Data Retention and Investigatory Powers Bill

Baroness Smith of Basildon Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I rise in defence of the Minister because the Intelligence and Security Committee discussed this point with the director of GCHQ on Tuesday morning in the short time available. There have been developments since 2012 that have affected the attitude of the providers—for example, the activities of Mr Snowden. The committee was satisfied that there is a serious risk of loss of visibility of people who ought to be under observation and that the Government’s arguments that this is an urgent matter were justified.

[Baroness Smith of Basildon (Lab)]

My Lords, I rise briefly because I think that perhaps my noble friend Lord Davies has been misunderstood. I do not think that he doubts for one instant the emergency situation that necessitates this legislation. His argument is that the Government could have acted sooner. I will not enter into a debate as we had a long debate yesterday, but it remains our contention that the Government could have acted sooner on this issue. But there is a time imperative now on this legislation.

[Lord Taylor of Holbeach]

I will not argue with the noble Baroness if she wants to make that judgment of things. The Government have to make decisions for themselves on these issues and they do so in the knowledge of the facts, as the noble Lord, Lord Butler, explained to the House. The Government make judgments at the time as to what is necessary, and in this case they have made the right judgment.

We have had a side-show. I now turn to the substance of the amendment in the name of the noble and learned Lord, Lord Hope. I share his wish to ensure that the new regime for data retention that we are putting in place through the Bill is fully compatible with the European Court of Justice, and that is what we are doing. As I explained at Second Reading, while the EU data retention directive was struck down by the European Court of Justice, the ECJ judgment was about the EU data retention directive. The court did not rule on any member state’s legislation and did not take into account the many safeguards which I explained we have in our domestic regime. Many of the ECJ’s concerns are already addressed by the UK’s domestic legislation. Crucially, the judgment explicitly recognised the importance of data retention in preventing and detecting crime.

Nevertheless, although the UK’s existing data retention regime is already a very strong one, with stringent safeguards and oversight, in order to respond to elements of the judgment, we are extending the existing safeguards in a number of ways. Details of those safeguards are contained in our factsheet on that issue, which is available from the Printed Paper Office. However, I will elaborate on them here.

The regulations made under the Bill will replace the 2009 data retention regulations. They maintain the status quo, while also adding additional safeguards in response to the ECJ judgment. In particular, the regulations set out what must be specified in a data retention notice and factors to be taken into account before giving a notice; place a requirement on the Secretary of State to keep such notices under review; set out the security requirements which apply to data retained under a notice; require providers permanently to delete data when they are no longer under an obligation to retain them; require providers to ensure that data are not disclosed except in accordance with the access procedures in RIPA or a court order; and provide for the Information Commissioner to audit compliance with the requirements of the regulations. A provisional draft of those regulations is also available from the Printed Paper Office.

I am satisfied that with those extra safeguards we are on even stronger ground in asserting that the UK’s data retention regime fully meets the requirements laid down by the ECJ. That judgment does not require us to adopt every single bit of wording in the judgment. On the specific details of this amendment, the test currently in the Bill allows the Home Secretary to consider not just whether it is necessary to require a communication service provider to retain data, but also whether the interference that retention involves is proportionate to that legitimate aim. We believe that that is in accordance with the judgment, which also makes it clear that it is necessary to verify the proportionality of any interference with a person’s rights when requiring the retention of data. The test of necessity and proportionality is a well established legal principle, as the noble and learned Lord well knows, which is already a notable feature of elements of the existing RIPA regime.

I am, as ever, grateful to the noble and learned Lord for sharing his considerable experience and expertise with the House, but I hope he is satisfied that the clause simply seeks to build on those long-standing principles, providing an extended safeguard and appropriately reassuring the public. We have a strong test here, which is fully in the spirit of the court’s judgment. Accordingly, I do not believe that the amendment is necessary, and I invite the noble and learned Lord to withdraw it.

--- Later in debate ---

[Lord Wills (Lab)]

My Lords, I came with an open mind to this debate and I am afraid I have to say to the Minister, for whom I have great respect, that I am now minded to support this amendment. The reason for that, quite simply, is that the overriding priority for all of us must be the reassurance of the public, whose security lies at the heart of this whole debate, and the public are suspicious of the motives of those in power, as my noble friend Lady Kennedy has just outlined. The later the date, the more suspicious they become, so there have to be compelling reasons for this longer period. We are not talking about doing this in three weeks; we are talking about 18 months and I have not heard anything by way of a month-by-month account of why this extra time is needed. So unless the Minister can say something to provide detailed, compelling arguments for this extra time being necessary, I am minded to support the amendment.

[Baroness Smith of Basildon]

My Lords, this has been a long and interesting debate. I do not know if my noble friend has had the opportunity to hear the whole debate today, or the debate we had yesterday, but three clear issues came out of yesterday’s debate.

One was the widespread acceptance in your Lordships’ House that there was a gap that had to be plugged as a matter of urgency. There was also deep dissatisfaction—and I think some anger—with the Government’s use of the fast-track procedure. It is unsatisfactory and I think that view came across very clearly in the debate.

There is also deep dissatisfaction with the current situation, whereby we seem to amend our laws on this issue by a sticking-plaster process. The problem comes up and we deal with it now. It was very clear from yesterday’s debate—this was the point made by the noble and learned Lord, Lord Hope—that we must keep pace with the technology, the changes and the information presented to us. We have failed to do so. RIPA, which was passed in 2000, is now hopelessly out of date. We recognise that that needs urgent consideration.

