Data Retention and Investigatory Powers Bill

Jack Straw Excerpts

Tuesday 15th July 2014 Commons Chamber

[James Brokenshire]

I hope that the hon. Gentleman will understand that I cannot comment on surveillance techniques. However, I restate clearly that the Bill and, in particular, clause 4 do nothing more than is already the case in respect of the requirement to serve notices and the ability to issue warrants to overseas providers.

[Mr Jack Straw (Blackburn) (Lab)]

May I confirm, for the benefit of the Committee, that what the Minister has just said about the intention being that RIPA should extend extraterritorially in these respects is entirely accurate? If hon. Members look at RIPA itself, they will see that section 2(1), which provides definitions, states that

“‘telecommunication system’ means any system (including the apparatus comprised in it) which exists (whether wholly or partly in the United Kingdom or elsewhere)”.

That is but one example—there are many to which I could point—that shows that the clear intention of this House and the other place was to make this part of the Act extraterritorial. Indeed, we thought that that would be the effect of the Act.

[James Brokenshire]

I am very grateful to the right hon. Gentleman for providing that clarification and for highlighting that provision in section 2 of RIPA, which gives a sense of the extent and nature of the provisions that were contemplated when it was introduced. It was thought that it would have extraterritorial effect. Given legal challenges, other court cases and the language used in the legislation, we think it right to put that beyond doubt. That has always been the intent and practice for this measure; I repeat that the Bill does not extend the position but restates and asserts what has always been the case in the legislation. Those who may be subject to notices or warrants should understand clearly that it will apply to them if they are outside the UK.

--- Later in debate ---

[Dr Huppert]

That delves into subjects that I am unable to get too involved in. It is a shame that the matter is being dealt with so late. I raised this issue with the Home Secretary on the day that European Court of Justice ruling came out. I questioned her and challenged her on the time scale then. All of us were surprised by the announcement and I wish that we had been able to start sooner. I worry that those within the Conservative and Labour parties who have made it clear that they continue to want to have the measures in the draft Communications Data Bill will bring that back instead of introducing something that some of us would prefer. I wish I could believe that there was a liberal majority in this House—both with a capital L and a small l—but I am not sure that that is the case.

On the other amendments, I am glad that we seem to have reached an agreement on wording. I hope that the Government clause to write the details of the review into legislation will be supported by Members on both sides of the House. I very much want that to happen and for us to reach a place where we can improve. I hope that the Minister will be able to confirm that at least one version of the oversight clause will be adopted, because it would be a useful addition. I think that having it on the face of the Bill was always intended, which can only be a good thing.

Some of us have been trying to get a proper review of RIPA and all the associated legislation, such as the Telecommunications Act 1984, for many years. We have that chance now. I want a proper review, proper pre-legislative scrutiny and a Bill that will be properly debated in the House. The question is how best to get there.

[Mr Straw]

I will deal first with the point made by the hon. Member for Cambridge (Dr Huppert) and others about the Regulation of Investigatory Powers Act 2000. I was the Minister responsible for RIPA. It was a carefully constructed Act that was preceded in 1999 by a lengthy consultation process. Everybody recognised at the time that it was a major improvement on the legislative regime for intercepting communications, data retention and other matters. As I said earlier—and I introduced the Regulation of Investigatory Powers Bill on this basis—its purpose was to make the intrusive powers of the state compatible with the Human Rights Act 1998, which came into force more than two year later on 2 October 2000. I am proud of the 1998 Act and—to reassure and provide therapy to the hon. Member for Cambridge—of the fact that it was indeed a liberal measure, but I of course accept that the world of telecommunications has changed radically in the 14 years since. Interestingly, it has not changed as much as it had changed in the preceding 15 years, which followed the Interception of Communications Act 1985, but it has still changed a great deal and for sure it would be worth while for RIPA to be reviewed. However, that is not a case for not proceeding with this measure tonight.

I also accept, as my right hon. Friend the shadow Home Secretary said eloquently in her speech, that even if we accept the need for emergency legislation, as we do, it would have been far better for our consideration to have been extended over two or three days in the Commons rather than just one. Indeed, if we had not been up against the buffers of the summer recess that might easily have been possible and we would have avoided the process of manuscript amendments.

