Data Retention and Investigatory Powers Bill

Lord Davies of Stamford Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, we have heard a number of speeches this evening which, unfortunately, have been dismissive of public concerns about this Bill, but I am glad to say that the general tenor of the debate has been very thoughtful. We have heard some very sophisticated speeches which have engaged with this subject in considerable detail. I pay particular tribute to the speeches from the noble Lord, Lord Hodgson, the noble Baroness, Lady Kennedy, the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Hope. There were a large number of questions in those speeches, and I hope the Minister will take time to address those when he sums up and to provide the House with suitable considered answers because I do not think that the public concern in this matter is misplaced.

The concern is probably growing because of the volume of communications and data available. It is certainly growing because of the phenomenon of metadata which has already been dealt with in a number of colleagues’ speeches. The concern has also grown because of a major scandal which, curiously, has not been mentioned. The Snowden revelations revealed that the NSA—it has a symbiotic relationship with GCHQ, as the House will know—was severely in breach of American law. The chief executive of the NSA gave answers which were certainly less than full and frank, to a committee of the US Congress. That sort of incident can only greatly exacerbate public concern. Emergency legislation on such a sensitive matter is a perfect formula for maximising public anxiety. So it is not surprising that there are some very serious questions in people’s minds. It is important that Parliament makes sure that it does its job today, and indeed tomorrow, and makes sure that all the various angles of concern are pursued and addressed and that we get suitable answers from the Government.

I agree with the remarks of my noble friend Lord West. Having mentioned the NSA, I want to make that clear. I also have had a lot of professional dealings over the years with officials of the three major agencies. I have always found them—and genuinely believe them to be, in their vast majority—people of great professionalism, who are patriotic, extremely well motivated, entirely honest and concerned to obey the law. So I agree with what my noble friend said and I endorse those remarks. However, at the same time, we need to make sure that the legitimate concerns are properly addressed.

We all have to strike a balance this evening in how we decide to deal with this matter. My strong inclination is to support the Government. We have heard the Government say that major criminal prosecutions depend on the continued availability of these powers. We are talking about powers that, in the main, are already in place and with which we are familiar, although there were interesting questions today about surreptitious and covert extension of the powers in the Bill. The Minister, who takes his duties very seriously and for whom the House has the greatest regard, said in his introductory remarks that lives may depend on the continuation of these powers, by virtue of our passing this Bill as rapidly as the Government are asking us to do. For those reasons, it would be difficult to do anything to hold this Bill up. I do not intend to do that. Nevertheless, I look forward with great interest to the answers from the noble Lord.

I want to make three brief points. The first is a repetition of what I said last week when the Statement was made, but the audience is slightly different tonight so I will repeat it. It is clear that we would not have got into this particular mess, and the Government would not have required this emergency legislation, if we had used primary legislation to provide ourselves the original powers. This is not a party political point because it is a point for both Governments. I know very well, and I said last Thursday, that all bureaucracies—it must be true around the world—and all Ministers like to have a quiet life if they can. Their first, instinctive, default reaction is always to try to put any legislation through the secondary process so that the scrutiny will be pretty soft, maybe even perfunctory, and unlikely to be very profound. That sort of behaviour only changes when it is seen to have a cost. On this occasion it does have a cost for the Government so I hope that a lesson will be learnt. When we have legislation that raises important principles, or as in this case, an important conflict of principles between privacy and security, that sort of legislation should always go through the primary legislative process.

My second point deals with timing. I repeat what has already been said by many others. I do not believe for a moment that it was necessary to wait three months after the ECJ judgment to tell Parliament—or anybody at all—that there was a need for new legislation on this matter. The Government, if they had been half-competent, would have known before 8 April that there was a possibility of the ECJ deciding in the sense in which it did, and therefore could have prepared some reaction on a contingency basis. Even without that, by 9 or 10 April, they knew what the position was and they could have taken action accordingly. Silence for three months followed by the demand that Parliament passes something in a week or two, is frankly taking Parliament for granted. I do not think Parliament can or should ever allow itself to be taken for granted. This is a very serious point. The Minister himself is not responsible for this. He has to come to this House to defend the actions, or failure to act, of colleagues. We understand that, but it is important that a message goes back that the Government’s behaviour on this occasion is simply not acceptable.

