|
Home Page | About Us | Press Enquiries| Reports | Policy Issues | News Items | Press Releases | Mailing Lists | Bookstore |
[This version is provided by http://www.cyber-rights.org]
This involves the House of Lords discussions on Part 11 of the Bill: Retention of Communications Data
http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds01/text/11204-13.htm
Clause 101 agreed to.
[Amendment No. 163ZA not moved.]
Schedule 7 agreed to.
Clause 102 [Codes and agreements about the retention of communications data]:
The Earl of Northesk
moved Amendment No. 163A:
Page 62, line 7, leave out from "State" to "a" and insert ", business representatives and the Information Commissioner shall jointly issue"
The noble Earl said: In moving Amendment No. 163A, I wish also to touch upon the other amendments in the group, Amendments Nos. 164, 164A,B,C and D, 165A, 174A and 176C. That said, I do not propose to weary the Committee by speaking to each and every amendment in turn. Some general observations should suffice to explain their thrust.
They pursue two discrete, albeit intertwined, strands of thought, first, that a broad range of business interests should be involved in the drafting of the code of practice and, secondly, that the Information Commissioner should also be involved. With respect to the first of those matters, I acknowledge and compliment the Government on the way in which representatives of communications service providers have been involved thus far in the development of the proposals on the face of the Bill. As the Minister will be aware, they still have outstanding concerns, not least that the current drafting lacks legal certainty in a number of key areas. None the less, their involvement to date has been helpful. It chimes with the Government's assurance that they would work with business to produce the code of practice.
That said, the Bill is potentially very wide in application. It extends, so far as I can tell, to any telecoms service provider, even those of private networks. For example, as I read the Bill, it is conceivable that the PDVN will fall within its scope and could be obliged to retain all its communications data. Perhaps the Minister can address that point in due course. It therefore makes sense that the Government should be subject to a statutory
4 Dec 2001 : Column 755
requirement to consult with a broad range of business interests in devising the code of practice, if only because--this is a particular concern of the CBI--a limitation of the scope of consultation could penalise existing business practices.Moreover, pro-active involvement in the drafting of the code from a broad base should lessen the likelihood of non-compliance and thereby reduce the need for the Secretary of State to issue directions. Address of these concerns is embodied in a package of amendments comprising Amendments Nos. 163A, 164A, 165A and 173A, although, inevitably, there is some cross-referencing within these as to the potential role of the Information Commissioner.
Turning to that matter, I express considerable surprise that the Government have not included the Information Commissioner as an appropriate consultee. As the Committee will be aware, she has statutory responsibility for promoting and enforcing the Data Protection Act 1998 which, in turn, sets legally enforceable standards in relation to the processing of personal data. With that remit, it is incredible that the Government feel that she has no role to play in the drafting of the code. As she herself has observed in her memorandum on the Bill,
In fact, there is an even more significant reason as to why the involvement of the Information Commissioner is so essential. Those Members of the Committee who have followed the development of data legislation will be only too well aware of what a tangled web it already is. The tensions that exist between the Data Protection and Regulation of Investigatory Powers Acts are legion and a dangerous minefield for the unwary. One need only contemplate the huge difficulties that the Information Commissioner has had in preparing a code of practice on the legal business practice regulations to get a flavour of how inconsistent the law is here. It would, in my view, be the height of lunacy to enact the provisions on the face of the Bill without ensuring that mechanisms are in place to ensure that the code of practice has at least some consistency with existing legislation. Such a task is within the Information Commissioner's remit and so it is essential that she be formally consulted about the code. At the very least that would undoubtedly improve its legal clarity and ensure that the interests of users are more formally taken into account. I beg to move.
Lord Goodhart: Amendment No. 164, in the names of my noble friends and myself, is probably in the wrong place in the clause. Nevertheless, we strongly support the principle that the Information
4 Dec 2001 : Column 756
Commissioner should be actively involved in consultation and in the preparation of the code and we believe that that should be on the face of the Bill.Lord Rooker: It is probably inadvisable to repeat what I have done in previous debates today, namely, to address every amendment in the group. As the noble Earl said, the thrust of the amendments is encapsulated in two issues: that of the business interests and that of the Information Commissioner. He asked specifically whether the measure included any telecoms provider. That is the case. It includes private networks. Our main objective is to include the public networks such as BT, Orange and Vodaphone. However, private networks are also included. I refer to the intranets of private companies, universities and, indeed, the PDVN, which is a private network. However, as I say, our central objective is to include the public networks.
It is important to discuss the matter with all providers. That practice must be followed with regard to the code of practice. We have every expectation of reaching a voluntary agreement on the matter. Co-operation since September 11th has been extremely good. The key clause is, indeed, Clause 102 which sets out a voluntary code of practice which may be revised.
Retaining the data is one thing but what is done with it will fully conform with human rights legislation and the Regulation of Investigatory Powers Act. I hope that there is no scintilla of doubt about that. We fully intend to conform with all the legal requirements. As I and Ministers in another place have already said, the data that are retained do not include messages or conversations. That bears repeating. We do not seek to monitor the content of telephone conversations or e-mails.
The information that we shall require providers to retain is information that they hold now for billing purposes. We have all seen telephone bills. Some are more detailed than others. But it is known that if one has a mobile phone--indeed, these days it applies also to landline telephones--the bill supplies the date of the call, the phone number dialled, the duration of the call and the date on which it took place. The billing address is also a useful piece of information. All those data are important. The content of the call is not retained and we do not seek that. As I said, our intention is to operate a voluntary system. From the conversations and discussions that we have had so far, we have every reason to believe that we shall arrive at a voluntary agreement.
I could go through all the amendments at length but I do not propose to do so, save for one--Amendment No. 164D. I ask Members opposite not to fall over because I am going to accept it. The parliamentary draftsman produced a better form of wording, but I asked what difference it would make. The answer was: none. It is much easier to make it abundantly clear--I hope that this meets the noble Lord's point about the Information Commissioner--that we have no intention of cutting out the Information
4 Dec 2001 : Column 757
Commissioner in any way, shape or form. He has a statutory function to perform and will be consulted fully beforehand.What we do not consider to be a good idea is a joint code issued by government, industry and the Information Commissioner. That would be wholly impractical. The buck stops with the Home Secretary. However, the fact is that we shall accept the amendment without any knock-ons in relation to technical drafting. In any event, I cannot see anything wrong with the wording. Amendment No. 164D is acceptable to the Government and I hope that in due course the noble Lord will move it. I sincerely hope that he will because, as I said earlier today, the timing for reprinting the Bill for Report stage is crucial. Therefore, we shall accept that amendment.
Having said that, I am quite happy to deal in detail with the other amendments in this group. I return to my initial remarks concerning the legal aspects of what we do with the data. Perhaps I may mention one matter. At Second Reading, I believe, a noble Lord said that there would be information overload. There will be no such thing. We do not seek block transfers of information. We are asking the providers to keep the information that they use for billing purposes for a period which will be set out in the code. That period has still to be agreed. Requests for such information would be made only when the Government needed access to it. It will not be a wholesale transfer, and there is no question of information overload in that respect. I cannot go over the details of the code because they have still to be agreed. But we require that provision and shall continue with our discussions. We expect to be able to secure agreement to a successful voluntary code.
Lord Lucas: I want to pick up on one point made by the noble Lord. Most communications data have nothing whatever to do with billing. Almost all the communications data concerned with Internet transactions have nothing to do with billing because billing is done simply on, as it were, a leasing-of-a-facility basis. Therefore, I hope that the Minister does not believe that he needs that data because the billing data are sufficient. He is talking about a vast amount of data. Several new computers a day will be required for the length of time that the noble Lord wants to hold such data if he is to access the entire amount. It is very important that the Government know what they want and restrict their demands to what they want and what they can use rather than to the vast amounts of data which are there.
Lord Rooker: I accept that data retention in relation to e-mail is wholly different from that for telephones. The information that I have in front of me appears in two columns, and my remarks were related exclusively to telephone data. For obvious reasons, e-mail is more difficult in that respect. Nevertheless, the Regulation of Investigatory Powers Act will guide how
4 Dec 2001 : Column 758
information is sought. However, we are not seeking to over-burden industry. As I said, the idea is that the code of practice will be agreed by industry.Lord Phillips of Sudbury: While the Minister is on a roll and has kindly conceded the need to consult the Information Commissioner, I wonder whether he has overlooked Amendment No. 164B. That amendment calls for consultation with all interested parties, including Internet providers and, now, the Information Commissioner. Quite rightly the Minister has referred to the interaction of this piece of legislation with the Regulation of Investigatory Powers Act. They will be infinitely inter-related, and that will cause some of us further excitement. However, Section 71 of the RIP Act expressly provides that, before issuing a code of practice, the Secretary of State shall,
Lord Rooker: I should not want to put that on the face of the Bill. We shall publish a draft code and shall consider any and every comment and representation on it from wherever it comes. The requirement to consult all interested parties, as opposed to industry and the Information Commissioner, does not prevent anyone--individuals, citizens or whoever--offering advice and comment on the draft code.
However, we should bear in mind what the noble Lord said a few moments ago about the vast amount of information and the millions of people involved. That would make a nonsense of the procedure because someone would run to my learned friends and say, "You have missed 2 million people in the North of England because all interested parties are on the Net or have mobile phones". We are concerned with the providers and with the mechanics of the issue. We shall do our best to ensure that all those with a relevant interest--that does not exclude anyone else making a comment on the draft code--will be considered.
Lord Phillips of Sudbury: That is a very fair point. However, I simply wondered whether the Minister agreed that the duty to consult should not be on the face of the Bill. But, as in the RIP Act, perhaps a provision could be included stating that the Secretary of State will consider any representations made to him. It would be a passive duty.
Lord Rooker: I am saying that now. Let us forget the code; I am saying that on the Floor of this Chamber. We shall consider all representations. No one will be excluded from making a representation. Those
4 Dec 2001 : Column 759
representations will be considered by Ministers in due course before the final code is published. That is my commitment.The Earl of Northesk: I am not sure whether it is the result of the eloquence of my oratory or perhaps the support of the Liberal Democrat Benches, but I am extremely grateful for the Minister's acceptance of Amendment No. 164D. In the circumstances, I should not push too much more--certainly not within this group. I shall therefore resist the temptation of pursuing the matter of business involvement at this stage.
I heard what the Minister said about public versus private networks. In truth, it raised my hackles somewhat but no doubt we shall return to that matter with later amendments. None the less, I can accept that the Government's focus is on public networks. No doubt we shall return later to a number of other issues raised by the Minister. In the meantime, I am grateful to the noble Lord and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 164 to 164C not moved.]
The Earl of Northesk moved Amendment No. 164D:
"( ) Before issuing or revising a code under this section the
Secretary of State shall consult with the Information Commissioner."
On Question, amendment agreed to.
The Earl of Northesk moved Amendment No. 165:
"( ) Where the Secretary of State issues or revises a code of
practice or enters into an agreement under this section, he shall
publish the code, the revised code, or, as the case may be, the terms of
such agreement."
The noble Earl said: It may be for the convenience of the Committee if I address also Amendments Nos. 165A, 172, 172A and 176B. No doubt Members on the Liberal Democrat Benches will speak to Amendments Nos. 166 and 167.
The powers granted by Part 11 are exceptionally broad and, like it or not, impact significantly on the individual's right to privacy. Whether they should will form the substance of debate on the next group of amendments. The purpose of Amendment No. 165 is to require the Secretary of State to publish the code of practice, revised code or arrangements--to make such documents available to a wider audience. In that way, all of us will be better placed to know the precise terms under which our data are being retained--an important consideration not only in the protection of individual liberties but in guaranteeing equitable treatment among communications providers.
The Minister may suggest that because the codes and agreements could contain commercially sensitive information, the amendment would be inappropriate. It is concerned with ensuring proportionality and
4 Dec 2001 : Column 760
equity of treatment as much for the industry as for the individual. My understanding is that the industry is not unsympathetic to the approach advanced in Amendment No. 165--the more so, if it acts as a brake on any extravagance that might be contemplated for inclusion in any codes or agreements.Amendment No. 172 is no less important. It seeks to ensure that every
code of practice issued by the Secretary of State is laid before
Parliament. The principle of data retention is at the heart of the right
to privacy. That being so, it is appropriate that codes should be
subject to parliamentary scrutiny--a point well made by Justice in its
submission to the Delegated Powers and Regulatory Reform Committee:
That thread is followed through in Amendment No. 172A. More significantly, it takes account of paragraph 23 of the committee's report on the Bill. We hope that the Government will heed that sound advice.
Amendment No. 176B seeks to prove the extent to which Scottish Ministers will be consulted about Part 11 powers and how appropriate such consultation will be. I have it in mind that RIPA is a reserved matter and presume that data retention powers would be too. Bearing in mind that our debates have demonstrated the great potential threat to individual rights posed by the proposals, it is essential that the devolved administration should be kept within the loop of progress and development.
We see the sense of Amendments Nos. 166 and 167 and support them. I trust that my remarks offer adequate comfort to Members of the Committee on the Liberal Democrat Benches. I beg to move.
Lord Phillips of Sudbury: We wholly concur with all that has been said about the amendments--several of which have mixed parentage across Opposition Benches. I emphasise the importance of ensuring that the code should be subject to negative approval by the House of Lords and the other place, given the importance that the Government and the industry attach to the code.
