Counter-Terrorism and Security Bill

Diana Johnson Excerpts

Tuesday 9th December 2014 Commons Chamber

[Diana Johnson (Kingston upon Hull North) (Lab)]

I beg to move amendment 4, on page 8, line 11, leave out subsection (3).

This would remove the 200-mile limit on the Home Secretary’s ability to relocate people.

[The Second Deputy Chairman of Ways and Means (Dame Dawn Primarolo)]

With this it will be convenient to discuss the following:

Clauses 12 and 13 stand part.

Amendment 7, in clause 14, page 9, line 33, at end insert—

‘6B Regulated Activity Measure

(1) The Secretary of State may impose on the individual restrictions on taking part in regulated activity relating to—

(a) vulnerable adults;

(b) children; or

(c) both.

(2) In this section “Regulated Activity” is as defined in Schedule 4 of the Safeguarding Vulnerable Adults Act 2006.’.

This amendment would allow the Secretary of State to prevent an individual on a TPIM working (including voluntary work) with children or vulnerable adults or both.

Clause 14 stand part.

Amendment 6, in clause 15, page 10, line 8, at end insert—

‘(3) Appointments required under subsection (1) may include appointments with persons involved in delivering programmes established under Part 5, Chapter 2 of the Counter-Terrorism and Security Act 2014.’.

This amendment would make clear that the Secretary of State can instruct an individual on a TPIM to attend de-radicalisation programmes.

Clauses 15 and 16 stand part.

[Diana Johnson]

Part 2 of the Bill relates to terrorism prevention and investigation measures. This grouping includes clauses 12 to 16 as well as Labour’s amendments, so I intend to use my contribution to address all the issues concerning TPIMs in part 2. The amendments are all probing, as we are broadly supportive of the changes the clauses introduce, especially the U-turn on relocation powers, which clause 12 reintroduces.

The Home Secretary introduced TPIMs in the first Session of this Parliament to replace Labour’s control orders. She claimed at the time that that was a fundamental rebalancing of security and liberty. In fact, there were only two major differences between control orders and TPIMs, or control orders-lite, as they have been called: the relocation power and the two-year limit. She also said that she had been forced to introduce TPIMs because too many control orders were being challenged in the courts. Although judicial oversight was of course a key element of the control orders regime, the courts had continued to find that control orders, including the power to relocate, were both necessary and proportionate in a number of cases, including all those that were later transferred to TPIMs.

I think that every Member of this House would agree that it is always better to prosecute individuals, wherever possible, for terrorist offences. No one wants TPIMs or control orders; we would all much rather see prosecutions for those involved in terrorism activity. However, in a very small number of cases evidence is inadmissible, for example because it would compromise security, and therefore prosecutions cannot be brought. That means we need an alternative measure to deal with the threat those individuals pose.

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

Does the hon. Lady recognise that TPIMs have never led to a terrorism-related prosecution and that they are therefore not only against human rights, but counter-productive and ineffective?

[Diana Johnson]

If the hon. Lady will bear with me, I will move on to that point shortly, because one of the claims that the Government made was that the new regime would lead to more prosecutions.

It is worth remembering that we are talking about a very small number of individuals, but they pose a serious danger to the public and we need some powers to manage that risk. David Anderson QC, the independent reviewer of terrorism legislation, has made it clear that those who are subject to TPIM notices are accused of terrorist activities

“at the highest end of seriousness, even by the standards of international terrorism.”

TPIMs are a set of restrictions imposed on an individual who is suspected of, but has not been convicted for, involvement in terrorism. A TPIM order, like a control order, is imposed at the behest of the Home Secretary, with judicial oversight, but can be appealed to the High Court, which must find that the TPIM and all the measures it includes are both necessary and proportionate.

When the Government scrapped the control order regime, they argued that their new regime would allow more suspects to be prosecuted—this relates to the point just made by the hon. Lady. The Security Minister has repeatedly said that the aim of the regime was to secure more prosecutions and that extra resources were being provided to achieve that. I wonder whether he could confirm today exactly how many successful prosecutions for terrorist-related activity there have been for individuals on TPIMs. Like the hon. Lady, I understand that there has not been one successful such prosecution. David Anderson has commented that the TPIMs regime has not aided the prosecution of individuals, and the Joint Committee on Human Rights has stated that it

“failed to find any evidence that TPIMs have led in practice to any more criminal prosecutions of terrorism suspects.”

