Data Retention and Investigatory Powers Bill

Mark Field Excerpts

Tuesday 15th July 2014 Commons Chamber

[James Brokenshire]

If my hon. Friend reads the judgment, he will see that the Court upheld the principle of retention of data as contemplated in the Bill. A number of frameworks on the purpose for which data are retained were referred to, but we are clear that the regime the House is contemplating this evening, in the context of the Bill and how it sits alongside the existing regime of the Regulation of Investigatory Powers Act 2000, does provide a legally robust approach to enable our police, law enforcement and security agencies to combat organised criminality and to provide the national security that is needed. The powers we already use are intrinsic to delivering on that. The Bill makes it clear that regulations cannot specify a retention period longer than 12 months. We reflected on the judgment of the Court. As the Home Secretary said in her opening statement on Second Reading, different time periods could be allowed in relation to specific types of data.

We are maintaining that focus on proportionality and necessity not simply in terms of giving a notice, but in keeping it under review. The European Court considered that the period of retention should be based on objective criteria to ensure that it is limited to what is strictly necessary. On the basis of law enforcement surveys in 2005, 2010 and 2012, we consider that a maximum period of 12 months strikes the right balance between the ability of law enforcement and intelligence agencies to investigate crimes and an individual’s rights to privacy. Unlike the current regime, under which all relevant communications data is retained for 12 months, this approach will mean that data could be retained for a shorter period than 12 months if considered appropriate, and that different types of data could be retained for different periods.

[Mark Field (Cities of London and Westminster) (Con)]

My hon. Friend is making a perfectly good and sound case and I am pleased that he used the phrase “the necessity of proportionality”, which is crucial. But does he accept that there is no longer a clear-cut distinction between data and content? The worry of many outside this House, therefore, is that there will be an opportunity for ever more power to be retained by CSPs and thus by the state. Can he give us some assurances that the Government will keep this matter constantly under review?

[James Brokenshire]

My hon. Friend has expressed his views on a number of occasions on the need for continued focus on the balance between individual freedoms and collective freedom, because that collective freedom relies on our being able to conduct our affairs and to live our lives free from those who would do us harm. Sometimes people have sought to describe them as if they were in parallel, but I see them as mutually reinforcing; security and liberty must go hand in hand to develop and defend the fundamental principles that we have as a society, so to frame it separately misses the point.

My hon. Friend raises the important issue of how technology is evolving; it is constantly changing. That is why we see the import of the review by David Anderson, the independent reviewer of counter-terrorism legislation, to look at the issues more broadly, and at existing legislation and capabilities. We will come on to that, I am sure, in some of the subsequent debates in this Committee where that might be teased out in further detail, but my hon. Friend makes an important point.

--- Later in debate ---

[Mr Howarth]

I am interested to hear my hon. Friend’s concern. I went to the Vote Office at half-past 8 this morning just to make sure that the amendment had been tabled. Anybody who was interested enough would have been able to see it from half-past 8, and it was tabled in accordance with the procedures of the House yesterday evening. I do not want to labour the point, but there was enough time, if anybody was interested enough, to check what amendments had been tabled. I am sure that my hon. Friend, as the author of another amendment that we will discuss later, took the trouble of checking this morning that his had been included as well. We do have a responsibility to check what we are debating.

This is my small attempt to bring further enlightenment to the proceedings, particularly as regards clause 3. I hope that the Minister will be able to allay my fears that the provision may be too widely drawn.

[Mark Field]

I fear that it was wishful thinking on the part of the right hon. Member for Knowsley (Mr Howarth) to assume that there would be no other speakers on this matter. As he will know, because we discussed it yesterday as members of the Intelligence and Security Committee, I wholeheartedly approve of this amendment.

[Mr Howarth]

The hon. Gentleman’s contribution is very welcome.

--- Later in debate ---

[Mark Field]

I am grateful. I will keep my contribution as short as possible, because other Members want to get on to some of the more important amendments to clause 6 and it is clear that there is no appetite to divide the Committee on this matter.