Amendment No. 165 requires publication by the Secretary of State when issuing or revising a code, which extends to any agreement made under the section. That might sound contentious but we believe that complete transparency in the functioning of that important part of the measure will benefit the Government, industry and the world beyond. It will sustain public confidence in a level playing field and in that individuals and particular firms are not being picked off by the Home Office for one reason or another.
Lord Rooker: The Home Office is not going to pick off anyone. I know there is a general view that the Home Office is oppressive. That is not true--it is a very liberal establishment.
4 Dec 2001 : Column 761
The amendments require the Secretary of State to publish any code of practice, revision to a code or agreement; and to lay before both Houses a code of practice or revised code. We cannot accept the amendments as tabled because we could not publish the full agreements, as they are likely to contain detailed, commercially sensitive and confidential information about individual service providers. However, we expect the code of practice to be more general in nature than the full agreements. I am happy to give the Committee an undertaking that we will publish a code of practice or revised code where it does not contain such sensitive information.
I remind the Committee that the code of practice and agreements under the code are entirely voluntary. They will not be imposed by the Government on communications providers. Similarly, I shall be happy to place in the Libraries of both Houses summaries of any agreements or directions that do not contain sensitive commercial information, which will ensure that Parliament is informed as to which communications providers there are agreements with, what data they are retaining and for how long. That information could also be published on the Home Office website.
As to the human rights implications of Amendment No. 172A, the code of practice and agreement will be drafted in such a way as to be fully compliant with the Human Rights Act 1998. We will consult the Information Commissioner to help ensure that is achieved.
Access to communications data will be under provisions already contained in the Regulation of Investigatory Powers Act 2000. This measure is about retaining data, not about access to them. The 2000 Act requires consideration of the necessity and proportionality of specific notices or authorisations used to access such data. The legislation is structured to ensure full compliance with the European Convention on Human Rights and the 1998 Act. I hope that the Committee agrees that those undertakings will achieve the thoroughly valid intention behind the amendments. We can meet the spirit of the amendments in the way that I have described, so I hope that noble Lords will not seek to press them.
Lord Lucas: The code of practice will apply to something like 100,000 networks throughout the United Kingdom. It will apply to me because I run a little network of three or four computers. The code had jolly well better be a public document. It would be a bit daffy if the Government tried to keep secret something with a circulation that wide. All sorts of people will have to know about the code. The Government should determine that the code will be made public and leave out anything confidential. We shall all need to know about the code, understand what might be required of us and potentially live within it. The notion that the code might under certain circumstances be kept secret is mildly ridiculous.
4 Dec 2001 : Column 762
I understand the Minister's comments about the agreements having sensitive elements. I hope that he agrees that under the Freedom of Information Act 2000, it will be possible to obtain the parts of any agreement that are not confidential. I hope that such publication will be a matter of course.
Lord Rooker: I did make the commitment that it would be public, except for sensitive commercial parts. During the course of my remarks I did say the code will be published.
I did not address Amendment No. 176B, relating to Scotland. These provisions are a reserved matter. Scottish Ministers would not expect to be formally consulted before the Secretary of State made directions against service providers in Scotland. There is nothing new about that. We have consulted with the Scottish Executive and have confirmed that data retention is a reserved matter and it does not expect to be formally consulted.
The Earl of Northesk: Once again I express gratitude for support from the Liberal Democrat Benches. I should say that the operators' group would be happy for codes of practice to be openly published--I make that point in passing. But I am grateful for the Minister's undertakings, albeit hedged with provisos on commercially sensitive information. That seems eminently sensible.
I remain slightly nervous on the human rights issue. Parliament does have a role to play. It may help if I read part of the relevant passage from the Delegated Powers and Regulatory Reform Committee. In commenting upon this issue, they endorsed the views of the Human Rights Committee and went on to say:
Would the noble Lord consider that a sensible way forward?
Lord Rooker: That is not a matter for the Government. That is a matter for the committee.
The Earl of Northesk: I hear what the noble Lord says. No doubt we shall have to return to the matter on Report.
The Minister says agreements will necessarily be commercially sensitive. There is no reason why they should be. They merely spell out the types of traffic data and the length of time that data should be retained.
I also hear what the Minister says about the devolved administration in Scotland. That satisfactorily deals with that point.
I have no doubt we shall return to a number of these issues on Report but, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 165A to 167 not moved.]
4 Dec 2001 : Column 763
The Earl of Northesk
moved Amendment No. 167A:
The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 167B, 168, 169, 170, 171 and 174. This is the issue that has consumed the attention of the committee at almost every turn; namely, its scope.
As the Minister conceded at Second Reading:
If investigations have proceeded and are proceeding so successfully
under the existing law, is it necessary to seek the proposed extension
of powers? There is a case for limiting data retention to the purpose of
safeguarding national security or countering terrorism, as is proposed
in the amendment. At Second Reading I referred your Lordships' House to
the Home Secretary's Tribune article of 26th October in which he
indicated that the voluntary regime would apply:
But as the noble Lord, Lord McIntosh of Haringey, stated on Wednesday
of last week:
Quite so, but that is precisely what is objectionable. It is based
on a presumption that all communications data might be useful in law
enforcement, but not necessarily to prevent terrorism. The Joint
Committee on Human Rights made the point eloquently:
This goes to the heart of the reasoning that underpins these amendments.
Have the Government considered the practical difficulties of the measure? In order to counter the terrorist threat law enforcement needs focused intelligence. But the retention of data in case it may have relevance to a terrorist investigation, effectively necessitates the retention of all communications data. In respect of a single Internet service provider, this could be in excess of 500 terabytes a day--something like a single DVD for each second of traffic. Will information relevant to an inquiry be extracted quickly from such vast accumulations of data?
4 Dec 2001 : Column 764
Management of compliance with such a requirement will impact detrimentally upon the ability of communication service providers to conduct their businesses efficiently and effectively.
The Data Protection Act gives data subjects rights of access to information about them as individuals. Does the Government suppose that this important protection will be manageable either for individuals or communications service providers when all data is retained?
I turn to the issue of proportionality. The Minister suggested at Second Reading and repeated again today that all powers used will be fully in line with the European Convention on Human Rights and the Regulation of Investigatory Powers Act. There will be no generalised expeditions; they will all be related to specific inquiries and will conform to the terms of the legislation. I do not doubt the sincerity of those statements, but unfortunately they are not to be found on the face of the Bill.
As I observed at Second Reading, the Information Commissioner, the Joint Committee on Human Rights and the Delegated Powers Scrutiny Committee all expressed doubts on this. I quote from the Information Commissioner's memorandum on the Bill:
I shall take this opportunity to make more detailed comments about the amendments. Amendment Nos. 167A and 167B are alternative approaches designed to achieve the same objective: introduction of a clear proportionality test and alignment of the Bill with similar principles already enshrined in RIP. This is necessary to ensure legal clarity.
Amendment Nos. 168 and 169 speak for themselves. I make the point that the use of the phrase "countering terrorism" is not without precedent. It was used at Section 3(3)(a) of the Interception of Communications Act 1985.
I turn to Amendment No. 171. Its purpose to tie the measures on the face of the Bill back to RIP. I am sure that the Minister is well aware of the obvious point that there is provision in Section 25(3)(b) of the 2000 Act for restricting by order the purposes for which data can be obtained by communications service providers in relation to national security. Clear legislative provision is required in the Bill to the effect that retained data cannot be obtained by law enforcement or intelligence services for any other purpose than national security. That is the amendment's aim.
There is more that I could say but I conclude with a comment--and a question--from the Constitution Committee. I hope that the Minister will respond to it
4 Dec 2001 : Column 765
in due course, particularly, as I understand it, in the absence of any formal response as yet to the point. It stated:
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): If this amendment, or alternative Amendment No. 167B, is agreed to, I shall be unable to call Amendments Nos. 168 to 170, owing to pre-emption.
Lord Phillips of Sudbury: I shall speak to those amendments appearing in my name; that is, Amendments Nos. 168, 170, 171 and 174. Again, I wholly identify myself with the comments of the noble Earl, Lord Northesk.
Enough was said at Second Reading for the Minister and the Government to be aware of the widespread concern about this part of the Bill. The effects of the warehousing arrangements that these provisions will allow will create a source of potential information for the state which, frankly, has been contemplated only in the novels of George Orwell. We, like the Conservative Front Bench, feel as strongly as we can that the Bill has been introduced for entirely legitimate reasons; namely, national security in the face of an emergency threat. However, we do not and will not accept that it is legitimate to go beyond that and "piggyback" on that legitimate purpose the complete range of criminal offences, at whatever level.
I remind the Committee of a report by the National Criminal Intelligence Service, which was leaked last year and is now available in full on the Internet. The report was publicised in the Observer. The memorandum proposes the creation of a "national traffic data warehouse" on grounds that are found in this and the succeeding clause. The unease that that creates on these Benches is added to because the memorandum is also the fruit of MI5, MI6, GCHQ, ACPO and Customs and Excise. One need not dwell in the lands of paranoia to believe that a fundamental issue of basic and traditional liberty is involved, and that that makes this group of amendments not only necessary but essential.
On Amendment No. 171, unless it or something like it is agreed
to, the practicality of retaining this vast amount of
communications data, with regard to the implementation of the
RIP Act, will be extremely unsatisfactory; indeed, that Act
will not be workable. Under Section 22 of that Act, it is
possible for a relevant public authority to collect data if it
is authorised by what is called a "designated
person". Subsection (4) allows a designated person to
involve,
but the Bill refers to "communications providers". It can require such people to collect communications data and to hand them over to the relevant authority. Unless we agree to the amendment or something like
4 Dec 2001 : Column 766
it, it will surely be possible for the authorisation and notice procedures in Section 22 to be used not only in relation to communications data involving national emergencies and national security but also in relation to any communications data that are held by the particular communications provider.I hope that I have not lost the Committee--I have only just not lost myself! My point is serious and I hope that the Government will respond to it.
Viscount Goschen: The noble Lord, Lord Bassam, will tell the noble Lord, Lord Rooker, if he has not already done so, about how fierce the battles were in this House concerning the Regulation of Investigatory Powers Act. Deeply held opinions were voiced by noble Lords and the legislation was substantially rewritten as a result.
The Government will be aware that the proposal in effect to add to that Act further provisions about the retention of communications data will be taken seriously by Members of this House and interested parties outside, in particular by the communications industry. We know how serious the issue is and how potentially dangerous it could become if it is not handled correctly--that could affect the economic well-being of this country and the communications industry in particular.
As has often been made clear during the Bill's passage through this House, we are prepared to accept additional measures provided that they are purely for the purpose of safeguarding national security. When the Government introduced the Bill and when they discussed it outside--in the press, for example--they made it clear that that is their reason for introducing the legislation. However, when we tried to pin down the Government over safeguarding national security or countering terrorism, they argued that they would like to take such steps but that such provisions would prevent them from accessing data and conducting investigations that might, on the off-chance, provide leads in the fight against terrorism.
The Government will have to be clear in their response to
this group of amendments. Clause 102(5)(b) contains an
additional rationale for the provisions in the code. It
states that the code may contain any such provision that is
needed,
"A code of practice or agreement under the section may contain any such provisions as appears to the Secretary of State to be necessary . . . for the purpose of safeguarding national security".
In other words, if paragraph (b) were deleted, the Secretary of State, after consultation with the industry and the Information Commissioner--subject to the other provisos within Clause 102--would be able to draft the code in such a way that he could access the information and communications necessary to safeguard national security. If paragraph (b) were omitted, there is no question that the Government could not do what they wanted to do to counter
4 Dec 2001 : Column 767
terrorism in respect of accessing communications data. However, if the Government insist that they require the inclusion of paragraph (b), or similar provisions, that would mean that they want to go much further than the prevention of terrorism; it would suggest that they wanted to use the provisions as a general power in order to examine a wide range of crimes, which may be very serious but which do not involve the emergency. I look forward to the Minister's response.Lord Elton: It is easy to anticipate the Minister's response. It will be, as it has been so often, that any crime is potentially a terrorist crime, whether it is shoplifting, breaking the speed limit or blackmail. For that reason we are hesitant about giving the Government the emergency power procedure for the processing of this Bill.
I ask a simple question. I thought that I had brought with me all the relevant legislation, but I do not have the Regulation of Investigatory Powers Act, and hence I do not have Chapter 2 of that Act. I would like a definition of "communications data". I presume that that does not mean the information transmitted--for example, the contents of a conversation--but the fact that two telephones, or two communications stations, have been in touch with each other, the time when they were in touch and for how long and, if one of them was a mobile, where it was. I seek reassurance that that huge amount of information is now to be warehoused.
I also have a question for the noble Lord, Lord Phillips
of Sudbury. Amendment No. 171, in the second line under
subsection (10), says,
Lord Lucas: I entirely support what has been said. Perhaps the Minister can enlarge on the rights under the Data Protection Act for an individual to obtain such data that is to be retained. Considering some of the wilder possibilities, in relation to packet headers there will be vast amounts of data. It will be extremely difficult for a communications provider who is asked to dig out anything that is relevant from their records to do so without incurring a great deal of time and expense.
Recently it has been established that the data that a mobile phone provider holds of a location from which and to which mobile phone calls are made is personal data and can be retrieved by someone under the Data Protection Act. Therefore, I presume that all such communications data will also fall under that heading. We are not considering imposing an occasional burden on the telecommunications provider to look for something for the Government, but a burden to have to do so for every single customer or citizen of this country, or anywhere else, who happens to cause a
4 Dec 2001 : Column 768
little disruption by asking for the information. We have to understand how enormous this data supply is and how undirected it is.Some of my e-mails go through a mailbox. The information in an e-mail can be picked up as easily as someone can look at my telephone bill, although much of it does not touch the sides and is transmitted as packets. Information is squirted into the Internet and arrives at the other end through whatever routes it may happen to take. There may be no record of it other than the packet headers, which, as has been said, is about a terabyte a day or the contents of a DVD every second. Those enormous amounts of data are impossible to search unless they are on line. If so much information is available about the individual citizen, it comes down to 1984.
