Data Retention and Investigatory Powers Bill

Julian Huppert Excerpts

Tuesday 15th July 2014 Commons Chamber

[The Minister for Security and Immigration (James Brokenshire)]

As the House has heard, communications data are information relating to the who, when, where and how of communications, but not to their content. These data are crucial to the work of both law enforcement and the security and intelligence agencies.

As a result of the recent European Court of Justice judgment, we need to ensure that communications companies in the UK continue to retain this key information. The Bill will replace the data retention regime currently set out in the UK’s Data Retention (EC Directive) Regulations 2009, and preserve the status quo in relation to the retention of data, while responding to certain points made in the European Court judgment. Let me make it clear that the Bill will not create any new powers or obligations on communications companies beyond those that already exist.

Clause 1 will create a power for the Secretary of State to give notices to communications service providers to require them to retain relevant communications data. As my right hon. Friend the Home Secretary has already made clear, the Bill does not enable the retention of any data which cannot already be retained by communications service providers under the existing data retention regulations.

[Dr Julian Huppert (Cambridge) (LD)]

Will the Minister make it absolutely clear that there will be no change for data retention by overseas providers and that overseas companies will not be ordered to retain data?

[James Brokenshire]

As I have said, the law will be exactly as it now stands. My hon. Friend will know that there are provisions relating to extraterritoriality, and we will come on to the relevant clause later. He will understand that we have a relationship with communications service providers in the UK about their retention of data and that, in the regime under the Regulation of Investigatory Powers Act 2000, the Security Service, the police and listed bodies can make specific requests for the purposes set out in RIPA.

It is important to stress that those defined purposes are contained in existing law. To emphasise a point I made on Second Reading, the Bill is not about extending the current situation. Although the European Court of Justice commented on the data retention directive, we had already legislated in a number of ways to ensure that issues of proportionality and necessity are considered in framing requests. We have obviously reflected carefully on the judgment; hence some of the provisions, which I am sure we will come on to in Committee.

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[Dr Huppert]

I just want to ensure that I understand the Minister’s answer. Perhaps I did not phrase my question well. Does the clause provide the power to issue a retention notice to an overseas provider in respect of information that is flowing overseas? That would be something new and I would be grateful if he could rule it out. That is not currently the practice and I hope that he will confirm that it will not be the practice.

[James Brokenshire]

It is certainly not our plan or intention—indeed, it is not part of our process—to make those sorts of requests. As the hon. Gentleman knows, we make requests for communications data to be retained by companies in the UK. He knows of the processes and the safeguards that exist in respect of the specific requests that are made by the different agencies, and of the tests that need to be satisfied.

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[Mark Field]

I am grateful. I will keep my contribution as short as possible, because other Members want to get on to some of the more important amendments to clause 6 and it is clear that there is no appetite to divide the Committee on this matter.

As the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) said, it is worrying that, all too often, the “economic well-being” head has been drawn so widely that many aspects of it could be seen as part and parcel of something that could fall within the ambit of RIPA and this Bill. One need only look at the controversy around the alleged bugging of the German Chancellor, Angela Merkel, by the National Security Agency, if the Snowden reports are to be believed. On the grounds, presumably, of economic well-being, there was an opportunity to listen to particular conversations. That is not a healthy state of affairs.

Many of the public concerns about the Bill that are close to all our hearts reflect an understanding and an appreciation from many of our constituents that certain intelligence needs to be picked up, but the process needs to be necessary and proportionate. Therefore, trying to draw a narrow view—not an overly restrictive view, but as narrow a view as possible—will command more public confidence.

“Economic well-being” is one of the various heads that come under the auspices of RIPA—the 2000 Act that controls most of the surveillance that is dealt with in the Bill. Rather worryingly, permissible purposes under the Bill, as under RIPA, will include

“any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State.”

That is almost a Henry VIII-type provision that relates to the issue of public confidence that is close to all our hearts.

I agree with the right hon. Member for Knowsley that we should be trying to define the terms more narrowly. Perhaps now is not exactly the right time to do it, but I hope we will be able to do so in the months and years ahead when it comes to having a fully fledged Bill on these very important matters.

