Data Retention and Investigatory Powers Bill

Lord Phillips of Sudbury Excerpts

Wednesday 16th July 2014 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, when I repeated the Statement of my right honourable friend the Home Secretary last Thursday, I outlined to the House the urgent need for this legislation. I am sure that noble Lords will agree with me that it is essential for both the Government and this Parliament to ensure that law enforcement, and the security and intelligence agencies, have the powers they need to do their duty. Those powers are now at risk. If we do not take urgent action, lives could be lost. As your Lordships’ House has already heard, the situation is pressing. The timetable for this legislation is, accordingly, inevitably very tight, and I will talk about the reasons for that.

However, it may be helpful to the House if I make clear that Members who wish to table amendments for the Committee stage of the Bill are now able to do so. Amendments for the Marshalled List may be tabled up until the rising of the House, at which point the Legislation Office will produce a Marshalled List in the normal way. Members will also be able to table manuscript amendments for the Committee stage of the Bill tomorrow morning. Arrangements for tabling amendments for subsequent stages of the Bill will be announced in due course.

Perhaps I may turn to the legislation itself. I should like to take a moment to reassure the House. This Bill does not provide any new powers. It does not alter or amend existing powers. It simply provides a clear basis, in respect of both data retention and investigatory powers, for the exercise of existing powers. Crucially, and quite rightly, the legislation is sunsetted. Its provisions will be repealed at the end of 2016. The intention—Clause 7 has been amended in the Commons to provide an explicit legal basis for this—is that we will have time in the interim for a proper debate about what powers are required in the future. There will be a review, led by the independent reviewer of terrorism legislation, David Anderson QC, into what powers and capabilities might be required in the future, considered in the full context of the threat. That review will consider capabilities but it will also consider safeguards to protect privacy, the challenge of changing technologies, issues of transparency and oversight, and the effectiveness of current legislation.

David Anderson’s work will be far-reaching. It will provide a robust, independent basis for the subsequent work of a Joint Committee of Parliament, to be established following the general election. There will be a public debate and Parliament will have the necessary time to consider legislation on these important and complex issues. I know that some noble Lords have questioned the timing of the sunsetting provision. I hope now that the Government’s intentions behind that timing are clear.

Noble Lords will also be aware of the wider package of measures, announced by the Prime Minister last week, which will strengthen safeguards and reassure the public that their rights to security and privacy are equally protected. We have now published terms of reference for the various measures, including the privacy and civil liberties oversight board. Following ongoing discussions with the Opposition and consideration in the Commons, we have amended Clause 6 to ensure that the independent Interception of Communications Commissioner will now report every six months. I am sure that your Lordships will agree that these measures will help to ensure a better-informed public debate.

I now turn to the purpose of the Bill and the matters before us today. Communications data—the who, where, when and how of a communication, but not its content—can be used to piece together the activities of suspects, victims and vulnerable people. They can prove or disprove alibis, identify links between potential criminals, tie suspects and victims to a crime scene, and help find vulnerable persons at risk of imminent harm. Only this morning, noble Lords will have seen the news that the National Crime Agency has made more than 600 arrests as part of a six-month operation targeting people accessing child abuse images online. Senior officers are clear that, without access to communications data, many of these investigations would hit a dead end.

Those data are held by communications service providers for their business purposes and where they are required to do so by law. They are then accessed by law enforcement, subject to stringent safeguards, where it is necessary and proportionate to do so for a specific investigation. But, as I explained last week, a recent judgment in the European Court of Justice has put into doubt the legal basis on which we require service providers in the UK to retain communications data. As a result, we run the risk of losing access to data that are vital to a wide range of investigations. This could be devastating. It would seriously undermine the ability of the police, the National Crime Agency, the intelligence services and others to prevent and detect crime, catch terrorists, and safeguard and protect children and others at immediate risk of harm.

