Data Retention and Investigatory Powers Bill

Lord Hope of Craighead Excerpts

Thursday 17th July 2014 Lords Chamber

Moved by

[Lord Hope of Craighead]

2: Clause 1, page 1, line 5, leave out “the requirement is” and insert “for objective reasons the requirement is strictly”

[Lord Hope of Craighead (CB)]

My Lords, this amendment returns to a point that I raised yesterday at Second Reading. As the noble Lord, Lord Phillips, pointed out in moving his amendment, Clause 1(1) is crucial to the whole scheme in the Bill and it is extremely important to get the language of it right. I will not go back over the points that he was making in general support of that proposition, but it is with a view to trying to get the language right that I have raised this issue again.

The Minister will recall that I was drawing attention to the wording of the judgment in the case that has given rise to all these problems, and I will come back to that in a moment. I note that in his reply to my comment, at col. 664 of yesterday’s Hansard, he said:

“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”—

personally, I would accept that as an appropriate word—

“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”.—[Official Report, 16/7/14; col. 664.]

The point that I raised, and to which I return, is that the wording of the judgment is more precisely targeted. The reasons for it are explained in the judgment in a certain amount of detail because they draw attention to the concern that members of the public would have—possibly more by rumour and suspicion than by reality, but concern nevertheless—that their private lives were the subject of constant surveillance. It is for that reason that the court went on to say that it was necessary for,

“clear and precise rules governing the scope and application of the measure in question”,

to be laid down. That was in paragraph 54.

The criticism of the directive was that the “clear and precise rules” that were required were not apparent in that directive. Paragraph 65 is the crucial one. It says:

“It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions”—

the word “provisions” is important—

“to ensure that it is actually limited to what is strictly necessary”.

My amendment picks up two points: the use of the words “objective reasons”, which are in the judgment; and also the phrase “the requirement is strictly” to be added before the word “necessary”. My concern is that, without words that match the judgment, those who seek to criticise or possibly even attack the measure will compare what is in the legislation with what is in the judgment. Lawyers do that all the time. I know that the future of the European courts is perhaps not entirely secure, but the fact is that for the life of this Bill if it becomes an Act, and up until the closure date, both of the European courts are capable of being appealed to. I am quite sure that the last thing the Minister would want is a challenge to this measure on those grounds in those courts.

My amendment is intended to be helpful. I am not trying to undermine the Bill. I am just trying to suggest that the language of it should be more precisely worded. I do not know where the phrase “necessary and proportionate” comes from. The ECJ judgment says that proportionality is part of necessity, so built into the idea of necessity is proportionality. I do not complain about the fact that they are both there—it is a useful combination of words—but it is the other bits, the strict use of this phrase and the need for objective reasons, that are necessary.

If one thinks through the way in which the exercise will be conducted, I have no doubt that the Secretary of State herself will not be taking all these decisions. This formula would, in fact, be instructing those on whom she relies to apply their minds to the requisite standard, and to provide convincing, objective reasons for the measure that is suggested should be taken.

I am grateful to the noble Lord, Lord Blencathra, for drawing my attention to an examination of the wording in the draft communications data Bill, as it then was, by the Joint Committee on the draft Bill. In paragraphs 62 to 67, there is a discussion about the language. One point that emerges from that discussion, which is very relevant to what I am trying to say, is that the wording is necessary, having regard to the fact that:

“Once a power is on the statute book”—

as this would be—

“it is available to be used, and also to be misused or abused, at any time in the future”.

Undertakings are all very well, as are all the various other protections that the Minister referred to yesterday as part of the United Kingdom’s system; but at the end of the day, it is the wording that directs the nature of the exercise to be carried out by those responsible for doing it that really matters.

That is why, in my experience, these courts are not all that impressed by what we tell them about how our system operates and the number of regulators and investigations that go on to check that everything is being conducted properly. They will look at the language in the statute. That is why it is so important to get the wording right if this measure is to stand up to scrutiny.

It is with that justification that I move this amendment, in the hope that the Minister will give further consideration to it, in the very short time available, to see whether it would not be wise to tighten up the wording. I think that it is in sympathy with what the Minister himself would wish to be done anyway. It is getting the wording on the face of the Act that matters so much. I beg to move.