I agree that we have to look at economic well-being as focusing on the security of the critical national infrastructure, defence contracts and—something close to my own heart—the stability of the UK currency, banking and financial systems, particularly with the ongoing and likely to become more acute issue of cybercrime, and cyber-security issues that will come as part and parcel of that.

I do not wish to detain the Committee any longer. It is important that we put some of these concerns in place. As I say, they have a more general bearing on the idea that if we are to get a sense of public confidence about this sort of legislation, we need to try to define it as narrowly as possible rather than having broad definitions in place. I think that that is what the right hon. Gentleman had in mind in tabling the amendment and I look forward to hearing the Minister’s response.

[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.

[Katy Clark (North Ayrshire and Arran) (Lab)]

There is a huge amount of concern that the legislation as it was previously and has been presented today could be used for political or industrial purposes. For example, it could be used to intercept information when a trade union was organising industrial action. Is his reading of the amendment such that it could be used in a situation such as the miners’ strike of 1984-85?

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[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.

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[James Brokenshire]

The Regulation of Investigatory Powers Act 2000 allows the Secretary of State to issue interception warrants and allows those warrants to be served on persons who can assist in giving effect to them. Anyone who is providing a public telecommunications service who is served with a warrant is obliged to give effect to it. It has always been the case that that applies to any company that offers services to customers in the United Kingdom, irrespective of where it is based.

The territorial extent of RIPA has perhaps never been as explicit as it should have been. As a result, some overseas companies have started to question whether they are obliged to comply with warrants that are served on them. Our judgment is that that situation has reached a dangerous tipping point, and that it is necessary to put it beyond doubt that RIPA applies equally to public telecommunications services that are located overseas and those that are headquartered in the UK.

The clause makes clear Parliament’s intention that RIPA should have extraterritorial jurisdiction. It does that in three ways. First, it specifies that an interception warrant may be served on a company that is located overseas, and that a company providing telecommunications services to customers within the United Kingdom, but which is located overseas, has a duty to provide assistance when served with that warrant. Secondly, it specifies that a notice that is issued under section 12 of RIPA may be given to a company that is providing telecommunications services to customers within the UK, but that is located outside the UK. Such a notice would require the company to put in place the necessary infrastructure to give effect to interception warrants. Thirdly, it specifies, as has always been the case, that a notice under section 22 of RIPA for the provision of communications data may be served on a company outside the UK.

The clause specifies the means by which the serving of a warrant or the giving of a notice may be effected. It also makes clear the obligation to comply with a warrant or notice, and the means by which that obligation may be enforced.

[Dr Huppert]

Will the Minister make clear what consequences the clause might have for overseas providers? Is there any possibility that a section 12 order could require a foreign company to install surveillance equipment on its network? Does the Minister have the powers to do that?

[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.

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[James Brokenshire]

The approach we have taken is to promote co-operation, and stating as clearly as possible that the legislation has extraterritorial effect is a key part of that. Ultimately, given the clarity provided in the legislation, a company that did not comply with a warrant or notice served on it would be open to court challenge.

[Dr Huppert]

Perhaps my previous question was not clear. A number of companies are concerned about the important issue of how section 12 orders would be interpreted. RIPA currently deals with powers to enable companies to make lawful intercepts. Will the Minister confirm that if a company—a webmail provider, or whoever—can provide legal intercept, he is not claiming powers to require them to put specific equipment on their networks?

[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.

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[Dr Lewis]

I entirely agree with my hon. Friend, who is a fierce defender of the rights of individuals. I hope he agrees that if we can build on the attitude I have described from one of the most senior providers, then, by consensus, we ought to be able to set an example of an agreed arrangement whereby providers can be satisfied that they are assisting the law enforcement authorities in a proper, open and legitimate way, with no question of their being party to underhand arrangements.

Finally, may I apologise to the House for my late entry to this important debate, and, indeed, for my attire? I spent the entire day at the Farnborough air show, where the screaming of fast jets must have excluded the noise of my telephone ringing repeatedly from Downing street, offering me an alternative way to serve the nation.

