Data Retention and Investigatory Powers Bill

Lord Soley Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord Soley (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Blencathra, who knows a lot about this area. I do not need to repeat many of the very good arguments that have been made, including the obvious case about the delay between the European Court passing its judgment in April and this Bill being rushed through now, which is right. The Government have to answer for it. I do not wish to pursue it. I agree that the legislation needs to go through and that it is very good that the Government have accepted some of the amendments dealing with reviews, the sunset clause, and so on.

I heard the Minister say in his opening speech that he accepted the second recommendation in the Delegated Powers Committee’s report. I did not hear him say that he accepted the first recommendation, which deals with the affirmative procedure being used after the regulations have been brought into effect. Will the Government accept that recommendation in paragraph 7 of the report? The noble and learned Lord, Lord Hope of Craighead, made a number of interesting points. If I understood him correctly, as regards Clause 3 on grounds for issuing warrants and obtaining data, his question deserves an answer. Why are the Government using the words “necessary and proportionate”, which is a weaker phrase, when the European Court of Justice refers to “strictly necessary”? I am relieved to see the noble and learned Lord nodding because I did not quite follow some of the legal points that he made. That seems to be an important point.

I now turn to the issue in its wider sense, which has been very important to me for some time. I have had a long involvement in legislation, as the noble Lord, Lord Howard, will know, including in the Prevention of Terrorism Act in the House of Commons. The noble Lord, Lord King, made the point that about 30 to 40 years ago there was a department in, I think, the Home Office, which steamed open letters to see what was written in them. My memory is of making a speech in about 1979 pointing out that MI5 and MI6 did not have an existence in statute. No statute recognises the existence of those two organisations despite the fact that MI6 probably was the most famous secret service in the world, thanks in no small part to James Bond and, rather less romantically, to the Cambridge spy ring. What interested me was that they had no legal existence in the normal sense. As a result of the questions that I and others asked at that time, legislation was passed in the early 1980s which gave them a statutory basis.

It is also right to say that Bletchley Park, which was unacknowledged, emigrated after the war to Cheltenham and became GCHQ. I am not quite sure of the history. I asked the noble Baroness, Lady Trumpington, but I am not sure that she knew either at what point it became part of statute. To put this in a historical perspective, the interesting reason is that it is difficult for democratic states to deal with legislation of this type. Although everyone has been rightly saying that our security services are very good and deserve praise, it is also right to point out that the various civil liberty groups and individuals who rattle the bars at times of legislation of this type going through at high speed are absolutely right to do so. Although some people might get frustrated with them, a healthy democracy, if it did not have such groups and individuals, ought to invent them. It is worth pointing out that they are as necessary as the security services.

I strongly agree with the noble Lord, Lord Blencathra; we have discussed before how the Regulatory and Investigatory Powers Act was unfit for purpose before it hit the statute book. It was already out of date. In a sense, my main point, which also relates to the speech made by the noble Baroness, Lady Lane-Fox, is that we should be extremely proud in this country that Tim Berners-Lee invented the world wide web. We underestimate how much he is appreciated around the world. In the context of this debate, we also underestimate massively the complexity of the path before us with modern technology.

There is a balance here. We all know that the balance is between the powers of the state and the rights of individual—freedom, citizenship, privacy and so on. It is a recognition that, because of the nature of modern weapons, the threat particularly from terrorism—although the Bill goes wider than just terrorism—is profoundly dangerous, far more dangerous than the 19th-century anarchist going around with a smoking bomb, ready to throw it. We are now talking about the death of thousands, or perhaps tens of thousands, of people.

