Counter-Terrorism and Security Bill

Lord Beith Excerpts

Tuesday 9th December 2014 Commons Chamber

[Diana Johnson]

If the hon. Gentleman will be little patient, I shall move on to that subject in a few moments.

As I was saying, the Opposition accept that this extra category of data will be a vital tool for law enforcement—not just in protecting national security, but in combating a whole range of online crimes, including online child abuse, on which I shall speak in greater detail when we come on to new clause 2. The provisions for this extra category of data were first proposed in the Government’s ill-fated draft Communications Data Bill—I think that might help the hon. Gentleman in respect of his intervention. Although initially reluctant to provide any public evidence for why these extra data were needed, the Government did then provide the evidence that convinced the Joint Committee on the draft Bill of the necessity of this extra retention. The draft Communications Data Bill has been subject to much coalition grandstanding over the past few years, with the Home Secretary proposing a Bill of unprecedented, and in our view unnecessary, scope, while the Deputy Prime Minister refuses to accept the need for any legislation at all. Of course there was room for compromise and the Opposition have always supported this compromise. Some additional data retention is required, but not on the scale the Home Secretary proposed.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

How can the hon. Lady say that my right hon. Friend the Deputy Prime Minister did not see the need for any legislation at all when we are sitting here in this Committee this afternoon considering the legislation which we think properly balances the privacy issues with the need for public safety?

[Diana Johnson]

The right hon. Gentleman has made his point, and we will obviously disagree on what I have just said.

Our view, agreed with by most of the Joint Committee on the draft Bill, is that the data required to link an IP address to a device is one such category of data that is required and therefore we welcome what in principle clause 17 seeks to achieve. I say “in principle” because we do have some concerns about the drafting of clause 17, which is why we have tabled amendment 5.

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Finally, will the Minister assure the House that the Government have obtained independent legal advice to ensure that this measure is compatible with the decision of the European Court of Justice to quash the data retention directive? In that judgment, the ECJ suggested that any form of blanket retention was disproportionate, and also called for additional safeguards on when the data can be disclosed. Is the Minister still confident that the measures contained within DRIP are sufficient to meet those demands?

[Sir Alan Beith]

The hon. Lady has produced a formidable list of questions, but I only have one for her, on amendment 5. It seems to me that the process we are describing does not enable people to discover who the user of an instrument was; it locates or identifies only the instrument from which the communication was made. Therefore, amendment 5 would be inoperative, because it could never be demonstrated that it was being used to establish who the user was as it cannot be guaranteed to do that.

[Diana Johnson]

I am grateful for the right hon. Gentleman’s observations on amendment 5. As with the previous grouping, the amendment was tabled to give us the opportunity to look at the specifics of clause 17 and to understand fully the thinking behind the Minister’s approach. I take on board what the right hon. Gentleman has said, which may be correct, but the amendment allows us to debate what would be disclosed and what information would be available.

I have just bombarded the Minister with a whole range of questions and I know that, as usual, he will be very thorough and go through each in turn. However, I want to turn briefly to new clause 2, which seeks to move on from the retention of data to a review of whether the form of storing the data is allowing the key authorities to access it in a timely manner. I will say, so everyone understands where I am coming from, that this proposal aims to probe the Minister’s argument, and to look at the clause to see what more can be done and whether we need to be aware of any issues for companies.

My concern arises from the police’s apparent problems in pursuing the majority of suspected paedophiles identified through Operation Notarise. My understanding is that Operation Notarise identified between 20,000 and 30,000 individuals whom the communications data suggested were taking part in online abuse. From that, only 700 people have been named, investigated and arrested, so well in excess of 20,000 IP addresses have been identified, but that information has not been translated into named users. At this point, I am not even talking about arrests, but about identifying the users to enable effective safeguarding interventions.

Once a user is identified, even if it is just an address, the police can make several key checks: first, against the police national computer to see if there is a known sex offender living at the address; secondly, against the Disclosure and Barring Service database to identify anyone who might be working with or have access to children; and thirdly, against the Department for Work and Pensions database to see if a child is registered at the property for the purpose of claiming child benefit.

At the moment, the police do not know how many of the people they have identified are known sex offenders working with children or living with children. Most people would see that as unacceptable and would believe there should be a response. This could start with a review of the degree to which the difficulty of linking IP addresses to users is behind the police’s problems with moving this forward.

Finally, I turn to the amendments and new clauses tabled by my hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Islington North (Jeremy Corbyn), and by the hon. Member for Brighton, Pavilion (Caroline Lucas), on the degree to which RIPA is being used to access the records of certain professionals, including journalists. They address a real concern that Members and the general public have about the use of RIPA to access the records particularly of journalists and those in the media.

As the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), has said, this issue has to be addressed. Indeed, a key concession secured by the Opposition during the passage of the DRIP Bill was that a review of RIPA would be conducted by David Anderson QC, the independent reviewer of terrorism legislation, and that it would include the use of RIPA to look at the records of journalists. It is because we have confidence in that review that we do not feel amendment 11 is necessary.

