Data Retention and Investigatory Powers Bill

Caroline Lucas Excerpts

Tuesday 15th July 2014 Commons Chamber

[Mrs May]

I note what my hon. Friend has said, but, having examined the judgment of the European Court of Justice, we believe that UK legislation already complies with many parts of it, and we have specifically ensured that other issues that were not addressed in the judgment are addressed in the Bill.

[Caroline Lucas (Brighton, Pavilion) (Green)]

The Home Secretary says that she has brought the Bill into line with the EU ruling. However, the ruling made it very clear that blanket retention of data was not permissible, and that retention of data must be specific to a threat regarding a group of people or a particular time. It is precisely that blanket retention that has been ruled illegal.

[Mrs May]

One of the issues that emerged from the ruling of the European Court of Justice was the scope of the data retention directive. The Court believed that it was too broad, and that it was necessary to be more specific about the purposes for which data could be retained. Our legislation was already specific, but we have looked at it again, and we are very clear about its focus in terms of how it will be operated and in terms of its scope. We are addressing the very issue that was raised by the Court.

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[Sir Malcolm Rifkind (Kensington) (Con)]

I begin by paying tribute to the shadow Home Secretary and the Opposition for deciding to give their full support to this measure. It is always reassuring to the nation as a whole when political parties come together—we do not do it very often—on an issue of national security. Especially with emergency legislation, that has a powerful and beneficial impact, and reassures many members of the public who might otherwise be concerned.

The Intelligence and Security Committee has considered the Bill, and we have taken evidence from the intelligence agencies on its content. If we were concerned in any way that the Bill simply added to the powers available to the Government and that they were using a fast-track procedure to implement it, we would not be able to recommend its endorsement, but we are satisfied that that is not the case.

I have listened carefully to some of the comments by those on both sides of the House who are opposed to the Bill and have criticised it. Part of the argument is that it is shocking that, when the European Court of Justice has repudiated the directive, we should defy that decision. They have not taken the trouble to read properly what the Court said. It was clear. It did not oppose the retention of data under national laws based on the directive. I shall quote the judgment:

“the retention of data for the purpose of their possible transmission to the competent national authorities genuinely satisfies an objective of general interest, namely the fight against serious crime and, ultimately, public security.”

The Court’s objection—it was an understandable point—was that the directive contained insufficient proportionality and safeguards. The directive covers 28 countries, and some of them did not have previous legislation or experience in this area and simply implemented everything that the European directive seemed to permit them to do. However, as the shadow Home Secretary rightly said, that has not been the practice in the United Kingdom. Most of our safeguards had already been introduced, and continue to apply.

Let me remind those who have criticised the proposal what the safeguards include, which are far broader than the narrow approach of the directive. First, for any intelligence agency to use the powers, it has to satisfy not just itself but the Secretary of State and Parliament that to do so is in the interests of national security, fighting serious crime or protecting economic well-being, which is linked to national security. If it does not meet that requirement, the agency cannot use the powers in the first place.

Secondly, the European Court directive allowed data to be retained for up to two years. In the United Kingdom it has never been retained for two years; a maximum of a year is allowed. That is a considerable improvement. Many countries do not have the system that we already have of the interception of communications commissioner, who is able to examine the use of the powers and report both to Parliament and to the Secretary of State if he thinks that they are being used in a disproportionate way or not for the purpose that Parliament intended.

It is therefore an important consideration that the United Kingdom happens to have this experience and has used the powers in a proper and responsible way—we are not the only country, but it does not apply to all 28 members of the EU.

[Caroline Lucas]

The right hon. and learned Gentleman cites the interception of communications commissioner as some kind of safeguard, but is he aware that the commissioner has recently ruled that there has been

“significant institutional overuse of existing powers”?

That same commissioner is already warning us.

[Sir Malcolm Rifkind]

We will have to see the context in which the commissioner made that remark, but I have read his report and he gives a clean bill of health to the intelligence agencies on communications data, which is what we are talking about here. He has answered many of the criticisms that have been made elsewhere and said that they are unfounded and unjustified. I am sure that the hon. Lady has read that report. Perhaps she should re-read it and then she will remember the point that she momentarily forgot when she intervened.

The other important part of the Bill relates to questions of extraterritoriality. This is a difficult and sensitive issue, because obviously many communications service providers are not UK companies and would be reluctant or might refuse to recognise any restrictions imposed on them. I shall read out one sentence from the explanatory notes that have been prepared for the benefit of the House on this part of the Bill, which explains why this is an important and justifiable provision. The explanatory notes state on page 4:

“While RIPA has always had implicit extraterritorial effect”—

the Government themselves have said that it is extraterritorial—

“some companies based outside the United Kingdom, including some of the largest communications providers in the market, have questioned whether the legislation applies to them. These companies argue that they will only comply with requests where there is a clear obligation in law.”

