Data Retention and Investigatory Powers Bill

Julian Lewis Excerpts

Tuesday 15th July 2014 Commons Chamber

[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.

[Mr Raab]

My hon. Friend makes an extremely important point. There has been a lot of talk about privacy, but if we do not get this right and the providers are not comfortable, the risk is that the Bill will be flouted. If that happens, the use of foreign providers by every paedophile and jihadist group would drive a coach and horses through clause 4 and render it utterly useless.

[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.

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[John McDonnell]

I hope that my hon. Friend the Member for West Bromwich East (Mr Watson) has formally requested a vote on amendment 2. If he has not, I would like to do so. I will deal quickly with some of the points that have been made. I think that the House is open to derision in putting such important legislation through in this time scale. The argument that the time is limited because we are abutting the summer recess and MPs are about to go on holiday opens us up to even more derision, so we will be held in contempt yet again. I say to the hon. Member for Cambridge (Dr Huppert), for whom I have a lot of affection, no matter how infuriating he can be at times, that the argument that a piece of legislation that could be undertaken in the next five months is somehow not as good as one that we will put forward in 24 hours simply does not hold water.

The point is that we are appealing to the Government today to give us the opportunity not only to have a thorough debate in this House, but to go back to our constituencies, as the hon. Member for Brighton, Pavilion (Caroline Lucas) said, and consult the people who put us here. With such a technical piece of legislation, I want to ensure that I consult my constituents and all those voluntary organisations and experts in the field. That includes taking expert legal advice on its exact meaning, because I no longer accept the argument—it has become confused today—about there being no new powers. I think that there are new powers, but I would like that to be verified by external advice. We have had no chance to do that. We have received, at best, a couple of briefings and a curtailed Select Committee hearing. My hon. Friend the Member for Aberavon (Dr Francis), who chairs the Joint Committee on Human Rights, appealed to the Government and said that all we need is the original judgment from the European Court of Justice and the points it raised, matched with the legislation and with clarification on which points the legislation addressed. We do not even have that.

Furthermore, we have the draft legislation before us, but not the guidance, which is the really meaningful part. It will specify who will be included and how it will be implemented in detail. That is still to come, so we are passing this legislation virtually in the dark. On the argument that there will be review after review, the Government’s new clause 7 simply means that a report of the review will be sent to the Prime Minister, but if it

“appears to the Prime Minister that the publication of any matter in a report under subsection (4) would be contrary to the public interest”—

not just prejudicial to national security—the Prime Minister can ensure that it is not given to this House. The definition of the public interest can be as wide as the Prime Minister determines. That is unacceptable. That is not open or transparent.

We have all been in this House long enough to know that having review after review is almost meaningless unless, at the end of the day, the Government decide to legislate or change legislation. A review process is usually used to put something on the back burner so that we can all ignore it as though it has gone away. The reason for a sunset clause is to give the whole exercise of reviews some bite. Without that bite, I am afraid that Governments do not act. The idea of having some bite at a distant point at the end of the following year means that this country will labour and languor under what I think will be an unjust piece of legislation for a long period, which could result in miscarriages of justice and an imposition on our freedoms. It is too long to wait. That is why the short curtailment of the sunset clause is critical to ensure that we give the matter serious attention; otherwise, it will drift further away.

The next five months give us the opportunity for full consultation, proper advice and full display of information, particularly on the Government’s statutory code. We could then come back after the recess and examine new legislation in detail, which may address some of the points that have been raised about the operation of RIPA. As the hon. Member for Broxbourne (Mr Walker) has said, this is no way to legislate and create laws that could have significant consequences for our constituents.

I have raised the issue of the secrecy of professional advice, which was provided for in the European judgment. That is supposed to be covered by the code of practice, but we have yet to see it. That advice could relate not just to lawyers, but to the operations of journalists who wish to expose matters of public interest and to trade unionists and others. This is a risk to civil liberties that I am not willing to support. That is why I support amendment 2.

[Dr Julian Lewis]

Having made a brief intervention earlier that was largely helpful to Members on both Front Benches, I will now rectify the balance by saying that, however one looks at this debate in terms of whether or not enough time has been made available for those who want to speak to have their say, the overall impression that has been given to the public has been unfortunate, to put it mildly. My understanding is that this Bill has been made necessary because of an ECJ judgment that was arrived at in April. It is now mid-July. Why on earth has it taken so long to get from that judgment all those weeks ago to the position now, whereby it appears to the public that we have to make what I believe to be very necessary changes in a terrible rush? They are under the impression—in the context, it must be said, of the paranoia over the Edward Snowden affair—that we are doing this in a desperately swift and ill-considered way.

Personally, I accept that there is some strength in the argument that the time the Government have made available at this very late stage is probably enough for most of the people who are likely to contribute to the debate in the Chamber to do so; but not enough time has been given to those in the country who want to develop the wider public argument. One would not like to give the impression that one was trying to get this Bill through in a rush before a suitable momentum of public concern had the opportunity to build up, but, if that was not the reason for the delay, what was?

