Investigatory Powers Bill

Lord King of Bridgwater Excerpts

Tuesday 19th July 2016 Lords Chamber

Smaller users of communications data being mandated to request data through the single points of contact and designated senior officers in authorities that acquire communications data more frequently can be an important safeguard. That is because, inevitably, those authorities that request data most frequently will be able to build up more experience and expertise in acquiring communications data, thus reducing the possibility of errors or inappropriate use. Accordingly, the Government do not believe that it would be sensible to remove this potentially important safeguard. I hope that that is helpful to the noble Lord, Lord Paddick, and gives him sufficient comfort at this stage to withdraw his amendment.

[Lord King of Bridgwater (Con)]

Obviously, this is a very important area, which has given rise to a lot of public concern about how widely this would go in terms of all the authorities that might have access to information in this way. But it must be right that, if there is to be a list and it is to bear the power to remove names—which the noble Lord, Lord Paddick, is not suggesting should be deleted—there must be a power to add to the list as well where appropriate. Knowing the way that Governments, bodies and names change, I can see without altering the impact at all that it would be necessary to exercise this power. Could the Minister say a little more about the committee that he was talking about? Is it a standing committee, special committee or advisory committee? When he mentioned the proposal to add somebody to the list, he said that that would be scrutinised by a committee. What sort of committee would that be?

[Earl Howe]

My Lords, I was referring to the procedure relating to the enhanced affirmative process. That procedure is set out in Clause 239 of the Bill. Importantly, it provides for a relevant parliamentary committee to report on the regulations. I do not think that I can be more specific at this stage. The enhanced affirmative procedure has been used in the past, albeit not very frequently, and is there as an additional safeguard. I endorse everything that my noble friend said in support of my remarks. He is absolutely right that we cannot foresee at this stage the need to add to the list, but we must and should provide for the circumstances where that becomes necessary.

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The storage of internet connection records is a security risk. Technology experts claim that there is no such thing as a totally secure database and that commercial companies should assume that their security systems will be breached.

[Lord King of Bridgwater]

I understand the importance of safeguards, but the noble Lord’s thrust is that he is against the retention of internet connection records in total. He therefore totally disagrees with the impressive Joint Committee of both Houses, which considered the matter at some length. It said:

“We consider that, on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.

Does he disagree?

[Lord Paddick]

I am grateful for the chance to clarify my position. That is my position: we disagree with the conclusions of the Joint Committee. We believe, on balance, that the retention of internet connection records is disproportionate and unnecessary.

Technology experts recommend that companies should plan on the basis of their security measures having been breached, not just plan for the security of their databases. This makes highly intrusive personal data potentially available to criminals and hostile foreign powers. If a criminal establishes that a married man is accessing gay websites, or a hostile foreign Government establish that an intelligence officer is accessing lonely hearts websites, that could increase the risk of blackmail or entrapment. Knowing from ICRs when someone is not at home can increase the risk of burglary.

Internet connection records are hugely expensive to analyse and store. Based on estimates from Denmark, where the storage of internet connection records has already been explored extensively, the set-up costs alone in the UK could be around £1 billion. As in the UK, the cost estimates provided by the Government and telecommunications providers in Denmark varied widely. The Government therefore asked independent management consultants to establish the true cost, which confirmed that the telecommunications service providers’ estimates were the correct ones. Extrapolating from the independently verified Danish costs using the relative populations of both countries would take the set-up costs alone for internet connection records in the UK to more than £1 billion.

For those who think that this cannot be right, I should say that 80% of all the data ever created since the beginning of time has been created in the last two years. That is the rate of increase, and, with more and more devices being connected to the internet, such as those controlling our central heating, and with even refrigerators and ovens being connected to the so-called internet of things, the number of internet connection records is set to increase exponentially. Apart from not being able to see communications in among all these other internet connections, the storage costs alone will be enormous.

Taking all these arguments together, the storage of the internet connection records of everyone in the UK for 12 months, whether they are suspected of wrongdoing or not, fails the proportionality test. I quote the RUSI report again, this time on proportionality. It states:

“Intrusion must be judged as proportionate to the advantages gained, not just in cost or resource terms but also through a judgement that the degree of intrusion is matched by the seriousness of the harm to be prevented”.

The advantages gained through the storage of internet connection records are limited, the costs are prohibitive, the degree of intrusion is huge and serious harm can be prevented through other means.

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[Lord King of Bridgwater (Con)]

My Lords, I will speak briefly. The Committee has listened with great interest to the noble Lord, Lord Strasburger, who was a member of the Joint Committee, which agreed unanimously—himself included—to this statement:

“We agree that all of the proposed purposes for which access to ICRs could be sought are appropriate”.