All three of the prosecutions attempted in 2012 for breaching the conditions of TPIM orders collapsed. When Mohammed Ahmed Mohamed absconded, he had just answered bail on 20 charges relating to breaches of his TPIM. Some of those breaches lay on the file for 18 months. Given that prosecutions were meant to be a priority, as the Government had said on numerous occasions, perhaps the Minister can explain why he thinks there was such a delay in taking that case to court and whether the Government actually opposed Mohammed Ahmed Mohamed being granted bail. Will he also confirm how he believes the changes proposed in part 2 will deliver what he had attempted to do when the TPIMs regime first came in—secure more prosecutions?

The number of people on TPIMs, as with control orders, has remained very small, but they are believed to pose a serious threat. There were nine people on the control orders regime when it ended in January 2012, all of whom were British citizens, and the Crown Prosecution Service has consistently said that none of them could be prosecuted. All those individuals were transferred to TPIM orders, and another individual was subsequently put on a TPIM order. We believe that there is currently just one person on a TPIM order. It would be helpful if the Minister could confirm that when he speaks.

There are other concerns about the TPIMs regime. In January 2014, the Joint Committee on Human Rights stated:

“We are left with the impression that in practice TPIMs may be withering on the vine as a counter-terrorism tool of practical utility”.

I will be interested to hear the Minister’s response to those comments and how he feels that part 2 will deal with some of the criticisms raised.

I now turn to clause 12 and the issue of relocation, and amendment 4. As I said, the key difference between control orders and the TPIMs regime was the power of relocation, which was removed. It is helpful to give specific examples of how the relocation power was used under the control orders regime and the effects of the changes introduced by the coalition through the TPIMs legislation.

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[Diana Johnson]

The Minister is shaking his head. It would be interesting to hear his views about the resources available to carry out surveillance and what additional resources might be needed for the relocation power proposed in the Bill.

I want to turn to the practical issues involved when someone is subject to a TPIM, and where they would actually live. Clause 12 allows for the Secretary of State to provide a residence, but there is no requirement. Presumably, the Home Secretary would find somewhere for an individual to live if they did not have a place to stay. What would be a local authority’s responsibilities if there was a power of relocation several miles away from where the individual usually resides? Would local councils have a responsibility to provide accommodation? What standard of accommodation would the Minister expect to be provided to somebody subject to a TPIM relocation order? What type of accommodation would it be? Would the Home Secretary consider a prison to be a suitable place to accommodate an individual? If the individual lives in the private rented sector, who would meet the costs of that accommodation? Would the individual be able to make a claim for and obtain housing benefit? Concerns have also been raised in the past about immediate close family members, including children, young children, husbands and wives. Would accommodation be provided for them?

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[Ian Swales (Redcar) (LD)]

I am certainly not an expert on this area, but is the shadow Minister suggesting that an organisation’s standard Criminal Records Bureau check fails to pick up the people to whom she is referring?

[Diana Johnson]

That is the very question I am asking. The Disclosure and Barring Service obviously keeps records of people who should not have access to children in a regulated activity, such as working as a teacher in a school. However, because of the coalition’s changes, volunteering at a school is not considered a regulated activity, so no information would necessarily be given by the DBS. Most people would be concerned if someone subject to a TPIM had access to young people. Will the Minister help us to be clear about what exactly that means?

Clause 15 allows the Secretary of State to require an individual to attend meetings with such persons as the Secretary of State may specify, at such locations and at such times as the Secretary of State may by notice require. The specified persons may choose the time and place of the meeting.

We think that clause 15 is rather vague and very broad, and we have tabled a probing amendment. Amendment 6 is designed to tie down the clause on the specific issue of Channel—the deradicalisation programme —which we will come on to later. It is important that the Secretary of State can make people attend Channel meetings and appointments, and possibly those relating to other parts of the Prevent programme. The probing amendment is an attempt to tease out exactly what such appointments are about. We certainly think that the appointments such a person is required to attend should cover the Channel and Prevent programmes.

Clause 16(1) amends section 3(1) of the TPIM Act so that, to meet condition A, the Secretary of State must be

“satisfied, on the balance of probabilities,”

that an individual is or has been involved in terrorism-related activity. That changes the current wording for the test under condition A, which is that

“the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity”.

As I have set out at great length, the Secretary of State spent four years arguing that relocation was unnecessary and impossible, because courts kept overruling it. We know that the independent reviewers of terrorism legislation have always taken a different view on that point. The relocation power is now being reintroduced, and the Home Secretary has toughened up the test.

I want to make it clear that Opposition Members have always been comfortable with having robust oversight of TPIMs, because we think that good and strong evidence—such evidence ensures that TPIMs are used only in exceptional cases—would pass the test the Home Secretary is now introducing in clause 16. It is important not only to have such a test, but to continue to have judicial oversight so that TPIMs are always considered in the courts.