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

My hon. Friend says, quite properly, that there is time for those of us who are concerned to make our points, but there is no time for us to research those points. There are significant legal and practical issues involved, and some of the issues are difficult to research because most of them are secret. One weekend is a ridiculous time scale in which to consider something that goes to the heart of the fundamental relationship between the state and the citizen.

[Dr Lewis]

I hope my right hon. Friend accepts that the nub of my short contribution is to say that we should not have found ourselves in this position. When the ECJ judgment was made we should immediately have swung into action so as to give people reasonable warning that this debate was going to take place, and then they could have done the degree of research necessary to avoid the impression that things were being rushed through in unseemly haste.

[Steve McCabe]

If we are all trying to be open and straight with people, why do we not just own up to the fact that this problem is of the coalition Government’s making? They could not get to the point where they agreed on a Bill, so we now have to consider a bit of bounced legislation as an emergency because of the coalition’s problems.

[Dr Lewis]

I always love it when an Opposition Member precisely anticipates my final point. My love, affection and esteem for coalition politics are legendary. I want Ministers to give me the explanation—so far, we have been denied it—that there is indeed a rational alternative to the paranoid belief currently abroad that all this is being rushed through because we wanted to stifle debate, were afraid what the public would say and feared the context of all the revelations of secrets.

Let us get to the heart of it: if the truth is that it took this long for the Conservatives and the Liberals to agree what they wanted to introduce, there is nothing to be ashamed of in saying so; it is a natural downside of coalition politics. I appeal to my hon. Friend the Minister, who does these things with such panache and dependability, to put his head above the parapet and simply say that this was one of the many disadvantages of coalition politics—which Conservative Members and Labour Members look forward to seeing the back of in a few months’ time.

[Jeremy Corbyn]

I support amendment 2, which was tabled by my hon. Friend the Member for West Bromwich East (Mr Watson), who made his case extremely well.

Surely the issue is simply this: Parliament is here to scrutinise what the Executive do and to try to represent public opinion. We need to take advice from the public, organisations, lobby groups and so on, but all I have managed to find was an interesting and quite useful briefing from Liberty that came in yesterday—all credit to Liberty for getting a reasonable briefing together in a very short time—and a series of articles in The Guardian and one or two other newspapers.

But this Bill has massive implications in relation to the ability of the state to dip in and out of people’s telephone and e-mail accounts. Because it takes on itself a global reach, it has huge implications all around the world. If we are to take the global reach to dip into e-mail accounts all around the world, what are we to do, as the right hon. Member for Haltemprice and Howden (Mr Davis) said in an intervention, when an unpalatable regime decides to do the same and pitches up in a British court and says, “Well, you’ve taken these rights unto yourself. Why shouldn’t we do exactly the same?”? The implications of the Bill go a very long way indeed.

I am always suspicious when the House is summoned in an emergency and told, “This is an absolutely overriding, desperate emergency, so we’ve got to get this thing through all its stages in one day,” and Front Benchers from both sides of the House get together and agree that there is a huge national emergency. I am sorry, but what is the emergency?

There was a court decision some months ago, about which the Government have since done very little and made very few statements. There has apparently been an interesting debate between the Liberal Democrats and the Conservative party in the coalition. In the interests of public scrutiny, we should be given the minutes of the discussion between the Deputy Prime Minister and the Prime Minister, and of all the sofa discussions that have no doubt taken place. I thought that sofa politics ended with new Labour, but apparently it still goes on in Downing street. We need to know the nature of that debate.

What is the objection to a sunset clause that would bring the—to me—very unpalatable Bill to a conclusion in six months’ time? Such a clause would at least give lawyers an opportunity to make a detailed case, and the Government an opportunity to explain their case a bit better. It would give the Home Affairs Committee a chance to discuss it, and the Joint Committee on Human Rights a chance to examine it, which we as Members of Parliament would also be able to do.

In an age of social media, it is interesting to see the numbers of people following the debate online and live. They are interested in social media, privacy and communication, and they all have views and opinions. I have no idea what all their views and opinions are. All I know is that as an individual Member of Parliament, I, like all colleagues in the Chamber, must vote on this piece of legislation without having had the chance to reflect or consult.

This is not a good day for Parliament. It is not a good advertisement for Parliament. It is not a good advertisement for democracy. The very least that we can do is to agree that this wrong-headed piece of legislation will expire by the end of this year and force the Government to come up with something more palatable, more carefully thought out and more sensible in respect of the protection of privacy and civil rights for all. That is why we were elected to Parliament. We should be given the opportunity to do our job, and should not have to lie down in front of a steamroller and accept something that we know in our hearts to be ill thought out and wrong.

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[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.

[Dr Julian Lewis]

Will my hon. Friend take on board the point I made in my intervention a few moments ago? Although one fully accepts that one cannot give full statistical data about these sorts of activities as they relate to national security, the point that the hon. Member for Cambridge made—that the majority are about serious crime rather than national security—ought to give us the opportunity to set out many case studies that would improve the public’s understanding of why it is so important that we have these data.