[Dr Huppert]

I have two questions and I would be grateful if the Minister provided a written response to them, to ensure we get a clear answer. First, may we have a written confirmation that there would be no power to force foreign companies to install surveillance equipment on their networks if they are able to provide the intercept that is needed? Secondly, will he confirm the impact of subsection (4) and make it clear that, if a foreign company is under an obligation not to provide such data—if it would, in fact, be a criminal offence for them to comply—no such requirement would be made by the Government? That would put people in the invidious position of having to face criminality on one front or the other. If the Minister wrote to me with confirmation on those points, that would be very helpful.

[James Brokenshire]

I will respond briefly to the points made in the debate. On the latter point, I hope that my hon. Friend the Member for Cambridge (Dr Huppert) will have noted the reference I made to companies’ reasonable ability to comply and the consideration that would have to be given in particular to conflict of law issues, but I will see if I need to supplement that in some way.

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[Mr Watson]

I completely agree. It has been mentioned that there have been few MPs in the Chamber for some of the debate—the hon. Member for Cambridge (Dr Huppert), who has been in his place all day, reflected on that. The honest truth is this: are we really surprised at that, when Back-Bench MPs have been treated in this way by the Executive, when MPs did not even know that this Bill would be published until last Thursday and when they had 47 minutes to table amendments when the business motion was passed last night? Thankfully the Speaker has said that he would accept manuscript amendments today, under these unusual circumstances. If it is baffling for Back Benchers, how on earth can our constituents have any comprehension or faith in today’s process?

What our amendment would do is simple. It does not ask for a report—I know that the shadow Minister has said we can have a report, but that is not the same as discussing clauses in Committee and allowing elected representatives to tease out the issues. He knows what this is: it is a fudge, and it is an unacceptable one. What I am saying is that we should give the Government the benefit of the doubt tonight with a six-month sunset clause, which would give us plenty of time to discuss a Bill in the proper way.

[Dr Huppert]

It is a pleasure to serve under your chairmanship, Mr Hood, and to follow the hon. Member for West Bromwich East (Mr Watson). I hugely admired his stance on the Digital Economy Act 2010, just before I became an MP, when I watched as he stood alone against his own Government, who were trying to ram a piece of legislation through the House in something like an hour or 90 minutes—he will, I am sure, remember the exact time. He had Liberal Democrat support, but we lost every vote on that occasion. I hugely admire him, and I saw his articles in The Guardian on that occasion and his frustration at not getting responses to letters from those on his own Front Bench, although that is perhaps an issue for him.

I have to tell the Committee that I am tempted by what the hon. Gentleman said about looking back in six months’ time. It sounds quite attractive—[Interruption.]

[The Temporary Chair (Mr Jim Hood)]

Order. I must ask the hon. Member for Sedgefield (Phil Wilson) to come to order.

[Dr Huppert]

Thank you, Mr Hood.

What the hon. Member for West Bromwich East set out is very tempting. I hear what he said and he made a strong case. However, although I have huge respect for why he is trying to achieve that, I am worried about what it would actually mean, because to get a new piece of legislation through in time it would, essentially, have to start now. I looked up the Identity Documents Act 2010—the first Act passed by this Government—which got rid of identity cards, something I am very proud of. It was obviously much easier to deal with, because it was getting rid of something, rather than creating something, so less scrutiny was necessary—we know what it is like not to have something. That was introduced in May and was not passed until December. It was very short—14 clauses, so only slightly longer than this one will be once we have added a couple of clauses. It took quite a long time to get it through the House, so if we were to get a replacement Act through in time, we would have to start now.

[Mr Watson]

May I parry the hon. Gentleman with another Act? The Academies Act 2010 was introduced on 26 May and received Royal Assent on 27 July. The complex Terrorist Asset-Freezing etc. Bill had First Reading on 15 July 2010 and received Royal Assent on 16 December. If we can pass legislation in three days in an emergency, it is not beyond the wit of man and woman to pass legislation in six months.

