Data Retention and Investigatory Powers Bill

Jack Straw Excerpts

Tuesday 15th July 2014 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

It is a particular pleasure to follow my old sparring partner from east Yorkshire on this as much as on any other issue.

As I have only a short time, I shall focus on one issue alone out of the four that affect the Bill. When this Government brought a different but related Bill before the House, the so-called snooper’s charter, it was, frankly, an embarrassment. It was pilloried by the Joint Committee on the draft Communications Data Bill and heavily criticised by both MPs and Lords. One clear fact that arose from that review was that many thought that RIPA, the Bill upon which this legislation is based, was simply not fit for purpose, that it was too loose, and that if the snooper’s charter came before the House at some later stage, many would use it to rewrite RIPA. Certainly many Liberals thought that, and a number of Conservatives too, and some Members of other parties. That may be one reason why the Government are uncomfortable about giving this Bill a full procedure over several weeks, with a proper Committee and Report stage, and so on; because they may find that they get a tighter definition of RIPA than they previously had.

The House knows that I am not a great fan of the British Government being told what to do by the European Court of Justice or the European Court of Human Rights. I much prefer that British liberties—our freedom, our privacy—are protected by Parliament. But the harsh truth is that Parliament has been a weak defender of our freedoms this past 20 years, and the process we face today, crashing the Bill through the Commons in a single day—even more poignantly on reshuffle day; I see the empty Benches around me—is an awful demonstration of that. One consequence of that slack attitude is that we have bumped more and more frequently into treaty obligations and international court judgments against us, where Britain should be the shining example, not the villain of the piece. The Bill does nothing to correct that.

The Court, as a number of speakers have mentioned, branded the untargeted mass collection of our data—European rather than just ours—as a

“wide-ranging and particularly serious interference with”

our

“fundamental rights.”

It is arguably the case that, in some ways, Britain is the most extreme example of that across western Europe. Because the Bill does nothing to correct that particular aspect, it is likely to face legal challenge, and may well fail as a result. It will not be beneficial to security in this country if that happens.

Much of this failure hinges on the fact that access to communication data in this country is not subject to judicial approval. It is one of the differences between ourselves and America and some other European countries. It is approved by officers of the same organisation that request it. The result of that—the point that I think the hon. Member for Brighton, Pavilion (Caroline Lucas) was referring to—is that too many people have too much access, too easily, to too much data. That is the core point. Therefore, we use this power in that respect more often than many of our international colleagues.

There were 514,000 authorisations and notices reported in the RIPA 2013 report. It is difficult to compare countries, but to give a partial comparison—

[Mr Jack Straw (Blackburn) (Lab)]

I thought I heard the right hon. Gentleman say that those who authorised communication data requests were the same people as those who checked it. I think that the right hon. Gentleman will find that that is not correct. There is a system of surveillance commissioners who are there to do the authorisation, and the checking is done separately.

[Mr Davis]

That is not correct, I am afraid. The authorisation process does not go to the commissioners. It comes back afterwards to the commissioners.

The point about this is the numbers. The Americans, with whom we can partially compare, use only 39,000 to 57,000 references in a given year. In Europe, the country that least admires the privacy of its nationals is France. Its total metadata approvals is 35,958—36,000. If we add in all the other approval processes, it still comes to less than half of ours. So access to our data has insufficient safeguards. There is no prior review to access by a court or independent body, and after-the-event oversight—the commission oversight—is incredibly under-resourced. The intention was that data be used only for the purposes of prevention, detection or criminal prosecution of offences that may be considered sufficiently serious to justify such an interference. There are 100,000 prosecutions for indictable offences that face custodial sentences in the UK each year. About 80,000 end up in prison. We are talking about 500,000-odd approvals to deal with fewer than 100,000 prosecutions.

The Government seek to diminish the importance and sensitivity of communications data by distinguishing it from the content of the communications. At one time this firm distinction stood up and was credible, but now, because of technology, rather than going the other way and making things more difficult for the agencies, the scale of the internet and mobile phone technology has provided an intimate picture of people’s personal lives. In the ECJ’s words:

“This data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented.”

In other words, it is an incredibly intrusive piece of information.

