Data Retention and Investigatory Powers Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 16th July 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, like the noble Lord, Lord Hodgson, I have some problems with the Bill. It is utterly wrong that the Bill is being introduced as emergency legislation. Others may be quite sanguine about that but I am not. It has involved drawing down this expedited procedure when no emergency need has existed at all as there was plenty of time in the past three months to have dealt with this expeditiously. That is a serious abuse of Parliament. The use of emergency procedure to enact laws that are controversial and have a significant impact on individual rights is happening too often. This is not the first time it has happened and it is the sort of rubber-stamping that makes for careless law.

It is my concern that the Bill is seeking to provide a lawful basis for the unlawful exercise of power by the UK security agencies. I say that because the Snowden disclosures showed that in fact there was a sharing of information by GCHQ with the American security services. They were looking into metadata in ways that none of us knew about and which were certainly not covered by RIPA. It meant that the security services were involved in activities that were not covered by law. It is right that there should be new legislation but this is not the way to do it. It is deeply regrettable that we are having a bite at it in this way.

I am concerned that the excuse being made is that companies would have rushed out and somehow destroyed material in response to the judgment of the European Court of Justice. However, the Government were involved in deep and amicable consultations with provider companies. Indeed, their involvement in those consultations was given as the reason for the delay. Provider companies want to co-operate with the Government. It is in their interests that they have the support of government for many of their activities. I do not believe for a minute that undertakings could not have been given that there would be no rush to destroy material in the knowledge that legislation was in the pipeline.

Although it is generally accepted that RIPA is not fit for purpose—as the noble Lord, Lord Macdonald, said, it was enacted when the internet was in its infancy and no one anticipated that technological changes would enable government agencies to obtain enormous quantities of data on the personal activities and lives of individuals—I do not think it is right to embark on legal reform without full and well informed debate. The noble Lord, Lord King, is right. There is still inadequate understanding by the public of what this legislation will mean, but it is no wonder when there is not proper parliamentary debate and public discussion about giving the state intrusive powers about which they should be concerned. Information is not being given to the public.

When all three main parties agree to a piece of legislation behind the arras, the smell of rat regularly permeates Parliament and it is usually a signal that something else is up. The claim is made that this legislation merely maintains the status quo until a sunset clause expires in December 2016. How does the status quo comply with the ruling of the European Court of Justice that the UK’s data retention directive was contrary to law? And why is the sun setting so far in the distance?

I understand that the main political parties do not want accusations being made of being soft on terrorism and do not want finger-pointing. That is why this is being dealt with in this way. That is the truth and the reality of why we are rushing the Bill through Parliament now. It is a sad reflection on the quality of debate about terrorism that there is so much finger-pointing. We live with the fear that we would be blamed if a particular party were to say, “Hold on a minute”.

Legal experts in this field are clear that the Bill now being rushed through Parliament does not even try to comply with the ECJ judgment. Furthermore, DRIP does far more than replace the data retention regulations. It makes substantive changes to the interception warrants, interception capability and communications data access provisions of RIPA. We should always remember that it is the practice of those who draft legislation about the functions of the security services to make it as complex and impenetrable as possible, and that is what this legislation is—obscurantist lawmaking at its height. It is very difficult to fathom what is going on here. One of the tricks is to mix definitions. If Europe uses one set of definitions, we will find that the drafters of legislation here invent their own. If an old law exists, drafters choose to create new language but at times slip into old legislative usage just to confuse.

What we are definitely seeing here is a broadening of RIPA definitions. It is also important to know that words such as “facilitating” flag up to any lawyer that we are moving into “broad interpretation” territory. On 13 July the Sunday Times reported the Home Office as saying:

“The bill clarifies how the current definition should be interpreted, but this cannot change or extend the meaning of the definition in RIPA to capture new services”.

The lawyer Graham Smith says that this is “twaddle”, while the Explanatory Notes attached to the Bill say explicitly that it is intended that webmail and other internet-based services should be caught. There is a suspicion among many experts in the field that something else is going on here and that a significant change is being made without properly explaining the purpose behind it. That should be a matter of concern to this House.

The Minister tells us that it is important to be able to access communication data that can help to place a person in a certain vicinity at a particular time through their phone records. I agree with those who have spoken, who are criminal lawyers like myself, or who have been involved in very serious cases, that there is no doubt that it is invaluable to be able to access this kind of material. In my view, it is right that there should be the retention of data and interception, but with proper warrants and proper controls.

We should all recognise that our phones and other technological equipment are enormously revealing about our movements, activities, associations and interests, and that crime warrants are sought for this kind of material. However, we have to recognise that the disclosures of Snowden showed that we are regularly seeing programs such as Trojan or backdoor programs enter into our material without, one suspects, those kinds of warrants being obtained. Similarly, clouds can be accessed and captured so that they can be used for intelligence purposes without proper procedures being applied. If that were to be the case, we should know about it, and we should be insisting on proper controls. There is no doubt that there are important issues here requiring primary legislation, but they should not be subject to rushed law and they certainly need proper debate.

There is another matter of concern. It was announced in the past few days that there will be a privacy and civil liberties board, which will have four members. That may be very welcome but it will replace David Anderson, the independent reviewer of terrorism legislation. Will the new board have the same access to sensitive intelligence? I am glad that the noble Lord, Lord Carlile, is in his place and will be speaking shortly. The argument was always made that having just one trusted individual made that office effective and watertight. I would be interested to know whether it will be the same with the new board.

Secrecy is required for certain aspects of state function, but too often secrecy is overclaimed. It can be a cover for abuse, which is what we are seeking to prevent. That is why safeguards are essential and it is why Parliament has such an important role. The procedures that we are discussing today should have had the opportunity for much greater scrutiny. Civil liberties have to be protected and they require constant vigilance. They are eroded usually by creep, in small slices at a time, and we have to be the guardians of civil liberties and our constitution as well as our security.