[Dr Huppert]

I agree that it could take six months, which is shorter than the normal time scale, but it still means that we would have to start very soon. I passionately want to see—I think the hon. Gentleman and I agree completely on most of the issues around this space—something better than what we have with RIPA and with lawful intercept. I am clear about that. I have outlined on other occasions where I would like to see substantial improvements, some of which we have secured now but the vast majority of which we have not. But I do not think that that work can be done in time. Even if we were to wait until after the summer, we would still have a very short period to get a Bill through on the normal timetable. That is my big concern. I do not think that we could have the review that the Royal United Services Institute is doing at the Deputy Prime Minister’s request. I do not think that we can have the review that we all want to see from David Anderson QC, who has done such a great job. We would not be able to have that done in time. What we would find—I know that this is not what the hon. Gentleman wants to see—is that it will be exactly the same Bill being taken through again at a slightly slower pace.

[Mr Raab]

The hon. Gentleman is trying very hard on this. I am stuck with the very basic point of why, if he and other Members can vote through something in three days, we could not possibly wait six months at least to improve it substantially this side of a general election. Is that not what his constituents and mine would expect of us doing our day-to-day job in this House?

[Dr Huppert]

As I have said, I would be very happy to stay longer and have a less rushed Bill. We need to get this passed properly, with enough time to get the review going before the summer. I am happy to stay here next week; I have said that quite publicly and I have said it in this place. I take my hon. Friend’s point on that issue.

[Jeremy Corbyn]

rose—

[Dr Huppert]

Let me make a little more progress. The type of change that I want to see is fundamental to how RIPA works. I wish to have a system that retains communications data for a very short period—a week or a month—so that we can find out, say, what happened just before somebody died yesterday. It should not be available for any longer unless a preservation order is applied for. That sort of system would massively reduce the amount of evidence that is kept on people, but would allow it to be available for those very serious cases that all of us want to see investigated. That is the sort of system that I would like to see, but that is not an easy thing to write down. It would take many, many months of work to try to write that into a form that we can make work.

There is another problem, which runs right at the base of this. It is what I hope to talk about when we get on to the next collection of amendments, my new clauses 3 and 4. The Home Office simply does not have evidence on how this information is used and for what purposes. As I understand it—I am sure the Minister will correct me if I am wrong—the only information on how communications data are used is based on a two-week snapshot survey of police forces. What sort of crime is it? We know that data are used and we know of many examples. It is only that small survey that tells us exactly what sort of things they are used for. We need to have that data to make a sensible decision. The more data we retain, the more things we can do to combat crime, but the more invasive it is. We cannot set a sensible balance without that data. The Home Office urgently needs to collect that data but it will not have it in the next couple of months.

I worry—I have seriously considered and agonised over this—that what is being suggested would not put us in a better place. The alternative to having a Bill that started almost straight away would be to wait a bit longer—until November—and have a new Bill. We could use that time to get a bit of information for a review, but then we would again be forced to fast-track the legislation. We would go through exactly the same process, with not that many Members here debating it, and we would have exactly the same problems. That would not help and would not take us to where I want to be, because I am passionate about getting rid of the awful system that we have and coming up with something better. As I said earlier, we can have more security, more civil liberties and more protection, which is something that I have debated on many occasions.

[Jim Sheridan (Paisley and Renfrewshire North) (Lab)]

Will the hon. Gentleman give way?

[Dr Huppert]

I promised the hon. Member for Islington North (Jeremy Corbyn) that I would give way to him first. I will then give way to the hon. Member for Paisley and Renfrewshire North (Jim Sheridan), and then I will stop, because I want to let others speak.

[Jeremy Corbyn]

I do not wish to be unkind, but the hon. Gentleman is confusing me. He says that he would sit until next week to ensure that we considered the Bill properly. I agree with that, but it will not happen. However, what is the difference between that and having a six-month sunset clause? That would give us six months in which to hold a consultation and a debate. The Government would then have the opportunity to bring forward legislation in the light of the responses received during the consultation.

[Dr Huppert]

The answer to the hon. Gentleman’s point is that we simply do not have the time to make that happen. We cannot take account of the detailed reviews that are necessary. I totally accept that we could do a bit more, but it would not fundamentally change where we are. It would not allow for the data collection and information gathering to work up much better proposals, which is what we need to make progress.