We must understand the Government's intentions in relation to particular kinds of data. They must have a clue as to what type of data they are considering retaining and for how long. The retention of some data has immense cost implications, nationally and indeed on individual telecommunications providers. One wonders why the Government will need it. If a terrorist organises himself properly, he will not appear. He will hide or cloak himself and he will not appear in any of the easy places. It will be immensely difficult to track him down.
The only people against whom such data will be useful will be the ordinary, everyday criminals who do not know how to take the £1,000 or £2,000 worth of precautions that would enable them to avoid the Act. The Government must be clearer about why they want these provisions.
The Earl of Onslow: My noble friend Lord Lucas said that the Government must have a clue about what they want to learn. That statement is almost incredible. Recently it has been published that MI5 and MI6 asked to listen to calls made on certain telephone numbers and they got a large percentage of them wrong. I am worried that our forces of law and the forces of our counter intelligence and intelligence services are not as good as they should be. For that reason the Home Secretary has reasonably taken a great interest in the performance of the police. The more one hears about matters going wrong, the more depressed one becomes. I am unsure whether we should give them extra powers to store telephone numbers to which they should not be listening anyway.
The Earl of Erroll: I agree with everything that has been said by the noble Lords, Lord Phillips and Lord Lucas. I was interested to hear the noble Earl, Lord Northesk, say that much of the information that is used to catch terrorists at the moment is obtained by trawling communications data. Was that authorised? Or was such a practice already used? And, if so, in which countries? How much of that data is picked up in that way? If only the packet headers and so on are being kept, that is probably not much use. Are the Government seeking powers to trawl through the contents of such data? Is this yet another back door way in?
4 Dec 2001 : Column 769
It may be considered that noble Lords are being paranoid, but I think back to J. Edgar Hoover, the data that he kept on people and the blackmail that he exerted, which caused big problems in the United States. This provision provides a chance for someone to do that again. History has a habit of repeating itself. One thing that we can learn from history is that we never learn the lessons of history.
Lord Peyton of Yeovil: I am sure that the Government want to do what is sensible and intelligent, but sometimes that is quite difficult. It is easier to do stupid things. I believe that the Government are caught. I am sure that they do not want to do stupid things, but they have not found an easy alternative to the course that they are pursuing in this Bill.
At the outset, the Government said that following the events of 11th September they urgently needed powers to combat the horrors of terrorism in its modern and latest versions. I believe that that aim commanded wide respect among most of the Members of the House including myself. I believe that this is a drafting difficulty, but the Government do not appear to know what they mean by terrorism. Is that so? That is virtually the only explanation.
The noble Lord, Lord Phillips, referred to the Orwellian provisions that we now face. I cannot help but feel that the Government are conscious of the fact that that view of the present proposal is widely held. I am prepared to believe that the Government would want to avoid provoking the kind of opposition that they are provoking on all sides of the House. Therefore, they should come clean and say that it is a difficulty of defining terrorism and confining the provisions of the Bill to that particular purpose.
It seems to me that we are possibly going into Cloud- cuckoo-land if that is really true. But I cannot think of any other reason why the Government should want so obstinately to bring down on their head such a degree of very deeply entrenched opposition. There is no party ingredient in it at all. It is an opposition from people who would willingly arm the Government with any powers that are plainly necessary or desirable to secure the defeat of terrorism. But to give them such powers "just for good measure" to perform a much wider function is quite intolerable.
I have become confused. I am sure that I am not the only person. Perhaps the Government will try to clarify things. There have been other occasions, not under the present Government, when I have been told that a certain just and fair measure, which everyone wanted to achieve, could not be taken because it would involve taking an unconstitutional route. Eventually, when the government could not get their way, they would take the matter back and start to think. Finally, they would hit upon an extremely complicated, almost incomprehensible, way of doing what everyone wanted to do but in a manner that subsequently turned out to be fair.
What I am trying to say to the Minister is that I very much hope that he will not be content with the conventional briefing which ends with the word
4 Dec 2001 : Column 770
"reject". The Minister is capable of great candour and openness. I respect that. He could make a very good impression. He could make a real contribution to the easier passage of the Bill if he took it upon himself to say that he recognised the real difficulty and the depth of genuine feeling that existed on this subject in your Lordships' House and would take the matter away so that he and his colleagues could have a real opportunity to give it fresh thought.Lord Phillips of Sudbury: Before the Minister rises, I was asked by the noble Lord, Lord Elton, whether the wording was right or clear in my Amendment No. 171. The wording is not as clear as it should be. Where the amendment states:
"may only authorise or require access to data".
Lord Rooker: We have had a very interesting debate on this group of amendments. I really enjoyed the speech of the noble Lord, Lord Peyton. However, I do not think that it had a great deal to do with the amendments. I shall address his points. They are valid and could have made in relation to various parts of the Bill. Indeed, I recall that he has made them on various parts of the Bill.
My candour will continue unabated but measured. There will be no going over the top. However, there have been a few misconceptions. To describe the legislation as Orwellian is fanciful. I cannot say often enough that we are not interested in the content of any communication. The noble Lord shakes his head. The noble Earl, Lord Erroll, from the Cross-Benches said that we were off to do the dirty deeds that were done in America and that central government would be blackmailing people. It is preposterous to make those kind of remarks and allegations on the basis of what has already been said and written. We are not interested in the content of any communication between two people, either over the Internet or by telephone. That is it--period.
We are interested in the information that is already retained by business for its purposes, namely, the two numbers that may have communicated with each other, the date and the duration of the call, and, also, because in certain circumstances it is possible to access the information, the locations of where the calls were made and received. That is nothing new.
I shall try to answer all the points in the debate. Members of the Committee have gone through these important amendments and I have statements that I want to make regarding them. I start by saying that the NCIS report that was referred to is not the basis of these provisions. There is no warehousing. There will be no excessive retention period. I cannot say what the retention period will be. That will be a matter for discussions and for the code of practice. The Observer said that the period would be seven years. The Government do not accept that. We are not talking
4 Dec 2001 : Column 771
about that kind of period. For the avoidance of any doubt the period will be shorter. It is no use my speculating further. That will be in the code of practice and it is no good my trying to speculate about the content. I have indicated the kind of data that we are talking about. It is business data that is already held by business. It will be a matter for consultation. The principle of proportionality has to apply anyway.I ask Members of the Committee not to confuse retention of data with access to it. Access to data is not governed by the Bill and these clauses. That is a matter for the Regulation of Investigatory Powers Act. The Interception Commissioner, whom no one has mentioned, is involved with that. We have said, and I repeat, that we shall fully comply with all the rules laid down in that Act, as well as the human rights legislation, in operating the retention provisions.
There are two issues here--retention and access. The provisions deal with the retention of data. The access of it will be governed by other legislation.
Members of the Committee have raised fair points regarding the Data Protection Act. I am not criticising them. There are some key questions to be answered so that we do not get unjustified public concern. Under the Data Protection Act there is no need to comply with subject access if it involves disproportionate evidence. Guidance on the subject of access can be put in the code after consulting the commissioner. I have already said that at present if data is stored for business purposes it can be accessed for law enforcement. No data have been obtained unlawfully. That will not change.
I cannot comment on the issues raised about the wrong digit in telephone intercepts. I personally do not deal with that and know nothing about any mistakes. From my experience in the other place, I can say that there is far more scrutiny and oversight of the security services these days. They are now on a statutory footing. It is a tribute to the previous government that they put them on a statutory footing. Mistakes can be made. The beauty about today's system is that it is more likely that the mistakes will be discovered. We can learn from that. That is not an unimportant point.
The RIPA--I hate using that terminology because it does not sound good on the box, friends tell me--the Regulation of Investigatory Powers Act provisions are not yet implemented. They will not be until next year. There may have been data about 11th September that would have been of use had it been retained, not destroyed, by service providers. They all have their own business rules for retaining data and operate differently. We are trying through the code of practice--which I again emphasise is voluntary--to create a system so that we all understand what we are doing.
The amendments would have two effects: they would change the purpose for which data may be retained by communications service providers under the code of practice arrangements and introduce a proportionality clause. They would remove the crime detection and prevention purpose and restrict the
4 Dec 2001 : Column 772
code's provisions to national security. Frankly, that betrays a misunderstanding of how the terrorists operate. We cannot draw a distinction between terrorist activity and other crimes; that would be incredibly difficult. There is a necessity issue connecting other crimes to crimes of terrorism, but there is a legal issue about setting that out in the Bill. In any event, as I said before, if the provision were narrowed to purely terrorist activity we would not have the opportunity to catch other people involved in funding, organising and being ancillary to terrorist activities--helping them to take place.Lord Peyton of Yeovil: I thank the Minister for giving way. When he uses the words "it would not catch", I suspect that the Government are facing difficulty in saying exactly what they mean and no more. In the Minister's words, the difficulty is to catch other things.
Lord Rooker:
There are two reasons. Defining terrorist activity is
not easy. It is defined in the Terrorism Act 2000, but
terrorism consists of ordinary crimes such as murder. We
know, because of how terrorists have changed the way in
which they work in recent years--how they conduct their
activities--that they use other crimes that would not
normally be considered terrorist. That is the point. If
we can lock down such other crimes that may fund and
assist terrorist activity, we can take precautions
against that activity. That is the object of the
exercise. So, even if we could find narrow definitions
and include them in the Bill, it would not make sense to
do so.
Viscount Goschen:
I am grateful to the Minister for giving way. I think
that to an extent we are talking at cross-purposes. Many
Members of the Committee who have spoken in favour of
restricting the provision to national security agree
with part of his argument. However, could not
subsection(5) just read: "The code of practice may
include any such provision as appears to the Secretary
of State to be necessary for the purposes of
safeguarding national security"? Surely that on its
own would give the Minister all the powers for which he
is looking.
For example, if the Secretary of State felt that
trawling through information relating to drug
trafficking was useful for catching terrorists, he could
say, "That is my purpose; I will therefore spell
out the code in that manner". All that we are
trying to do is to narrow down the provision so that it
is not deliberately used for crimes totally unrelated to
terrorism.
Lord Rooker:
I want to address all the amendments because arguments
for them have been deployed at some length and I do not
want to short-change the Committee. I shall go through
each amendment, because it is better to put the argument
on the record.
The two purposes included in the Bill are consistent
with the terminology of the Regulation of Investigatory
Powers Act 2000 and the Telecommunications (Data
Protection and Privacy) Regulations 1999. I keep going
back to this but in due
4 Dec 2001 : Column 773 Removing the second purpose of the code and agreements,
which is to prevent and detect crime and to prosecute
offenders, would make no sense in practice. It would not
affect requests to access the data, which will be
regulated not under the Bill but under the Regulation of
Investigatory Powers Act 2000 and overseen by the
Interception Commissioner. However, it would undermine
the operational efficiency of the police in combating
crime because their wider responsibilities could not be
taken into account in drawing up the code. The provision
will rely heavily on the code, which, I repeat, is
voluntary.
The second part of the amendment is simply unnecessary.
Lord Lucas: I thank the Minister for giving way. He is saying that the provision in paragraph (a) deals entirely adequately with everything that the Government want for the security situation but that they will hang on to a wider provision just because it is there. The Bill is emergency legislation, and we should not have provisions in it that have nothing to do with the security situation.
Lord Elton: With due respect, perhaps I could elaborate a little because I think that the Minister genuinely does not see where we are coming from. Parliament has decided that if someone is arrested on suspicion of burglary he shall nevertheless have his human rights protected in certain ways because he may be innocent. The Government are saying that such a person will have his human rights diminished because he may be a terrorist, and that that will apply to all cases. That is where we are coming from.
There is difficulty distinguishing what is a genuine terrorist-connected event and what is not. I sympathise with the Minister about his difficulty, but if he understood that those are the two polar opposite points of view that we occupy he would at least see what we are driving at.
Lord Rooker: To be honest, I have no difficulty at all. We have said that the operation of the Bill will fully comply with data protection and human rights legislation. There will be no problem with anyone's human rights being put at risk by our misuse of the Bill. I can accept that Members of the Committee have doubts about that that I have not yet been able to satisfy, but if I may continue I may make some inroads on that. I shall certainly do my best.
We fully agree that the provisions of the code and the agreements must be proportionate to what they are intended to achieve. Otherwise, our purpose is defeated. If they are not proportionate, they will be thrown out, deemed irrelevant and be subject to all kinds of attack. So there is no need for an explicit proportionality clause. The code must comply with the
4 Dec 2001 : Column 774
principles set out in the 1999 telecommunications regulations and the Data Protection Act 1998. Both of those pieces of domestic legislation implement EC directives that were designed to be compliant with Article 8--the right to privacy--of the European Convention on Human Rights. Proportionality and necessity are key principles of the ECHR.So there is no secret agenda to undermine anyone's human rights in the operation of the Bill. We intend to make our legislation and our operation of it fully compliant with human rights legislation. That is absolutely clear. I make that pledge as firmly as I can.
I turn to Amendment No. 167B, which would have two effects. It would change the purpose for which data may be retained by communications service providers under the code of practice and agreements and introduce a refinement to necessity and proportionality. The amendment is intended to replace the crime detection and prevention purpose with a counter-terrorism purpose. I have already said that that betrays a misunderstanding of how the terrorists operate.