The Bill also deals with investigatory powers and, specifically, the interception of communications. The content of a communication—the text of an e-mail or a telephone conversation—can play a critical role in the work of law enforcement and the intelligence agencies. The majority of the Security Service’s top priority counterterrorism investigations use interception in some form to identify, understand and disrupt the plots of terrorists. The police and the National Crime Agency rely on interception to prevent and detect serious crimes, including drug trafficking, human trafficking and child sexual abuse.

The House will know that interception can take place only if there is a warrant authorised by a Secretary of State and that can happen only where he or she considers it necessary and proportionate and where the information sought cannot reasonably be obtained by other means. The legislation that provides for interception—the Regulation of Investigatory Powers Act 2000 or RIPA—obliges telecommunications service providers to give effect to interception warrants. This Government, like our predecessors, have maintained that this obligation applies to companies with customers in the UK, irrespective of where those companies are based. Given the increasing reliance of suspects in the UK on internet-based communications, the compliance of overseas companies is increasingly important to the UK’s interception capability. However, in the absence of explicit extra-territoriality, some overseas companies have now started to question their obligations under RIPA. Those companies have made it clear that they will comply with the law only where there is an explicit obligation to do so. Unless we put the matter beyond doubt, we could, very shortly, see a damaging loss of capability.

I now turn to the Government’s response to this situation. The Bill before the House today is a narrow and focused response to these two issues: the ECJ judgment and the potential loss of compliance with RIPA. On both matters, it makes explicit what we have always asserted to be the case. The first part of the Bill deals with the issue of data retention. At present, we can oblige companies to retain data where they are issued with a notice under the data retention regulations passed by Parliament in 2009. This means that the data are available when the police need them for an investigation. In spite of the ECJ judgment ruling, we have been clear that these regulations remain in force. However, in the light of the judgment, it is necessary to put the legal basis for these requirements beyond doubt. If we do not, there is a risk that these companies may begin to delete crucial data. Equally, if there were a successful challenge in the domestic courts, this would lead to an immediate loss of data.

Accordingly, Clauses 1 and 2 of the Bill provide a clear basis for data retention. They will replace the existing data retention regulations of 2009, maintaining the status quo. The data types to be covered by this new law will be identical to those in existing law. Although the European Court of Justice was critical of the data retention directive, it recognised the importance of data retention in preventing and detecting crime. Crucially, while the court asserted that the directive itself lacked the necessary safeguards, it did not take into account the robust regimes that exist in member states governing the access to the data. We believe that our retention and access regimes already address many of the ECJ’s criticisms. Among other safeguards, they include an authorisation process that was scrutinised in detail and endorsed by the Joint Committee on the Draft Communications Data Bill, ably chaired by my noble friend Lord Blencathra, and they are subject to robust, independent oversight by the Interception of Communications Commissioner.

The Government have, however, considered the judgment at length and are bringing forward changes that will extend the safeguards in place in order to respond to elements of the judgment and to ensure that the Bill is compliant with the European Convention on Human Rights. These include: the imposition of a requirement on the Secretary of State to consider the necessity and proportionality of a data retention notice before issuing it; specifying that the length of time for which data must be retained should be a maximum, rather than an absolute, period of 12 months; and the creation of a code of practice for data retention, which will place on a statutory footing well-established best practice.

A number of further safeguards will be introduced through the regulations made under the Bill. These regulations were published in draft last week.

[Lord Phillips of Sudbury (LD)]

I apologise for interrupting the flow of my noble friend’s speech. However, he started by saying that the Bill introduced no new powers and did not amend existing powers, but he appeared just now to indicate that there were new powers in the Bill. Have I got it wrong?

[Lord Taylor of Holbeach]

My noble friend has got it wrong: it is about safeguards. I am talking about safeguards, not powers. I am talking about the Bill imposing limits on the discretion of the Secretary of State through the regulations and the Bill itself. If my noble friend will allow me to continue he will see that I am placing that in the context of seeking to provide a basis for continuing the provisions of the Bill without extending the powers that are available to the Secretary of State or the Government under the Bill.