However, that is also why the Opposition have a great deal of sympathy with the aims of new clause 1, which would require a court order before relevant authorities could access communications data that could be covered by a professional duty of confidentiality. The clause does not state whether the role of the court would be simply to ensure that due process is followed, or to apply some test of proportionality or necessity. However, the clause provides for the right of appeal for the individual. That means that an individual would have prior knowledge that their communications data were to be disclosed to law enforcement agencies. It is also important to note that the clause would apply not just to journalists but to doctors, lawyers and others, including Members of Parliament, when a professional duty of confidentiality could be construed.

[Diana Johnson]

I have the disadvantage of speaking first on this group of amendments, and obviously, this is not my amendment, so I am very much looking forward to hearing what the proposers feel would happen. However, the hon. Gentleman raises an important point, because we are not only talking about a limited group of people who describe themselves as journalists and who, in the past, we would have been able to identify clearly. Perhaps the proposers of the amendment would be able to address that when they speak to it.

I want to make a further point about the broad definition of professional duty that concerns me, especially when combined with the right of appeal. As I have said, a large number of professionals have some form of duty of confidentiality, and in many cases it is not clear, particularly when discussing communications data, how that potential duty of confidentiality would be separated from other investigations about which we would not allow the individual to have prior knowledge. There is a clear case for preventing a journalist from being targeted for their sources unless there is an overwhelming need to do so. However, the case is less clear in respect of other professions, particularly as we may be investigating issues involving criminal misconduct. Let me give an example for the Committee to consider: the case of Myles Bradbury, the doctor recently convicted of a string of horrendous sexual assaults of boys in his care. As a doctor, he would potentially have been covered by the new clause, especially in respect of some of his communications, and the Committee would be concerned about that. If he had been alerted to the fact that the police were investigating him, he would have had some time to delete much of the evidence which was then used to lead to his prosecution. I just give that as an example of the care we have to take in considering these matters.

I hope the Minister will respond in detail—I am sure he will—to the issues I have raised on this group, particularly the need for the drafting of clause 17 to be made much clearer so that the general public can be reassured about exactly what it is attempting to do.

[Sir Alan Beith]

The hon. Member for Kingston upon Hull North (Diana Johnson) is right to seek clarification to satisfy herself and her colleagues that clause 17 achieves its intended purpose and no more. Its intended purpose is reasonable: to keep up with the technological changes that lead evildoers to move from one technology to another, and become more difficult to track as they do so.

[Julian Smith]

On that point—

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[Sir Alan Beith]

Goodness me, I have barely started, but I will give way.

[Julian Smith]

Does my right hon. Friend agree that this provision does not keep up with the technology, and that much more has to happen and will happen? Will he clarify his party’s position on the changes that will have to come?

[Sir Alan Beith]

The hon. Gentleman has a strange desire, which he has expressed during a previous speech, to extend the debate beyond the bounds of clause 17 and the amendments to it. I do not think we should be drawn into that at the moment, except to make the general point that all processes involving intrusion into people’s private communications should have high levels of justification before they are used at all, and protections should be provided by various safeguards and authorisations. Finding the right balance for different levels of communication is a difficult task, and I expect a great deal of work will need to be done. Most of us in this House, and certainly most in my party, do not want, either by design or accidental discovery, a great deal of personal information about people to get in the hands of the state and its employees without any reasonable justification. On a matter that will be raised when the hon. Member for Hayes and Harlington (John McDonnell) speaks, nor do we want the processes of investigation by journalists to be impaired by a fear that sources will be compromised from the beginning. There are very good reasons for extreme caution in this area, but I believe the Government have exercised that caution and sought to devise a process to deal with a particular and recognisable difficulty.

[Mark Field]

The right hon. Gentleman is making a perfectly valid point. In the midst of the more hyperbolic phrases that get used, such as “snooper’s charter”, does he recognise that legislation such as this—and further legislation, which will inevitably be required whoever is in government in the years to come—should also be designed to protect the individual? It is not just about the state getting more powers; it is about codifying the rules and protections for the individual. It is very important that we have that in mind when looking at any new legislation that comes into play.

[Sir Alan Beith]

I agree with the hon. Gentleman’s observation, which points to part of the purpose of the process, of which this is only a part. The clauses we are talking about in RIPA—or DRIPA, as it has become known—are the subject of a sunset provision, because significant further review is to take place and new legislation will be required on the outcome of that review. So those who think that detailed discussion of matters that often feel technically beyond us is just an occasional thing in this House will have to recognise that we are going to be coming back to this issue. That does not apply to me, because I do not anticipate being a Member in the next Parliament, having announced that I am going to retire, but Members in the next Parliament will certainly be engaging with these issues.

