Data Retention and Investigatory Powers Bill

Yvette Cooper Excerpts

Tuesday 15th July 2014 Commons Chamber

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

The Home Secretary will recognise that Parliament has been put in a difficult position by this week’s emergency legislation. It has been left until the final full week of Parliament before the recess and must be published and debated in both Houses in a week, and it relates to laws and technologies that are complex and controversial. They reflect the serious challenge of how to sustain both liberty and security, and privacy and safety in a democracy. This is therefore not the way in which such legislation should be done. Let me be clear that its last-minute nature undermines trust not only in the Government’s intentions, but also in the vital work of the police and agencies.

I have no doubt that the legislation is needed, however, and that we cannot delay it until the autumn. After the European Court of Justice judgment in April, legislation is needed to ensure that the police and intelligence agencies do not suddenly lose vital capabilities over the course of the next few months and that our legislation is compliant with EU law. So Parliament does need to act this week so that existing investigations and capabilities are not jeopardised over the next few months, but this is a short-term sticking plaster. As we support the legislation today, we must also be clear that we cannot just go on with business as usual, when the powers and safeguards that keep us free and safe are rarely discussed and only debated behind closed doors. I want to set out today why this parliamentary debate needs to be the start of a much wider debate about liberty and security in an internet age, why we can only pursue this short-term legislation if it is the beginning and not the end of the debate, and therefore why this legislation is needed in the short term, but also why safeguards are needed, too.

[Sir William Cash]

Does the shadow Secretary of State accept that the legislation will be within the scope of EU law and the charter of fundamental rights, in which the previous Government got themselves into a pretty average muddle—if I may put it that way—and that the general principle of EU law will prevail? Does she therefore also accept that it is possible that the European Court of Justice could come back to this legislation, as it did with the Merchant Shipping Act 1988, and strike it down if in fact it takes the view that it is incompatible with EU law? Would she accept the idea in principle—

--- Later in debate ---

[Madam Deputy Speaker (Dame Dawn Primarolo)]

Order. This is an intervention. A large number of people want to speak. Interventions are getting a little too long and I would be grateful if they could be shortened.

[Yvette Cooper]

The hon. Gentleman will be aware that it is always possible for there to be court challenges and legal challenges to our legislation and to individual decisions. The Government have gone to some lengths to ensure that the legislation before us is compliant with the European Court judgment, with European law and with our own legal framework.

[Dr Huppert]

The shadow Home Secretary said that this will be the start of a debate about privacy and security, and those of us who have been campaigning on this issue for many years welcome her conversion. Does she accept that the debate has already started and that many of us have been pushing the issue for some time, much as we welcome her addition to it?

[Yvette Cooper]

The hon. Gentleman can always be relied on to pop up in these debates. I have heard that his support for the legislation has made some in this House question whether it is strong enough. Surely it cannot be, if he is supporting it.

The hon. Gentleman will know that I made a speech 12 months ago in which I talked about the need to strengthen the system for commissioners and for oversight in this area, and that I made a further speech at the beginning of March in which I raised specific issues about online security and liberty. The Deputy Prime Minister also made a speech that week which raised some of these issues. I am concerned because I think that, overall, the Government have not responded to some of the challenges. They still have not recognised the wider need for public debate and reform.

[Mr Redwood]

Does the right hon. Lady think that in striking down a directive that Labour agreed to, the European Court of Justice went too far, or does she think on reflection that the directive went too far?

[Yvette Cooper]

The right hon. Gentleman will know that the directive went considerably further than the regulations we passed in this country. As I recall, the European directive was drawn up in the wake of the 7/7 bombings in London and the terrorist attacks that took place at that time and was designed to provide a framework to ensure that different European countries could legally take the necessary action to investigate terrorism. However, the decision we took in the UK was to implement it much more narrowly, to ensure that safeguards were in place and to ensure that there were safeguards in the operation of the Regulation of Investigatory Powers Act 2000. I think that those safeguards now need to go further in the light of changing technology, and it is important that we do that.