[Lord Davies of Stamford (Lab)]

My Lords, I rise to support the noble and learned Lord, Lord Hope, in his amendment. Before doing so, I hope that it may be in order to say a word of appreciation to the Minister—on my behalf, but I dare say that I am speaking also on behalf of others who spoke in yesterday’s Second Reading debate—for obviously having worked late through the night with his officials. He produced a letter to my noble friend Lady Smith, a copy of which we all received this morning. I make that point because—given the circumstances of emergency legislation, which always, quite correctly, arouses scepticism, doubt and worry in people’s minds—it is particularly important that the Minister should give very careful answers to the many points raised in yesterday’s debate.

It would be wrong to say that the Minister has answered in this letter every question that was raised in the course of the debate. Indeed, he has not actually answered every question that was raised by the Constitution Committee’s report. For example, the Constitution Committee pointed out that the Joint Committee had said in 2012 that there was some difficulty or doubt about non-British companies being prepared to continue to co-operate, not so much on the retention of data but on the provision of communications content. The Government might have been advised to address that criticism and could simply have said, “Maybe we got it wrong, in retrospect, and should have taken notice of the Joint Committee’s observation back in 2012, rather than ignoring it”. However, that is just one point. I think that the Government have made an exemplary effort in a very short space of time to deal seriously with the matters that were raised in yesterday’s debate. It would be quite wrong for nobody who asked critical questions yesterday to recognise that effort and to thank the Government for it.

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[Lord Taylor of Holbeach]

I am sure the usual channels make arrangements for any such potentiality. I am very grateful to my noble friend Lord Howard of Lympne for the way in which he presented the important point that the British Parliament and British law lie at the bottom of all this. We have had a chance to consider this matter. I do not know whether beliefs have been changed by our consideration of the previous amendment, but at least that consideration has been valuable. However, I still urge the noble and learned Lord to withdraw his amendment.

[Lord Hope of Craighead]

My Lords, I am extremely grateful to the Minister for his reply and to all those who have taken part in this debate. I wish to make one or two further points. First, the Minister is, of course, right that the judgment was concerned with the directive and not with any UK measure: that is the nature of the jurisdiction it was exercising. However, when lawyers get to work in response to clients’ demands, some of whom have very deep pockets—we are dealing in this field with people who may well be in that category—people start thinking about things and drawing analogies with what is said by courts in analogous situations. That is the significance of the wording of the judgment so far as the wording we have put in the Bill is concerned.

As I think I explained, my intention in bringing this matter before the Committee for discussion is so that we can have a fuller discussion of the detail than we could have had yesterday at Second Reading. There is, of course, a lot of force in what the noble Lord, Lord Howard, says and one does not want to parrot the wording in European judgments just for the sake of it. However, there is the broader point made by the noble Lord, Lord Davies, earlier that there is a reassurance to the public, too, in adopting these words, which were chosen by the European court in order to meet what it saw as a concern about the use of this system. Therefore, I am not disappointed that I brought this matter forward as it requires very careful consideration. I hope that the Minister will think a little more closely about it before we get to Report, although there would obviously be difficulties if I were to bring the matter before the House again. However, for the time being, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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Moved by

[Lord Hope of Craighead]

3: Clause 4, page 6, line 31, after “kingdom” insert “in accordance with the laws of the country where the person is”

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[Lord Hope of Craighead]

My Lords, this is an amendment of a rather different character. It is really a probing amendment and it picks up a point that I also raised at Second Reading yesterday evening. In order to understand the point, one has to know a little more than the wording on the Marshalled List. I draw attention to a provision in the Bill which has to be read together with provisions in RIPA, in particular Section 22. Section 22(6) states:

“It shall be the duty of the … operator to comply with the requirements of any notice given to him under subsection (4)”.

The last but one subsection of that section—subsection (8)—states:

“The duty imposed by subsection (6) shall be enforceable by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief”.

However, Clause 4(10) of the Bill seeks to insert in that subsection of RIPA the words,

“including in the case of a person outside the United Kingdom”.

I am not clear whether the enforcement measures which are forecast by the provisions in Section 22 of RIPA are intended to be applied extraterritorially. This is an important point of practice, concerning how one achieves a measure such as an injunction or some other measure by service upon somebody abroad, and then how this is enforced against that person.

I practised for 24 years in the Court of Session, and was its president for the past seven years. I am very well aware of the problems one has in dealing with people outside the jurisdiction. Some of these problems indeed related to people in England, not Scotland, and one had to be extremely careful that measures were in place to enable any order a court pronounced to be enforceable. Underlying this is the point the Minister made yesterday, that because of the challenges which are now being made one wants a system which is properly laid out and is foolproof, which will be effective and will command respect.