In other words, up till now it has been implicit that the legislation is extraterritorial—that has certainly been the Government’s view—but that has never been spelled out explicitly. That is what the Bill now seeks to rectify, and we are told in the explanatory notes that some of the communications providers based outside the United Kingdom have said that that is what they are looking for. If it is an explicit obligation, they will be willing to comply with it. If it is not, they will have to consider whether they wish to do so or not.

There will be other providers which, even with that explicit statement, still decline to co-operate. Our Government have to decide what they will do to try to change that situation, because it is a very unsatisfactory one. We are talking about companies that operate within the United Kingdom. We are not talking about what they are doing in America, France, Germany or other countries. They should co-operate in the way that United Kingdom companies co-operate and in a way in which some overseas companies are prepared to co-operate. They recognise the public interest, and they recognise the need for these provisions in the battle against serious crime in particular, not to mention terrorism and such matters.

The House and the public can be reassured that what is in the Bill is not what we have been told is in it. Its purpose is to maintain the current situation. To oppose the Bill would create an enormous risk, if indeed the provisions, which are currently in regulations, were challenged before the courts and were then struck down. Therefore I certainly and, I think, my colleagues on the Intelligence and Security Committee, recommend these provisions to the House.

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[Caroline Lucas (Brighton, Pavilion) (Green)]

The straw man—or straw person—has been evident in this debate this afternoon. Several Members have suggested that those of us who oppose this Bill somehow oppose the retention of data per se. I wish to make it clear that I have not heard anybody say that. Everything is about the terms on which the data are being retained.

The right hon. and learned Member for Kensington (Sir Malcolm Rifkind) gave the impression that I had suggested that the Court of Justice of the European Union had said that the data could not be retained. Of course it did not say that. What it said was that the terms under which data are retained have to be proportionate. The right hon. and learned Gentleman, who unfortunately is not in his place, suggested that I had not looked at the ruling. I can confirm that I have. Paragraph 59 makes it clear that what the Court of Justice is asking for is an end to blanket retention. It says that

“retention must relate to specific threats, and be confined by specific criteria, such as a time period, geography, or a set of people of interest.”

We are talking about the terms and the conditions of that data retention. Let us consider the fact that there are plenty of countries that seem to be able to tackle serious crime without undermining their citizens’ civil liberties through blanket data retention. I am talking about Austria, Belgium, Bulgaria, Germany, Greece and Sweden.

The hon. Member for Cambridge (Dr Huppert), who is in his place, tried to reassure us that there were all these safeguards that would make us feel comfortable. One of those safeguards, and the only one that is actually written into the Bill, is the sunset clause, which is two and a half years away. Many Members have already said why that does not give us comfort, which is why I am supporting the amendment that would bring it forward to six months. None of the other measures to which the hon. Gentleman referred is in the Bill.

An awful lot of people watching this debate will be absolutely staggered that the Liberal Democrats, who have, to their credit, been upholders of civil liberties in the past, are here undermining them. What we see here is a willingness to trade off this blanket retention of data, which many people believe will be deemed illegal, with concessions that may or may not be forthcoming in the future. We have always known that new Labour had an authoritarian streak, but we had hoped that the Liberal Democrats would stand up for civil liberties. Many people today will be sad to see the way in which they have caved in on this issue.

We have been repeatedly told that the Bill simply maintains the status quo, and there are plenty of legal experts who will argue that that is not accurate; we have heard many of their statements repeated in the Chamber this afternoon. Notwithstanding the fact that the status quo has been ruled a breach of fundamental human rights, the provisions in the Bill, specifically clause 4, extend the territorial reach of the law relating to data retention, bringing overseas communications companies that provide services in the UK into the scope of RIPA.

Even those parts of the Bill that do not constitute going further than the status quo are deeply worrying. It has been confirmed that they breach fundamental human rights in their scope and in their totality. There are also more specific concerns with many of the Bill’s provisions. Clause 1, for example, retains authorisation for hundreds of public authorities to acquire communications data while the framework for granting access to that data is worryingly open to abuse. Barring local authority access, there is no requirement for independent prior judicial authorisation when communications data are sought by public bodies.

That means that the potential for ongoing and wide-scale privacy infringement is enormous and has been realised in the shape of roughly half a million requests a year from public bodies since 2009. The actual scale of infringement is difficult to assess. We still do not have a full picture across all the public bodies that are able to access communications data of the type of investigations for which data are accessed, the extent of access and the number of individuals affected. The European Court of Justice has however confirmed that privacy is being breached even though to what extent is unfortunately still a secret.

Moreover, while we are told that communications data played a role in 95% of all serious criminal investigations over the past decade, we have no idea about the exact nature of that role. That makes it difficult to judge exactly how significant the blanket retention of data is in averting terrorist attacks, for example. When crimes are successfully prevented, we are not told whether communications data are central or peripheral to the operation; nor are we told whether data lead to successful prosecution or whether prosecution could have been secured without access to the data. That is why we need a proper debate. The interception of communications commissioner has already warned that far too many requests for data are being made and that he is struggling to keep up with them. The idea of loading more on to the commissioner is unsustainable. We should not be pushing this legislation through in a day; we should be having a proper and full debate.