I recognise that the Home Secretary wants only to maintain the status quo and to ensure that powers are not suddenly lost over the summer, but the problem for us is that the status quo is being challenged by the pace of new technology, by the struggle of police and agencies to keep up, by the limitations of a legal framework that dates back to 2000, by the weakness of oversight that does not meet modern expectations, by the Snowden leaks, by the global nature of the internet and by private companies that, in the case of most of us, hold, access and use far more of our private data than any police force or intelligence agency might do.

[Chris Bryant]

Although the Government keep on saying that the status quo is remaining as the status quo, 10 years ago it was the status quo that all electronic communications of MPs were covered by the Wilson doctrine. Earlier this year the Minister for the Cabinet Office and Paymaster General said quite the reverse when he stated that metadata about MPs’ communications was now being kept by the Government.

[Yvette Cooper]

My understanding is that the Government do not keep metadata on UK citizens and that the data retention directive is about the information that companies hold, but I would certainly be very surprised if companies were able to separate out the billing data for MPs, for example, from that of any other British citizen. It would be startling if they were able to do so. My hon. Friend is right that one would expect things such as the data retention directive to cover not just MPs but all UK citizens in that way, but my point is that the Government cannot take for granted the need to restore the status quo. We need to debate it and we need reform.

My real concern about how the Government handled the issue is not only about the delay in introducing the legislation after the Court judgment in April and the limited time we have to debate it. It is bigger than that. It is about the Government’s failure to rise to the bigger challenge and debate of the past 12 months. They have said almost nothing in response to the Snowden leaks, to provide either reassurance or reform. They tried to limit the debate over the draft Communications Data Bill, drawing it too widely, and have never been clear about what they really wanted and needed to achieve. They have not faced the new challenges of the digital age and recognised the importance of changing technologies and expectations. They have not started a serious review of the legal framework or the powers and oversight needed. The Home Secretary made a speech a few weeks ago that set out some of the safeguards needed, but it has taken time for Ministers to do that.

[Mr David Davis]

The right hon. Lady is making an interesting point. Is not the implication of her last six sentences that the Labour party should support the sunset clause being brought forward to Christmas of this year, which would force the debate that she is asking for?

[Yvette Cooper]

I want to come on to that point in detail, because it is an important one. The wider considerations, the detailed review of the legislation and the public consultation that we need will take longer than just five months, and it is important that this is not simply about repeated sticking-plaster legislation. We need to have a sustainable debate about how to get the right kinds of reforms to sustain the framework for the longer term and, crucially, about how we get public consent in this.

In the US, they have had a public debate. President Obama led a debate on liberty and security after the Snowden leaks, setting up an independent review group last summer. His response robustly defended much of the work that the US agencies do as vital to national security, but he also recognises the need for stronger safeguards. Our system has many more legal safeguards than the US system. For example, our warrant system is much narrower than theirs, and rightly so. We also have strong public support for the work of our intelligence services and the police, but that is no reason to avoid the debate and hope that it will go away. That is what I believe that the Government have done since last summer.

[Mrs Anne Main (St Albans) (Con)]

I want briefly to reinforce the right hon. Lady’s point. I have just come back from talking to St Albans Women’s Institute and the ladies made exactly that point. They asked what the difference would be, what it was all about and what it will mean to the public. There will be a problem in getting the message across through the media and the public will not understand why there has been this sudden rush to legislation

[Yvette Cooper]

The hon. Lady is right. Although we know that there are issues about the Court judgment and its implications over the summer, there will be considerable concern about the pace at which this Bill has been introduced and has been debated in Parliament. The short-term debate would be easier if there had been a wider longer-term debate about the question of a sensible framework in which the public could feel involved and have their say. If emergency issues came up, as they will from time to time—for any Government in any circumstances there will be court judgments that suddenly mean that an emergency response is needed—it would be so much easier to have the emergency debate against a backdrop in which the broader issues of security and liberty, and how we balance them in an internet age, are being properly debated and discussed, with public involvement.