My concern is that there may be something lurking here at the very back of Clause 4 which is defective, because it has not been properly explored and thought through. Like the noble Lord, Lord Davies, I was extremely grateful for the letter written by the Minister’s advisers, which covered a lot of ground in great detail. However, on this point there is a reference to my intervention. The very last sentence on the bottom of the third page states:

“Where absolutely necessary, RIPA provides for enforcement by injunction through domestic courts”.

Indeed it does, and domestically there is no problem. The question is whether it is intended that it should be enforceable in courts in other parts of the world, and whether attention has really been given to the mechanisms that would be necessary to achieve that, in discussion with the various courts including the Court of Session. If the noble Lord was able to guide us a little more on that point, that would be extremely useful. It would reassure us that we are passing a measure which will command respect throughout the world, as it is intended to do. I beg to move.

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[Lord Taylor of Holbeach]

I can say to my noble friend Lord Blencathra that although I have not read MLAT, I have been present when its provisions have been discussed. He will be aware that one of the provisions that we are hoping to set up involves appointing a diplomat to look at how we handle these matters. Indeed, our whole approach to this issue is about mutual co-operation. It is not adversarial, although we understand that the law has to assume adversarial premises and the definitions that might apply in such circumstances, but that does not undermine what we are trying to achieve.

I am again grateful to the noble and learned Lord for tabling this amendment. He spoke articulately at Second Reading on the difficulties of enforcing warrants across jurisdictions. He is probably mindful of that, given his Scottish experience in relation to English law. I understand that his intention is to improve the prospects for successfully enforcing obligations under RIPA on overseas companies, and clearly none of us could object to that.

Clause 4 makes clear that the obligations under RIPA apply equally to persons overseas who are providing telecommunications services to customers in the UK. It also makes it clear that those obligations are enforceable by injunction through the domestic courts. We have been clear throughout the passage of the Bill that we are not altering or extending the powers under RIPA. Accordingly, the provisions in Clause 4 simply make clear the status quo. It is on that basis that the House of Commons has consented to the Bill, and it is the basis on which it has been presented to this House.

The noble and learned Lord’s amendment would go much further than this, by purporting to allow for the enforcement of obligations under RIPA through overseas courts. As drafted, it would do this only in respect of requests for communications data. However, I assume his interest is in the enforceability of obligations under RIPA more generally. In view of the clear intention of the House of Commons, and of noble Lords who have supported this Bill on the basis that it does not introduce new powers, this is not an amendment that the Government could support. The issue of enforcement overseas is important but it is not a matter that we can address through the Bill before us.

As I have said, the Government’s approach under RIPA has always been to work with companies. We hope that making clear the obligations under RIPA will avoid the need for enforcement action. Where we have no option but to enforce, we believe that the prospect of sanction in the domestic courts—I repeat, the domestic courts—is a threat sufficient to compel many international companies to co-operate. That, however, is not our first position, which is to work with companies. Where necessary, there are established protocols for seeking recognition of a domestic judgment in foreign jurisdictions. It may be possible to strengthen our position in respect of this but these are complex issues of law, and are not matters that we can deal with today, when we are fast-tracking legislation through Parliament. We will look for the new tyre for our puncture when we consider the review that will take place after the enaction of this Bill, which has been introduced in the context of a pressing need to put the law beyond doubt. That is what the Bill is about, and only that.

I appreciate the noble and learned Lord’s intention with this amendment, and his useful interventions, including those at Second Reading, but the amendment is unnecessary. I am sure, though, that the issue of enforcement overseas is one in which subsequent reviews of powers and capabilities will be considered, and in which he will want to take part. I draw noble Lords’ attention to the fact that there is a copy of the paper, Senior Diplomat Draft Terms of Reference, in the Printed Paper Office. It states that one of the tasks of this diplomat will be:

“To consider a range of options for strengthening existing arrangements, including … through Mutual Legal Assistance Treaty systems”—

my noble friend was on the ball there—

“mutual recognition of national warrants; and … direct requests from law enforcement and intelligence agencies to the companies which hold the data”.

That is why this appointment is seen as being so important. I hope that with those assurances, a clearer view of the Government’s objectives in bringing this Bill forward, and having had an opportunity to consider the issues that the noble and learned Lord has raised, he will withdraw his amendment.