It went on to say:

“Whether ICRs are included or not”—

subject to the European Court of Justice—

“we believe that, in light of the ongoing need for communications data and the imminent expiry of DRIPA, a continued policy of some form of data retention is appropriate and that these provisions should accordingly form part of the Bill”.

A number of us have come to this Committee anxious to see the work done under the noble Lord, Lord Murphy, whose chairmanship of the Joint Committee was impressive. We were under the impression that its report was an accurate record. Now the noble Lord, Lord Strasburger, stands up and says something entirely different from what was unanimously agreed in the Joint Committee.

[Lord Oates (LD)]

My Lords, I will speak in support of Amendment 156A but I also support Amendment 147A, which was moved by my noble friend Lord Strasburger. I will not go into all the details set out so ably by my noble friends Lord Paddick and Lord Strasburger but there are some key issues which really have to be addressed. It is not good enough, frankly, to say that the Joint Committee may have said this or that; we need answers to the questions that have been posed.

The first question is: why is it that the United Kingdom, as far as I understand it—I hope that the Minister will correct me if I am wrong—uniquely among the “Five Eyes” countries requires this power? Indeed, as far as I understand it this is unique among any equivalent western democracies. I hope the Minister will tell us what is so unique about the situation we find ourselves in. It is not shared by the United States, Canada, New Zealand or any other western democracy.

Secondly, it is important to understand that, at the moment, 25 countries around the world are considering investigatory powers legislation—countries such as India, Pakistan and many others. They are looking towards us and at what we do. We have to think extremely carefully about what we are doing and we must ensure that our questions are answered. It is incumbent on the Government to do that.

We are also in a time of quite a lot of political upheaval. As a result, I doubt many people have been paying a huge amount of attention to the Bill. I imagine the public will be absolutely horrified when they discover that Parliament has granted a power to government to insist on the retention of the details of every single person in this country’s access to every single website. They will want to know why and they will want to know under what conditions of security such information is to be held. They will want to know the cost and whether this Parliament rigorously examined the cost and the need for their data—the data of innocent people—to be held in this manner. It is not good enough for us just to say that this power might be desirable or useful at some point; we have to be clear that it is proportionate, that it can work and that it can be held securely.

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[Lord King of Bridgwater]

Does the noble Lord not remember that some of us tried to anticipate some of these problems and bring in amendments to a previous Bill? We were told then that we must not rush this. This Bill must now have been subject to the most exhaustive scrutiny of any that I can remember. It has been the subject of three independent reports and of scrutiny by a Joint Committee of both Houses, on which the noble Lords, Lord Murphy and Lord Butler, who are present, and other Members served. The noble Lord stands there and suggests that this is some impetuous reaction to a problem that has just arisen. I have been critical—I should have liked to see earlier action—but I accept that the Government decided that the Bill should be subject to the most exhaustive public scrutiny that I can remember for any Bill. In fairness, the noble Lord might recognise that in his speech.

[Lord Oates]

If the noble Lord had been in his place at Second Reading, he would have heard me give exactly that recognition. I recognise entirely the scrutiny and excellent work. I note that it is only because of the actions of people such as the then Deputy Prime Minister, Nick Clegg, that we had that scrutiny. I am grateful that we had it and the Bill is much better as a consequence. I welcome it. That does not mean, however, that as a result of that scrutiny we should abandon our Committee proceedings; it does not mean that those of us who have not served on Joint Committees should not be able to ask questions or seek answers. That is certainly what I will continue to do in this matter.

What is being required is an extraordinary power. We must be absolutely clear about that: it is unique. The noble Lord, Lord King, the Minister or any other noble Lord needs to explain—and nobody has, certainly not in all the proceedings so far in this House—why we, uniquely, need this power. The power is one that even such eminent people as my noble friend Lord Carlile—no slouch on counterterrorism measures—have questioned in the past. Indeed on 25 May 2013, he penned an article, I believe in the Daily Mail, in which he said:

“I, Lord Reid, Lord West and others of like mind have never favoured the recording of every website visited by every internet user, though we have been accused of that ambition”.

I hope the Minister will correct me if I am wrong, but as I understand it that is exactly what is proposed: the retention of data on the internet connection records of every internet user in the country. I hope that the Minister will address and answer all the detailed points put by my noble friends Lord Paddick and Lord Strasburger, and tell the House why we, uniquely, need a power required by no other constitutional democracy of a similar type in the world.

[Lord Strasburger]

I assure my noble friend and the noble Lord, Lord King, that the report by the Joint Committee was not unanimous. We had something like 10 divisions, and for some peculiar reason I found myself on the wrong end of most of them.

[Lord King of Bridgwater]

If the noble Lord looks at the report, he will see that the paragraphs that I referred to were unanimously agreed.