[Jim Sheridan]

The hon. Gentleman will be aware that there is already a significant amount of criticism from people north of the border about the purpose of this place. If the Bill goes through in the time scale suggested, other people will say, “What is the purpose of that place down there when they do not even have time to scrutinise the legislation?”

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[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.

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Brought up, and read the First time.

[Dr Huppert]

I beg to move, That the clause be read a Second time.

[The Temporary Chair (Mr Jim Hood)]

With this it will be convenient to discuss new clause 4—Legal certainty for transparency reporting—

‘(1) The Regulation of Investigatory Powers Act 2000 is amended as in subsection (2).

(2) In section 54 (Tipping-off), after subsection (5) insert—

“(5A) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was made as part of an aggregated statistical disclosure covering a period of time greater than six months.”’

This amendment would provide a defence against the “tipping-off” offence, which has been cited as a reason why companies cannot release transparency reports. This amendment would allow statistics to be made available at six monthly (or greater) intervals.

[Dr Huppert]

These are, I hope, two unobjectionable new clauses, which seek clarity from the Government about what is intended in respect of the transparency reporting. One challenge we have faced for a very long time in this area is the fact that, as I mentioned earlier, very little information is kept by the Home Office or any of the other bodies about what exactly this information is used for, how many pieces of information are collected by different people and what the reasons were. This is a very frustrating state of affairs.

When we looked at the draft Communications Data Bill, we found that there was just a two-week snapshot survey of a few police forces—it was not even all of them—asking about the purposes for which communications data are used. For that reason, I have for a long time wanted proper transparency reporting from the Government and all the organisations—some companies, such as Google, already do this as far as they can—so that we know what is being done and we can make an informed decision about whether it is being done appropriately.

Currently, we have well over 500,000 requests for communications data every year. In order to judge whether that is a large or a small number, we need to know why they were made. We also need to know—we simply do not know this at the moment—how many people it relates to. Do those 500,000 requests relate to more than 500,000 people, or are there, in fact, 20 requests, say, relating to one person? We simply do not have that information.

This is not just a concern that I and various others have raised; it is something that the interception of communications commissioner raised in his 2013 annual report, in which he said:

“In my view the unreliability and inadequacy of the statistical requirements is a significant problem which requires attention.”

We must fix this; it is very important that we know. It was a bit of a shock to find, for example, that only 11.4% of requests were for national security. The vast majority were to prevent or detect crime or to prevent disorder. We should have that information available; we should know. Partly because of the lack of it, the commissioner highlighted the fact that he simply had to estimate various parameters that he was supposed to be investigating. He also said that he was concerned about “significant institutional overuse” and that the figure was “a very large number” that had

“the feel of being too many.”

We need to have the information available and published, so that we can make a proper decision.

[Dr Julian Lewis]

I warmly endorse what the hon. Gentleman is saying. Does he agree that if more examples were given of a collated nature—such as those we read about frequently in individual criminal court cases—about the vital role that such data play, that would go a long way to allaying unnecessary public suspicion about the importance of having such data available for the forces of law and order?

[Dr Huppert]

The hon. Gentleman is absolutely right. Unfortunately, the approach taken for, I believe, many decades has been not to tell people. We have always been told, “We can’t tell you what’s being done at the moment, but we need more.” If we were told and there were transparency, the public could make a much more sensible judgment about what was needed.

New clause 3 highlights what I would expect to see as part of new transparency reporting. It contains requirements to ensure that information is available about the offence being investigated, so that we can find out if it is about children applying to the wrong school or speeding offences, as opposed to national security matters, how long the data have been requested, so that we can work out how long they should be kept for—is it usually used after a week or a year?—and what sort of data they are, so that we know whether we are talking about reverse directory look-ups or rather more personal information. I hope the Minister will be able to reassure me that that is his intention.

I should say that both my new clauses were inspired by Big Brother Watch, which I have been working with on this whole Bill and which particularly wanted to make these points clear. New clause 4 deals with the problem that a number of organisations feel they cannot publish their transparency reports and say what they have been asked to do for fear of violating the legislation against tipping off. I understand why there is a concern. The Government do not want companies to say, “The following things we are reporting to the Government, but these things are perfectly safe; we will not tell the Government about them.” We want companies to be able to publish that anonymised information, so I hope the Minister will be able to confirm that companies can safely publish it as part of their transparency reports without fear of being prosecuted.