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[Pete Wishart]

The hon. Gentleman hits the nail on the head. These measures are counter-productive in trying to make our country safe. All they do is tip people off that there is a particular issue with an individual. If there is a terrorist community, the first thing that they will take note of is the fact that somebody has been the subject of a TPIM or a control order. It alerts them to the fact that something is going on. I am all for making our country safe, but have there been any prosecutions? No.

The saddest and most bizarre feature of control orders and TPIMs is that they are all about suspicion. There is never enough evidence to test these matters in court, to take them to trial, to have a judge and jury decide whether something is going on. It is all about suspicion. That is the critical feature of TPIMs, as it was of the control order regime. How can anybody try to secure their innocence when they are subject to such measures? They have no opportunity to do so at all. They just have to accept the situation.

Unfortunately, the relocation measures will bring TPIMs right back to where we were with control orders. That was the defining difference between TPIMs and control orders. It is therefore particularly depressing that relocation is a feature of the new TPIM regime in the Bill. I hope that the Minister will resist Labour’s call to extend the powers further by making relocation even more restrictive and having another list of qualifications in the TPIM regime. I know that he will resist that and ensure that Labour, in its new Labour guise, will not have its way.

[Diana Johnson]

I am listening carefully to the hon. Gentleman. He should have listened to what I said, which was that these are probing amendments to allow us fully to understand the Government’s thinking. They are intended not to extend the powers in the Bill, but to seek clarification. I hope that he will take that on board.

[Pete Wishart]

I am a bit more satisfied, but on the face of it, the amendments do call for further restrictions. If they are just probing amendments, that is fair enough and we will hear the Minister’s response. Regardless of whether the amendments are probing or active, I hope that he is not convinced to back anything that Labour is suggesting, because that would make matters worse.

It seems to me that the Labour leopard has not changed its new Labour, anti-civil libertarian spots. Labour still wants further restrictions. It still wants the Government to go further, despite the critical balancing act that we always have to consider between the necessary steps to keep our nation safe and the civil liberties that we cherish and value in a democracy. New Labour got the balance drastically, appallingly wrong. Unfortunately, the Conservatives are moving on to that territory once again. I hope that the amendments are resisted. I understand that they are just probing amendments, and that is fine, but I hope that the Minister will not be probed into accepting what is being suggested by the Labour party.

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[James Brokenshire]

This is intended to be a very focused power on the basis—rightly, as we have discussed—that our strong preference is to see prosecution, and that it is only in the cases where prosecution, or indeed deportation, is not available to us that we would need to rely on the use of the TPIM measures. As no doubt the hon. Gentleman will be aware, there have been 10 TPIM notices imposed since their introduction. Perhaps that gives him some reassurance that this is not reached for as the first option. Indeed, we always look for prosecution, and there is a requirement in the TPIM legislation to show that those steps have been explored and that there is no reasonable prospect of being able to secure that.

The impact on communities was carefully considered at the time of the counter-terrorism review and, indeed, led to the creation of the TPIMs Act and the measures that we now have on the statute book. In placing this type of restriction—now that we are saying we believe that relocation is appropriate in the light of the changed picture—it should not be unbounded; hence this restriction is in place so that an individual may only be a few hours’ away from their family rather than relocated to the other side of the country.

Should exceptional circumstances arise that require more stringent measures, we retain the ability to enact the Enhanced Terrorism Prevention and Investigation Measures Bill, which has passed pre-legislative scrutiny. This Bill includes a range of more stringent powers, including curfews of up to 16 hours. As we said at the time of the counter-terrorism review, we reserve the right to be able to do that in those exceptional circumstances.

Clause 13 amends the TPIMs Act and allows the Secretary of State to impose restrictions on an individual from leaving either the UK or a specified area within the UK within which they reside, and increases the maximum sentence for breaching this measure to 10 years, as the hon. Member for Brighton, Pavilion has said. This underlines the Government’s commitment to ensuring that TPIM subjects are appropriately managed, but that if they breach their TPIM notice, appropriate sentences will be given to recognise the seriousness of the issues at hand. I hope that the House is reassured that these measures strike the right balance between privacy and security and, on this basis, I invite the hon. Lady to withdraw the amendment.

Amendment 7 would insert a new clause 6B after clause 14, which is entitled “TPIMs: weapons and explosives measure”. Both the weapons and explosives measure and the proposed new clause 6B are designed to put beyond doubt what a TPIM subject is permitted to have access to on a TPIM notice. This amendment seeks to add an additional requirement in that respect.