My third point is this: I have had no collusion with the noble Lord, Lord Butler—I had not the faintest idea what he was going to say. I personally was absolutely horrified that there was no report by the Intelligence and Security Committee available, when we have to take a decision so rapidly on this Bill. I may be wrong, but I thought the whole purpose of the Intelligence and Security Committee was that we had their ears and eyes on our behalf behind the security wall, able to ask questions of the agencies, able with their great experience and knowledge—which the noble Lord, Lord Butler, certainly represents—to weigh the answers, to decide what exactly the threat is, to decide whether the powers that the agencies have are adequate and if not, in what way they need to be supplemented, or whether they are excessive and gold-plated. All these questions are those which the committee is able to reach a judgment on, on our behalf. We could ask the questions but we would not get the answers, whereas the committee can not only ask the questions but can insist on getting the answers.

I was absolutely stunned that there was no report at all. I could not quite believe it. I went to the Printed Paper Office and asked for the committee report—I was told that there was not one. As the noble Lord, Lord Butler, has told us, the committee did not hear about this until a few hours before the rest of us, and so it is not surprising that it could not produce a report. If it had had two or three months’ warning, which it could easily have had, we could have had a very intelligent and helpful report. It might have helped the Government—I am assuming that the Government are not actually up to some terrible trick and are not deliberately trying to disguise the facts from the public and from Parliament. What an extraordinary. idiotic thing it was, to pre-empt the possibility of such a report being produced in the first place.

As I said, I will be supporting this Bill but I am very concerned about these matters. I think that the whole House is waiting with great interest to hear the Minister’s response.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, I do not think that the Government consider that that was a satisfactory way to deal with the problem.

The noble Lord, Lord Davies of Stamford, asked why the Intelligence and Security Committee did not have time to report on the Bill. I note the noble Lord’s concern on that, but I draw his attention to remarks in the Commons yesterday by the chairman of the committee, Sir Malcolm Rifkind. He said:

“The Intelligence and Security Committee has considered the Bill, and we have taken evidence from the intelligence agencies on its content. If we were concerned in any way that the Bill simply added to the powers available to the Government and that they were using a fast-track procedure to implement it, we would not be able to recommend its endorsement, but we are satisfied that that is not the case”.—[Official Report, Commons, 15/7/14; col. 725.]

Noble Lords should bear that in mind.

[Lord Davies of Stamford]

My Lords—

[Lord Taylor of Holbeach]

Perhaps the noble Lord will allow me to answer other people’s questions.

The noble Lord, Lord Soley, asked about Royal Assent; I think that I have dealt with that. The noble Baroness, Lady Kennedy, was particularly concerned about the nature of the matters that we are trying to deal with. There are already a number of reviews in the system, including that to be headed by the independent reviewer of terrorism legislation, David Anderson. He needs to be given time to conduct that work. I see no point in requiring Parliament to return to those issues almost as soon as we return from the Summer Recess without the benefit of the work that we have set in train. Any such legislation would require an accelerated timetable, and we do not want to be doing that again if we can avoid it. I think all noble Lords will agree on that.

The noble Lord, Lord Armstrong of Ilminster, asked whether David Anderson’s review would cover all use of communications data. Clause 7 makes clear that the review covers the operation and regulation of investigatory powers. That extends to communications data for all purposes under RIPA for which it can be obtained. I hope that that reassures the noble Lord.

The noble Lord, Lord Knight, also asked: would the review consider all legislation relating to communications and lawful interception? It does indeed; I have just explained that to the noble Lord, Lord Armstrong.

In answer to the noble Lord, Lord Macdonald of River Glaven, the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Kennedy, who is about to resume her place, as I said in my Second Reading speech, we intend to create a privacy and civil liberties board. The terms of reference can be found on the Home Office website and in the Printed Paper Office. Legislation would be required to establish the board, and we will have plenty of opportunity to discuss the detail of the board’s functions then.

I am grateful to my noble friend Lord Carlile for the work that he has done in this area; he has been a very important figure in these matters. David Anderson, his successor, has been consulted on the proposals before the announcement was made to Parliament and as they have developed. Parliament will have the opportunity to debate these matters fully when the legislation to create the board is presented.

The noble Lord, Lord Judd, asked about US data sharing. He will be aware that the Government have announced the appointment of a senior diplomat to look at the issue of data sharing. That is another feature of the non-legislative part of the announcements made by the Home Secretary in the Statement which I repeated here.

My noble friend Lord Paddick asked: what is the annual transparency report and how does it relate to the internet section of the commissioner’s report? There will be an annual transparency report relating to the exercise of powers under RIPA. It will take advantage of as much detail as possible. There will, of course, be a six-monthly report on the operation of the Bill.

My noble friend Lord King of Bridgwater asked: will we reform the ISC so that the chairman is drawn from the Opposition? In view of the reforms that we have made in the Justice and Security Act 2013, the Government have no immediate plans to make further changes, but it is a matter that is live and to which Parliament may well wish to return.