I simply wished to place on the record that my view—and, I hope, that of my right hon. and hon. Friends—is that the Government have striven hard to find a sensible way to identify the instrument or apparatus that has been the point of communication. In many cases, that will enable them to identify the individual, but I stress that it does not guarantee that, any more than knowing a telephone number guarantees that the person who used the telephone—that instrument from that number—is the person who engaged in the criminal activity. It is more complicated than that, but this provision is a necessary aid to investigations ranging from the activities of paedophiles through to the serious threats we now face.

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[John McDonnell]

Everyone else who has spoken so far seems to have explained my amendments, and I am grateful to them. I tabled new clause 1 and amendment 11 because there is now a sense of urgency about dealing with this matter. I speak as the secretary of the National Union of Journalists group in Parliament—a group of MPs drawn from various political parties in the House. Throughout proceedings on RIPA and DRIPA and now this Bill, we have been discussing this issue. To put it simply, this House has always recognised in legislation the need to protect journalists, because we see journalism as one of the bulwarks of democracy in this country. Although we may not be enamoured of journalists or individual newspapers at times, we believe they play a vital democratic role in exposing what happens, particularly in regard to the behaviour of public authorities, Governments, corporations and others. That is why over the years we have written into legislation protection for journalists, as well as for other professions where there are issues of confidentiality, and the House has accepted that in all the debates so far.

[Sir Alan Beith]

It might be better expressed as “protection for sources”, because the primary concern is not to give a special elevated status to the journalist, but to avoid a situation in which the questions are asked, “Who told him and how can we get him?”

[John McDonnell]

Exactly. I was not arguing for preferential status for journalists—God forbid that I do that here. I was coming on to that point: this is about the ability to make sure a source is protected—as we all know, sources are often whistleblowers, blowing the whistle on abuses by public authorities and others—but it is also relevant to the protection of journalists themselves. We have seen across the world how, when the confidentiality of journalists’ sources is undermined, journalists become just as much a target as their sources, and in recent years large numbers of journalists in various countries have died as a result of persecution. What I am trying to say is that it is critical that we protect the role journalists play and enable them to undertake their work.

We have legislated in accordance with that principle—in the Police and Criminal Evidence Act 1984, for example. I agree with my right hon. Friend the Member for Knowsley (Mr Howarth) that it is always difficult to find the mechanism, but the mechanism under PACE was the ability of the court to determine whether a production order should be made. We gave it over to the courts to determine that. What was important about that is that the journalist was notified of the application and could contest it before the court, and a decision would then be made that commanded the confidence of all those involved. The classic case since then is when the police failed to get an order under PACE and then used RIPA to obtain an order against a journalist to get information relating to articles that were being written, including the sources of that information. I think it was generally felt in the House that that was not what we intended when we passed PACE and was not in the spirit of RIPA. We have for some time consistently tried to get Government and this House—the responsibility falls on the shoulders of us all—to do exactly as my right hon. Friend said and to find an appropriate mechanism.

I tabled new clause 1 because I cannot find an effective mechanism other than the use of the courts at some stage. My hon. Friend the Member for Kingston upon Hull North (Diana Johnson) asked whether it is a mechanism to enable the court to determine whether due process has been followed or the merits of a case. I have left that open for now because I welcome the discussion, but in my view, it is both.

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[John McDonnell]

My right hon. Friend the Member for Knowsley says that my local parish priest rather optimistically describes me as a lapsed Catholic. The secrets of the confessional need to be included; otherwise, there might be an excommunication.

The hon. Member for Cities of London and Westminster (Mark Field) makes a good point about journalism. I would like the definition to be membership of the NUJ, but there you are. These days, I would have the widest interpretation, but if it is to be contested, I would like to see a court make the decision on the basis of the evidence before it.

[Sir Alan Beith]

It is important that we distinguish what we are talking about here—the protection of the conversations that take place between lawyers and their clients and between doctors and their patients, discovered by entirely different processes. We are looking at the identification of the person who tipped someone off or provided some information. There may be good criminal law reasons for finding out who that person is, but I agree that some kind of measure is needed to ensure that those who warn a journalist or perhaps a Member of Parliament that something serious is going wrong have protection.

[John McDonnell]

Let me give one example of where RIPA was used. The case of Kirsty Green was in the evidence presented to the Home Affairs Committee by Michelle Stanistreet, the general secretary of the NUJ. Kirsty was a former regional newspaper journalist. Derby council spied on her meeting with local authority staff in 2009. Two Derby city council employees watched her when, as Derby Telegraph’s local government correspondent, she met four current and former council employees in a Starbucks coffee shop. The local authority said that RIPA was used to get surveillance authority for officials because they were protecting the council’s interests. The consequences for those individuals was a risk to their job in the local authority.

It is important that communication is protected, but names and sources also have to be protected, especially for whistleblowers, as we have seen when social workers have come forward in child abuse cases. The right hon. Gentleman makes the point well, but to me it emphasises even further the need for some judicial process in the oversight of access to the data and the way in which the legislation has been proposed.