As I said, I do not like taking lessons from the ECJ, but on this they are absolutely correct. These measures are just not proportionate. They were badly designed in 2000—I am sorry to say to the right hon. Member for Blackburn (Mr Straw)—and they have got worse with the passage of time and technology. The Government have not listened, and accordingly have left themselves open to legal challenge. While the Bill may be law by the end of the week, it may be junk by the end of the year.

--- Later in debate ---

[Mr Jack Straw (Blackburn) (Lab)]

I am glad to follow the hon. Member for Dewsbury (Simon Reevell), because although none of us remotely underestimates the difficulty of finding a proper balance between liberty and security—some might come down in different places on that—I say with respect to those who are criticising the data retention practice in the United Kingdom, rather than the policy of the EU, which is greater, that there is a fundamental logical fallacy in what they are arguing, as the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) exposed powerfully. It is this: where there is a suspect for a crime, it is for a crime that has been committed in the past. The police will not know who that suspect is until they come to the police’s attention, at which point they have to get historical evidence. These days, part of that historical evidence will be in data records. They have to be able to access everybody’s data records in order to find those of one particular person, because the police, no more than the rest of us, are not given powers of clairvoyance with which to anticipate who is and who is not to be a suspect. Unless or until I hear from opponents of this Bill and of data retention how the police can be expected to identify in advance those who are going to be suspected of crime, I have to say that the whole logical basis of their argument completely falls away.

I always listen with interest to the right hon. Member for Haltemprice and Howden (Mr Davis). Indeed, there are areas where I have been in concert, if not conspiracy, with him. I think I am correct in saying that he said that Parliament has been a weak defender of our liberties in this field over the past 20 years. With respect, I beg to differ. Forty years ago, almost to this month, after six hours of questioning by former police officers as part of my security vetting procedure, I was interviewed by a senior officer of the Security Service. He explained to me that a file had been kept on my family since at least since 1961, when I was 15 and my sister, who was the subject of one of the original reports, was 17. In order to identify a discrepancy that had arisen between what I had said and what they thought they knew, he had to show me my file—a big, thick manila file was produced. He went on to question me as to what contact I had had as president of the National Union of Students at the end of the 1960s and the early ’70s with the student national organiser of the Communist party. I said that I had met this man from time to time at a pub in Covent Garden. “Oh yes,” he said, “You met that man at the Sussex Arms in Covent Garden on these dates, and this is what you discussed.” I mentioned that in my book and it is a great tribute to the modern Security Service that it and the Cabinet Office approved of my relaying of the story.

At that stage, however, we were in the area of the secret state. There was no parliamentary oversight whatsoever of the intelligence or security agencies. The telephone tapping that happened to me and my family was the subject of no statutory warrant whatsoever. The past 30 years have seen this House progressively doing its duty by the citizen—from the Telecommunications Act 1984 and the Intelligence Services Act 1994 through to, I am proud to say, the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000—to ensure that the necessary powers of the state to detect and prevent crime and to secure national safety are the subject of proper controls.

Of course, as technology changes, the law should take account of it—both sides of the House are agreed on that—but RIPA was a huge advance in terms of human rights, and that was how I introduced it to the House back in 2000. It is simply a matter of record that that Act applied overseas and there has been dispute subsequently about its exact wording. That is all that is being corrected by this Bill and I defy anybody to challenge that.

There is one area in which this Bill will, indeed, change the law. Clause 3 will change the basis for obtaining a warrant for intercept on grounds of economic well-being. At the moment, in RIPA, economic well-being is the sole criterion without condition. In future, it will be subject to the interests of national security.

[Sir Malcolm Rifkind]

The right hon. Gentleman may be unaware that there has been a European directive since the late 1990s that links economic well-being to national security issues. It has been implemented in the United Kingdom through a code of practice, which is unsatisfactory, and it is that code of practice that will now appear as primary legislation.

[Mr Straw]

I am aware of that, but the right hon. and learned Gentleman will be the first to accept that there is a world of difference between something in a code and something in a Bill. I note that not one critic can find the words to commend the fact that this Government, with support from the Opposition, are going to strengthen provisions, rather than diminish them.

As the right hon. and learned Gentleman has generously given me an extra few seconds, I will also address data records. Before the Telecommunications Act 1984 and the Intelligence Services Act 1994, data communications of all sorts were collected without any statutory control. That, too, has been the subject of repeated strengthening of the law, to protect the citizen. I hope this House will pass this sensible, necessary and very modest measure.