of 1984-85?

--- Later in debate ---

[James Brokenshire]

I thank the right hon. Member for Knowsley (Mr Howarth) for tabling the amendment and giving us an opportunity to look in detail at clause 3 and at the importance of the economic well-being purpose currently retained in RIPA. Let me set out a little more context. Clause 3 translates into primary legislation a constraint—it is intended to be a constraint—on the exercise of this purpose that is already provided for in the codes of practice issued under section 71 of RIPA. It effectively puts those statements into primary legislation. It requires that an interception warrant is only issued, and access to communications data only authorised, for the purposes of economic well-being where there is also an independent national security justification for the authorisation. It is intended to be read in that context. I hope that explanation is helpful as we explore some of the language in the Bill.

Clause 3 does not mean that economic well-being for the purposes of RIPA is synonymous with national security, but the amendment gives us the opportunity to underline the fact that there has to be that connection between the two, which obviously is relevant in determining whether or not the powers under RIPA can be exercised for the statutory purposes. Along with national security and the prevention and detection of serious crime, protecting the UK’s economic well-being is one of the statutory functions of the security and intelligence agencies, which are set out in the Security Service Act 1989 and the Intelligence Services Act 1994.

I understand and recognise the points made by the right hon. Member for Knowsley. I think that this debate has been quite useful in airing some of the cyber-security and cybercrime issues that I know he has raised in the House on a number of occasions. It has also highlighted our reliance on information communications technology, which is now a core part of our national infrastructure. I think that there is read-across into other legislation. I understand that he tabled the amendment on a probing basis, but I think that it requires careful thought.

A definition of economic well-being is reflected in the legislation I have mentioned—RIPA being the key focus for this evening’s debate—but it is also important to acknowledge its context as a well-established principle in law. Its origins lie in the European convention on human rights, which provides for exceptions to article 8—the right to a private and family life—when it is in the interest of the economic well-being of the country. Many aspects, therefore, are wrapped up in the broad context of how the definition has come about and the interpretations of it. Case law may also sit alongside this provision in determining the scope and ambit of the definition, so seeking to clarify it may have unintended consequences.

[Katy Clark]

The Minister will be aware that in the past the security services have taken a great interest in political campaigns and, indeed, industrial matters. I mentioned the miners’ strike in my previous intervention. Will he give an assurance that the proposed legislation will not be used against political activists or, indeed, trade union activists in situations similar to last year’s Grangemouth dispute and the miners’ strike?

[James Brokenshire]

It is always difficult for Ministers—not just me; this has been the case with successive Governments—to comment on security and interception matters. Perhaps it will help the hon. Lady if I explain that what we are doing tonight is strengthening the position by underlining that the purpose has to be connected to national security, so it is not simply a question of economic well-being. The fact that we are putting that into legislation is an important development, as my hon. Friend the Member for Cambridge (Dr Huppert) has said.

I am sympathetic to the amendment in principle, as it seeks to provide clarity on the meaning of economic well-being in law. In many ways, I think it seeks to address some of the points raised by the hon. Member for North Ayrshire and Arran (Katy Clark). David Anderson may wish to reflect on it in his review of existing legislation and new legislation capabilities. Indeed, the privacy and civil liberties oversight board may also wish to address the issue of clarity. My simple point is that it needs to be done with care, given the other legislation I have flagged up and the broader context of the European convention on human rights.

[James Brokenshire]

The right hon. Gentleman makes an important point. We are putting this provision front and centre in primary legislation. I hope that that is helpful in giving an assurance. National security is clearly a pretty high bar to reach, so framing the economic well-being argument in those terms should give an assurance that this is not something that would be relied upon lightly.

[Katy Clark]

The concern that many have is that, in the past, national security has been considered to be a catch-all. Indeed, the miners were considered to be the enemy within, and much of the rhetoric we hear from Government Members considers trade union activity and people who use democratic means to assert their rights to be a threat to the state. That is what I am trying to seek assurances about from the Minister. He is asking us to pass emergency legislation, but he seems unable to provide any assurances as to how it will be used in industrial situations.

[James Brokenshire]

I am genuinely surprised that the hon. Lady has made her point in that way, because the Bill is about strengthening governance and oversight. Sitting alongside the Bill in relation to the retention of communications data, there will, in addition, be a statutory code of practice, while the Information Commissioner has the right to look at further audit and oversight of data retention, and the interception of communications commissioner can consider the use of the powers. That should give independent assurance to not just the hon. Lady but others who, reasonably and legitimately, want to know that such powers are not abused or expanded.

Our governance and oversight of communications data and interception have been strengthened and enhanced over the years, as the right hon. Member for Blackburn (Mr Straw) said on Second Reading. Equally, in relation to wanting to know that the tests are adhered to in relation to a Secretary of State effectively authorising a warrant for interception, the oversight of the interception of communications commissioner should provide a great deal of assurance.

I have always recognised that people should be able to uphold their industrial rights, including the right to form a trade union. I certainly do not in any way intend this debate to get into such an issue. Indeed, from his speech, the right hon. Member for Knowsley understands that the Bill’s provisions will tighten important rights in existing law. The point concerns whether there is a need for any further clarification. The comments of the hon. Member for North Ayrshire and Arran on the right hon. Gentleman’s amendment highlighted the tricky nature of trying to frame the Bill correctly and the potential for unintended consequences in that context.