Data Retention and Acquisition Regulations 2018

Lord Rosser Excerpts

Tuesday 30th October 2018 Lords Chamber

[Lord Rosser (Lab)]

My Lords, the debate on these regulations took place last Wednesday in the Moses Room, when concerns were expressed about the definition of serious crime in respect of communications data acquisition and retention as being for offences carrying a maximum of 12 months’ imprisonment. The definition also covers any crime by a body corporate or any offence that involves as a key part of it,

“the sending of a communication or a breach of a person’s privacy”.

Since then the noble Lord, Lord Paddick, has put down the amendment to the Government’s approval Motion, which we are now considering.

The reason for the speed in considering the matter further so soon after last Wednesday’s debate is that the Government seek to have the draft regulations approved by this Thursday. If they are not, we will be in breach of a court order following a ruling of the European Court that the relevant parts of the Investigatory Powers Act 2016 are incompatible with European law. The draft regulations have already been discussed in the Commons, where we the Opposition said that we did not oppose the changes. That remains our position and for that reason we will not be supporting the noble Lord’s regret amendment to the Government’s approval Motion if he decides to test the opinion of the House.

Since last Wednesday the Minister, as promised, has written to noble Lords who participated in the debate, in the light of the concerns expressed, setting out the Government’s position on their proposed definition of serious crime in the context of retaining and acquiring communications data. They were valid concerns, which the noble Lord, Lord Paddick, has just reiterated in very clear and emphatic terms. In a nutshell, the Government’s argument, both tonight and in the letter of 25 October, is that the draft regulations remove a power from the police to use data to investigate non-serious crimes and provide additional safeguards and restrictions on the retention and acquisition of communications data in respect of the Government’s definition of serious crime. The changes provided for in the draft regulations were prompted by the court judgment on the incompati- bility with European law of the relevant parts of the Investigatory Powers Act 2016. The Government believe that what they have proposed in the draft regulations meets the terms of that court judgment.

The Government’s second argument is that if they used the definition of serious crime that exists in Section 263 of the Investigatory Powers Act in relation to interception powers in respect also of retaining and acquiring communications data which the Government regard as less intrusive, it would mean that the ability to investigate some crimes considered to be serious would be compromised. The Government also referred to the code of practice and the considerations that have to be taken into account when assessing seriousness, the independent authorisation of communications data requests by the Office for Communications Data Authorisations and the oversight of public authorities and the OCDA by the Investigatory Powers Commissioner.

In theory, these provisions ought to be enough to prevent the definition of serious crime from being abused through ending up with communications data authorisation in respect of crimes that could not be regarded as serious in their nature by any stretch of the imagination. However, there have been too many examples of powers which have been provided by statute in good faith to address genuine concerns in specific areas which have then been abused by being applied or used by those given the authority to deploy them in ways that were never intended or envisaged. Frankly, no one can give a cast-iron guarantee that this could not happen in relation to the use of the provisions in these draft regulations, which were designed to address a court judgement and which may or may not stand up to further judicial scrutiny.

The Minster says in her letter:

“I recognise that some noble Lords may consider that our amendments do not go far enough to limit the retention and acquisition of communications data to serious crime. That question is subject to ongoing legal proceedings”.


The Minister went on to say that the Government would be strongly defending their approach in the courts, but she added:

“Should the courts not agree with our position we would of course move to rectify the regime”.


We understand the concerns being voiced by the noble Lord, Lord Paddick, but likewise—as I am sure the noble Lord does, too—we understand the reasons for these draft regulations and the desire to have provisions that will assist in bringing to justice those who have committed serious, unacceptable acts. The issue is whether the regulations meet the terms of the court judgment—a matter that will presumably be determined in the courts—and whether the authorisation and oversight arrangements and procedures, if they survive legal proceedings intact, will prove strong enough to prevent the powers, the purpose of which we understand, being misused. The Government maintain they will be strong enough, but only time and experience will show. The Government now have a responsibility to make sure that their assurances over how the regulations in reality will be applied and used are adhered to and delivered in full. I am sure that plenty of people will be watching to see whether that happens. As I said at the beginning, we did not oppose the changes provided for in these regulations in the Commons, and that remains our position.

[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.