Data Retention and Investigatory Powers Bill

George Howarth Excerpts

Tuesday 15th July 2014 Commons Chamber

[James Brokenshire]

Clause 2 sets out the meaning of various terms used in clause 1 and includes provisions that underpin and support the application of the powers contained in that clause. In particular, the definition of “relevant communications data” in clause 2 limits the communications data that can be retained to those specified in the existing data retention regulations: the data that are already being retained by service providers in the UK. To be absolutely clear, the Bill does not extend in any way the types of data that we will be asking service providers to retain.

The capability gaps identified and discussed during scrutiny of the draft Communications Data Bill will not be addressed and will continue to grow, impacting on UK law enforcement. As important as that matter is, I am sure that the Committee will agree that fast-track legislation is not the appropriate vehicle for considering addressing such gaps. The Prime Minister has made it clear that it is important that the issue is addressed in the next Parliament.

The clause also provides that the regulations made under clause 1 must be made under the affirmative procedure. We have placed in the Library a draft of the regulations that we intend to make, which will give Parliament the maximum possible opportunity, given the urgency of the matter, to consider the detailed contents of the regime before secondary legislation is taken through.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Grounds for issuing warrants and obtaining data

[Mr George Howarth (Knowsley) (Lab)]

I beg to move amendment 1, page 4, line 19, at end insert—

‘(5) In section 25 (interpretation of Chapter 11), subsection (1), after “in accordance with subsection (2);”, insert— ““economic well-being of the United Kingdom” is defined as the security of critical national infrastructure, the conduct of defence contracts, the development, manufacture and design of UK defence systems, and the stability of the UK currency, banking and financial systems.”

[The Temporary Chair (Sir Roger Gale)]

With this it will be convenient to discuss clause stand part; there will be no further debate on clause stand part.

[Mr Howarth]

It was said on Second Reading, but it bears repeating that clause 3 does move things on slightly on the question of economic well-being. We keep saying that the Bill is based on the Regulation of Investigatory Powers Act 2000, but explicitly relating economic well-being to national security is progress, because the relationship was previously implicit. I accept that clause 3, even as it stands, is progress from where we stood previously.

I constructed this amendment, which is intended as a probing amendment, because I thought it was as well to have a debate about the range and scope of the term “economic well-being”. I wanted to try to work out the range of concerns that should be taken into account when it comes to that concept. In the amendment, I have effectively highlighted three areas that I think are of concern and that ought at least to be taken into account in this context. The first is critical national infrastructure, and I shall say a little more about that in a moment. The second is the conduct of defence contracts and the development, manufacture and design of UK defence systems. The third is the stability of the UK currency, banking and financial systems.

On the question of critical national infrastructure, an organisation that has some responsibility in this regard is the Centre for the Protection of National Infrastructure, which provides protective security advice aimed at reducing the vulnerability of critical national infrastructure to national security threats. It categorises national infrastructure into nine sectors: communications, emergency services, energy, financial services, food, government, health, transport and water. Not everything in that list is considered critical in nature, so the CPNI contends that within those nine sectors

“there are certain ‘critical’ elements of infrastructure, the loss or compromise of which would have a major detrimental impact on the availability or integrity of essential services, leading to severe economic or social consequences or to loss of life.”

It draws attention to broad descriptions of the types of infrastructure that would be categorised at different levels. That infrastructure can be physical, which means sites, installations or pieces of equipment, or it can be logistical, which includes information networks or systems. It is important that economic well-being takes into account critical national infrastructure, because it directly relates to the continuation of daily life that electricity, water and all the things that go with them should be available.

I do not propose to speak for long about defence, but I am aware, as I am sure others listening to the debate will be, that there have been attempts in the past by hostile nation states or individuals to compromise defence systems. There have been attempts to break into companies’ design systems and so on. Without proper controls to deal with that, there could be serious consequences for our national security. It is therefore self-evident that we should take into account defence systems and their design, manufacture and so on when we consider this matter.

The amendment also refers to

“the stability of the UK currency, banking and financial systems.”

It is interesting to look at what the Serious Organised Crime Agency has to say. It concludes by talking about cybercrime and the effects that it can have. It says:

“Financial crime can jeopardise the integrity of our financial markets and institutions.”

That is not just a question of protecting individual firms or interests. It really is related to our national security. It is interesting that the International Monetary Fund has said that

“Money laundering, terrorist financing and the related…crimes can undermine the stability of a country’s financial system or its broader economy in a number of ways and may have adverse spillover effects on global instability.”