Those of us who believe in the vital work the police and agencies need to be able to do should be the most ready to debate both the powers and the safeguards that are needed, because they must have public consent. We cannot hide behind a veil of secrecy. Of course, that debate must be handled with care so that we do not expose important intelligence capabilities that need to be kept secret to be effective, but we can have a debate about the legal framework, about the principles and about the powers and safeguards we need.

We know the vital work that we want the police and agencies to be able to do: building the intelligence that foils terrorist attacks; providing the fast response needed to find the last location of a missing child or murder victim; and stopping online fraud and cyber-attacks, which are escalating with every month. We also know that people will only continue to support those vital powers if they also know that there are proper safeguards: protection for innocent people’s privacy; public reassurance about what that protection really is; safeguards so that powers cannot be abused; safeguards, checks and balances on what the police and intelligence agencies can do; and a Government and Parliament that recognise that this is difficult and do not try just to sweep it all under the carpet and deny the public a say.

The lack of a wider debate is making it harder to have a short-term debate today. This is not the right way to have this debate. However, I also believe that we cannot reject this legislation now; it would be wrong to do so. We need to support it today, but we must also use it to get the wider debate that we need.

Let us be clear about what is at stake. The Court judgment means that the regulations on data retention need to be replaced; otherwise, they will fall altogether. This is about the requirement for companies to hold their billing data and other communications data for 12 months. This does not refer to the content of the calls and messages; it just covers the communications data. If the police are investigating a crime or pursuing an emergency that involves risk to life or limb, they can get a warrant and ask the companies to hand over the data relating to the suspect. As the Home Secretary has said, these data are used to identify conspiracies, prove alibis, locate missing children and find out who is committing online crimes or sending online child abuse. The police need warrants to do this, and the data do not tell us what people are saying. They cannot tell us the content of an e-mail—that is private—but they can help us to solve crimes.

These data are particularly important in dealing with serious and organised crime. For example, they can show that drug dealers who claim not to know each other have in fact been calling each other every week. They can show who the armed robber called to help him get away from the scene of a crime, or where a missing child was when their phone was switched off. They can also help to trace who a terror suspect contacted before they went to Syria, for example, and to work out who might be grooming or radicalising more young people to go there.

These data are used in court in 95% of the serious and organised crime cases that reach prosecution. They are particularly important in relation to online child abuse, because they allow the police to get warrants, to contact companies to find out the name and address of the person who has sent vile images of child abuse and to rescue children who are being hurt. A recent Child Exploitation and Online Protection Centre investigation resulted in the arrest of 200 suspects and identified 132 children who were at risk of abuse. The prosecutions and actions needed to rescue those children were made possible only through the use of communications data. A similar investigation in Germany, where communications data are not held, led to only a handful of cases being investigated.

The Assistant Commissioner of the Metropolitan police has described the importance of communications data to rape investigations. She has said:

“As to robberies and rapes, it is very usual for phones to be stolen. The stranger rapist, on many occasions, will take the phone from the victim and within 24 hours we find the rapist.”

The data also protect our children’s safety. In one case that the Joint Committee looked at, an online help service contacted the police, worried about a child who had posted on their website a threat to commit suicide. The police contacted the relevant companies, which helped to track down the service user’s name and address, then sent the local police to the door to find that the child had hanged himself but was still breathing. Fast action and communications data saved his life.

It is because we recognise how crucial this evidence is to so many investigations that we believe it would be too damaging to the fight against crime and terrorism for the police to lose this information this summer. The Government have rightly made changes to ensure that the new legislation can comply with the ECJ directive. They have narrowed the number of organisations that can access the data, for example, and introduced further safeguards to ensure that the process is necessary and proportionate.