I look forward to hearing the Minister’s reassurances on both those aspects.

[James Brokenshire]

I thank my hon. Friend the Member for Cambridge (Dr Huppert) for tabling these new clauses to enable a debate about transparency and the information provided in the exercise of powers under the Regulation of Investigatory Powers Act 2000. He will know that the Government—the Prime Minister and the Deputy Prime Minister—announced last week that we intend to introduce annual transparency reports relating to the exercise of powers under RIPA. That report will provide as much detail as possible, but without undermining the effectiveness of the agencies or posing a risk to national security.

The point I would make to my hon. Friend is that if we had individual companies giving details, that might give an indication to those who would do us harm, who might ask themselves, “Well, which ones aren’t doing that and which direction should we go in?” This therefore has to be done with care, given the nature of transparency, but I endorse his point about the need for more information to be provided, so that the public and this House can have confidence in the utilisation of the powers set out in the legislation.

--- Later in debate ---

Yes, we have had annual surveys, but the question is what more can be done to strengthen the process? That is something that the interception of communications commissioner raised in his last report and that we are now reflecting on, especially with regard to the detail that can be provided through the transparency report.

[Dr Huppert]

The Minister talked about that two-week snapshot from 2012. Is that the most recent survey that looked at the age of the data? Does he agree that it would be really helpful to have more up-to-date information about the age of the data are that used?

[James Brokenshire]

My hon. Friend argues for a different approach. He talks about a limited period and then about the need to safeguard that information following an event. I do not agree with him on that, as that is a separate debate. However, I agree that where we can see accurate data being provided, we seek to surface that as much as possible as part of the approach on transparency.

As the commissioner made clear in his report, the Home Office was working with him to improve the statistics collected by public authorities. He identified a number of further elements in his report, including the total number of applications submitted, the total number of items of data requested, the total items of data broken down by statutory purpose for which they were required and the total items of data broken down by crime type or other purpose for which they were required, which is the point that my hon. Friend has just made.

We are working with public authorities to ensure that most of these statistics are already being collected by them, and are progressing work to agree on the relevant practicalities such as agreed nomenclature that would enable those that had not already been collected to be collected. Transparency is important in ensuring continued public trust in the agencies and police forces that have been granted intrusive powers. However, transparency does have limits. We should not commit to such transparency that would publicise police and other sensitive investigative methodology, because explaining exactly how our investigators do their job will naturally lead to terrorists, criminals and others who wish us harm knowing how to avoid detection. We must also be careful not to weigh down investigators with too much bureaucracy such that they cannot perform the important function of preventing and detecting crimes and keeping us safe.

[James Brokenshire]

In highlighting case studies, my hon. Friend makes an important point. A number of case studies involving serious murders have already been referenced in the debate this evening. Indeed, the shadow Home Secretary highlighted a case in which a young person who was safeguarded was effectively prevented from killing themselves. Such examples highlight the absolute import and value of communications data and the way in which our emergency services, police and others rely on them, not just to solve crime and to protect the public from those very real threats that we understand from a criminal law and a counter-terrorism perspective, but to protect children and vulnerable adults from harm. The ability to identify where someone may be through tracking the communications data can literally be a matter of life and death. My hon. Friend is therefore right to suggest we can draw on case studies to provide greater explanation. In the appalling Soham murders, for example, communications data were instrumental in bringing those responsible to justice. Such cases highlight the significance of the use of the powers.

I recognise the point made by my hon. Friend the Member for Cambridge, but I am unable to accept his new clause tonight. I can make it clear, however, that I do not resist increased transparency; indeed, it is the reason we have agreed to bring forward annual transparency reports. Such a level of detail can be considered in different ways, and in amending the code of practice on the acquisition and disclosure of communications data later this year, we can ensure that the appropriate text is included in statutory guidance, for example. Parliament will have a chance to return to the issue soon in that context. There are perhaps other ways in which we can reflect further on getting the balance right.