I turn to some of the detailed items under data retention types. The regulations made under the Bill will directly replace the data retention regulations of 2009; they will not extend the list of data types being regulated.

The noble Baroness, Lady Kennedy, asked about the ECJ judgment on the EU data retention directive. It did not take account of any of the domestic safeguards that we had in place. Many of the ECJ’s concerns were addressed in the UK’s domestic legislation. The difficulty in responding to the judgment was that we had to consider how we implemented some of the safeguards so that it was clear that they were in primary legislation, not the secondary legislation in which we had translated the European directive in the first place.

I have always enjoyed listening to the legal mind of the noble and learned Lord, Lord Hope of Craighead, working in its Rolls-Royce fashion. The noble Baroness, Lady Kidron, also asked: how do the regulations respond to the issue of the ECJ judgment? They will replace the 2009 data retention regulations. In particular, regulations will set out what must be specified in a data retention notice; place requirements on the Secretary of State to keep such notices under review; set out the security requirements that apply; provide that service providers can be reimbursed for any expenses incurred in complying with the requirements; and revoke the 2009 regulations, as they will be redundant.

The noble and learned Lord, Lord Hope of Craighead, asked why Clause 1(1) does not use the wording of the ECJ judgment. The test in the Bill requires the Secretary of State to consider whether it is necessary to require a provider to retain data, but also whether it is proportionate for that legitimate aim. This is in accordance with the judgment, which also makes it clear that it is necessary to verify the proportionality of any interference with a person’s rights when requiring the retention of data. That is why that particular wording referring to proportionality is used.

My noble friend Lord Blencathra raised a plethora of issues, if I may refer to them as such. It is vital that future consideration bears in mind the parliamentary inquiry and accordingly, as I have said, it is explicitly referred to in the terms of reference. Local councils will no longer be able to access communications data under these proposals. From the lists that I have seen, the Egg Marketing Inspectorate does not, nor has it ever had, access to communications data under RIPA. Indeed, Defra will also be losing its entitlement to such access in future. We recognise that the list has grown and that it needs to be cut down. The 13 bodies which will have their powers removed are the Civil Nuclear Constabulary, the Port of Liverpool Police, the Port of Dover Police, the Royal Mail, BIS, Defra, the Department of Agriculture and Rural Development in Northern Ireland, the Environment Agency, the Scottish Environment Protection Agency, the Department of the Environment in Northern Ireland, the Food Standards Agency, the Pensions Regulator and the Charity Commissioners. I should think that noble Lords are amazed that those bodies had access in the first place. This just shows the necessity for reviewing this sort of legislation and working it out on the basis of who actually needs it.

There was some concern over territoriality—a difficult word to say, particularly if one has been sitting here for a few hours. The noble Lord, Lord Knight of Weymouth, raised this, as did my noble friends Lord Paddick and Lord Hodgson and the noble Lord, Lord Judd. The Bill clarifies the territorial extent of the Regulation of Investigatory Powers Act: in the absence of explicit extraterritorial jurisdiction, some companies have started to question whether the legislation applies to them. This is nothing new. Jack Straw—who as Home Secretary was responsible for RIPA in the first place—made this clear yesterday in the House of Commons. He stated that the “clear intention” of that Act was to extend extraterritoriality. My noble friend Lord Howard of Lympne quoted Jack Straw to great effect; his was a very effective speech. I am pleased that many noble and noble and learned Lords, including the noble and learned Lord, Lord Lloyd of Berwick, recognise that this is not an extension of powers.

I have done my best, within the relatively short time that I have had to wind up what has been an extremely useful debate, to reassure noble Lords about this issue. The wider safeguards that sit around the Bill are important and we will have a chance to discuss them at length. However, I am glad that noble Lords have taken account of them in discussing the Bill before us today. We will no doubt be back tomorrow to consider it in Committee. There are wider issues and it is good that they have been raised by my noble friend Lord Blencathra.

I welcome this debate, and I would like briefly to reflect on the importance of the issues that we will return to tomorrow. Communications data and interception powers are intrusive. They are rightly subject to very strict safeguards, but they are also of vital importance to the work of law enforcement and the security and intelligence agencies. Without the legislation that we are considering today, those powers would be undermined. Those who mean us harm would be able to evade detection. Put simply, lives would be at risk. These are important issues. That is why this debate has been an important one. On that basis, I commend the Bill to the House and ask that it receive its Second Reading.

Bill read a second time and committed to a Committee of the Whole House.