Data Retention and Investigatory Powers Bill

Baroness Kidron Excerpts

Wednesday 16th July 2014 Lords Chamber

[Baroness Kidron (CB)]

My Lords, it is an honour to follow such a speech from the noble Lord, Lord Judd. I feel that I had better declare my involvement in iRights, a civil society initiative that seeks to establish five principles that would frame all interactions with children and young people under 18 when they use the internet and digital technologies.

There seem to be four aspects of the Bill that cause concern: the process by which it came to your Lordships’ House; whether it does or does not represent the status quo; whether the status quo is what we want to reproduce; and, given the uncertainty of the first three, whether the sunset clause is too far away.

Given how much has been said on the first point, I just want to share the dismay of others at the lack of both foresight and oversight. I understand that heading off opposition and consulting stakeholders are legitimate parts of the legislative process but, somewhat unusually, in considering this Bill it is worth us noting that nearly all the UK population uses the technologies that the Bill addresses. They, too, are stakeholders, and to deny them a proper understanding through the reporting of public debate that the parliamentary process provides is at the very best disrespectful and most probably a further blow to public confidence in the political establishment.

The question of security versus freedom and privacy will be central in a world in which web and digital technologies become the organisational technologies of our society. Rushing through emergency legislation that has been privately consulted upon by an elite group of parliamentarians and international companies does not send a reassuring message of transparency and accountability that such an important issue deserves.

We are repeatedly told that this Bill is not intended as an extension of powers but that it simply upholds the status quo, that Clause 1 restores the previous position on communications data retention, and that what had previously been assumed about the extraterritorial application of communications data acquisition and interception powers was now being properly put on the face of the Bill in Clause 4. This reassurance has been repeated in briefings, in the Explanatory Notes attached to the draft Bill, in the impact assessment, in the other place and today in this debate, but it is in this Chamber on multiple occasions, listening to the likes of my noble friend Lord Pannick, the noble Lord, Lord Lester, my noble and learned friend Lord Woolf and many others that I have experienced the powerful art of clarification.

The companies at which the extraterritorial reach of RIPA is established and aimed want clarification, by Ministers’ own admission. If they need clarification, it must mean that there is some doubt. If there is no longer doubt then there has, de facto, been an extension, the purposes and meaning of which have not adequately been tested by the British public nor by their Parliament.

My noble friend Lady Lane-Fox, in her debate that celebrated the 25th anniversary of the world wide web and again today, suggested that we as a nation and we as a Parliament had not properly responded to the revelations contained in the leaks orchestrated by Edward Snowden. In spite of what we now know and the Pulitzer prize-winning efforts of the Guardian and the Washington Post to make us care, we are rushing through a Bill without the opportunity to determine whether the status quo should be underlined and underscored or whether, in a world where communications are central to every aspect of our lives, we now need to think again.

I should like to make it clear that I have little appetite for a lawless and untended communications highway with no responsibilities to real-world outcomes. Like most others who reject this emergency legislation, I would actively support a more carefully considered Bill that sought to address some of the broader issues that have been raised today and some of the newer technologies on the horizon. However, imposing suspicionless blanket communications data retention on the entire population challenges the basic premise of a free society. For that reason, this policy has been struck down in constitutional courts across Europe and, for that reason too, we must have a regime that takes account of all possible consequences of data retention, as well as the absolutely legitimate needs of the police and security forces.

The European Court of Justice found that on 10 counts the 2009 regulations failed to deliver proportionate retention of data. It laid out specific criteria that needed to be met. We have been told by Ministers in briefings that the Bill in front of us answers some of those findings and that others are answered by existing UK legislation. In spite of reading many late briefings, I cannot fully comprehend in sufficient detail whether all 10 counts have been fully answered. I ask the Minister whether there is any danger that the Bill simply re-enacts the disproportionate retention that has already been found unlawful by the European Court of Justice—a point put much more eloquently and precisely by my noble and learned friend Lord Hope of Craighead.

It is disappointing that the Bill has come to your Lordships’ House in such unhappy haste and that its progress to becoming law does not serve to educate Members of both Houses about the issues at stake. Nor does it ignite a desperately needed public debate about who is gathering the data, what those data are, and when and how they are being gathered. It is desperately worrying that its development has taken place entirely in private. I find myself wondering whether the explanations given by Ministers for conceiving this Bill in private suggest that Her Majesty’s Government’s need for privacy is a little more equal than the need for privacy of the population as a whole.

Given the inevitable passing of the Bill without it being subject to the parliamentary journey that it deserves, your Lordships may wish to send a message to the citizens of the UK by inserting an earlier date for the sunset clause. It would be a date not designed to serve the needs of the election cycle but one that reflects the urgent need of the British people—indeed, it is an emergency—for their Parliament to understand, investigate and decide how we are going to balance their need for security against their need for privacy and liberty.