On the other hand, there is the complexity of the technology; it brings us great freedoms and we ought to be grateful for that. I am sorry that the noble Baroness, Lady Lane-Fox, was a bit depressed by it. I find that, with the invention of modern technology, the freedoms and the ability to deal with problems accelerate. I will give a very brief example. I was out walking in the Oxfordshire countryside at the weekend and came across a cow stuck in a pool of mud and water. It was drowning. Thanks to modern technology, I was able to give the precise latitude and longitude of the position to a police officer—using the 101 number, not the 999 number. Within 35 minutes—we were 30 minutes away from the nearest track—two firemen appeared and pulled the cow out. It might seem a minor example, but you have only to think of all the examples in your life in which modern technology had been profoundly useful and had opened up all sorts of possibilities. If that had been the old days, I would have had to walk for miles to find a phone or a farm, and I probably would not have got back in time for this debate. The difference is massive and, of course, it opens up all sorts of possibilities in real life.

I come to my main point in this debate. I was very glad that the Government had accepted the recommendations about reviews, sunset clauses and so on because I believe that the challenge to us is to use this time that we have, in this House and in the House of Commons, to devise better ways of looking at legislation, particularly in relation to issues of this type. We do not have a structure for examining legislation in a way that keeps us up with technological change. I agree with all the comments that have been made about some of the committees and so on. I feel that this view applies not just to this Bill but to many Bills, which are often slightly dated by the time they come into effect because they have been overtaken by technology.

Legislation such as this is particularly important because the control of the security services evokes the Nineteen Eighty-Four argument about how much power should be given to the state and how much you risk if you take those powers away and leave yourself at risk from the activities of other groups. I wish that I had a nice, simple model to offer to the Minister and could say, “This is the sort of structure that we need to develop in this House in order to have the processes that could keep us up to date with technological change on the legislation that we are passing”. I do not have such a model, and the challenge to this House and to the House of Commons is to devise such structures. Both Houses are famous—and rightly so—for their ability to defend and speak up for freedom over the centuries, but we are in such a strange situation.

I return to what the noble Baroness, Lady Lane-Fox, said about technology. Her speech was important because it was the only one so far in this debate that put it in the context of the digital revolution. As we try to legislate now, I do not think of myself as at the cutting edge of the digital revolution; I manage, but it is more of a struggle than a great success. Yet it is so important. It affects so many walks of life and so many people, and there is a danger that the public see us as not being relevant, in part because we cannot keep up our legislative processes with the speed of technological change.

There is an opportunity here to use this Bill and the period working up to the sunset clause to start looking at more effective ways of keeping legislation up to speed with technology. The importance of this Bill is massive because of the balance between the security of citizens in the face of threats from crime and the protection of their rights, of which we are so proud both in this House and in the House of Commons. I urge the Government to acknowledge that we all need to focus on how we can improve our legislative processes so that we do not have situations like this and, if we have to rush something through, that we examine and process them in a way which does not mean that we end up losing some of the freedoms that we value so dearly.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, this debate has been an exceptional debate, not only because we are dealing with something of great importance but also because we have heard some extremely able and interesting speeches. Some have been more supportive than others of the Bill I have presented to the House, but I found them all interesting. The debate reflects the ability of this House to recognise the importance and significance of legislation and the scrutiny it can offer. We know that these are extraordinary circumstances: we are being asked to consider fast-track legislation. However, I think that everyone understands why the Government need a sense of urgency about this legislation.

I hope that where noble Lords have expressed reservations about that, I will be able to reassure them. I appreciate the concerns of some noble Lords about the constrained timetable, given the time that has elapsed between the ECJ judgment and this Bill being introduced. I hope that the House will understand and accept that we have had to make sure that our response both addressed the needs of law enforcement and intelligence agencies and provided the appropriate safeguards and public reassurance. This inevitably required careful consideration, in order to create a package to which all parties could agree.

We feel that it is important that the Bill has been widely supported across the parties, and indeed passed through the House of Commons with a very large majority. Building that consensus was important in a matter that was clearly as important as this.

In the absence of a clear legal basis for retaining communications data, the police stand to lose access to vital information, which—as has been pointed out—contributes to 95% of serious crime prosecutions. Unless we make clear the obligations that RIPA imposes on companies based overseas but providing services here in the UK, the security and intelligence agencies stand to lose their ability to monitor terrorists and organised crime groups in this country. Indeed, as a number of noble Lords have said, and have agreed with the Government, the Bill does not provide new powers. It does not alter or extend existing powers. It simply provides a clear legal basis for powers that the police and intelligence agencies have always relied on to keep people safe, which for different reasons—and there are different reasons within the two parts of the Bill—are now in question.