I turn to Amendment No. 168. Without winding-up the noble Lord, Lord Peyton of Yeovil, I must tell him that "resist" is the first word on my brief, not the last one. I do not know if he has been here all day, but I have accepted one amendment from the Opposition Front Bench, so it has not been a completely futile operation.
The amendment would change the purpose for which the data may be retained and so we are faced with the arguments which applied to the previous amendments. If we restrict to countering terrorism the purpose for which data may be retained under the code and the agreements, it would make no sense in practice. Indeed, it would not effect--I repeat that it would not effect--the access to the data. I ask Members of the Committee to keep in mind throughout all the debates the distinction between the retention of the data as regards this legislation and the access to the data which is governed by another piece of legislation the operation of which is overseen by the Interception Commissioner.
Lord Phillips of Sudbury: The Minister distinguished between access to the data and retention of the data. The amendment I moved is designed to cure the difficulty because it would apply to access as well as to retention.
Lord Rooker: We have no problem about the access rules. The operation of access would be laid down and is governed by legislation which is already on the statute book with an independent Interception Commissioner to oversee it. Therefore, we do not see the necessity of including it in this legislation. It deals solely with the retention under the code of practice.
The Earl of Northesk: Does the Minister recognise the fact that there may be some benefit in linking the
4 Dec 2001 : Column 775
access regime to the retention regime, which is the purpose of Amendment No. 171? It creates a tidier whole.Lord Rooker: No, I do not. I have not yet dealt with Amendment No. 171, but I do not agree with the noble Earl. In this respect, it is important to keep the retention separate from the access. As regards retention, we are seeking voluntary agreement. We have every reason to believe that we can arrive at such an agreement which is completely acceptable to the entire industry. It will be achieved by a code of practice which the Government will not enforce. It will be voluntary.
Access to the information by those who carry out the investigations is governed by legislation which was well debated in both Houses. It would be a mistake to link the two--and I say that before I have dealt with the amendment. It may be that there will be reference to it in the code of practice--that is not ruled out. However, we are not writing the code of practice here today. The code of practice is for discussion and consultation with industry and the Information Commissioner.
I turn to Amendments Nos. 170 and 171.
The Earl of Northesk: Perhaps I may make the obvious point that if it is appropriate to have the regime of access on the face of primary legislation in the Regulation of Investigatory Powers Act, why is it not appropriate to have it on the face of this Bill instead of hiding it away in the code of practice?
Lord Rooker: The noble Earl refers to having access under the Bill. That does not make sense because it is about retention. I merely point out that I am not writing the code of practice here today. I cannot say what will be in it because it will be a matter for discussion with industry. It is a voluntary code; the Government will not impose it. I cannot pre-judge what the results of consultations will be. I do not know whether it will be seen appropriate to refer to access to the information. We do not have a fixed view on the matter and that is the whole point about having discussions on a voluntary code of practice.
Amendments Nos. 170 and 171 would remove the prevention/detection of crime as a purpose for the retention of data and would prevent data which are retained under Part 11 provisions from being accessed under the Regulation of Investigatory Powers Act for any purposes other than national security.
Before seeking to change the purposes for the retention of communications data set out in the Bill, it is important to understand something about how terrorists operate. I repeat the point about drawing the distinction between terrorist activity, attacks on national security and other crimes. The distinction is a false one. Terrorists often engage in a whole raft of criminal activity, whether drug running, people trafficking, bribery and corruption, in order to finance and supplement their main business.
4 Dec 2001 : Column 776
Furthermore, restricting the purpose for which data may be retained under the code and the agreements to countering terrorism would make no sense in practice. Those two arguments--that is, the messiness of the distinction between terrorism and other forms of crime and the impact on the effectiveness of the law enforcement agencies--preclude us from restricting the retention purpose to national security alone.
Amendment No. 171 proposes to amend the access provisions in the Regulation of Investigatory Powers Act 2000. Data retained under the provisions in this Bill will be kept for a dual purpose in data protection terms: first, for business purposes--billing, traffic management, direct marketing and so forth; and, secondly, for law enforcement purposes--the two purposes set out in Clause 102(5). It will therefore be impractical to distinguish between data held pursuant to these provisions and any other data.
If two conditions are met--first, that communications data are available, whether held under the provisions of the part or for any other legitimate reason and, secondly, the Regulation of Investigatory Powers Act access thresholds of necessity, proportionality and so forth are passed--why should public authorities be prevented from obtaining data for the reasons set out in the statute?
The noble Earl's amendment would mean that no communications data could ever be accessed by authorised public bodies for any purpose other than national security. It would completely undermine a whole chapter of the Act which was passed by this House only a year and a half ago. Our conviction at the time was that all the purposes listed in Section 22 were justified and I see no reason for that to have changed. I hope that that is a satisfactory explanation.
I turn to Amendment No. 174. It would restrict the grounds for seeking an order to impose mandatory directions to "safeguarding against terrorism". I would argue that noble Lords are again making a false distinction between terrorism and other crimes.
In terms of communication, we must recognise the centrality of communications data to the non-terrorist related business of the security, intelligence and law enforcement agencies. The only acceptable criteria for introducing a mandatory scheme is if the voluntary scheme fails. We do not want it to fail. The Government fully intend to use their best endeavours to ensure that a voluntary scheme is operated in co-operation with industry.
In that regard, I hope that Members of the Committee will be reassured that the access provisions under the Regulation of Investigatory Powers Act are subject to judicial oversight by the Interception Commissioner, who is a senior member of the judiciary. He is responsible for ensuring that access is carried out in accordance with the principles of necessity and proportionality set out in the European Convention on Human Rights.
As regards the period of retention, there will be consultation about what is reasonable for industry and what is necessary for law enforcement. We shall have to come to a measured conclusion to get that right.
4 Dec 2001 : Column 777
There will be arguments and, I suspect, disagreements in debate and I hope that we shall then arrive at a conclusion that is acceptable to everyone; that is, the Information Commissioner, the Government and the information providers.The period must be compliant with EC directives. If it is too long, which I suspect will be the seven-year figure mentioned in the Observer, it will be subject to challenge by the European Commission. We are not completely free agents and that is right. We bound ourselves to an international treaty which we have introduced in domestic legislation.
As regards the definition of "communications data", I regret that I was asked the question because I now have the answer in front of me. I know that if I read it out at this time of night I shall get it in the neck. However, I shall make a start. In the Regulation of Investigatory Powers Act 2000, Section 21(4) gives a definition of "communications data" and it means any of the following. I shall not read it all, but paragraph (a) states:
"any traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunications system by means of which it is being or may be transmitted".
Paragraph (b) provides:
(ii) in connection with the provision to or use by any person of any telecommunication service".
We have had a fairly long debate--I make no complaint about that, far from it--in which a number of questions have been asked and red herrings have been put forward for public consumption. I hope that I have either squashed or eaten them. We do not seek to know the contents of telephone or e-mail communications between people; nor do we want business to retain them or access them. I cannot make it clearer than that. We seek to work with industry in a wholly voluntary way. Our fallback position is there, and in part the matter is subject to a sunset provision to demonstrate our goodwill. We seek genuine co-operation in the interests of law enforcement.
I agree that this matter is being put through the House in an "emergency" fashion, but this measure is related to an emergency and we need better information. We have not sought to use a blunderbuss but voluntary access. Since the events of September 11th we have had good co-operation with the industry that has proved to be extremely useful, for which we are extremely grateful.
Viscount Goschen: Perhaps I may direct the attention of the Minister to my earlier intervention
which concerned Amendment No. 170. Can the Minister explain to the Committee how, if subsection (5)(b) is removed, the Secretary of State's power to combat international terrorism will be constrained, given that he will then be able to draft the code in such a way as to include any provision as appears to him to be necessary for the purpose of safeguarding national security?Lord Rooker: I cannot do so other than to repeat what I have already said. All I shall do is repeat my comments in dealing with Amendments Nos. 170 and 171 which were taken together. All I can do is suggest that the noble Viscount looks at Hansard tomorrow. I am quite happy to stand at the Dispatch Box for another 10 minutes and go through it again, but I do not believe that that would be a good use of the Committee's time.
Viscount Goschen: With the greatest respect, that answer is not worthy of a government Minister who seeks to explain the Bill. I do not want to hear merely a repetition of what the noble Lord said, because it did not satisfy me. The Government have said that the Bill is designed to combat international terrorism. Under subsection (5)(a) the Secretary of State is allowed to draft a code in consultation in such a way as to include any provision he likes which will assist in combating terrorism and preserving national security. If he can do anything he likes to achieve those aims, why is subsection (5)(b) necessary?
Lord Phillips of Sudbury: To add to that, if what the Minister has said and repeated is correct why do we need (a) and (b) at all? According to the Minister's explanation, the Secretary of State should be able to make such provision as he likes with regard to the retention of data--full stop. I rise in a genuinely helpful spirit. I understand the dilemma of determining whether a crime is or is not related to national security. Why cannot one say in subsection (5)(b) words to the effect, "where the Secretary of State makes provision for the purposes of the prevention or detection of crime or the prosecution of offenders which may be related to risks to national security"? I believe that that would address the perfectly fair point that the Minister seeks to make about the blurring of the edges in terms of not knowing whether a crime is or is not related to national security.
The provision starts by saying that the Secretary of State may do something. One needs a double "may" so that it reads "which may be related". One would have thought that that would go a long way to satisfy the Members of the Committee on this side of the Chamber.
Lord Lucas: I believe that the Committee understands the direction from which the noble Lord comes. The Minister will be aware that individual learning accounts have been abandoned by the Government because terrorists have been using that open door to fill their pockets with cash. Therefore, very ordinary crimes can be used to fund terrorism, but
the powers in subsection (5)(a) cover that. It is absolutely clear that that provision allows the Secretary of State to do anything which appears to him to be necessary for the purpose of safeguarding national security, which includes all those estimable things which the noble Lord, Lord Rooker, says the Government wish to do. Subsection (5)(b) must, logically, cover matters which are not necessary to safeguard national security and such a provision should not be in the Bill.Lord Rooker: Earlier one Member of the Committee said that the Secretary of State could do what he wanted. The whole point is that he cannot. I cannot emphasise enough that it is a voluntary code. The Secretary of State is not taking powers here. We hope to obtain a voluntary agreement with industry, not to impose it. We want a voluntary working arrangement. To argue that the Secretary of State can do what he wants is not true.
I suspect that many noble and learned Lords will trawl over what may be in the mind of the Secretary of State in defining "national security". Already one Law Lord has pronounced on it in the Rehman case, although we were informed last night by another distinguished member of the legal profession that we should not accept the opinion of one judge. Nevertheless, it is for the Secretary of State to interpret that.
I do not believe that I shall satisfy the Committee. The noble Lord, Lord Phillips, has just rewritten part of one of the limbs of the clause while on his feet. I do not detect a great deal of difference between that and what is now in subsection (5)(a) and (b).
There are good reasons for the way in which the provision is drafted, but it must be agreed with industry and the Information Commissioner. The Secretary of State will not have a draft code to offer for this purpose unless the interpretation of subsection (5)(a) and (b) is acceptable. The whole point about the voluntary code is that if industry does not buy into it, we shall not have one. The Information Commissioner must be consulted. If they do not buy into it, we shall not have a voluntary code. Whatever suspicions the Committee may have, each of the textual interpretations of the limbs will be satisfied certainly by the time of the publication of the voluntary code, because it will have been done with the agreement of industry and the Information Commissioner.
Crimes are a legitimate reason for retaining the data. I was not involved in the Act passed last year, although like other Ministers I followed it as closely as I could. Both Houses recognised this matter. Some Members of the Committee have already taken part in this debate. I come fresh to the matter in a sense, but Members of the Committee have been round the course before and know the dark secrets of the debates which took place.
The reality is that both Houses passed the Bill and it received Royal Assent. This matter was recognised when it was debated last year. It is probable that if we
left out one or other limb the code of practice would be a glass half-full. I rest my case on the basis that, since it is voluntary, industry must agree it; otherwise, there is no voluntary code. The Information Commissioner will be involved, otherwise we will not get a voluntary code. For those reasons, I am quite confident that by the time a voluntary code has been agreed all the nuances and doubts about Clause 102 and subsection (5) will have been settled to everyone's satisfaction.
Viscount Goschen:
Perhaps I may raise a small point. The Minister said that
the industry has to agree. Is that really the case? I had
thought that industry had to be consulted; that is, that the
Secretary of State will consult and then decide whether to
agree with the sentiments expressed by industry.
I appreciate the healthy degree of scepticism felt about what the Government are doing and about the intentions behind those actions. I am trying my inadequate best to make the point that if industry does not bite as regards the voluntary code, it will walk away from it. We shall then have an unworkable voluntary code and we shall have to move on to a statutory code. We do not want to do that. Our first priority is to establish a working agreement with industry and the Information Commissioner to establish a voluntary code.
Lord Lucas: The note from the Box has given it all away: ordinary crime will serve as a good enough purpose for keeping such information. So it might, but that has nothing to do with what should be covered by this Bill. It would be good to see this provision in another Bill dealing with ordinary criminal matters. That would give us time to consider its implications; that is, whether we would like to see traffic violations and other offences subject to the extended timescales contained in this legislation rather than those that were implicit in the Regulation of Investigatory Powers Bill.