The hon. Lady asked a series of questions that were linked to this issue in relation to the vetting and barring service and what might apply. Perhaps I can reassure her that someone who wants to work in a school or other educational establishment will be eligible to obtain an enhanced criminal records certificate from the Disclosure and Barring Service, as the hon. Lady will know. The certificate will include convictions and cautions held on the police national computer, plus any other information that is available to the police and which a chief police officer both reasonably believes to be relevant and considers ought to be disclosed. This may include the fact that a person was or is subject to a TPIM notice. In addition the legislation governing barring allows specific criteria to be prescribed that would require someone to be automatically barred. There would be scope to use the provision in relation to a TPIM if that were considered appropriate. This is something that we already cover in the TPIM legislation, in that the Act provides the ability to prevent TPIM subjects from taking part in a regulated activity relating to vulnerable adults and children under the association measure in schedule 1(8) or the work or studies measure in schedule 1(9).

The association measure in schedule 1 allows the Secretary of State to impose a requirement that a TPIM subject must not associate or communicate with specified persons, or specified descriptions of persons, without permission. In addition, the work or studies measure allows the Secretary of State to impose a restriction on a TPIM subject carrying out specified types of work, which includes unpaid work, or studies without the permission of the Secretary of State. We can and do use these measures to prevent TPIM subjects from associating with particular people or working or studying in areas that are assessed to be inappropriate. The measure proposed in this amendment duplicates that measure, which is why we judge that it is neither appropriate nor needed.

[Diana Johnson]

Just to be clear: if somebody is subject to a TPIM order, work that is voluntary and is not in a regulated activity could, under the current legislation, be something that the person is not allowed to take part in by decision of the Home Secretary.

[James Brokenshire]

That is the very point; we have that ability from the work and studies measure to be able to control that, and the Secretary of State effectively has to give permission for work to be conducted. There is an additional measure, plus the information that will be provided. The police update the police national computer when a TPIM subject has a notice imposed to ensure that this information can be taken into account in relation to any decision and checks on the subject, so it is flagged in that way. I hope that that gives the hon. Lady assurance on that specific point.

As I said, amendment 7 would amend the appointments measure in clause 15, which allows the Secretary of State to require an individual to attend meetings as specified by the Secretary of State. The appointments measure is already a broad power that allows the Secretary of State to require a TPIM subject to meet relevant organisations or people who can contribute to their ongoing management. The measure already includes the ability to require TPIM subjects to attend a deradicalisation programme, with persons involved in delivering programmes established under part 5, chapter 2 of the Bill. In our judgment, it is therefore unnecessary explicitly to specify this as part of the appointments measure. In essence, the existing language is broad enough and sufficient to allow us to require the link with deradicalisation programmes.

The hon. Lady flagged up some other issues relating to offensive weapons and explosives. On that, we are seeking to put the issues beyond doubt. There is, of course, existing legislation that governs some of these issues, and it is our judgment that it ensures that these items are properly and firmly addressed. As I have indicated, the link to the police national computer is already there. This further underlines and underpins each of the specific issues already on the statute book.

On the boundary that could be imposed, there is further specific provision on the requirement for the Secretary of State to provide certain guidance and indications on the factors that will be used in the assessment. These can include the original location of the TPIM subject; access to services; ability to prevent or restrict involvement in terrorism-related activity; proximity to airports or ports; and proximity to other TPIM subjects or prohibited associates. Those are the sort of factors that can be taken into account.

The definition of terrorism-related activity, to which the hon. Member for Kingston upon Hull North referred, was followed through in David Anderson’s recommendations. His concern about the existing definition was that it has people almost three steps removed from the activity. We have consulted the police and security services in respect of this amendment, and they have been reflecting on David Anderson’s consideration. We continue to judge that the measures remain appropriate.

I will gladly answer any of the hon. Lady’s questions if I have omitted to do so, but I think what I have said covers the bulk of what she asked.

[Diana Johnson]

I do not recall the Minister responding to my point about families and whether a relocation of an individual could also include young children and a partner. It would be helpful to understand that situation.

[James Brokenshire]

Yes, families could live in the accommodation to which the TPIM subject has been relocated. In that relocation situation, it would be for the Home Office to provide the accommodation, as has happened under previous arrangements. We would seek to adhere to the same circumstances.

With those assurances, I hope that the hon. Lady will be minded to withdraw the amendment.

[Diana Johnson]

I am grateful to the Minister for responding to the many lengthy questions I put to him. We have had a useful opportunity to understand the thinking behind clauses 12 to 16. As I indicated at the outset, the amendments I tabled were probing ones, intended to allow us to have this debate and to understand more fully the thinking behind the Government’s approach.