--- Later in debate ---

[Sir Alan Beith]

The right hon. Gentleman serves on the Intelligence and Security Committee, and I used to serve on it. When I did, I was a little concerned that the definition of “economic well-being” was extremely broad and could refer to things that might generally promote Britain’s economic interest, rather than matters related to national security, as the Bill helpfully defines economic well-being, or things that should be dealt with under other categories such as serious crime. There are serious threats, and the right hon. Gentleman is right to identify them. They are what this should be about.

[Mr Howarth]

That intervention was helpful. I said at the outset that the wording of clause 3 took us slightly further. It relates economic well-being explicitly to national security, whereas previously it was related implicitly. The right hon. Gentleman is right to say that that is the conditional element of it all. I do not think that I am drawing the definition too broadly; the interpretation could be even broader. My purpose is to find out what other factors fall under that broad heading of economic well-being. I do not for one minute think that I have included all the considerations in the short amendment that I have put together; it is merely a vehicle to allow us to discuss matters more fully.

It was interesting when we discussed the timetable for the Bill—you may rule this comment out of order, Sir Roger—that everyone said that there would not be enough time to discuss it. As far as I am aware, nobody else is due to speak on my amendment, and I do not think any other speeches are intended on clause 3, so perhaps we do have enough time.

[Mr Tom Watson (West Bromwich East) (Lab)]

rose—

[Mr Howarth]

I see that I have tempted my hon. Friend into intervening.

[Mr Watson]

Does my right hon. Friend accept that perhaps most of our colleagues have not had time to read his amendment because of the timetable that has been set?

[Mr Howarth]

I am interested to hear my hon. Friend’s concern. I went to the Vote Office at half-past 8 this morning just to make sure that the amendment had been tabled. Anybody who was interested enough would have been able to see it from half-past 8, and it was tabled in accordance with the procedures of the House yesterday evening. I do not want to labour the point, but there was enough time, if anybody was interested enough, to check what amendments had been tabled. I am sure that my hon. Friend, as the author of another amendment that we will discuss later, took the trouble of checking this morning that his had been included as well. We do have a responsibility to check what we are debating.

This is my small attempt to bring further enlightenment to the proceedings, particularly as regards clause 3. I hope that the Minister will be able to allay my fears that the provision may be too widely drawn.

[Mark Field]

I fear that it was wishful thinking on the part of the right hon. Member for Knowsley (Mr Howarth) to assume that there would be no other speakers on this matter. As he will know, because we discussed it yesterday as members of the Intelligence and Security Committee, I wholeheartedly approve of this amendment.

[Mr Howarth]

The hon. Gentleman’s contribution is very welcome.

--- Later in debate ---

[Dr Huppert]

I have heard several comments that clause 3 does not need to be in fast-track legislation, and it does not relate to an impending emergency, but I would not like to see it removed. It is a good, pro-civil liberties, pro-privacy clause, which just trims down what was always quite a bizarrely broad definition. It restricts the issuing of interception warrants on grounds such as national security—fair enough; serious crime—or the UK’s economic well-being, which is a broad concept, as was being discussed. The wording is taken from article 8(2) of the European convention on human rights, which is why we have that idea, but it could be interpreted broadly. There have been a number of discussions about whether, for example, it would enable lawful intercept to be used to find out what other companies are bidding against British companies. That is something that I think the House would be clear now is simply not acceptable—the Government have a stated policy on that—but it is not excluded by law. I think we would all say that it is simply not appropriate, so I am pleased that we are taking the opportunity of this legislation to trim this down; to try to make sure that it is only economic well-being as it relates to national security.

I appreciate that this is a probing amendment, but I have a number of issues with it. In particular, I am concerned that some of the language around

“the conduct of defence contracts”,

and the

“manufacture and design of UK defence systems”,

sounds worryingly as though it is saying that the House believes that it is okay to have interception to win defence contracts against a foreign bidder, or to make sure that we do well. I hope that that is not what is intended.

[Mr George Howarth]

indicated dissent.

[Dr Huppert]

The right hon. Gentleman shakes his head, so that is clear. But I would be very worried about anything that suggested that.

[Mr Howarth]

My concern was not to empower interception for those purposes, but to empower countermeasures in cases where hostile states or hostile individuals sought to break into those systems. I think I did say that. As I said, I do not claim for one moment that it is a perfectly worded amendment, but that was my intention.

[Dr Huppert]

That is helpful. There is general agreement, but it was something that struck me when I read the amendment earlier this morning. I note that there are not many Members in the Chamber. Sadly, the House is often like that, however much time has been given for debate or however much notice.

There is a question as to whether it is helpful to define economic well-being. It may be that it is just too hard. Perhaps scholars of the future will look at this discussion and many others to try to work out what is meant. It should relate to things that would be catastrophic; where the effect of failing to stop something would be equivalent to a national security problem or a serious crime. It is that sort of level.