I have two further questions for the noble Lord. First, I refer to the point made that the data to be retained will be those which companies ordinarily would keep. If I understand that correctly, it will not involve the header information on packets in Internet traffic, which makes up the vast proportion of communications data carried over the Internet. That would mean that, for example, terrorists using a hotmail account or those wise enough to attach their own server to the end of a phone line will be entirely exempt from any of the effects of this part of the legislation because none of the communications data
concerning them would be caught under any circumstances. I would be grateful if the noble Lord could confirm that that is what he meant to say.Secondly, can the noble Lord answer the question I put to him as regards the Data Protection Act; that is, whether any data held under this provision will be subject to the right conferred by the Data Protection Act for the individual concerned to request a copy of it?
Lord Rooker: To be honest, I know to my certain knowledge that I have answered that question. I have said already that the data will be retained but that it could not be accessed by an individual if it was disproportionate. I have covered the point regarding the Data Protection Act. I do not see any affirmative nods from noble Lords opposite, but I know that I have addressed this matter.
Individual access to data would be subject to the provisions of the Data Protection Act. However, there is the issue of disproportionality as regards the individual. In an earlier intervention--I do not know whether the noble Lord's remarks are speeches or interventions--the noble Lord made the point that the threat or, if you like, the attack on the system was to overload it with requests for information. That was a wholly negative point but, nevertheless, one that has been well noted. So far as the individual is concerned, the Data Protection Act will cover that.
As regards the noble Lord's other point on extra data, I probably now have to hand an extra note. I do not fully understand the details of headers and so forth. I have never used hotmail, although I have used Internet and e-mail services. I believe that I shall have to repeat what I said with regard to Amendment No. 177H. If I have not addressed the point, I apologise to the Committee.
A noble Lord: Amendment No. 177H is a future amendment.
Lord Rooker: Why am I dealing with it now? If I can answer the noble Lord's question then perhaps I shall be able to avoid an extra debate later on. That might be helpful. I shall put on the record a note that I have on Amendment No. 177H, which may answer the point put by the noble Lord. I am keen to give as many detailed answers as possible.
The amendment would require the code of practice, agreement or direction issued under this part to include transitional arrangements. Under the Data Protection Act 1998, retention periods need to be proportionate to the purpose for which the data were collected. Therefore data which will be retained under the code of practice, for both business and law enforcement purposes, will be stored for a different period from data which are held at the moment for business purposes only.
In addition, communications service providers may need time to adjust and possibly invest in new retention and/or retrieval systems. So we recognise that the code will need to make provision for
transitional arrangements. However, this amendment is unnecessary. Transitional arrangements are a matter for implementation and will be considered in the course of consultation on the code of practice. Our expectation is that a voluntary code will work and that service providers would not sign up to a code which was not reasonable and practicable.On the point made by the noble Lord with regard to hotmail and what terrorists might do, to pure lay people like us it seems that they could not possibly be found out if they used other means which I shall not describe. I am surprised at the technological proficiency that is around these days, but if terrorists are in any case technologically proficient, we shall just have to keep one step in front of them.
Lord Lucas: If I have understood correctly what the noble Lord said about the Data Protection Act, the data will be accessible by the police but not by the individual to whom that data refer. I am not sure whether that is a delightful conclusion.
So far as concerns Internet headers, I hope that the noble Lord will suggest to someone in the Box that they might drop me a note to answer my question with rather more precision. I shall then be content.
The Earl of Northesk: Dark secrets notwithstanding, this has been a wide-ranging debate. I thank all noble Lords who have contributed. I have not kept score, because there was no real need so to do, except to say that, regrettably, the Minister has scored nil.
This side of the Committee has come to an agreement on what would be an appropriate way forward. It is that which makes the Minister's position unsatisfactory to us. I take heart from the opening remarks made an hour ago by my noble friend Lord Goschen. This debate must have felt quite like old times for the noble Lord, Lord Bassam of Brighton. It also struck me that my noble friend has all but shot the Government's fox in explaining that the amendments need not constrain the Secretary of State, or the wholly admirable task of countering terrorism, in the way that the noble Lord has sought to argue throughout our scrutiny of the Bill thus far.
I should also point out to the Minister that I have always accepted the Government's assurances on content, a point which I made on Second Reading. Indeed, all my remarks on this amendment have been concerned with the pure business--to use the noble Lord's own word--data. There is no confusion in my mind on that point. I can also assure the noble Lord that I am not confused about the distinction between "retention of" and "access to" data. However, the difficulty is that while the noble Lord insists that all the Government want to see retained is billing data, that is not quite what is set down in the Bill. As drafted, the provisions raise the prospect of vast accumulations of data being retained, which in turn raises concerns about practicality that I have already mentioned.
Most kindly, the noble Lord read out the definition of communications data from the notes on the regulation of investigatory powers to demonstrate the
point. In pursuing that a little further, the Bill also confers powers to track the movements of everyone who carries a mobile phone. If business data were the only data already retained, no legislation would be needed. Furthermore, access to such business data is relatively easy. Part of the point of that is that RIP Act powers did not anticipate any degree of bulk retention when the Bill was before Parliament.As I have said, it would be easy to distinguish between data held for business purposes and for the purposes that are specified in the Bill. Thus a distinction must be made which the noble Lord has not quite explained to our satisfaction. CSPs do not want to hold the data the Bill demands they should hold, albeit they can distinguish the "business data", to use the noble Lord's term.
As to the voluntary code, it is my understanding that the industry has been working towards one for years. The problem is that it has never had any agreement from governments--nor, indeed, from law enforcement authorities-- as to what is required of it. The noble Lord may try to rest his case on the code being voluntary, but that cannot work if delivery of the voluntary code is stuck in a pipe in some way.
I make no comment about the futility of this operation, but I am intensely disappointed by the Minister's response-- the more so because my noble friend Lord Goschen has indicated a way out. I shall, of course, read extremely carefully what the Minister said. I have no doubt that I shall return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 167B to 171 not moved.]
Lord Bassam of Brighton: I beg to move that the House do now resume. In doing so, I suggest that the Committee should recommence not before one minute past nine.
Moved accordingly, and, on Question, Motion agreed to.
House again in Committee on Clause 102.
The Earl of Northesk
moved Amendment No. 171A:
"( ) A code of practice or agreement under this
section shall include clear guidance to communications
providers as to--
(a) what classes of data shall be retained, and
(b) a maximum period for which data may be retained."
The noble Earl said: The Chamber is somewhat emptier than it was before dinner. I hope that the purpose of the amendment is unambiguous and uncontroversial. It is merely to ensure that codes of practice and agreements define precisely the classes of data to be retained and the maximum periods for which they should be retained. No doubt the Minister will be tempted to say that that is stating the obvious and of course those elements will be included, but I can see no difficulty in putting them on the face of the Bill for the avoidance of doubt.
Moreover, there is some merit in ensuring that the distinction between retained data and obtained data--about which we have had a fair amount of debate--is made a little more obvious and transparent in the Bill. The amendment would assist in that with its explicit references to retained data. That has the beneficial effect of making it clear that obtained data continue to be subject to existing provisions in the Regulation of Investigatory Powers Act. I beg to move.
Lord Phillips of Sudbury: I wholeheartedly endorse the amendment. I am not sure whether the wording makes it perfectly clear that the basis on which the data are retained shall be for ever labelled round the neck of that data. We want to avoid data being retained for one purpose and then being used under RIPA for another. However, we on these Benches support the broad purport of the amendment.
Lord Rooker: I apologise to the Committee for being a little late. The amendment would further define what provisions should be contained in the code of practice and agreements by stating explicitly that the code must give guidance on what types of data should be retained and for what period. I assure the noble Earl, as I have done previously, that the code of practice will contain a number of safeguards.
As I have already said, retention practices in line with the code will comply with Article 8 of the European Convention on Human Rights--the right to privacy--and with the data protection principles. To do so, retention must be on a clear legal basis that is foreseeable and accessible for a purpose permitted by the 1999 regulations and must strike a balance between the purpose for the retention and the rights of customers whose data are retained. There will be a clear maximum retention period.
On top of the safeguards suggested by the noble Earl, the code of practice will cover a number of other issues relative to the legal and practical aspects of retention but it would not be practical to put those on the face of the Bill. The code is intended to be
technologically neutral so that it can keep up with developments in communications technology. That means that the detail of the exact types of data to be retained will not feature in the code but will be specified in the agreements negotiated with individual service providers.We will consider subdividing the generic definitions into broad classes of data, such as subscriber information, location data and traffic data. We shall have discussions on that in the course of consultation.
In the light of that, I hope that the noble Earl will not
seek to press his amendment. I repeat my apology for being
slightly late.
I was somewhat thrown by the Minister's observation that the intention is that the code of practice should be technologically neutral. That is a little odd. The voluntary code will be a by-product of this emergency legislation. That suggests that it should have an end-life. To require it to be technologically neutral for the period of the emergency seems to be stretching the point somewhat.
I heard the Minister's reassurance that the code would include a maximum period for which data are to be retained. However, his description of the classes of data appeared somewhat at variance with what he has previously said about the Government's intentions and the classes of data that they are interested in. Will the Minister clarify that point?
Lord Rooker: I would if I could. I do not think that I am contradicting what I said previously. I have pointed out that e-mail data is different from telephone data. In the past, I have talked about billing information--the addresses, telephone numbers, dates, times and duration of calls. It is no different from the broad classes of data, examples of which I have given. It is not prescriptive and will be developed during consultation. Subscriber information presumably deals with information relating to the subscriber--perhaps the number called from the subscriber's billing address and the traffic data, which is the duration of the call and the date.
The Earl of Northesk: I am grateful to the Minister for that clarification. I have to be content that the Minister is committed to ensuring that the code of practice will cover both classes of data and the maximum length of time for which it will be retained.
I shall repeat a point that I made in the context of the amendment that we debated before the dinner break. A voluntary code has been in the offing for a number of years, but no progress has been made on its fruition. That has concerned communication service providers, in particular. Part of the problem is that there has been little or no agreement on the parameters of the code. The purpose of the amendment was to facilitate that agreement. I should hope that the
assurances given by the Minister will take the matter forward, but in the meantime, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
The Earl of Northesk
moved Amendment No. 171B:
"( ) Communications providers acting in conformity
with the code of practice shall not be liable to any
criminal or civil proceedings in which the question
arises whether or not the retention of any
communications data is justified on the grounds that a
failure to retain the data would be likely to prejudice
national security."
The noble Earl said: I shall also speak to Amendments Nos. 176F and 177D, which are grouped with Amendment No. 171B.
We return to the issue of how voluntary the code is. There is an argument in favour of creating appropriate conditions to encourage compliance with the code. If businesses are not exonerated from liability when acting in conformity with the code, in cases where the justification for data retention is challenged--I am certain that that could happen--there is little incentive for businesses to subscribe to the code.
At present the Bill presents businesses with a dual risk. If businesses choose to comply and retain communications data, they could be liable for the unfair processing and disclosure of the subject's data. They could be in breach of the first and the third data protection principles. The Information Commissioner has been unequivocal about her perception of that issue. On the other hand, although it is the intention that businesses will not be held liable for failing to comply--after all, the code is voluntary--the Bill reserves for the Secretary of State the power to make mandatory provisions in respect of data retention. That threat hangs over businesses. In an attempt to address these problems, the amendment makes it clear that if businesses comply with the code, no liability will arise.
Amendment No. 176F also proposes in a slightly different way that in order to provide legal certainty, a communications provider, acting in accordance with a direction properly given by the Secretary of State, may not be challenged under the Data Protection Act or any other enactment. The Secretary of State should provide a certificate to verify that a direction has been given. There is a precedent for that in Section 28 of the Data Protection Act. The amendment would simply bring legal certainty for the purposes of avoiding unnecessary legal action.
Amendment No. 177D is the most crucial in the group. I apologise if I take a little time to address it. As I have already inferred, without the absolute certainty of legal protection against being sued, CSPs cannot contemplate doing what would otherwise be a breach of the Data Protection Act.
Clause 102(7), as drafted, is wholly inadequate in this respect. First, it only makes a code or agreement admissible in evidence without making it conclusive and, secondly, while Section 28 of the Data Protection Act contains an exemption from all the data protection
principles where such exemption is needed for national security, Section 79 on the prevention and detection of crime does not. In particular, it does not contain an exemption from the principle that personal data shall not be retained for longer than it is required.The Information Commissioner's memorandum on the Bill, published on 13th November states:
"Continued retention of communications data by a communications provider beyond the completion of its own processing need, in order to satisfy the needs of others, is likely to contravene the 1998 [Data Protection] Act's requirements. The clauses providing for retention based on the provision of a code of practice or agreement would not necessarily remedy the situation".
CSPs have received advice from legal counsel
indicating that there is no certainty that the
voluntary code of practice proposed in the Bill would
provide CSPs who comply with the code with legal
protection. This would place CSPs in a wholly
unacceptable legal position. Counsel's advice was that
the retention of communications data pursuant to a
code of practice potentially engages two of the data
protection principles. The second principle provides
that,
The second principle states that purposes may be specified either in a notice to the data subject under the fair processing code or in a notification to the commissioner. This would mean that, in order to be a lawful purpose, the fact that communications data were being retained for national security and law enforcement purposes would need to be disclosed to the data subject. This could have negative effects on business in that customers might be unwilling for their information to be kept for those purposes. It could also result in a huge increase in data subject access requests. That is a point upon which we touched briefly previously, but to which we still have no satisfactory answer.
