Draft Data Retention and Acquistion Regulations 2018

Gavin Newlands Excerpts

Monday 15th October 2018 General Committees

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a pleasure to serve under your chairmanship, Sir Graham.

My colleague, my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), opposed many of the measures in the Investigatory Powers Act during the Bill Committee and questioned whether many of the proposals were lawful. Now we know the answer, as it relates to what is in the 2016 judgment. Despite having opposed many of the measures in the 2016 Act, we have always said that we could support such measures if the Government proved the proportionality and necessity of the proposals. That has not happened as yet.

The Government’s response to the consultation talks about serious crime and says that data

“is used in 95% of serious and organised crime prosecution cases handled by the Crown Prosecution Service Organised Crime Division, and has been used in every major Security Service counter-terrorism investigation over the last decade.”

That is a fair point—95% is a high percentage—but in talking about the ruling it says that

“Member States can legislate for a regime which permits the targeted retention of communications data for the purpose of fighting serious crime, and the judgment sets out conditions that such legislation must satisfy in order to meet the requirements of EU law.”

I hope the Minister can address this in his conclusion, but in terms of the definition of serious crime, the proposed subsections 60A, 61 and 61A outlined do not sufficiently limit acquisition of communications data for an “applicable crime purpose” to,

“the objective of fighting serious crime”,

which is required in order to comply with the judgment in the case of Tele2 Sverige AB v. Post-och telestyrelsen and Secretary of State for the Home Department v. Tom Watson and Others. That is because the proposed section 86(2A) defines serious crime so broadly. The definition covers any crime by a body corporate; any offence

“which involves, as an integral part of it, the sending of a communication or a breach of a person’s privacy”;

and any offence that carries a penalty of at least 12 months’ imprisonment for offenders aged 18 or over.

Serious crime will be captured by the definition in proposed new section 86(2A); of course it will. However, the fact that an offence was committed by a body corporate or involves a communication or breach of privacy bears no relation to its seriousness and therefore takes us no further in limiting the acquisition of data to the objective of fighting serious crime. The minimum sentence definition will encompass the vast majority of criminal offences and apply regardless of the circumstances of the offence. In our opinion, the definition should be much narrower, taking into account the particular circumstances of the offence. The definition of serious crime should be met only when a person can reasonably expect to receive a sentence of significantly more than 12 months.

We opposed the 2016 Act’s far-reaching bulk powers to acquire the personal and private data of our constituents; the regulations do not address our concerns. I appreciate that the UK Government have moved on the issue, having been forced to do so by the Watson ruling, but we would have welcomed their taking the opportunity to address our concerns via the regulations. Sadly, they have chosen not to do so. I am keen to hear the Minister’s reply about the definition of serious crime.