Data Retention and Investigatory Powers Bill

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I begin by reminding the House of my involvement with the All-Party Parliamentary Group on Extraordinary Rendition and my trusteeship of Fair Trials International, since I shall want to refer to some of that in a minute or two.

It was quite properly said by the Prime Minister, and indeed by my noble friend Lord Howard in his comments a few minutes ago, that the first duty of a Government is to keep the citizens safe. Before us is a Bill that focuses solely on that objective. Moreover, it is a Bill with a sunset clause: one that is—for my taste —a trifle long, but nevertheless a sunset clause. Add to this the fact that my noble friend took the trouble to invite those Members of your Lordships’ House who were interested to a briefing—for which I greatly thank him. So what’s not to like? For me, like the noble Lords, Lord West and Lord Armstrong, the issue is of course balance: the balance between the need to keep us safe and the need to respect our privacy and our freedom. Never does the one trump the other. As the noble Lord, Lord Armstrong, pointed out, the balance is constantly shifting. It is that sense of balance on which I should like to focus in the next few minutes and on which I hope that my noble friend can provide reassurance when he winds up the debate later.

First, the Bill addresses a technical matter in what is a fast developing field—so fast developing that, we have been told, although the purpose of the Bill is to restore the status quo prevailing before the ECJ judgment, the technical developments in the industry in the mean time require an extension of powers. In the words of the Explanatory Notes, that is to ensure that,

“the definition of ‘telecommunications service’ ensures internet-based services, such as webmail, are included”.

The Explanatory Notes do not use the word “extending” to describe that; they use the word “clarifying”, which I suppose goes to show that one man’s clarification could be another man’s extension.

I am forced to ask myself what other aspects of clarification there are in the Bill on which I hope that my noble friend can reassure me. In particular, I hope that he will dwell briefly on the issues raised by Clause 4, which other noble Lords have raised, which concern extraterritoriality. Noble Lords will have received briefing papers circulated on the Bill which argue that RIPA as it stands has never had any extraterritorial powers. Indeed, your Lordships’ Constitution Committee raised that in paragraph 10 of its report. The Government may have acted as if it has, but the legal base does not exist. If that is the case, this would be another extension, not a clarification. Indeed, as the Constitution Committee pointed out, it emphasises the unfortunate necessity of rushing this through if we are actually extending the law, not merely putting a patch on a puncture.

Then there are questions about the utility of the provision: whether modern encryption and other safeguarding mechanisms render any data collection of little or no value. Perhaps my noble friend will enlighten the House later on whether he has had discussions with service providers on that point.

Finally, there are those who want to be reassured that the provisions of extraterritoriality are a one-way street: that there is nothing in the Bill—mutual recognition implied, or the like—which would enable overseas organisations to reach deeper into the personal information of UK residents.

In the Statement that the Home Secretary made on 10 July, which my noble friend repeated in this House, there was reference to the role of communications data in ensuring convictions. My noble friend said:

“It has played a significant role in the investigation of many of the most serious crimes in recent times, including the Oxford and Rochdale child grooming cases, the murder of Holly Wells and Jessica Chapman and the murder of Rhys Jones”.—[Official Report, 10/7/14; col. 280.]

Those are appalling crimes, and it is excellent that modern techniques have brought perpetrators to justice, but the use of those high-profile cases does not mean that we should suspend or blunt our critical judgment about the proposals before us today.

As a parallel example, my noble friend knows my concerns about certain aspects of the European arrest warrant. Defending the warrant, Ministers always use the high-profile cases of murderers, terrorists and paedophiles who have been speedily returned to justice. That is very good, but less publicity—or no publicity—is given to those cases where the process goes awry and innocent people suffer greatly. I am anxious to explore whether, in passing this legislation, we may be opening similar challenges or difficulties.

One answer to the conundrum given in the briefings is that the legislation refers only to the making of a communication—that is to say, as other noble Lords have said, the when, the where and the with whom—not its content. The Minister and the noble Lord, Lord Paddick, referred to that in their comments. However, as I understand it, this is another area where technological developments are beginning to blur familiar distinctions. The noble Lord, Lord Knight, referred to the term “metadata” as being increasingly used to describe the ability to build upon limited information to create a broader picture. My noble friend Lord King said that he did not have a definition but I do, provided by the invaluable Wikipedia. It says:

“Metadata assists in resource discovery by ‘allowing resources to be found by relevant criteria, identifying resources, bringing similar resources together, distinguishing dissimilar resources, and giving location information’”.

I am concerned that this could—not does but could—take us perilously close to the general mining and profiling of our fellow citizens and, in this regard, it is important to note that the House of Commons Library briefing note provided for the Bill makes it absolutely clear that the use of metadata does not require a warrant from the Secretary of State. With this so-called clarification, the Bill may open up a much greater degree of surveillance of the ordinary citizen than has to date appeared possible.

Given the complex nature of the Bill, it will therefore be vital that the public have confidence in these proposals if they are transparently operated and the Government of the day are frank about them. Those of us who have been involved with the UK’s involvement in rendition have not found it easy to establish such trust with the Government. For years, the previous Administration denied any complicity in rendition but have had to admit that in 2002 two rendition flights landed in Diego Garcia, the British Overseas Territory in the Indian Ocean with a base leased to the US Government. Now we are told that flight records since 2002 are,

“incomplete due to water damage”,

so I fear that the truth will probably never be known.

I share my noble friend Lord King’s concern about the importance of the role of the privacy and civil liberties oversight board. To do its job effectively, its members need the appropriate powers. I understand that there are some terms of reference being circulated; I am afraid that I have not yet seen them. However, these sorts of questions are not just about the terms of reference. They are questions such as: will the members of the board be guaranteed a proper degree of security clearance, and how will it actually operate? Will it be a day a week for senior grandees to glance over the issues and make a few ex-cathedra statements, or will they be expected to get their hands dirty and do the unglamorous but necessary work of ensuring that the proper procedures are followed? Only if the latter approach is followed will the public be reassured that the right balance between security and liberty is being struck.

Twelve years ago, in the spring of 2002, another piece of legislation concerning the Anglo-US extradition treaty was rushed through in response to the terrorist threats, post-9/11. In the event, most of the requests under that agreement have been about financial crime. There is nothing wrong with that but it was not what it said on the tin. Latterly, we have had the bizarre case of Mr Gary McKinnon. He may have been an unusual man but he was no terrorist: his crime was to embarrass the Pentagon by hacking into its computer systems. As my noble friend Lady Browning memorably said, the Pentagon should have hired him rather than seeking to imprison him. As we consider this legislation, we need to bear in mind these sorts of unintended consequences that result from rushed scrutiny.