My hon. Friend the Member for West Bromwich East (Mr Watson)—who, parenthetically, is not that much younger than my right hon. Friend the Member for Delyn (Mr Hanson), as he is in his fifth decade and my right hon. Friend is in his sixth—asked rhetorically whether we were surprised that relatively few Members had taken part in the debates today. He then tried to provide an answer, but I must say that it was not that convincing. He said that the reason was the pressure of time. I have been present in the Chamber when debates on Bills or other subjects have been subject to time pressures. When they have been very controversial this place has been packed and Ministers have had a hard time. I would suggest that the more convincing explanation for the fact that not many Members have been present for all or any part of the debates today is that most are convinced by the arguments that are being made by the Government, with the support of the Opposition; that the measure clarifies the law in the light of the ECJ judgment; and, in so far as it changes RIPA, that it does so in one respect only—through clause 3, which has the effect, which I hope would be supported by every Member, of restricting the basis on which warrants can be made in relation to economic well-being and qualifies that with reference to national security.

Let me turn to the amendment tabled by my hon. Friend the Member for West Bromwich East, which would repeal the Bill by the end of this year rather than by the end of 2016, as the final clause of the Bill proposes. My hon. Friend said by way of justification for his amendment, in a very delphic comment, that we had not seen what the Government had seen. By definition, we have not seen that which the Government have not shown us and that might be secret or classified, but in justifying this measure the Government have not come along and told us that there are plenty of reasons for it but that they cannot let us in on them.

My right hon. Friend the Member for Knowsley (Mr Howarth) made a very witty speech earlier in which he spoke of the Disqualifications Act 2000. That measure changed the basis for the disqualification of Members to allow members of Sinn Fein to sit in the Dáil, the Northern Ireland Assembly and this place. My right hon. Friend was not allowed to explain that, so that really was a situation in which Members of the House had not seen what the Government had seen. That is not the case here. We have seen what the Government have seen. The hon. Member for Cambridge referred to it—it is the ECJ judgment and everybody can read it and understand its consequences. That is the basis for this Bill. I say to my hon. Friend the Member for West Bromwich East that I do not accept what the hon. Member for Cambridge is suggesting, which is that we can only have legislation either in a day or in six months. If this House wanted to, it could consider legislation over a two-week period and that would be preferable in this case.

[Mark Durkan (Foyle) (SDLP)]

The right hon. Gentleman says that we have all seen what the Government have seen of what is behind the Bill. One thing continually cited about the extraterritorial extensions is that companies have said that they want such provision so that they are in a clearer position, but there have been questions about that. Does the right hon. Gentleman know who these companies are? Which companies have said that they need or want such things to be covered? Which companies would, as the Government are telling us, act outside this provision and act in defiance? We have been told about that several times today, but we have not been given any details.

[Mr Straw]

I do not know in precise detail. I used to know when I was responsible for these matters as Home Secretary and Foreign Secretary. Even when I was Foreign Secretary and Home Secretary, when there were fewer telecommunications providers, the ones that were wholly UK-based inevitably had a different and closer relationship than those based overseas but which were providing telecommunications services in this country. The latter were, for reasons one understood, much less willing to enter into voluntary arrangements than those based in the UK.

I do not know whether the hon. Member for Foyle (Mark Durkan) was in the Chamber when I drew attention to the fact that this provision is genuinely a clarification of the extraterritorial application of the RIPA Act and not an extension of it. I refer him, for example, to a definition of a telecommunications system in section 2:

“any system … which exists (whether wholly or partly in the United Kingdom or elsewhere)”.

The clear intention of that Act was that it extended extraterritorially. The legal advice is that the wording has not worked quite as intended and that overseas telecommunications providers particularly want more clarification.

[Mark Durkan]

If we are to believe that that is the only effect of clause 6, and that companies have said that they want such provision, should we not be told which companies have said that?

[Mr Straw]

That is a matter for the Minister. Sometimes, companies do not wish to be named; sometimes they do. If they did wish to be named—they are not slow in coming forward in other respects to let us know their views—they would have named themselves.

[Jim Sheridan]

My right hon. Friend seems to be making the case that the lack of attendees in the Chamber suggests that the vast majority of colleagues on both sides of the House support the legislation. If that is the case, why not have a free vote? Then people could vote whatever way they wanted.

[Mr Straw]

If I started discussing the importance of the party system, I think Mr Hood would pull me up short. My hon. Friend knows that the party system is fundamental to the way our democracy operates. I was elected not as J. Straw, an individual of obvious talent, or not, but because I was a member of the Labour party. In doing that, I accepted and signed up for, among other things, the standing orders of the parliamentary Labour party and the whipping system, and the authority system that we have. Of course, there is loads of scope for going against that. I am sitting next to my hon. Friend the Member for Hayes and Harlington (John McDonnell), who has voted against his party probably more often than he has voted with it—and a very fine constituency member he is, too, if I may say so. I have voted against my party once—

[The Temporary Chair (Mr Jim Hood)]

Order. I obviously agree with the right hon. Member’s opinion about his hon. Friend, but it would be nice if he spoke to the amendment.