My hon. Friend made another point that may in fact relate to section 19 of RIPA, rather than to the section he suggested, concerning the illegality of disclosing the existence of a warrant under that section. To do so would risk exposing the existence of an interception capability and, crucially, the potential lack of such a capability, which would indicate to criminals and terrorists, who may wish to exploit such a gap, which communication services they may be able to use to conduct their illicit activities without detection. I believe that my hon. Friend seeks to ensure that where such a disclosure is made as part of an annual transparency report issued by the major service providers, a defence will be available to them in any subsequent legal proceedings.

The Government believe that, as at present, it is for the interception of communications commissioner to publish the total number of interception warrants. The commissioner has expressed his concern about the nature of the transparency reports, particularly with reference to requests for communications data. In his annual report for 2013, the commissioner is clear that statistics from transparency reports should “be treated with caution” as they may “lead to misleading comparisons”. Indeed, it would not be helpful to the public for there to be numerous sources of information on the number of requests or warrants when there is a lack of clarity and consistency as between each source. We are doing everything that we can, working with the independent commissioner, to improve the transparency of how such powers are used, but the additional provision would not help to give the public greater clarity, so I invite my hon. Friend to withdraw new clause 3.

[Dr Huppert]

I thank the Minister for his comments. The move towards greater transparency will benefit us all, including the Home Office. I do not quite agree with some of the points that he made towards the end of his speech. Many companies are doing well publishing transparency reports, which is helping to move the agenda forwards, but in the interests of time, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 5

Effect and justiciability of this Act

‘For the avoidance of doubt and notwithstanding sections 2 and 3 of the European Communities Act 1972, this Act shall have effect and shall be construed as having effect and shall be justiciable by the courts of the United Kingdom.’—(Sir William Cash.)

Brought up, and read the First time.

[Sir William Cash]

I beg to move, That the clause be read a Second time.

I am grateful to be called at this late hour. This new clause is important. I look to the Home Secretary; she knows exactly where I am coming from and where I am going. She may believe that we will be defeated on this new clause, but nothing will prevent me from making the point, which is that the Bill could become pointless. The difficulty, which she understands—I am sure that her advisers have already explained it—is simply that clauses 1 and 2 will enable the Home Secretary to serve a data retention notice on public telecommunications operators and to make secondary legislation governing such notices. However, there is a real possibility that the precise meaning of the European Court of Justice’s Digital Rights Ireland judgment has the effect of potentially eviscerating the Bill.

Professor Peers of Essex university draws attention to the objection by the Court to the requirement to retain all communications data. The fact that the directive required all data to be retained from all subscribers was indeed the first of the considerations taken into account by the Court in arriving at the conclusion that the directive was disproportionate. The problem is that it is within the framework of European law. This Bill is within the scope of EU law and so is the charter of fundamental rights, and the general principle of EU law will continue to apply. What that means in practice is very simple: sections 2 and 3 of the European Communities Act 1972 have the effect of ensuring that the retention directive, its replacements and all that follows from it are and have to be implemented in UK law. The United Kingdom also has an obligation under the voluntarily enacted 1972 Act to accept the jurisdiction of the European Court.

The European Court has already adjudicated on this matter, but the problem is that within the framework of this Bill there are grave uncertainties that have already been expressed by myself and others during these proceedings. The bottom line is therefore whether we are to make uncertainty more uncertain by providing for a situation in which we enact a Bill that might be challenged by the European Court through arrangements that some people who do not like its provisions might decide to entertain. If they do so, it will go back through the Court of First Instance and then the Court of Appeal before going to our own Supreme Court and being referred to the European Court of Justice. As with the Merchant Shipping Act 1988, which was struck down by our own High Court in pursuance of the European Communities Act 1972, which is a voluntary Act, the net result if the European Court of Justice makes such a determination will be that the United Kingdom will be faced with this Bill being struck down as enacted.