--- Later in debate ---

[Dr Huppert]

I do not know the answer to the hon. Lady’s question. That would seem inappropriate if it was about a trade union problem. If it was about ensuring that there was not a catastrophic failure of national infrastructure, there might be some grounds, but I would be alarmed if it was used for what were clearly political arguments. From my perspective, the miners’ strike would seem to be an inappropriate use of anything like this. I do not think we should ever see anything like that.

[Mr Howarth]

I am grateful to the hon. Gentleman for giving me the opportunity to reassure my hon. Friend the Member for North Ayrshire and Arran (Katy Clark) that it was certainly never my intention that it should be used for the purposes she described. I believe strongly in free trade unions and can think of no circumstances in which the state should intervene in that way.

[Dr Huppert]

I am always delighted to enable two Labour Members to talk to each other. Having facilitated that conversation, and as I agree with what both of them said, I will end my remarks there.

--- Later in debate ---

[James Brokenshire]

My hon. Friend makes his customary point about ensuring that there is such clarity. I am sure that we will return to this issue, but for the reasons I have outlined, I hope that the right hon. Member for Knowsley is minded to withdraw his amendment and that the clause will stand part of the Bill.

[Mr George Howarth]

I will be brief. I am happy to withdraw amendment 1, which I tabled as a probing amendment. The Minister’s last point is perhaps the most significant one. I do not think that we have a clear enough understanding of the scope of economic well-being, although it is reassuring to know that in this context it must be related to national security. We have had a reasonable debate. We have not reached any firm conclusions, but I am comforted by the fact that the issues will be discussed by David Anderson and others, and I hope that we can move the issue further along before there is any fresh communications data legislation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4

Extra-territoriality in Part 1 of RIPA

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

--- Later in debate ---

[James Brokenshire]

Perhaps I did not explain this clearly to the hon. Gentleman, but we are not intending to add additional powers to compel. I suppose he is trying to elicit whether the measure is a means of getting more data retained outside the UK—he raised that point in the previous debate on this issue, and again I may be misunderstanding him. I reassert that the Bill contains nothing that in any way extends the existing reach of section 12 of RIPA. Other than reasserting the position on extraterritoriality, it does not in essence change section 12 at all. If that does not answer his point, he may wish to write to me on the matter.

The clause provides that where a warrant has been served on a company outside the UK, the law in the country where the firm is located must be taken into account when determining whether it is reasonably practicable for that company to give effect to the warrant. The clause also makes it clear that the court should consider what steps the company has taken or could take to avoid such a conflict arising. It does not extend the powers of law enforcement or security and intelligence agencies. It simply puts beyond doubt the fact that sections 11, 12 and 22 of RIPA apply to telecommunication service providers that are based outside the UK but provide services to customers in the UK.

[Mr George Howarth]

I raised this point on Second Reading but I do not think the Minister had an opportunity to respond. In clause 4(6), proposed new subsection (3B)(a) and (b) covers the circumstances of delivering a notice to the sort of companies he has just described. Paragraph (a) states

“by delivering it to the person’s principal office within the United Kingdom or, if the person has no such office in the United Kingdom, to any place in the United Kingdom where the person carries on business or conducts activities,”

and (b) states

“if the person has specified an address in the United Kingdom as one at which the person, or someone on the person’s behalf, will accept documents of the same description as a notice, by delivering it to that address.”

I am sorry to read that out, but it provides the context.

The example I used earlier was of a relatively junior member of staff in a billing office in Liverpool for Google or one of the other communications service providers, and my concern is that they could end up having a notice served on them and be put in an invidious legal position. I hope that I am wrong about that and that the Minister will be able to reassure me. The provisions seem entirely appropriate for a senior member of staff.

[James Brokenshire]

Provisions on a person having a specified address, such as proposed new subsection (3B)(b), refer to a situation where lawyers accept service, proceedings or notification on a person’s behalf. In essence, the Bill gives effect to such clarification.

[Mr George Howarth]

The Minister has provided the reassurance I was looking for, so at this point I can say that I am perfectly happy with the clause as it now stands.

[Dr Julian Lewis (New Forest East) (Con)]

My hon. Friend the Member for Esher and Walton (Mr Raab) asked an important question: what will the Government do when a company does not wish to co-operate? I would like to put on the record something that I cannot attribute to a particular individual, other than to say it was a comment made by a very senior member of one of the main communications services providers in modern media. In relation to the question of his medium being abused for serious criminal or terrorist purposes, he said:

“We don’t want to frustrate the access of law enforcement agencies; only, that they should come through the front door and ask us, not sneak in by the back door.”

The companies want something that is clearly laid out in a proper legal format, so that they can fulfil that promise not at the whim of some private or backstairs approach by some unnamed Government official, but through a proper on-the-record procedure.