It is clear, however, that no one absconded under a control order with a relocation power, and it is worth reiterating that, but on the basis of what the Minister has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clauses 13 to 16 ordered to stand part of the Bill.

Clause 17

Retention of relevant data

[Diana Johnson]

I beg to move amendment 5, page 11, line 3, at end insert—

(iii) is beyond that which is necessary to allow the identification of the user from the public Internet Protocol address.”

This amendment would make it explicit that the extra data retention provided for in Clause 17 does not extend beyond that which is necessary for the purpose of identifying a user from the IP address. This amendment is not intended to impact on the rest of the Data Retention and Investigatory Powers Act, only the extra retention requirements created by Clause 17.

[Mr Speaker]

With this it will be convenient to discuss the following:

Clause 17 stand part.

New clause 1—Access to retained data; judicial oversight—

“(1) The Regulation of Investigatory Powers Act 2000 is amended as follows.

(2) After section 22 insert—

“22A Access to retained communications data: judicial oversight

(1) This section applies where a person designated for the purposes of this Chapter believes that it is necessary on grounds falling within section 22 to obtain relevant communications data retained under section 1 of the Data Retention and Investigatory Powers Act 2014 relating to professional activities covered by a duty of confidentiality.

(2) Before granting an authorisation or issuing a notice under section 22 the designated person must have obtained the permission of the court.

(3) In determining whether to grant permission under subsection (2) the court shall in particular balance the reasons why the designated person believes it is necessary to obtain the data against the public interest in upholding the duty of confidentiality.

(4) The Secretary of State may by regulations specify—

(a) the court or courts that shall determine applications for permission under this section;

(b) the process for the court or courts to determine whether to grant permission;

(c) the period for which permission shall apply before being renewed by the court; and

(d) the process for a person or persons to appeal against a decision to grant permission.

(5) Regulations under this section may not be made until they have been laid in draft before and approved by both Houses of Parliament.

(6) In this section “professional activities covered by a duty of confidentiality” shall include, but not be limited to, the professional activities of journalists, legal advisers, medical professions and Members of Parliament.”

New clause 2—Review of timing for disclosure of Relevant Internet Data—

“(1) The Secretary of State must instigate a review of the time taken for communications service providers to comply with a request for subscriber information made under Part 1, Chapter 2 of the Regulation of Investigatory Powers Act 2000.

(2) In this section “subscriber information” means relevant internet data as defined in section 17 of this Act in so far as it relates to information required to link a public internet protocol address to an individual user.”

This New Clause would require the Home Secretary to instigate a review regarding the time taken by communications service providers to disclose information which links an individual to an IP address.

Amendment 11, in clause 42, page 25, line 5, at end insert—

‘(3A) The Secretary of State shall not make regulations under subsection (3)(a) until a report by the Interception of Communications Commissioner on the use of powers under the Regulation of Investigatory Powers Act 2000 to access the records of journalists has been laid before both Houses of Parliament.”

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[Diana Johnson]

I shall speak to new clause 2 standing in my name and those of my right hon. and hon. Friends. It would be helpful to start by providing some background to clause 17, although I do not wish to pre-empt the Minister’s comments. I must say at the outset that clause 17 is not the easiest clause to follow, and reference was made to that on Second Reading.

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[Diana Johnson]

If the hon. Gentleman will be little patient, I shall move on to that subject in a few moments.

As I was saying, the Opposition accept that this extra category of data will be a vital tool for law enforcement—not just in protecting national security, but in combating a whole range of online crimes, including online child abuse, on which I shall speak in greater detail when we come on to new clause 2. The provisions for this extra category of data were first proposed in the Government’s ill-fated draft Communications Data Bill—I think that might help the hon. Gentleman in respect of his intervention. Although initially reluctant to provide any public evidence for why these extra data were needed, the Government did then provide the evidence that convinced the Joint Committee on the draft Bill of the necessity of this extra retention. The draft Communications Data Bill has been subject to much coalition grandstanding over the past few years, with the Home Secretary proposing a Bill of unprecedented, and in our view unnecessary, scope, while the Deputy Prime Minister refuses to accept the need for any legislation at all. Of course there was room for compromise and the Opposition have always supported this compromise. Some additional data retention is required, but not on the scale the Home Secretary proposed.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

How can the hon. Lady say that my right hon. Friend the Deputy Prime Minister did not see the need for any legislation at all when we are sitting here in this Committee this afternoon considering the legislation which we think properly balances the privacy issues with the need for public safety?