As the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) said, it is worrying that, all too often, the “economic well-being” head has been drawn so widely that many aspects of it could be seen as part and parcel of something that could fall within the ambit of RIPA and this Bill. One need only look at the controversy around the alleged bugging of the German Chancellor, Angela Merkel, by the National Security Agency, if the Snowden reports are to be believed. On the grounds, presumably, of economic well-being, there was an opportunity to listen to particular conversations. That is not a healthy state of affairs.

Many of the public concerns about the Bill that are close to all our hearts reflect an understanding and an appreciation from many of our constituents that certain intelligence needs to be picked up, but the process needs to be necessary and proportionate. Therefore, trying to draw a narrow view—not an overly restrictive view, but as narrow a view as possible—will command more public confidence.

“Economic well-being” is one of the various heads that come under the auspices of RIPA—the 2000 Act that controls most of the surveillance that is dealt with in the Bill. Rather worryingly, permissible purposes under the Bill, as under RIPA, will include

“any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State.”

That is almost a Henry VIII-type provision that relates to the issue of public confidence that is close to all our hearts.

I agree with the right hon. Member for Knowsley that we should be trying to define the terms more narrowly. Perhaps now is not exactly the right time to do it, but I hope we will be able to do so in the months and years ahead when it comes to having a fully fledged Bill on these very important matters.

I agree that we have to look at economic well-being as focusing on the security of the critical national infrastructure, defence contracts and—something close to my own heart—the stability of the UK currency, banking and financial systems, particularly with the ongoing and likely to become more acute issue of cybercrime, and cyber-security issues that will come as part and parcel of that.

I do not wish to detain the Committee any longer. It is important that we put some of these concerns in place. As I say, they have a more general bearing on the idea that if we are to get a sense of public confidence about this sort of legislation, we need to try to define it as narrowly as possible rather than having broad definitions in place. I think that that is what the right hon. Gentleman had in mind in tabling the amendment and I look forward to hearing the Minister’s response.

[Dr Huppert]

I have heard several comments that clause 3 does not need to be in fast-track legislation, and it does not relate to an impending emergency, but I would not like to see it removed. It is a good, pro-civil liberties, pro-privacy clause, which just trims down what was always quite a bizarrely broad definition. It restricts the issuing of interception warrants on grounds such as national security—fair enough; serious crime—or the UK’s economic well-being, which is a broad concept, as was being discussed. The wording is taken from article 8(2) of the European convention on human rights, which is why we have that idea, but it could be interpreted broadly. There have been a number of discussions about whether, for example, it would enable lawful intercept to be used to find out what other companies are bidding against British companies. That is something that I think the House would be clear now is simply not acceptable—the Government have a stated policy on that—but it is not excluded by law. I think we would all say that it is simply not appropriate, so I am pleased that we are taking the opportunity of this legislation to trim this down; to try to make sure that it is only economic well-being as it relates to national security.

I appreciate that this is a probing amendment, but I have a number of issues with it. In particular, I am concerned that some of the language around

“the conduct of defence contracts”,

and the

“manufacture and design of UK defence systems”,

sounds worryingly as though it is saying that the House believes that it is okay to have interception to win defence contracts against a foreign bidder, or to make sure that we do well. I hope that that is not what is intended.

--- Later in debate ---

[James Brokenshire]

Absolutely. My right hon. Friend makes a very good comment for me to conclude on. Clause 3, which will provide such strengthening, has given us the opportunity to have a constructive and helpful debate.

[Mark Field]

rose—

[James Brokenshire]

I will give way one last time before I sit down.

[Mark Field]

The debate has been worth while. I have some sympathy for the hon. Member for North Ayrshire and Arran (Katy Clark), who made a legitimate point. Equally, however, it is quite right that the Minister cannot give a categorical assurance along the lines that she ideally wants. Clause 3 tries to ensure that economic well-being must be underlined by national security. I hope that it goes some way to giving confidence not just to the Members in Committee, but to our many constituents who feel very strongly about this matter—trying to narrow the scope of the Bill and therefore of the power of the state.

[James Brokenshire]

My hon. Friend makes his customary point about ensuring that there is such clarity. I am sure that we will return to this issue, but for the reasons I have outlined, I hope that the right hon. Member for Knowsley is minded to withdraw his amendment and that the clause will stand part of the Bill.