The second part of the Bill is more complex, as it addresses the global nature of our telecommunications. Increasingly, the companies that help us to communicate with each other, with the family members we live with and with our neighbours and friends down the road, are based abroad. They should not be excluded from UK law just because of where their headquarters are based. International companies have been covered by and complied with RIPA for many years. Indeed, the legislation has always made it clear that companies should be covered if they provided services in the UK. We recognise, however, that other court judgments have made it more important to be explicit about legislation that has extraterritorial effect, rather than just leaving the arrangements implicit in the legislation. Again, it would jeopardise important intelligence if we were to ignore this factor.

Similarly, on telecommunications data, we have sought assurances from the Home Secretary that these measures are not an extension of powers and that they are only a clarification of the arrangements that already exist and of practices that already take place. It is important to recognise that this is not just about the legislation. The Home Secretary has now given the House assurances that the way in which she issues warrants will comply with that intention not to extend those powers, and that this is simply about maintaining the powers that are already in place.

This means that the safeguards are extremely important. The safeguards in the Bill and in the regulations are welcome. They ensure that the legislation is temporary, as well as restricting the purposes of the legislation so that it cannot be used only for purposes of economic well-being, and restricting the number of organisations that have access to data. We welcome the proposals for a privacy and civil liberties board, although we will need more debate about how that should work and how it should fit with our proposals to overhaul the commissioners and ensure that there is stronger oversight.

[Keith Vaz (Leicester East) (Lab)]

Does my right hon. Friend agree that it is important to have the widest possible consultation with as many groups as possible before the names are put forward for the new board?

[Yvette Cooper]

My right hon. Friend is right, and I would certainly expect the Select Committees to play an important role in that process. There needs to be a debate about the way in which the board should work. It has considerable potential. Wider, more substantial reforms of the existing framework are needed, including, for example, to the structure relating to the commissioners, who in theory have oversight of different parts of legislation, and to the role of the counter-terrorism reviewer, which is more effective than the work of some of the commissioners. We need to look at the whole framework in determining how the privacy and civil liberties board will fit in with the wider reforms that we need. That might need to be a two-stage process: the introduction of the board and reforms made to the commissioners’ structure in the light of the wider review that we are calling for. We have tabled amendments to secure such a review.

The review of the legislation is particularly important. For some time, we have been calling for an independent expert review of the legal and operational framework and in particular of the Regulation of Investigatory Powers Act 2000. As a result of the communications data revolution, the law and our oversight framework are now out of date. As my hon. Friend the Member for Rhondda (Chris Bryant) has said, new technology is blurring the distinction between communications and content, and between domestic and international communications, as well as raising new questions about data storage. We therefore need to reconsider what safeguards are necessary in an internet age to ensure that people’s privacy is protected.

We need stronger oversight, too. We need to know how far the new technology is outstripping the legal framework, and what powers and safeguards are needed for the future. We need to determine how warrants should operate, who should have access to data, and whether the police and intelligence agencies have the lawful capabilities that they need. The police need to be able to keep up with new technology, but the safeguards need to keep up, too. All those elements should be included in the scope of the first stage of the independent review by the counter-terrorism reviewer, David Anderson.

[Steve Baker (Wycombe) (Con)]

I congratulate the right hon. Lady on the long list of considerations that she wishes her party to look at, but has she considered the easy availability of strong cryptography? What is her party’s position on that?

[Yvette Cooper]

I will not pretend to be an expert on individual technologies or on the legal framework that is needed to safeguard them. That is exactly why we need an expert review. The honest truth is that most of us here in Parliament are considerably less expert on these technologies than our children, and we therefore need technological expertise as well as legal expertise as part of the review. That is the kind of review that David Anderson needs to lead.

We have tabled an amendment to put the review on a statutory footing and to outline some of the issues that it must cover, so that the House can be reassured that a sufficiently wide-ranging review will take place. It will need to look at the practice as well as at the legislation. We will also need to have a serious public debate about David Anderson’s conclusions, through the Joint Committee of both Houses and through taking public evidence. A public consultation must form part of that process. This is about getting the balance right, but it is also about ensuring that we have public consent. We cannot have any more sticking-plaster legislation; we need a serious and sustainable framework that will command consent for years to come.