The amendment suggests that we shorten the period in which we may give further consideration to bringing new legislation. The amendment in the other place, which was tabled by my right honourable friend Yvette Cooper is now Clause 7 of the Bill. I am surprised that those who tabled this amendment did not seek to make changes to Clause 7 as well. Clause 7 is crucial in this whole debate and was central to our support for this legislation. Clause 7(3) says that the independent reviewer, a man whom this House has made clear, as it did yesterday, it holds in the highest regard and the deepest respect,

“must, so far as reasonably practicable, complete the review before 1 May 2015”.

The Minister can confirm this or otherwise, but I understand that, following that review, there would be a Joint Committee of both Houses, where Members of your Lordships’ House and the other place with, I hope, a broad range of opinions—I agree entirely with my noble friend Lady Kennedy—will examine the evidence presented by the independent reviewer.

We have two choices. We can start the work now—there should be some issues that we can look at now—but the substance that the independent reviewer will look at I would expect us to examine, take on board and introduce in legislation. Either this is just a sop and we ignore anything the independent reviewer says and get the legislation through earlier, or we take the views of the independent reviewer seriously and ensure that what he says is taken into deep consideration when we are looking at legislation.

One of the comments made was about public confidence and trust. The public have a right to wonder what we are doing when we pass fast-track legislation. We bring this out of the blue, we put it in context and we expect trust on legislation. That is a big ask. That is also why there has to be some public engagement on these issues, as was clear from yesterday and today’s debates, and this forms part of our demands with this legislation. Obviously, there are details of security information that cannot be given to the public, but the public are entitled to a lot more information that is available now and are entitled to know the context in which data are held. Like my noble friend Lord Rooker, I think that when it comes to the private company-held information, as well as public statutory information, the public have a right to know. We have only to click on the internet and look at something, and for days afterwards somebody knows what you have been looking at because it is there every time you go on to Google or look at something else again. We have a duty to engage the public in that. However, that duty will not be done tomorrow or next week. It will be done in the context of the report from the independent reviewer.

The noble Lord, Lord Carlile, made a very important point when he reminded us that the sunset clause will stop. This is not a sunset clause to reintroduce the same legislation. This is to bring in a completely new framework under which we operate on these issues. That is not something that we should take lightly. We can start working but we need the report of the independent reviewer as well.

As much as one looks at an amendment such as this and instinctively thinks we do not need so much time to deal with it, when one examines the issues there is a strong case for bringing in completely new legislation, which needs time to be done properly. The public cannot be reassured if we continue with sticking-plaster legislation and fast-track legislation, which is completely unsatisfactory.

[Lord Taylor of Holbeach]

My Lords, it has been very useful to have this debate. It is our last amendment in Committee and it sums up so much of what we are trying to achieve. I am very grateful to the noble Baroness, Lady Smith, for laying out so clearly the issues that are before the Committee today. It is clear that the Opposition, the Government and coalition partners have been talking about how best to deal with this issue. We have come to the conclusion that replacement legislation for RIPA needs to be properly considered and that we need to look at where we are. We need proper consideration of future legislation. We are also clear that, while we are passing this particular element today, it needs sunsetting—and it needs sunsetting absolutely when its time has expired. However, we would be reckless to try to set a date when we will then prevent the proper operation of the discussion that we all agree is necessary in Parliament, and with the public in the larger world, about this issue.

The Government do not take lightly the requirement for fast-track legislation, but we have taken this forward with the support of the Opposition, and we have included in it an absolute sunset clause, as is right and appropriate. This is so that Parliament can return to the issue after all the other issues have been discussed. Indeed, Parliament must return to it because this sunset clause is absolute and there is no room for its extension.

Noble Lords have queried the requirement for the speed of the legislation. I repeat that we have particular and urgent circumstances. Earlier, I repeated to the noble Lord, Lord Davies of Stamford, things that I had said at Second Reading. He is not in his place at the moment, but he will confirm that I made it clear that there were urgent considerations and that we were on a cliff edge, as the Prime Minister has said. However, the Government understand fully the wish of noble Lords, which has been expressed in almost all debates, to review this area. That is why it is so important that time is allowed for an independent review before the election, hence Clause 7 in the Bill and a Joint Committee review after the election. That is not kicking the can down the road; it is just making sure that when we return to this with legislation, we do so with legislation that has the support of Parliament and has been properly considered. At the same time, it also makes sure that, whoever wins the election, the Government presenting legislation can do so with the public having been fully engaged in the discussion on the issue.

This amendment would change the date when the Bill ceases to have effect and bring it forward to 31 December 2015. While this date is a year later than that proposed in the House of Commons, I do not believe it will give the sort of time that we need for the reasons expressed by the noble Baroness, Lady Smith. The debates that have taken place in this House have made that absolutely clear. While we have no option but to act swiftly now, festina lente is a sensible approach to finding the new solution for the future. The technological changes we are facing—someone pointed to the speech of the noble Baroness, Lady Lane-Fox, yesterday—and the balance between security and liberty, should be looked at with a view to the longer term. We will set up, as I have said, in the Bill a review of the investigatory powers and their regulation to be headed up by the current independent reviewer of terrorism legislation, David Anderson QC. He will report by 1 May 2015, just before the general election. I believe we should be discussing this sort of issue at that time. We need to be realistic. None of us knows who will form the Government after the election. We all have our own views; we sit on opposite sides of the House. However, decisions need be made in the light of information that should be available to Parliament as a whole.