Data Retention and Acquisition Regulations 2018

Lord Paddick Excerpts

Tuesday 30th October 2018 Lords Chamber

Moved by

[Lord Paddick]

At end insert “but that this House regrets that the draft Regulations fail to comply with the spirit of the ruling by the Court of Justice of the European Union by failing to restrict the use of communications data to serious offences.”

[Lord Paddick (LD)]

My Lords, I first remind the House that I was a police officer for over 30 years and that— contrary to popular belief—my certificate of service says that my conduct was exemplary. I acknowledge the importance of communications data in the investigation of serious crime, as the Minister has set out. I also welcome the independent authorisation provisions contained in these regulations, as far as they go.

Secondly, may I give the House some background on the history of the passage of these regulations through this House? At a meeting with the Minister of State for Security and Economic Crime, the Minister of State for Countering Extremism and officials almost three weeks ago, I asked for an explanation of the definition of serious crime in these regulations, which is significantly different from the definition in the Act under which the regulations are made. The Minister for Security was unable to offer an explanation, but undertook to find out and get back to me.

--- Later in debate ---

[Baroness Manzoor]

My Lords, I am glad that we have been able to debate these regulations so thoroughly and consider carefully the proposed amendments to the Investigatory Powers Act. I thank the noble Lord, Lord Rosser, for his very balanced approach to this important issue, and the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, for their considered view on the issue of what constitutes serious crime. If I may refer them back to my letter, the position that I outlined there remains the Government’s position.

I will briefly say a few things, but I am conscious that almost everything that has been said tonight was said in Grand Committee—I can see the noble Lord, Lord Paddick, nodding—and I have followed it up in writing to all noble Lords who took part in that debate. I again apologise for any confusion that took place regarding the earlier part of the issue that the noble Lord, Lord Paddick, raised, in relation to the meetings with the Ministers of State. I was not party to those discussions, so I apologise that I am not in a position to comment, but I hope that my letter went some way to addressing the issues that were raised with me in Grand Committee.

I will say a few things again for clarity. These regulations bring in additional safeguards. They ensure that the more intrusive requests for communications data will be accessed only in the investigation of serious crime and that the vast majority of requests by public authorities to access all communications data—approximately 200,000 requests are made per year—must be authorised by an independent organisation overseen by a Court of Appeal judge. There are very clear safeguards in place. We are taking powers away from our law enforcement agencies in the interests of privacy.

We are, of course, mindful of our duties to protect the public and properly to investigate crimes that they suffer. A balance must be struck and these regulations strike that balance correctly. As I have said, noble Lords may have differing opinions on whether our definition of serious crime in this context is appropriate. Let me be clear. I do not want our police to be unable to effectively investigate an individual sending grossly offensive messages to someone, causing huge distress to the victim who certainly considers the offence to be serious. I do not want to damage the effectiveness of our judiciary by limiting the ability of the police to investigate contempt of court. These are serious matters.

I refer the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, to page 2 of my letter. It is not just the sentence that the person who commits the crime receives. That is important in terms of the 12 months, but it is not the only issue. As the code of practice sets out clearly in paragraph 3.33, a range of factors should be considered, including but not limited to the circumstances of the case, the offender, the impact on the victim, the harm suffered and the motive for the crime. I hope that that goes some way to addressing the concerns that noble Lords raised.

We have a comprehensive code of practice which provides extensive guidance on what considerations must be taken into account by individuals applying for and authorising requests for communications. As I have said, each and every request must be assessed in relation to necessity, proportionality and seriousness. We are strengthening the safeguards and oversight of a regime already world-leading in these aspects, and we are creating a regime that is compliant with EU law.

I am grateful to Members of the House for their time in ensuring that this has been such a valuable and high-quality debate. We take these issues very seriously. I would now like the regulations to be approved and I commend them to the House.

[Lord Paddick]

My Lords, I am grateful to the noble Baroness. It is not primarily about the definition of serious crime being an offence punishable by 12 months’ imprisonment or more. It is about the fact that it goes beyond that to include all offences, whether or not they are capable of a 12-month sentence, that have communication as an integral part, all corporate offences, whether or not somebody can be given a 12-month sentence, and all offences involving a breach of privacy. Clearly that is going beyond the definition of serious crime: it includes lots of offences that are not serious.

I am not reckless enough to jeopardise these regulations by asking noble Lords to vote against approving them, but I hope that noble Lords will agree that the Government’s attempts to get round the CJEU judgment is to be regretted, and I wish to test the opinion of the House on my amendment to the Motion.