We believe that a voluntary code of practice must be backed up by a clear provision for statutory immunity for CSPs in the text of the Bill. Hence the amendment which, in terms, states that compliance with a code of practice, agreement or direction renders a CSP immune from actions under the Data Protection Act and similar data protection legislation.
The duty under the Human Rights Act to construct legislation so far as possible to make it consistent with human rights adds particular uncertainty. The amendment in this context seeks to provide a clear and unambiguous statement that in relation to the retention of data the Act we are debating today overrides conflicting legislation so that CSPs who comply with a code, agreement or direction can do so
secure in the knowledge that they cannot be made legally liable in so doing. The Minister should be under no illusions as to the importance of that. Without absolute certainty about liability, the voluntary code simply cannot work. I beg to move.Lord Rooker: Does the noble Earl want the voluntary code to work? I am not sure about that, having listened to the manner in which the amendments were presented. If the Opposition do not want the voluntary code as the first option and would prefer a statutory measure, let them say so. However, that is not the Government's intention. We want the voluntary code to work. I cannot emphasise strongly enough that we do not want to, and will not, put service providers in the situation that the noble Earl thinks they may be put in. I hope that I shall make that absolutely clear in responding to the three amendments.
We have no intention of drawing service providers into breaking either the civil or the criminal law. The code of practice and the agreements will not be drafted in a way which is incompatible with data protection or human rights legislation. I have made that point about half a dozen times, if not more, during the course of our debates. However, it bears repeating to put it on the record so that industry can see the whites of our eyes and can be sure that what we say is what we mean.
We are keen to ensure that any data kept for the purpose of safeguarding national security or preventing and detecting should be stored by service providers in accordance with the Data Protection Act. This means that data should be retained only for a period which is necessary and, of course, proportionate, and should be stored with the utmost regard to processing quality standards.
Removing the possibility of legal challenge to service providers' retention practices would undermine the Government's commitment to ensuring that personal data are treated fairly and responsibly in line with the Data Protection Act. These protections work only if subject to a challenge in the court.
In any event, we intend to draw up a code of practice that is compliant with data protection and human rights legislation and to consult fully with the Information Commissioner to ensure that the drafting reflects that. It is, therefore, entirely unnecessary and, indeed, bordering on the unhelpful, to introduce any kind of immunity clause.
I turn to Amendment No. 176F. The amendment tabled by the noble Earl would clarify that data retained in accordance with a direction under Clause 103 were necessary for national security and the prevention or detection of crime as we discussed earlier.
If a communications service provider is issued with a mandatory direction to retain data, his purpose for retaining it in data protection terms is that he is obliged by law to do so. Therefore, there is absolutely no question of liability, and a certificate from the
Secretary of State would not add an iota of further protection. I am sure that any information service provider who took legal advice on this issue would immediately know that to be the case. It is hoped that that would give such service providers absolute coverage. They are entitled to the coverage and are entitled to seek it but, once they are in a mandatory situation, it is implicit that they have absolute immunity.I turn to a point which I suppose brings me back to my initial question. I understand that some sections of industry--I have not been involved in any discussions but I have received reports of them--would probably like to have the comfort factor of being able to say to their customers, "We must do this; the law says so, and we are all treated the same". We are not going down that route. To begin with, we want a voluntary system in which everyone is treated equally and in which, it is hoped, no red herrings give rise to customer dissatisfaction with individual suppliers. We do not intend to play off one against another. That would be wholly unfair and an abuse of the Government's position.
So far as concerns the final amendment in this group, I can only repeat what I have already said. We have no intention of drawing service providers into breaking either the criminal or the civil law. The proposed code will be fully compatible with human rights and data protection legislation. I can repeat the exact points that I have made on previous amendments but that would appear superfluous; they are the same word for word.
With regard to the directions set out in Clause 103, if a communications service provider is issued with a mandatory direction to retain data, then, as I said, his purpose in data protection terms is that he is obliged to do so by law. Therefore, such providers have a copper-bottomed guarantee of immunity and no purpose is served by the proposed amendments being made to the Bill. I assume that, quite rightly, they have been tabled for exploratory and probing reasons in order to obtain firm guarantees from the Government and to have those recorded in Hansard.
The Earl of Northesk: I am grateful for the noble Lord's comments. I must confess that I am somewhat surprised by them. The thought strikes me that this is an issue in which Parliament should have an interest. Rhetorically--no more than that--I ask whether it is appropriate that potential conflicts in law should be, as the noble Lord suggests--at least I believe that that is what he suggests--resolved in a code of practice by negotiation between the interested parties rather than in primary legislation. That strikes me as a somewhat extraordinary proposition.
That said, the noble Lord gave a number of very reasonable reassurances as to liability and whether or not there is a conflict here between the Data Protection Act and what is proposed on the face of the Bill. I am bound to say to the noble Lord that, whatever assurance he gives, there is a conflicting view on that issue. I am also bound to say to the noble Lord that that conflicting view needs to be resolved one way or
another by Parliament. I shall not press the matter at this late hour, but I repeat that the noble Lord should be under absolutely no illusions. This is a very serious issue for the industry. If he sincerely believes that without resolution on the face of the Bill he will get a voluntary code, then I am sorry but he is living in Cloud-cuckoo-land.Lord Rooker: I have not read all the correspondence. Have any of the service providers expressed the matter in such bold terms in writing to the Home Office? They have been in consultation; they have been in correspondence; and they have received assurances in writing from officials as well as at meetings. Are any service providers so concerned about this matter that they take that view? Have they put their demands in writing, saying that they will not co-operate with the voluntary code unless that is the case? I have no evidence to that effect. It may be so. I simply ask the question.
The Earl of Northesk: I merely repeat the point, which has been confirmed in writing to me, that communications service providers hold to the position that their legal advice is that the Bill as it stands exposes them to huge legal liabilities.
Lord Rooker: I do not want to negotiate over the Dispatch Box, but if providers have received such advice, I hope that they will put it to the Home Office when we are negotiating, discussing and consulting on the code of practice. It is no use submitting that information to noble Lords without sharing it with officials. That is said by way of an offer, not a complaint. That is what consultation is all about.
The Earl of Northesk:
I note the Minister's comment and suspect that I should
not be drawn any further. I repeat his point that we
should not negotiate such issues across the Floor of the
Committee. The fundamental issue remains that legal
certainty should be on the face of the Bill because
Parliament should have an interest. The matter should be
determined by primary legislation.
The Earl of Northesk: I am grateful for my noble friend's intervention. He makes the point far more eloquently. I will not divide the Committee, but I am distinctly unhappy with the Minister's response. He may be assured that we will return to the point at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 172 and 172A not moved.]
The Earl of Northesk
moved Amendment No. 172B:
"( ) It shall be the duty of the Secretary of State
to ensure that a code of practice or agreement issued
under this section does not place an unreasonable burden
on communications providers.
( ) A code of practice or agreement shall not expect or
require a communications provider to retain any class of
data that is not obtained or held by him during the
normal course of his business."
The noble Earl said: With this, I shall speak also to Amendments No. 176A and 176B. Amendment No. 172B requires that codes of practice and agreements should not place an unreasonable burden on communications service providers and will not require them to retain data that are not part of the providers' normal business.
The first part of the amendment mirrors similar provisions on unreasonableness in RIPA, thereby allowing for consistency between the two. The second part reflects, as I understand it, assurances given by the Secretary of State.
Amendment No. 176A seeks to deal with a more awkward problem. The Bill allows the Secretary of State to make different directions for different communications service providers. No doubt that is to accommodate the variety of business models that operate in the sector--telephony, Internet and so on--and to allow flexibility. It could also give rise to inequities, so the amendment would place an obligation on the Secretary of State to ensure that a direction does not impose requirements on one communications provider that are significantly different from those imposed on another; and that requirements are reasonable and non-discriminatory.
Coincidentally, as with Amendment No. 172B, Amendment No. 176A reinforces the Secretary of State's commitment that communications providers will not be required to retain data that they do not process or keep in the normal course of business.
Amendment No. 176B also mirrors the wording of Section 11(5) of RIPA, so establishing the principle of reasonableness that is such a key feature of that Act, as well as ensuring consistency. The amendment minimises the risk of arbitrary directions and ensures that a direction takes full account of technical feasibility and other relevant factors. I beg to move.
Lord Phillips of Sudbury: I support this group of amendments in general but query the point about discriminating between one communications provider and another. If, as only the Government believe, the Bill and these clauses were to be confined to terrorists or terrorist-related circumstances, it would be perfectly rational to allow the Secretary of State to make directions in respect of a particular group of telecommunications providers or a particular telecommunications provider. That would be a focused, specific intervention.
Even if this is forced upon the Government in a vote, I hope that we will return to a Bill based upon the kind of emergency that the measure was purported to deter.
Viscount Goschen: The sentiments that have led my noble friend to put down these amendments are important. The committee will recall when we were considering the RIP Bill, there were essentially three principal concerns: first, the civil rights argument; secondly, whether the provisions would be effective; and, thirdly, whether UK-based communications providers would be disadvantaged compared to their international counterparts. Communications providers can move their services. The industry is extremely difficult to regulate. I hope the Minister will not maintain that it is only a voluntary code and so, if it is unreasonable, the industry will not have to comply with it. We are talking about a voluntary code but a voluntary code must work and be drafted in such a way that everyone can sign up and adhere to it.
What discussions have taken place with our international partners to try to align the regulations in the RIP Act and the regulations in the Bill with those of our European partners and the US? During the debates on the RIP Bill one of the principal arguments was that if one had differing levels of regulation, service providers could move their services to the most friendly jurisdiction. It is important for the workings of this part of the Bill, as well as for the RIP Act as a whole, that we do see eye-to-eye with our partner countries in the fight against terrorism. I should be obliged if the noble Lord could answer those points.
Lord Rooker: If I have the information and am able to give it, then I shall be happy to do so. I shall take advice on what international discussions have taken place. There have been many discussions since 11th September but on the specifics of the question, if I am able to get the information, I shall certainly give it to the noble Viscount or write to him.
The noble Viscount was quite right in forecasting one point I wanted to make. If the code is not reasonable, the industry will not sign up to it. Why should it? It makes no sense. Were I in that industry and I received good advice that the code was unreasonable, I would not sign up. We cannot conceive of how we could get agreement to a voluntary code if the industry believed it to be unreasonable.
Lord Elton: The main point is in the next clause. If it does not get the voluntary one, it will have to lump the compulsory one.
Lord Phillips of Sudbury: Industry will want to co-operate with the Government. The Minister should have no doubt about that. Everyone in your Lordships' House would want to see a voluntary code. But there is a central defect in terms of the scope of Clause 102. Industry is unlikely to refuse to play ball. That is not the nature of reality. It is going to negotiate and come to some sort of arrangement with the Government. However, that does not get us away from the defects to which the amendment relates.
Lord Rooker: I do not accept that for one minute. We should prefer to have a voluntary code and, in view
of our contacts with the industry, we have every expectation of securing that. I am not going to give details of that consultation tonight because I am in no position to do so.I turn to the points of substance that have been raised. I do not deny that they are points of substance, but I do not agree that the amendment should be added to the Bill. The amendment would have two effects: it would guarantee that an unreasonable burden was not placed on service providers, and it would prohibit the retention of data that are not needed for business purposes.
The first issue is dealt with in Clause 105. The Secretary of State is required to ensure that arrangements are in place to make appropriate contributions to service providers if he judges that it is right to do so. So far as I am concerned--I shall also take advice on this--the terms in the first two or three lines of Clause 105 are standard and are used in other Bills. I recall that form of words from my time at the DSS when we consulted with industry. They came up when we were, as it were, paying for something to be done or that had been done at our request. The phrases, "as he thinks appropriate", and, "as he thinks fit", involve a tried and tested formula in legislation and I am not aware of any complaints about the words. That also mirrors the payment arrangements in the Regulation of Investigatory Powers Act, which covers access to communications data.
It is absolutely crucial that we work with information providers to ensure that the arrangements do not cause British industry to lose out to competition from abroad. We are not seeking to damage British industry in any shape or form in relation to its competitors. That will not satisfy Members of the Committee but it certainly answers the first point.
The second issue concerns the type of data to be retained. That will be discussed in detail in the consultations on the code of practice. Individual agreements with the service providers will specify exactly which types of data are kept and will ensure that current retention practices are taken into account. There will not be a "one size fits all" arrangement. Some providers may end up retaining more data than they currently do. We want to take that into account.
The provisions are flexible enough to distinguish data that are of use to law enforcement and should be kept, and data that are of no interest to national security or the detection of crime. Records of standard operational procedures or the product of the functioning of computer systems, for example, should not be kept because that has nothing to do with the purpose for which the codes allow data to be kept. The provisions apply only to communications data that are already held by providers. We have no intention of asking them to retain data that are not collected in the normal course of their business. They are being asked to do nothing new. I see that the noble Lord is nodding, for which I am grateful.
The information that I have is that, in relation to our international partners, there have been negotiations on the EU draft communications data protection
directive. My notes contain a word that I cannot read, but it starts with, "cyber"; it could be "cyber-active forum". Last week, that forum was devoted entirely to data retention. I shall get a translation of the word in due course. There are ongoing European Commission discussions with the United States authorities and the matter arose at the G8 Florence summit two weeks ago. Home Office officials have met counterparts from France and the Netherlands. I now learn that the word I could not read is, "cyber-crime", and the body is the "cyber-crime forum". Okay. The writing is much better than mine. I am not making a criticism.Last month Home Office officials met counterparts in France, the Netherlands and Sweden to discuss what each country is to do on data retention to meet the 11th September crisis. France has just introduced emergency legislation to retain data for up to one year for law enforcement purposes. I hope that that brief overview answers the noble Lord.