I do not need to say any more, because I have made the point throughout our proceedings. I implore the Government to take note of the new clause, which has been carefully considered by some very senior lawyers, both academics and practising lawyers. They are convinced that the Bill is at risk and so, as I did with the enactment of the Lisbon treaty, I tabled a provision that said that notwithstanding the European Communities Act the charter of fundamental rights would not apply. The Home Secretary might smile now, but I have to say to her that that is now a serious choice for the Government. Either they except the charter of fundamental rights or, through amendment of the 1972 Act, they should ensure that the charter of fundamental rights does not apply. That also applies to these provisions and I need say no more for the moment. I sincerely trust that the Minister will give a positive response.

--- Later in debate ---

[Dr Huppert]

At the end of this rather long day, I want to reflect briefly on where we are in this area. There is a tension between privacy and security. As I have said, it is not a question of having one or the other; we can have both. I do not believe that those who are more concerned about security want to ride roughshod over privacy and civil liberties. Equally, those of us who are passionate about privacy and civil liberties care about security. We can have both and we need to work on both. There will be differences in the relative weighting that we place on each.

Let me go back to 2012, when we had the Home Secretary’s draft Communications Data Bill, which was the son of the previous Government’s interception modernisation programme. The Home Secretary has been very clear that she believes that we should have that Bill. We, as partners in the coalition Government, insisted that it be only a draft Bill. A Committee went through it carefully—a process that took many months—and we vetoed it because the Committee was very critical. Had we not had that process, there may well have been no need for this piece of fast-track legislation, because we would have had the communications data Bill and it would have covered many of the things that were required. However, it would have been far more intrusive and of questionable security value.

All that was before the Snowden period, when we found out what was happening. What has the House done to reflect the concerns that people have about privacy, data and surveillance? We have had one debate in Westminster Hall, which I managed to secure, in which neither Front Bencher supported the calls for massive reform of RIPA, although many Members from all parties did so. There has been one Bill in the House on this subject, which was introduced by my hon. Friend the Member for Somerton and Frome (Mr Heath). Of course, like most private Members’ Bills, it did not make any progress. This House has failed to have the discussions and debates that have happened in the US, Germany and many other places.

That leads directly to the scepticism about the Bill that many people feel. There is a track record and people have developed concerns over many years. For decades we have had claims from the Government, again and again, about what is needed for security. So many clichés—the old lines: if we have nothing to hide, we have nothing to fear. Every reference to everything is justified by a reference to terrorists or paedophiles. Of course those matter and are serious, but they are not the same as proper evidence-based arguments about what is needed and is proportionate.

I understand the concern that many members of the public and in the House feel about this subject and this legislation, but the Bill deals with a genuine problem and replaces existing powers that the state already has with powers that are the same or lesser. Ministers have been clear that that is the intention. There is no question that somebody in the future will look back at this debate and believe there has been any intention to widen powers, and time after time we have heard that on the record. There has been debate about whether the law can be challenged under the ECHR. It can certainly be challenged; laws can always be challenged, and if it turns out that there are problems with it, I am sure they will be addressed. However, I do not think that will happen.

On the flipside, we have covered what would be a genuine crisis to ensure that we can continue with our security levels, and we have made extra gains that put us in a better place from a privacy and civil liberties perspective. The sunset clause will focus people and force the review to happen, and we will finally get a proper long-term detailed piece of work on how we can have better legislation. That will take years to get right, but we must get it right.

We have a privacy and civil liberties oversight board to ensure that those concerns are seriously considered as policy is developed and looked after, developing the existing role of David Anderson QC. The Bill will be more powerful than he has been able to be. A senior diplomat will try to come up with a better way of dealing with the international problems that we are all struggling with. We would all like a better model, and pushing ahead with that will make a big difference. We will see reductions in access. Fewer organisations will be able to get access to information which, coupled with a reduction in the maximum time limit for which data can be held, will mean more protection for all of us overall. We will have transparency reports so that we know what is going on and why, and can have far more informed debates here and in public.

This has not been an easy process and I pay tribute to everybody involved, of all different views. I had the privilege of being involved in a number of those discussions, and it has been difficult for many people in this House. However, I think the Bill has dealt with security problems while boosting—a bit at least to start with—privacy and civil liberties. As has been reported in many places, this will be seen in years to come as a time when the House said, “We must tackle this and ensure we get it right.”