[Bob Stewart (Beckenham) (Con)]

Forgive me, but I am slightly confused. It is perhaps because I am a bit thick, but will the right hon. Lady clarify the current situation for me? Do we have these rules and regulations now? If we do not pass this Bill into law, how long can the police and the security services continue to have access to these data?

[Yvette Cooper]

The Home Secretary responded to a similar question earlier. The advice that I have received is that the UK regulations are still in place, but that they are likely to be challenged and likely to fall as a result of the European directive having already been struck down. The consequence of that would be that we might risk losing some of those powers over the summer, before Parliament returns in the autumn, and we should not put the police and intelligence agencies in that position. The hon. Gentleman will have heard me argue for the wider reforms and wider debate that is needed, but in the short term we should not pull the rug from underneath the police and intelligence agencies this summer as a result of a European Court judgment.

The right hon. Member for Haltemprice and Howden (Mr Davis) said that the sunset clause should simply be moved to five months’ time. I understand the intention of the hon. Members who have signed the amendment, and I recognise their concern and their desire to increase the short-term scrutiny of the legislation, but I fear that if we do that, we will simply be stuck with another unsatisfactory sticking-plaster legislation process. We will not have the time to obtain the conclusions of the expert review, to consult on them, to debate, to take evidence or to draw up proper primary legislation with the more substantial reforms that I believe are needed. If we continue with repeated sticking-plaster legislation, we will undermine public consent in this process even further. That is why we must not rush things; we must do it properly. We are doing quite enough rushing this week, as it is, without trying to rush through the more substantial debate that we need within five months. That is why the longer period is needed.

Hon. Members are right that we need stronger safeguards in the short term, right now. We need more reassurance that the Bill is doing what the Home Secretary has made clear. That is why we have tabled a second amendment, and why I welcome the Home Secretary’s indication that she will accept it. It is about requiring the intercept commissioner in the mean time to report on the operation of the Bill every six months. During that period, we need to know whether the Bill is simply being used to continue the work that was being done before or whether it is being used to extend the Government’s powers against the will of Parliament. The six-monthly review will reassure the House that the Bill is being implemented in the way that Parliament intended.

We also want to see longer-term reforms, including strengthening the Intelligence and Security Committee so that it has the same powers as other Select Committees and an Opposition Chair, and we believe that an overhaul of the commissioners is needed. We currently have lots of different commissioners, and even when they do excellent reports no one notices them because the reports are not public-facing. Too often, they are limited to assessing compliance with existing legislation rather than looking at whether the legislation is still appropriate or effective.

This is a difficult debate for Parliament today. We have legislation that is urgently needed, but it is against the backdrop of us all knowing that a much wider debate is called for. So we have to make sure that that debate happens and that sustainable reforms are brought forward. Too often, this debate becomes polarised. The hawks say that we need stronger powers to protect national security, but they will not say what and why. The civil libertarians say that it is all a conspiracy; that they do not believe the scare stories; and that privacy is paramount. But most of us, and most of the British public want both—security and liberty, safety and privacy. We want to be kept safe from fraudsters stealing our identity or our money online. We want our children’s innocence kept safe from abusers, and paedophiles to be caught. We want the police and intelligence agencies to be able to track down murderers, fraudsters and terror suspects.

However, we also want to know that, unless we are suspected of a crime or terrorism, we have a right to protection of our information and privacy. We want to know that people will not be listening to our calls, reading our e-mails or checking out where we have been surfing on the web; to know that there are fair, up-to-date laws governing what Government agencies, the police and private companies can do; and to know that there are safeguards, checks and balances in place to make sure that those laws are upheld.

Yes, we need to pass this Bill today, because the powers that it retains are too important to the protection of public safety to lose carelessly one summer. But we also need a proper debate about the balance of privacy and safety, and how we maintain both liberty and security in an internet age, because both are essential to our democracy. Today must be the start, and not the end, of that debate.

[Several hon. Members]

rose—