Data Retention and Acquisition Regulations 2018

Baroness Hamwee Excerpts

Tuesday 30th October 2018 Lords Chamber

I will spare the House the issues around corporate offences; the way in which these regulations could jeopardise our data protection adequacy status; whether self-authorisation in urgent cases complies with the CJEU judgment requiring independent authorisation; whether there should be a requirement that any retained communications data should be kept within the EU; and whether the regulations should include a requirement to notify the person that their communications data has been accessed or used, as required by EU law—despite my having received no meaningful response from the Government on these issues. I look forward to the Minister’s response. I beg to move.

[Baroness Hamwee (LD)]

My Lords, when Alice was through the looking-glass and having a conversation with Humpty Dumpty, she remarked that he was “exactly like an egg”. He said he found this “very provoking” and Alice explained that he looked like an egg, not that he was one. Their discussion on semantics included the following exchange:

“‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things’”.


We have had what we regard as a novel and inappropriate definition of “serious”. There is a current movement, which I welcome, towards language in legislation being as close as possible to normal-speak, giving words their natural meaning. Sometimes, of course, terms need definition, as I accept “serious” does in this context. However, an offence that could give rise to a 12-month sentence is not what most people would regard as serious in comparative terms—I put it that way because I will not be the only person in the Chamber tonight who thinks all crime is serious—and this is what the European court pulled us up on.

I think people will be even less inclined to accept the definition in the case of someone not previously convicted of anything or—it does not say so but presumably this is the case—convicted and given a suspended sentence. Stalking and harassment have been prayed in aid. I for one will not be characterised as not regarding these as serious, but I ask what other areas were, to quote the Government,

“highlighted by law enforcement agencies”.—[Official Report, 24/10/18; col. GC 42.]

Maybe those are the ones that we have already heard about; I do not know. I appreciate that these behaviours often escalate but they are not the only behaviours or offences that can do so. If there is an issue of legislation regarding an offence and the sentence that it may attract, we should address it head-on. The Minister referred in the previous debate to the right of citizens to be protected from crime and terrorism. I have not read through all the terrorism legislation but she may be able to help me: are there any terrorism offences where the sentence is as low as a year?

She said that the regulations will prevent data being acquired in the investigation of trivial offences, and she mentioned that again today. I think this confuses categories of crime, which are what underlie possible sentences, and the particular infringement, which may be anywhere on a spectrum and the court will give its view in passing sentence as to where on that spectrum the test should be. I accept that there are tests of necessity and proportionality and that these are essential reference points for lawmakers and the commissioner, but it is harder for individuals who consider their privacy to have been invaded to look to these in an effective fashion.

My noble friend said that he would not mention corporate bodies and then rather effectively did so. I do not think the inclusion of these has been fully justified. There has been no attempt to distinguish between levels of seriousness in their case. I thought it was ironic that a crime that will be subject to—or qualifies for, if you like—the regulations may be an offence involving a breach of a person’s privacy.

I support my noble friend whose amendment to the Motion—although he opposes the regulations—is, in fact, to regret them, not to oppose them, and not to seek to delay them beyond 1 November.