[James Brokenshire]

I know that my hon. Friend understands the importance of communications data in the fight against organised crime, as 95% of the organised crime cases that have been brought before the courts have relied on those data. He will also be aware of some of the surveys that have been run to indicate the proportions of communications data that are used and how they are broken down. For example, a survey in 2012 showed that 51% of communications data used to investigate sexual offences were older than six months. It is that type of information that, if we had further detail, would give that sense of how communications data are used to reassure the public and others in respect of the utility of the powers that are there. That certainly touches on one of my hon. Friend’s points.

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[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.

[Dr Julian Lewis]

I appreciate that my hon. Friend is mainly talking about the gathering and publication of statistical data, but it would not involve much effort for police forces to collate even half a dozen or a dozen cases per year that are reported in the press to show how these communications data are used in individual cases. A few good examples that have already been published would go a long way to help the public understand how important this methodology is.

[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.

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[The Secretary of State for the Home Department (Mrs Theresa May)]

I beg to move, That the Bill be now read a Third time.

We have had a lively and constructive debate today on the urgent need to ensure that communications data continue to be retained, and to clarify the law in respect of interception for communications service providers.

I thank all those who have contributed to the Bill during its various stages so far. I also want to place on record my gratitude to those who have recognised both the need for this legislation and the reason it is so important that we see it enacted quickly.

We discussed the Bill earlier today on Second Reading and it has just been scrutinised in Committee. I thank the Opposition for the support they have given to the Bill and their recognition of the importance of the issues it deals with. I also thank the Clerks of the House and all those involved in supporting us and enabling us to do this business in one day. Particular thanks are due to my hon. Friend the Minister for Security and Immigration for the excellent job he has done in taking the Bill through its Committee stage, and to the right hon. Member for Delyn (Mr Hanson) for his contributions on behalf of the Opposition.

I do not want to rehearse in detail all the arguments that have been made, but I remind Members that the Bill deals with two urgent issues, including the response to the European Court of Justice decision in April, which struck down the European data retention directive. That has created uncertainty among communications service providers about the legal basis for the retention of communications data in the UK, which is a crucial resort for law enforcement and intelligence agencies.

[Dr Julian Lewis]

I am sure the Home Secretary knows that I am, in general, supportive of the Bill, but, in the light of the vote we have just taken, what sort of guarantee can she offer the House that the same European Court that struck down the previous situation will not strike down this Bill as well?

[Mrs May]

As I indicated earlier, and as I think others have indicated during the course of the various debates we have had today, the European Court of Justice did not strike down the ability to retain data. It recognised that the ability to retain data was necessary and it recognised purposes for which those data could be retained. What it did in its judgment was say that the data retention directive was drafted too broadly and it challenged its scope.

Of course, it was always the case that regulations here in the United Kingdom had been drawn more tightly and narrowly than the data retention directive. We are able to put through this Bill with confidence because not only were our data retention regulations drafted in a way that met many of the issues that the ECJ raised, but we have made some changes to ensure that we meet the extra requirements that the ECJ made on us. That is what gives us confidence in the future of this legislation.

We have heard a number of examples today of how important it is to have the ability to retain and access communications data. It is vital for piecing together the activities of suspects, victims and vulnerable people, and ensuring that serious criminals and terrorists can be brought to justice. This Bill will clarify the legal basis for us to oblige communications service providers to continue retaining communications data.

At the same time, we need to put beyond doubt the legal obligation on companies that provide services to people in the UK to comply with our laws on interception, regardless of where they are based. As we know, the communications services used by us all are increasingly provided to the UK by companies based outside the country. Interception, which can take place only within strict limits and with a warrant authorised by the Secretary of State, can prove vital when investigating the most dangerous criminals or defending the security of the United Kingdom.

In the absence of explicit provisions in legislation, some overseas companies have started to question whether the law applies to them, so we are clarifying the law. The Regulation of Investigatory Powers Act 2000 was always intended to apply to any company providing communications services to the UK, as the provisions in the Bill make absolutely clear. The Bill does not introduce new powers, or extend the reach of law enforcement or security and intelligence agencies in any way. It responds to the European judgment, clarifies the existing provisions of RIPA and ensures that the police and security and intelligence agencies can maintain essential capabilities to fight crime and protect the public.

The Bill does not replicate the draft Communications Data Bill. As I have said several times, I continue to believe that its measures are absolutely necessary, but this Bill is not about what was in the draft Bill; it is about ensuring that we retain the capabilities we have at the moment. It will be for the next Parliament to debate other extensions in relation to communications data, as in the draft Bill. We know that that debate will take place because this Bill has been “sunsetted”. It will therefore be necessary for the Government to look at the issues after the election. Indeed, that will be on the basis of informed debate, following the review undertaken by David Anderson, as agreed.

The Bill will ensure that the job of those who protect us does not get even more difficult; that they can continue to use powers that are part of everyday policing; that they remain able to find vulnerable people at risk or in danger; and that they can maintain the use of vital capabilities to solve crime, save lives and protect the public from harm. It will ensure that our police, law enforcement agencies and security and intelligence agencies have the capabilities to do that. I now invite the House to pass the Bill and send it to the other place, and I commend it to the House.