Amendment No. 176A seeks to ensure that equity is maintained between service providers and that they are not made to bear unreasonable burdens. We are committed to ensuring equity between comparable service providers. If it is necessary to introduce a mandatory scheme--I hope that it will not be--discussions about how equity can be observed will take place during consultation before directions are made.
Payments are dealt with in Clause 105. The Secretary of State is required to ensure that arrangements are in place to make appropriate contributions to service providers, if he judges that it is right to do so. That mirrors the payment arrangements in the RIPA provisions which cover access to communications data. The second issue concerns the type of data to be retained. That will be discussed during the consultations.
Amendment No. 176E introduces a test of reasonableness to directions issued under Clause 103. There is a requirement to consult communications providers before issuing directions. That will ensure that they are able to express what they can or cannot reasonably do. The Secretary of State will then need to balance those considerations against what is necessary to safeguard national security and to prevent and to detect crime.
We are committed to considering what help may be given to service providers that may take the form of capital investment or running costs. We shall work with the service providers on that and, in particular, we shall ensure that that does not cause British industry to lose out to competition from abroad. Noble Lords have raised a crucially important point on which I hope I have satisfied them.
The Earl of Northesk: I am grateful to the Minister for his explanation and comments. The noble Lord, Lord Phillips, may be more optimistic than I, but I concur with his wish and expectation that this part of the Bill will eventually be appropriately constrained, which will render these particular amendments redundant.
I am also grateful for the comments of my noble friend Lord Goschen. He put the issue with much more clarity than I managed. His point about potential migration via CSPs is well made. The Government should not lose sight of the fact that that could happen as that would damage their ambition to make the UK the best place for e-commerce among the G7 by 2005 and aspirations of that kind.
I hasten to add that thus far I have tried to avoid muddying the waters of the debate with references to preparation of and negotiation over EC directives. My suspicion is that we have probably successfully confused too many people already without adding that into the matrix. I am particularly grateful for reassurance from the Minister that the requirement for retention of data shall not include anything outside CSPs' normal business practice and use. That is extremely helpful. Tomorrow I shall read carefully in Hansard what the Minister has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 102, as amended, agreed to.
The Deputy Chairman of Committees (Lord Geddes): Before calling Amendment No. 173, I must advise the Committee that when that amendment has been disposed of I shall call Amendment No. 173B before Amendment No. 173A, as Amendment No. 173B has been incorrectly marshalled. I must further advise the Committee that if Amendment No. 173 or 173B is agreed to, I shall be unable to call Amendments Nos. 173C to 174 inclusive due to pre-emption.
Clause 103 [Directions about retention of communications data]:
Lord Phillips of Sudbury
moved Amendment No. 173:
"( ) If, after reviewing the operation of any
requirements contained in the code of practice and any
agreements under section 102, it appears to the
Secretary of State that it is necessary to do so to
safeguard against terrorism, he may by order made by
statutory instrument authorise the giving of directions
under this section for as long as it takes to revise the
code in consultation with the communications providers
to whom the code will apply or, as the case may be, who
will be affected by the revisions, or with the persons
appearing to him to represent those providers."
We on this side of the House--there are several names attached to the amendment which cover the spectrum--feel that a better solution to the circumstances which give rise to compulsion would be
for the compulsion period to end as soon as a satisfactory code has been developed. That is the simple purport of Amendment No. 173. I beg to move.The Earl of Northesk: It may be convenient to the Committee if I speak to Amendments Nos. 173A, 173B and 174B. I begin by supporting the words of the noble Lord, Lord Phillips. Both Amendments Nos. 173A and 173B offer alternative approaches to the amendment so eloquently explained by the noble Lord.
Our view is that it is inappropriate that the Secretary of State should have absolute discretion in invoking reserve powers. To that extent, we are of one mind in the conviction that this part of the Bill is in need of improvement.
I turn to Amendment No. 173A. It seeks to introduce elements again of a proportionality test against which the Secretary of State's giving of directions under the clause can be measured. It is important to realise that it is not unwillingness on the part of business that can make compliance with data retention requests difficult, be they voluntary or mandatory. As the Minister said, the response of communication service providers in the wake of September 11th has been excellent. There are often sound commercial reasons for non-compliance; for example, the data required might be available only on a service that is subject to another jurisdiction. That point was made previously by my noble friend Lord Goschen.
I hazard a guess that understanding of these kinds of issues is perhaps a little cloudy. Thus, without some form of test and the pro-active involvement of business in the process, it is conceivable, if not likely, that directions emanating from the Secretary of State alone will entrench the ineffectiveness of the code rather than address it. In the context of a mandatory code, that has the potential of being positively harmful to the sector. Amendment No. 173A seeks to address that problem by making business a party to the preparation of any revisions in the code.
I turn to Amendment No. 183B. That too introduces a
threshold test for the reserved powers by obliging the
Home Secretary to show that a direction under Clause 103
is necessary and justified for the purposes of the Bill
by linking it back--again-- to Clause 102(5). That is
consistent with the proportionality principle
highlighted by the Information Commissioner in her
memorandum on the Bill. She stated:
Amendment No. 147B picks up that thread and applies it equally to any directions that the Secretary of State may issue to communication service providers. As so often with the Bill, the objective is to
establish appropriate consistency with the principles of proportionality present in data protection and human rights law and in RIP.Viscount Goschen: In responding to the amendments, the Minister has an excellent opportunity to reassure the Committee and the industry about what circumstances are in the Government's mind with regard to Clause 103--under what circumstances they would seek to introduce directions by statutory instrument rather than allow the voluntary code of practice to continue.
We well know that the industry tends to know much more about the business of providing information--the ins and outs of the competitive framework--than do the Government. The industry is a vital part of making this area of the Bill work. If it is compelled to do something, the chance of it co-operating fully will be much less. It is clearly in the Government's interest to reassure the industry that Clause 103 is a reserve power.
My noble friend Lord Northesk and the noble Lord, Lord Phillips of Sudbury, have provided some more objective tests to be used--some further hurdles to be overcome. The Minister may or may not like the specific tests that they have proposed, but the Committee wants further reassurance on when and how the clause will be invoked. All our discussion on Clause 102 for the past two or three hours has been useless if the Government have it in mind to use Clause 103 at the flip of a switch.
Lord Rooker: I take the point behind the amendments. I can make one commitment that may answer the Committee's suspicion. I cannot read out a list of criteria by which we would decide, if necessary, to switch from a voluntary to a mandatory scheme. However, during consultation on the code of practice, an objective set of criteria to determine its success or failure will be drawn up. I cannot put it better than that. During those discussions, we will draw up with the industry and the Information Commissioner an objective set of criteria to decide at a given time whether the code had been a success or a failure. If it were a failure, that would trigger either further consultation to revise the code or the mandatory route.
I can entertain the Committee with much repetition of what I said earlier, but my remarks just now go to the central point that is the thrust behind the amendments. We want to be open and objective about measuring the code's success or failure. As I said, that set of criteria will be drawn up during the consultation.
Lord Phillips of Sudbury: That reply is helpful. What if the Minister had to go down the compulsory route and the industry came running to his door, started negotiating seriously and effectively and, after six months, let us say, we had a code with which everybody was satisfied? As I understand it, nothing in the Bill would allow the two-year period to be broken or ended. I wonder whether that is right and sensible.
Lord Rooker: I do not know, but I am happy to consider that in the time available. We want the thing
to work. If we can clarify that point, we will. If the voluntary system has failed and we are moving to a statutory system but, following negotiation, there is an agreement to continue a voluntary system, by definition there is no dispute any longer and it does not make sense to ramrod the statutory system. I shall take advice and clarify the process, if I can, because that is in everyone's interest.Lord Phillips of Sudbury: I thank the Minister for that reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 173B not moved.]
The Deputy Chairman of Committees: Before calling Amendment No. 173A, I must advise the Committee that, if it is agreed to, I cannot call Amendments Nos. 173C to 176 inclusive due to pre-emption.
[Amendment No. 173A not moved.]
[Amendment No. 173C not moved.]
The Deputy Chairman of Committees: Before calling Amendment No. 173D, I must advise the Committee that if it is agreed to I cannot call Amendment No. 174.
[Amendment No. 173 not moved.]
[Amendments Nos. 174 to 174B not moved.]
Lord Phillips of Sudbury
moved Amendment No. 175:
The noble Lord said: I speak for all those named on the amendment. I hope that the Committee will be patient if I deal with it with some care--care partly because it affects an issue which causes consternation outside the Chamber in the industry and care because, frankly, I do not know what I am talking about!
On that score, I should pay tribute to the great deal of help which we on this side of the Committee have received from the Foundation for Information Policy Research and the Internet Service Providers Association. Both those organisations are steeped in the intricacies of this strange world.
The point of the little word "public", inserted in Clause 103(2)(a), is that where the Secretary of State gives directions he must give that information and direction to public communications providers generally in order to get away from the personal/private provider as defined by the legislation. It is also to restrict the coercive powers of Clause 103 to public communications providers.
As drafted, the clause would compel the keeping or retaining of data not just to communications providers under the Bill, sometimes called Internet service providers and telephone companies, but to anyone with a computer utilising software providing any kind of service, commercial or not. That would include a web server, file sharing software, and so-called "peer-to-peer" networking. Peer-to-peer networking is not the kind of thing Members of this House do for many hours a day in the many nooks and crannies of this wonderful building, quaffing and talking, although it
is the same spelling. Peer-to-peer networking involves computing devices which talk directly to one another without a central computer controlling that communication. Devices used in peer-to-peer communications, which is known in the trade as P2P, can include not only desk-top computers but also PDAs, palm or hand-held computers, corporate workstations or even cell phones. Hooking up computers by P2P connections is a critical step for the future of computing generally. That is the importance of this apparently small amendment.For many years, computer users had to dump their information into a central data base before anyone else could use it. But with P2P networking, users can share on a one-to-one basis as data is generated, rather than waiting for central data bases to be updated, therefore allowing for more accurate and time-sensitive decisions. For example, a PC user with the right permissions could check on his co-worker's laptop to see whether a particular file existed. P2P networking is also becoming vital to collaboration between workers and has, I am told and believe, huge potential commercial application. Through direct computer-to-computer collaboration, users can share files easily and message each other as they do so. These functions, which help to duplicate the environment of an in-person meeting, are extremely helpful to companies as workers spread out across the country and the globe.
For consumers P2P networking is an irreplaceable tool
for global knowledge-sharing and media distribution and
makes it possible for users to have quick and easy
access to entertainment and software cheaply relayed to
each other's computers at a price that cannot be matched
in the outside world. It also helps users to share
information, files and research that they cannot find
elsewhere. That is the purpose of inserting
"public" in the two places in the Bill. I
should be interested to know whether the Government have
any objection to these proposals. I beg to move.
The Earl of Northesk: I rise to contribute to the noble Lord's introduction to these amendments and speak to Amendments Nos. 177E, 177F and 177G. The Bill is drafted in such a way as to compel the retention of data by private as well as public networks. The Minister confirmed that point in an earlier debate. Thus it applies to a massive sub-set of computing uses. The noble Lord, Lord Phillips, mentioned peer-to-peer or P2P which is already a well-established medium for data transfer and exchange over the Internet.
Many--or maybe few--will be aware of the legal action conducted in America against Napster by the recording industry. Whatever the outcome, P2P, whether represented by Napster derivatives or successors such as the systems engineered by the recording industry--I believe that one was announced today--is becoming a benchmark for data transfer of content over the web.
In terms, therefore, the Bill potentially requires private computers, perhaps even down to the level of the individual user, to log arbitrary data. If it applies
at that level and users are required to log traffic and report usage upon government request, not only will it be an unwarranted intrusion upon the individual but it could also severely impair research and development of a number of P2P software applications.
There are those who believe that P2P and its variants
are the future of e-commerce. For example, Andrew Grove,
former chairman of Intel Corporation, observed:
"Web computing defined the second
half of the '90s; peer-to-peer computing will be a
significant paradigm"--
a wonderful word--
Amendments Nos. 177E, 177F and 177G are quite technical but no less important for that. Amendment No. 177E seeks to ensure that data generated temporarily during the course of computing operations, which has no separate business use, are not inadvertently caught by the scope of the Bill. I believe that the Minister has already given assurances on the point, so if he chooses not to reply to that amendment I shall probably be satisfied. Amendments Nos. 177F and 177G echo the concerns raised in respect of Amendments Nos. 175 and 176. I have in mind--I may be wrong--that our debates on RIP provoked assurances that the provisions of that Act did not extend to private telecoms networks. Perhaps the Minister can confirm that one way or the other.
I move to Amendment No. 177G. The particular focus of our debates on RIP was whether its provisions extended to providers of private telecoms networks. This amendment also seeks to address that problem.
Viscount Goschen: It is clear that the noble Lord, Lord Phillips, and my noble friend Lord Northesk have put their fingers on a central problem. I do not envy the Minister's task in defining "communications provider". As my noble friend Lord Northesk said, during debates on RIP we went round in circles for a long time trying to nail down what a communications provider was. It is clear that we all know, more or less, what the Bill should mean. There is a statement that is sufficiently vague for it to come from any Front Bench.