[Mr Straw]

Apologies; as a relatively new Member, I was led astray by my hon. Friend.

I come back to the point of the amendment tabled by my hon. Friend the Member for West Bromwich East. I wish that we had had more extended debates on the Bill, stretching over a number of days, but that has not been available. There is some strength in the point made by the hon. Member for Cambridge. Let us say that the legislation was repealed in December. What additional information would we have on its operation after it had been in force for only a matter of months? What prospect would there have been of gaining additional information about how the Act was operating? I suspect that, whether we spent a day, a week or a month on the replacement for the Bill—that would have to start in the middle of October—to allow proper legislative time, we would simply be repeating the contents of this Bill. It is far better to have the extended period with a clear sunset in 2016, plus the reviews, to which my right hon. Friend the Member for Delyn has referred, as a way of carefully considering the future of this kind of legislation and then making sober decisions at some length after the election.

[Steve McCabe]

I started out today very much in the same place as my hon. Friend the Member for West Bromwich East (Mr Watson), but I am beginning to wonder whether this is not a matter of a short period of review that leads us straight back into an argument for another similar piece of emergency legislation, versus a longer period of review where we could get the matter right for once.

[Mr Straw]

My hon. Friend puts it much better than I did. That is the truth. We have a compressed programme and there will be complaints again about that, but the House usually rises in the middle of December, and if the Bill were to be repealed at the end of December and the House wanted proper time to consider this legislation, we would need to start on it in early November at least, which is only a few months away. I cannot see that we would be in any better position at that stage than we are now.

[Caroline Lucas]

Apart from the fact that the right hon. Gentleman cannot count his months, I make the serious point that it would make a difference in the sense that during the summer we could be having the public debate. The public care about the Bill. They could be speaking to their MPs about it. They have been left out of the process. If we started in October, we would still have three months—two and a half months—in this place to have a proper debate.

[Mr Straw]

Of course I accept that the public are concerned, but from my long experience they have a clear view of how to balance the interests of liberty and their own personal security—that is what this is about, not the security of the state—and they implicitly acknowledge that, although the systems that we have built up during the past 30 years may not be perfect, they do provide that balance. They provide a level of control over Ministers and the intelligence, security and police services, which is pretty unparalleled in most other countries.

Let us consider the abuses that take place in Europe. I think of what has happened in France in recent years, where one Minister intercepted the telephone calls of another Minister—all kinds of abuses by Ministers and the judiciary. That has never happened here and it could never happen here under our system—[Interruption.] Yes, it used to happen. It is right that trade unions were wire-tapped. Many others, thousands of people, were subject to intrusive surveillance. I know that to be the case because an officer of the Security Service told me that and showed me my file. I know that to be the case in respect of my family as well. But that was under a system where there was no statutory regulation whatsoever of telephone intercept, or data retention, which was available then, and when the very existence of the security and intelligence agencies was itself denied. That has rightly changed to take account of our duties and public concerns. It is not perfect, but we are much closer to a system that properly balances those things.

I hope that the Committee will not accept, for the reasons I have suggested, what my hon. Friend the Member for West Bromwich East suggests, which will lead to a truncated, abbreviated review that will not work, and that instead we will have the longer review, proposed by my right hon. Friend the Member for Delyn, and sober consideration of a new Act to replace this one and RIPA before the end of 2016.

[Mr Charles Walker]

I rise to support amendment 2, tabled by the hon. Member for West Bromwich East (Mr Watson). This really is a ridiculous way to transact legislation in this place—to sit here and listen to a lot of nonsense from some quite respectable people. The idea that we should put something so important and worth while through in a day just takes the biscuit.

I am sure that there is a huge amount of worthy content in the Bill, and I am sure that it is extraordinarily important that business is transacted as quickly as possible, but we have a duty of scrutiny and reflection in this Chamber. We represent 65 million people. This is not simply a rubber-stamping process. The idea that doing this in a day is somehow no worse than revisiting it in December just does not hold water. That argument will have no resonance out there with our electorate.

There is a slight undertone in the debate that those in the Chamber who express concern about the way business is being done today are somehow complicit in putting the nation’s safety at risk. That really is the last hiding place of scoundrels. I do not mean that anyone in this place starts from that basis, but we have a moral duty here to scrutinise legislation. I totally and honestly agree with the hon. Member for West Bromwich East that we need to revisit this sooner, rather than later.