[Diana Johnson]

The right hon. Gentleman has made his point, and we will obviously disagree on what I have just said.

Our view, agreed with by most of the Joint Committee on the draft Bill, is that the data required to link an IP address to a device is one such category of data that is required and therefore we welcome what in principle clause 17 seeks to achieve. I say “in principle” because we do have some concerns about the drafting of clause 17, which is why we have tabled amendment 5.

[Julian Smith]

Will the hon. Lady give way?

[Diana Johnson]

I will give way, but, as I have said, I do want to get on to the substantive issues.

[Julian Smith]

I am grateful to the shadow Minister for giving way. Will she just clarify briefly the further categories that she sees becoming more important, and where the Government and coalition can expect Labour’s support as they seek to put more of these areas on to the statute book?

[Diana Johnson]

What I will come on to say about some of the concerns we have might help the hon. Gentleman, but his question obviously leads into a debate that goes wider than this particular grouping, which is specifically on clause 17, and in the Committee stage of the Bill. I will therefore continue with my points on this grouping, because I am sure I would be in trouble if I did not do that.

To repeat, although in principle we support clause 17, we have some concerns about its drafting, which is why we have tabled amendment 5. Because of the broad label “relevant internet data”, we want to put it beyond doubt that the category of data to be retained under clause 17 does not extend beyond what is strictly necessary to link an IP address to a user.

In the Bill, the definition of “relevant internet data” is data which

“relates to an internet access service or an internet communications service”

and

“may be used to identify, or assist in identifying, which internet protocol address…belongs to the sender or recipient of a communication”.

While this appears to include a whole host of other traffic data, including web logs, clause 17 also states that “relevant internet data” is not “communications data” as defined by the schedule to the Data Retention Regulations 2014 or information as defined in clause 17(3)(c), which is supposed to exclude web logs from this provision. We have concerns about the accuracy with which subsection (3)(c) captures the nature of web logs, which is why we have tabled amendment 5. I hope the regulations this clause will enable will be clearer than this primary clause in the legislation. It is disappointing that, unlike with the DRIP Bill, the draft regulations have not yet been published alongside the Bill. This has caused problems for Parliament’s ability to provide proper scrutiny of this clause.

As well as accepting our amendment 5, which I hope the Minister will be able to do, I urge him to go back and look again at the drafting of clause 17 before Report. In order to increase public confidence in the use of retained communications data we need to be clear about what is retained and I believe clause 17 and the accompanying explanatory notes could be better in this regard.

[Julian Smith]

Will the hon. Lady give way?

[Diana Johnson]

I will one more time.

[Julian Smith]

The hon. Lady talks about web logs. Will she clarify the Opposition’s long-term position on that issue, and what she sees will happen in the future, when on many sides of the security spectrum there seems to be a consensus that there is a need to bring these areas in eventually?

[Diana Johnson]

I will just reiterate that we are dealing with clause 17, and we are very mindful that we want to ensure that web logs are not included under this clause. My focus is on getting clarity on that from the Minister. What might happen in the long term is perhaps a debate for another time. I am concerned that we get the drafting of this clause as accurate as we can.

I was talking about making sure the public are confident about what we are trying to do through clause 17, and what is included and what is not included. The data at the heart of clause 17 appear to be what is commonly referred to as “IP resolution data”, but this term does not appear in the text of the explanatory notes, and I hope the Minister will be able to explain whether they do refer to the same thing, as there is some confusion here.

As I explained, clause 17 is meant to plug a gap within the current framework for data retention, but when we compare the language of the Bill with the text of the current regulations, the gap is not immediately obvious. Clause 17 refers to data which

“relates to an internet access service or an internet communications service”

and

“may be used to identify, or assist in identifying, which internet protocol address…belongs to the sender or recipient of a communication”.

However, part 3, paragraph 11 of the schedule to the existing regulations refers to the subscriber information

“to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication.”

I ask the Minister to look at this and see whether he cannot amend the language to make clear on the face of the Bill the exact data category that will be provided for in the regulations.

I am also concerned about the degree to which clause 17 relies on definitions provided from the Regulation of Investigatory Powers Act 2000. I am sure the Minister is aware of the findings of the Joint Committee on the Draft Communications Data Bill that the definitions used in RIPA were out of date and needed to be replaced. Given this, it is surprising to see both the definition of “communication” and section (3)(c) of the clause rely so heavily on RIPA definitions.

I would also like the Minister look again at the definition of “identifier.” According to clause 17

“‘identifier’ means an identifier used to facilitate the transmission of a communication”.