We have been clear that the Bill is not a permanent solution to the challenges we face in the future. We had a brilliant speech from my noble friend Lord Blencathra, who talked about the scrutiny he had given to previous attempts to find a solution to these problems. It is quite clear that in this Bill we are not attempting to address the future proofing of which he talked. It does not address the growing gap in relation to communications data that the draft communications data Bill sought to resolve. Nor does it address the wider question of the powers that law enforcement, and the security and intelligence agencies, will require in the future.

Those issues will have to be addressed. That is why the provisions in the Bill fall away at the end of 2016. A number of noble Lords have said that we need an earlier sunset. However, if we are to have a proper successor to RIPA, if we are to have a proper evaluation of this matter and if we are to have the public debate about these issues that noble Lords have called for, we need time to do so. Although there have been suggestions that we are being governed by the political timetable—the electoral timetable—I think it is important that we recognise that legislation is dependent on Governments, and Governments have to be elected. Governments have to develop programmes that they are able to communicate.

It is to the credit of this Parliament that we have been able to agree on this issue. I do not know who will form the Government after the election. I do, however, know that it is important that, whichever Government are elected, they have the responsibility of finding a successor to this law and future proofing this sort of issue in the ways outlined so ably by my noble friend. That is why the provisions will fall away. There will be a public debate. I want a public debate. It will have to take account of not only the threats we face but the safeguards required to strike the necessary balance between privacy and security.

[Lord Soley]

This is a very important point. I am sympathetic to the longer sunset, but I do not understand what sort of structures the Government want to put into place to enable that public debate to inform the changes.

[Lord Taylor of Holbeach]

For a start, not only will there be a review of this piece of legislation on a six-monthly basis, something that has been agreed and now forms part of the Bill, but David Anderson, the independent reviewer—that is the very paragraph I was turning to, the noble Lord, Lord Soley, will be delighted to know—will lead a review into these issues. The Bill now provides a clear basis in law for that review. The noble Lord, Lord Blencathra, suggested that Mr Anderson look at his report as a starting point for addressing this sort of issue. That will be available before the election, and will help inform public debate during the election. The wider safeguards and assurances that sit around the Bill are also important. I am glad that noble Lords have taken account of those safeguards, which build on the extensive safeguards that already exist.

However, there are wider issues, and I will do my best to go through some of them at this stage. I am going to demand a lot of my officials, in the sense that I will ask them, to the extent that they are able, before Committee tomorrow morning, to draft a letter which can be circulated to all noble Lords who have participated —if I do not get time, because I am conscious of time.

In a very interesting speech, the noble Lord, Lord Knight, asked whether there was compliance with the European Convention on Human Rights. The Home Secretary and I have signed on the Bill a declaration that it is so. We have also made available the memorandum to the Joint Committee on Human Rights, which explains how our Bill satisfies the ECHR. I hope that that reassures the noble Lord.

The noble Lord, Lord Rosser, asked: what are our plans for the timing of regulations? I understand the interest in that. The draft regulations have been published and we have informed the House that the Government’s intention is to lay the regulations following Royal Assent, so that they can be approved by both Houses of Parliament prior to recess. They have, of course, already been published, as I said, and we are liaising with both the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee, ably chaired by my noble friend Lord Goodlad, to ensure that they can consider these matters as soon as possible. The JCSI will meet on Monday to consider the regulations, so that the Commons can debate them prior to recess.

The noble Lord, Lord Strasburger, asked why the measures were not part of the Queen’s Speech. When the gracious Speech was written, our response had not been finalised. The noble Baroness, Lady Smith, asked why it did not form part of the Serious Crime Bill, which she and I are seeing through this House and has finished in Committee. As she knows, we will not return to Report until October. The difficulty of the timetable for that Bill means that it will not be through all its stages before the new year, if we are lucky.