[Lord Hope of Craighead]

My Lords, I am grateful once again to the Minister for his helpful and full reply. I take absolutely the point that it is not the intention in the Bill to expand the existing law, and it would certainly not be my wish to disrupt that policy, which would be contrary to the basis on which the Bill passed through the other place.

I am still left in some doubt as to the purpose of Clause 4(10), which excited my interest, because it states,

“including in the case of a person outside the United Kingdom”.

I am tempted—but I shall not succumb to the temptation—to ask the Minister for an example of case where it would matter whether that provision is in the legislation. It may be that some nods and winks would give colour to the suggestion that this kind of thing may have happened in the past. It is because I have great difficulty in visualising the purpose of the provision that I am still in a state of some concern as to whether it is useful to have it there at all. I am not, however, asking for it to be removed. In view of what the Minister has said, I am happy not to press the amendment, which would add additional words. I shall leave it at that and I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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[Lord Carlile of Berriew]

My Lords, I join those who urge my noble friend not to be attracted by the arguments presented this afternoon for reducing the time available for the full consideration of these matters. I also join those who thank him for the assistance we have been given in the letter that was sent this morning to some, and possibly all, of us who are present. I also thank his officials who put up with some pestering telephone calls this morning, certainly from me.

I remind your Lordships that the sunset provision does not provide for revival of this legislation by statutory instrument. The sunset provision ensures that the legislation falls completely on 31 December 2016. We therefore have to allow due and proper time for consideration of these matters.

I join the noble Lord, Lord Rooker, in what he said. I am sure that the House was very pleased to hear that he is a member of the RUSI panel that has been put together with some difficulty and over considerable time at the behest of the Deputy Prime Minister. As I understand it, the panel will consider a substantial amount of evidence, not just from within the United Kingdom. It will be making comparisons with other jurisdictions, and the range of talents on the panel goes right across the disciplines that deal with this issue. We have to allow time for the RUSI panel to do its work.

A number of other reviews are also taking place. Shortening the timescale for the new legislation would undermine the extremely important review of RIPA, which will be a thorough and systematic review of the Act. Let us not forget that completely new legislation has to be in place before the end of 2016. We know in this House that, very properly, that legislation will be the subject of detailed debate. We know that some of my noble friends—I am looking at my noble friend Lord Strasburger who quite properly will be one of those—will put down amendments that will challenge some of the thinking behind the legislation that will be presented. That legislation will take some months to go through this House and we must be ready for it with reviews that have really looked at every issue.

Perhaps I can be forgiven for using a couple of words of Latin, which would probably be deprecated by the noble and learned Lord, Lord Hope, if he were sitting in court. I am pleased to see that he is shaking his head. Perhaps this is the time when we should—

[Lord Hope of Craighead]

I come from Scotland where Latin is still spoken by lawyers. We did not adopt the approach of the noble and learned Lord, Lord Woolf. I am very happy to listen to Latin words—and perhaps I will understand them as well.

[Lord Carlile of Berriew]

Not so long ago, I went to Cranston’s tea rooms in Glasgow and tried to order some lunch. Plainly it was because Latin was being spoken that I had such difficulty. What I was going to say, using two words of Latin, was that perhaps this is a time when we should festina lente.

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[Lord Hope of Craighead]

My Lords, I should confess that when some of us went up to the office yesterday evening, I asked to put my name down in support of this amendment but I was told that since four people had already done so, there was not room for my name. The fact that my name is not on the amendment gives me a little more freedom to think about the issue.

I was anxious to support the amendment because the public, for some of the reasons that have been given by the noble Baroness and others, will be suspicious about the length of time that seems to have been taken in order to allow this measure to survive until it has expired. But I am persuaded by what the noble Lords, Lord Rooker, Lord West and Lord Butler, have said, and also by what was said yesterday evening by the noble Baroness, Lady Lane-Fox. The Minister may remember that she was chiding us for being hopelessly out of date and telling us that the whole thinking about the descriptions of the various mechanisms that we use needed to be revised. There is a great deal of work that has to be done to get the legislation right and to get it modernised, and the last thing we want, quite frankly, is to cut ourselves off by having a timetable that we have to work to in order to put legislation in place that will replace the measure we are talking about today.

I confess that I have changed my mind. I regret disappointing those whom I was seeking to support yesterday evening but I think the wiser course is to leave the date as it is, although there is certainly something to be done by way of public relations to persuade the public that the date has been well chosen for very good reasons.