This is at least partly circular, and again adds to the confusion around this clause. Finally, in subsection (2)(b) will the Minister confirm that he does indeed mean “paragraph (a)” rather than subsection (a)?

In addition to the five questions above regarding the drafting, I have 10 questions about the implementation that I hope the Minister will be able to address in his comments. First, will he tell the House whether he expects to introduce new retention regulations under DRIPA section 1, or will the Government be seeking to amend the Data Retention Regulations 2014? Secondly, and on a similar note, will he update the House on when he expects to publish these draft regulations and when he hopes they will be in force? Thirdly, when the data covered under clause 17 is traffic data, while the relevant authority wants to reveal the subscriber information behind this, will this be covered under a single request under RIPA, or could clause 17 data simply lead to a disclosure which requires a further RIPA request to be made? Fourthly—this is particularly relevant to amendment 5—will he assure the House that the retention by the Crown Prosecution Service of this relevant internet data can be done in such a way that does not require deep package inspections of the type that would be considered intrusive surveillance? Fifthly—and again relating to amendment 5—will the Minister explain in practice how the regulations will separate out communications going to a device, which could be a web log, such as access to an app, which would be considered a website, and communications going to a device which enables a communication, such as an app which facilitates web e-mail storage?

Sixthly, will the Minister confirm that the extra reporting requirements imposed on the interception of communications commissioner by the DRIP Act will extend to the data retained and subsequently requested under clause 17? Will the Minister be providing additional resources to the commissioner to meet those additional requirements?

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[Sir Alan Beith]

The hon. Lady has produced a formidable list of questions, but I only have one for her, on amendment 5. It seems to me that the process we are describing does not enable people to discover who the user of an instrument was; it locates or identifies only the instrument from which the communication was made. Therefore, amendment 5 would be inoperative, because it could never be demonstrated that it was being used to establish who the user was as it cannot be guaranteed to do that.

[Diana Johnson]

I am grateful for the right hon. Gentleman’s observations on amendment 5. As with the previous grouping, the amendment was tabled to give us the opportunity to look at the specifics of clause 17 and to understand fully the thinking behind the Minister’s approach. I take on board what the right hon. Gentleman has said, which may be correct, but the amendment allows us to debate what would be disclosed and what information would be available.

I have just bombarded the Minister with a whole range of questions and I know that, as usual, he will be very thorough and go through each in turn. However, I want to turn briefly to new clause 2, which seeks to move on from the retention of data to a review of whether the form of storing the data is allowing the key authorities to access it in a timely manner. I will say, so everyone understands where I am coming from, that this proposal aims to probe the Minister’s argument, and to look at the clause to see what more can be done and whether we need to be aware of any issues for companies.

My concern arises from the police’s apparent problems in pursuing the majority of suspected paedophiles identified through Operation Notarise. My understanding is that Operation Notarise identified between 20,000 and 30,000 individuals whom the communications data suggested were taking part in online abuse. From that, only 700 people have been named, investigated and arrested, so well in excess of 20,000 IP addresses have been identified, but that information has not been translated into named users. At this point, I am not even talking about arrests, but about identifying the users to enable effective safeguarding interventions.

Once a user is identified, even if it is just an address, the police can make several key checks: first, against the police national computer to see if there is a known sex offender living at the address; secondly, against the Disclosure and Barring Service database to identify anyone who might be working with or have access to children; and thirdly, against the Department for Work and Pensions database to see if a child is registered at the property for the purpose of claiming child benefit.

At the moment, the police do not know how many of the people they have identified are known sex offenders working with children or living with children. Most people would see that as unacceptable and would believe there should be a response. This could start with a review of the degree to which the difficulty of linking IP addresses to users is behind the police’s problems with moving this forward.

Finally, I turn to the amendments and new clauses tabled by my hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Islington North (Jeremy Corbyn), and by the hon. Member for Brighton, Pavilion (Caroline Lucas), on the degree to which RIPA is being used to access the records of certain professionals, including journalists. They address a real concern that Members and the general public have about the use of RIPA to access the records particularly of journalists and those in the media.

As the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), has said, this issue has to be addressed. Indeed, a key concession secured by the Opposition during the passage of the DRIP Bill was that a review of RIPA would be conducted by David Anderson QC, the independent reviewer of terrorism legislation, and that it would include the use of RIPA to look at the records of journalists. It is because we have confidence in that review that we do not feel amendment 11 is necessary.

However, that is also why the Opposition have a great deal of sympathy with the aims of new clause 1, which would require a court order before relevant authorities could access communications data that could be covered by a professional duty of confidentiality. The clause does not state whether the role of the court would be simply to ensure that due process is followed, or to apply some test of proportionality or necessity. However, the clause provides for the right of appeal for the individual. That means that an individual would have prior knowledge that their communications data were to be disclosed to law enforcement agencies. It is also important to note that the clause would apply not just to journalists but to doctors, lawyers and others, including Members of Parliament, when a professional duty of confidentiality could be construed.

[Mark Field (Cities of London and Westminster) (Con)]

The hon. Lady referred to journalists, but how broadly would she or her colleagues define “journalists”? We are living in a world of bloggers and of a whole range of individuals who would consider themselves to be part of the media overall, but presumably she would not necessarily want each and every one of those self-professed journalists and bloggers to be caught by these potentially restricting and constricting provisions, essentially watering down elements of RIPA?

[Diana Johnson]

I have the disadvantage of speaking first on this group of amendments, and obviously, this is not my amendment, so I am very much looking forward to hearing what the proposers feel would happen. However, the hon. Gentleman raises an important point, because we are not only talking about a limited group of people who describe themselves as journalists and who, in the past, we would have been able to identify clearly. Perhaps the proposers of the amendment would be able to address that when they speak to it.

I want to make a further point about the broad definition of professional duty that concerns me, especially when combined with the right of appeal. As I have said, a large number of professionals have some form of duty of confidentiality, and in many cases it is not clear, particularly when discussing communications data, how that potential duty of confidentiality would be separated from other investigations about which we would not allow the individual to have prior knowledge. There is a clear case for preventing a journalist from being targeted for their sources unless there is an overwhelming need to do so. However, the case is less clear in respect of other professions, particularly as we may be investigating issues involving criminal misconduct. Let me give an example for the Committee to consider: the case of Myles Bradbury, the doctor recently convicted of a string of horrendous sexual assaults of boys in his care. As a doctor, he would potentially have been covered by the new clause, especially in respect of some of his communications, and the Committee would be concerned about that. If he had been alerted to the fact that the police were investigating him, he would have had some time to delete much of the evidence which was then used to lead to his prosecution. I just give that as an example of the care we have to take in considering these matters.

I hope the Minister will respond in detail—I am sure he will—to the issues I have raised on this group, particularly the need for the drafting of clause 17 to be made much clearer so that the general public can be reassured about exactly what it is attempting to do.

[Sir Alan Beith]

The hon. Member for Kingston upon Hull North (Diana Johnson) is right to seek clarification to satisfy herself and her colleagues that clause 17 achieves its intended purpose and no more. Its intended purpose is reasonable: to keep up with the technological changes that lead evildoers to move from one technology to another, and become more difficult to track as they do so.

--- Later in debate ---

[James Brokenshire]

I am constrained in what I can say because of the legal action that the hon. Gentleman highlights, but I hope he will see that the code of practice and the consultation address a number of the key recommendations of the Home Affairs Committee report that was published on Saturday, such as those on the manner in which the existing legislation is operated in practice.

The hon. Gentleman will know that David Anderson is conducting a broader examination of the legislation, including the Regulation of Investigatory Powers Act, and will report in May. That will inform consideration in the next Parliament of the provisions that are on the statute book. I assure him that it will address the issue of separation and the need for additional consideration to be given to requests that touch on protected professions.

However, I would not want an amendment that was passed today to pre-empt the interception of communications commissioner’s inquiry. We do not know what he will conclude. It is right that we should wait for him to report and then consider his recommendations, rather than make a major change now, when questions have been raised about the benefits and utility of such an approach.

Finally, I hope to deal swiftly with amendment 11, which would prevent the provisions relating to IP resolution from being brought into force until the interception of communications commissioner had completed his review of the accessing of journalists’ communications data, to which I just referred. I think I can reassure hon. Members on that point. As I have said, the commissioner intends to report by the end of January. The Bill will not complete its passage through this House until after the Christmas recess. After that, it needs to go through the House of Lords and there might have to be consideration of Lords amendments in this House. Even without that, there seems to be no way the Bill could achieve Royal Assent before the commissioner reports at the end of January. We therefore do not believe that amendment 11 is required.

In the light of what I have said, I hope that hon. Members will not press their amendments.

[Diana Johnson]

I thank the Minister for going through all the questions that I posed. On the basis of what he has said, I happily beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.



Clause 18

Authority-to-carry schemes

Question proposed, That the clause stand part of the Bill.

[The Temporary Chair (Mr David Amess)]

With this it will be convenient to discuss the following:

Clauses 19 and 20 stand part.

That schedule 2 be the Second schedule to the Bill.