Clearly, technology is moving extremely fast. We have heard descriptions of systems being envisaged that will not need a central server or computing business to enable communications to pass from one machine to another. We need to define the term "communications provider" and to be clear about what types of service will be included and which will be specifically excluded. For example, would a small office comprising five computers fitted with networking software to enable e-mails to be sent between those machines be termed a communications provider? Members of the Committee know that such
a system is not what the Act is aimed at, but the provisions must make it clear where they intend to strike.Lord Rooker: We are entering the realms of technology and "new-speak" that are beyond me. Indeed, in reading out a profoundly complicated statement, the noble Lord, Lord Phillips, admitted that he could not understand the detail. I felt for him.
I can respond to the amendments briefly, perhaps not to universal satisfaction, but at least to establish consistency, which is important. The definition of communications providers set out in the Bill is and should be consistent with that used in the access to communications data provisions set out in Part I, Chapter II of the Regulation of Investigatory Powers Act 2000. Although the provisions in the Bill and those in the RIP Act will bite in the main where they are intended to do so--namely, on providers who provide a service to the public, such as BT, Orange and Vodafone--we do not wish to rule out the possibility--I put it no more strongly than that--of ensuring that communications data relating to private networks are retained where they might be necessary for national security or crime prevention purposes.
Earlier I said that we have accepted the case as regards PDVN and university networks, but I am reluctant to cite examples and the reasons why it may be done. That is because the different cases will be explored and will be covered by the code of practice. Details on negotiations will be covered by the code. We shall retain the possibility.
As regards P2P, which is new to me because I have not yet read about it and thus I am not as up to date as the noble Lord, the directions would need to be appropriate and relevant for the purpose for which the data may be retained under Clause 102(5)--on which we have had a technical disagreement, as it were--that is, to cover national security and the prevention and detection of crime. Directions need to be appropriate and relevant for those purposes.
Keeping the definition consistent through the different pieces of legislation is probably important for reasons of cross-over. When listening to noble Lords and taking note of the examples given, I can understand why noble Lords might worry that the Government are being oppressive. That is not our intention. By keeping the definitions consistent, we send a signal indicating that the possibility is in place, but that it is not our intention to target private networks. Nevertheless, at some time it may be possible that we would need to do so. I thought that the noble Lord, Lord Phillips, wished to intervene, but he has indicated that he agrees with what I have said. It must be the late hour.
The noble Earl on the Opposition Front Bench invited me not to reply to one of his amendments because, in effect, I have already responded to the central points. Amendments Nos. 177F and 177G both refer to the definition. In that regard I refer to what I have just said. The central point is that it is not our intention to be oppressive. These matters will have
to be discussed during the consultation on the code of practice in order that people will know where they stand. I hope that I have said enough to reassure noble Lords and others outside the House. I appreciate that we do not yet have a code of practice or even a draft.
As to the comments that this issue has been in the offing
for years, I can assure the Committee that the Home Office
has now got its skates on.
If when considering what I said in introducing the amendment the Minister and his officials are of the view that there is substance in it, I would be grateful if the Government could suggest an amendment to cover the position. I am sure that the Minister will accept that important principles such as this need to be right on the face of the Bill. We should not leave everything to codes. For this purpose, I am sure that those who have been assisting me on this side of the House with these technical matters would be very happy to discuss them directly with officials to try to hammer out the truth of the matter. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 176 to 176F not moved.]
On Question, Whether Clause 103 shall stand part of the Bill?
Lord Phillips of Sudbury: I beg the patience of the Committee at this late hour while I try to draw together the strands of anxiety that have been expressed so far on all the amendments in respect of Clauses 102 and 103. The issues are of the greatest moment and, to be fair, the Minister has made no attempt to pretend otherwise.
There is a profound disagreement between the Government and the rest of the Committee on the central issue of whether this part of the Bill should be confined--or can be confined--to threats to national security. I would rather put it that way than talk of terrorism. Indeed, that is how it appears in the Bill.
If the noble Lord, Lord Rooker, is correct in his claim that it is impossible to define the scope of this part of the Bill so that it is confined to threats to national security and any criminal matter potentially related to such a threat, then the anxieties are heightened and intensified. I do not think that it is the case that the wit of man and parliamentary draftsmen cannot rise to this challenge. I was as bold during the course of the debate to suggest a form of words that might serve the purpose.
It means that, further downstream, when the time comes to access the bulging warehouses of data communications, it will remain impractical--if the Minister is right--to distinguish between a threat to national security and any old crime. In which case, those warehouses can be accessed wholesale under
Sections 22 and 23 of the RIPA legislation, not only for the purposes for which this legislation has been brought forward on an emergency timetable but for vastly wider purposes.Let us examine what this could mean. First, will data retained under the terms of the Bill, and accessible under the Regulation of Investigatory Powers Act, be accumulated by any agency or any authority in some central or single database? In other words, could data from separate inquiries and investigations for diverse purposes be pooled or accumulated? We assume that that is the case.
Secondly, is it intended to mark or categorise such data in terms of the purpose for which the data were retained? Will it be possible to distinguish at a later time which data were obtained for what purpose, so that, as the Data Protection Act provides, the data shall not then be used for any incompatible purpose? Again, I must assume that the answer is no. My view is reinforced by the Government's unwillingness to accept the merits of Amendment No. 171.
Thirdly, will the data be kept by police in databases for intelligence purposes? If that is the case, current Association of Chief Police Officers guidelines mean that the data can be kept indefinitely, subject to a yearly review, even if the people concerned are neither convicted nor suspected of any crime. That illustrates the central difficulty that we have.
Although the Government rely heavily on the continued applicability of the Data Protection Act, the Information Commissioner has no duty to inspect the databases that will hold the data after they are obtained or to examine the manner in which they are used.
The Government may say that that responsibility falls to the Interception of Communications Commissioner under the Regulation of Investigatory Powers Act. But that, again, is not so. The Interception of Communications Commissioner has a duty to satisfy himself that traffic data are lawfully obtained, and no more. He has no say over what may be done with the data afterwards, and no mandate or technical capacity to inquire.
If the Government were to accept the central concern--namely, that this part of the Bill should be restricted to threats to national security and potentially related crime--most of our other concerns would go or would be easily accommodated. On Report, we shall, I fear, have to press this matter to a vote unless there can be some accommodation. We do not accept the fatalism of the Home Office in terms of the inability to confine the scope of the Bill, especially since it chimes with the wishes of NCIS and the other security bodies, as mentioned previously in this debate.
The distinction that the Minister has constantly made between data attached to communications and content of communications is not as great as he implies. The fact of being able via communications data to draw an accurate, precise profile of not merely a few individuals but thousands of individuals is an immense intrusion into the privacy to which citizens of
this land are entitled. The profile will be of anyone's interests, contacts and movements. All that is possible--indeed, with the development of technology, it is fast growing.The Minister has repeatedly assured the House that there "will not be misuse" and that the legislation will fully respect the Human Rights Act, the Data Protection Act and the Regulation of Investigatory Powers Act. He has said so again and again. Indeed, at one point he was so carried away with this conviction that he banged the desk. Had I a desk to bang, I would bang it back. There are times when scepticism is the right course for this legislative House.
I do not mean to be in any way disparaging, but I believe that the Minister is being complacent, given the importance of the issues, because not everyone is as palpably decent and honourable as the Ministers and their civil servants. An audit by the police last year found that the national databank contained more than 50,000 sets of fingerprints and DNA material that were there illegally. They may have been put there out of malice, but it is much more likely to have been a cock-up.
It is a commonplace that access to licensing information, police records and bank records is easily obtained through low-level corruption on the part of those on the inside and on the outside. These are realities and we are foolish to pretend otherwise.
The greatest prayer handed down to us says,
At the end of all his reassurances, the Minister said that we should not worry because there is always the Interception of Communications Commissioner. I fear that that too is not a satisfactory basis on which to rely. His office is understaffed and under equipped. As his report issued in October this year makes clear, he does not even have the resources to deal with Internet communications. There are no indications of what robust sampling there has been to investigate the vast number of cases involving widely differing types of data that he has to deal with.
The Home Office will not say when the commissioner will
be provided with the promised,
The commissioner does not yet have a promise that he will have available to him those black boxes, which could be under remote control from NTAC, or even whether he will have a searchable database from which he can hope to undertake his task effectively. Last year the Regulation of Investigatory Powers Tribunal, which was an important part of the protection of the citizen under RIPA and which is supposed to safeguard civil liberties, was criticised by the parliamentary watchdog on the grounds that it did not have sufficient secretariat to enable it even to open the mail, let alone process and investigate complaints.
I fear that it is a commonplace that some of the reassurances that Ministers honestly give on legislation such as this are undermined by a simple failure of manpower and quality of manpower and other resources. We are unconvinced that the huge extra powers and the massive collection and retention of information that these two clauses will enable have been satisfactorily safeguarded.
Compulsion would be acceptable if the scope of the measure was satisfactorily confined, but without that confinement it is plainly disproportionate in its scope. Unless it is amended, we will not be satisfied. The compulsory state mass surveillance made possible by these two clauses can be justifiable only on that basis.
The Earl of Northesk: I support the noble Lord, Lord Phillips. I do not propose to repeat all the arguments that I advanced at Second Reading, especially at this time of night. It is enough to say that I sought to demonstrate then how a mandatory data retention scheme fails four tests: necessity, effectiveness, proportionality and consequence. I acknowledge that the Minister has worked tirelessly over the past few hours to persuade the Committee otherwise, and I pay tribute to him for that, but I remain unconvinced.
I merely emphasise two points. First, there is no evidence whatever that a lack of data retained has proved an impediment to the investigation of the atrocities on 11th September. Despite ample opportunity throughout the Committee stage, the Minister has not challenged that view.
The reality is that communications providers, within the terms of the existing legislation, already routinely hold data for several months or years. To confirm that point, one need look only at how mobile telephone data are retained and the maximum period that mobile telephone companies are prepared to admit that they retain such data.
That being so, the Government have an obligation to make a stronger case for changing the status quo to the extent of seeking reserve powers for a mandatory scheme. The Information Commissioner implied in her draft memorandum on the Bill that it was inappropriate for such an important area of public policy to be determined in a rushed way.
Mandatory data retention, both of itself and more widely, runs counter to government policy. On three separate occasions in the past year, Ministers gave assurances that there were no plans to introduce such
a proposal. For example, in their joint letter of 28th January to the Independent, Charles Clarke and Patricia Hewitt stated:The noble Lord, Lord Phillips, said rightly that a mandatory scheme might be tolerable if it were adequately constrained in terms of scope. I am entirely happy to agree with that, but the mandatory scheme, as it is currently constructed in the Bill, is a step too far.
Viscount Goschen: I shall be brief as we have discussed these issues a number of times this evening. The Government are asking a lot in asking Parliament to accept Clauses 102 and 103. The noble Lord, Lord Phillips of Sudbury, and my noble friend Lord Northesk on the Front Bench have highlighted the principal issues.
The central point seems to be that the Government are picking a fight unnecessarily. No Member of the Committee has argued that the Government should not have a means of securing the retention of communications data to combat terrorism. No one has argued against that. The problem arises because the Government and the Home Office are being greedy in asking too much for things that go far beyond the principal aim of combating terrorism. There are a number of other constraints on the direction of the compulsory scheme about which we are concerned. There is an opportunity for the Government to narrow down their focus. If they did that and acceded to the points that have been made this evening, they would lose none of their ability to combat terrorism and they would secure the agreement of the Committee.
Lord Rooker:
Although I should not say this, during the course of the
debate I have been the model of a listening Minister.
However, I have just listened to some incredibly
extravagant language which is frightening to people
outside the Chamber. To talk about the Government
conducting mass surveillance is preposterous. Let us get
the matter clear. I invite the Committee to admit that
the general public are not affected by this legislation.
The general public have nothing whatever to fear. To
talk about mass surveillance of thousands and thousands
of people on the part of the Government, as Members of
the Committee have just said, is extravagant in the
extreme.
Lord Rooker: I shall give way to the noble Lord in a moment. He had long enough on his feet if I may say so.
It is also a fact that mobile phone providers do not admit everything. Mobile phone providers do not admit that a mobile phone is a human tracking device. They do not talk about the matter in that way and mobile phones are never deployed in that way, but that is what they are effectively. Let us not beat about the bush. The Government do not seek to invent that phenomenon, but it is a part of the technology.
As I say, the general public are not affected by this legislation. I deny the case that some Members of the Committee have made in that respect. The Interception Commissioner will not have the relevant power in relation to data retention until Chapter II of Part I of the RIP Act is implemented next year. Therefore, he has not carried out any sampling. Black boxes and e-mail concern the content of communications data which this Bill is not about. Members of the Committee who constantly raise those issues are trying to send out a subliminal message that we are attempting to do something which we are patently not; that is, retain the content of communications. We are not in that business at all. I have received advice on this matter as important points have been raised and allegations made. The tribunal's staff has been increased and I understand that the backlog of cases which grew last year, and which is unacceptable in a public authority, has now been eliminated.
There will be no warehousing of data stored by communications service providers. Each individual request for access to data has to be justified. To talk--as Members of the Committee have done--of mass trawls of thousands of people is not on. That is not what this legislation is about. It is not what the code of practice will cover. We must be more moderate and realistic as regards what is on the face of the Bill as opposed to what people think is on the face of the Bill or what the media may say is on it.
The notice to obtain access to retained data must specify the conduct that is allowed and the purpose for which the access is required. Therefore, there cannot be mass surveillance in the way that some Members of the Committee have suggested. Having got that off my chest, I shall be happy to give way to the noble Lord, Lord Phillips, but there are one or two areas where I have indicated that we can meet legitimate concerns, particularly as regards some of the issues raised in previous amendments. We shall seek to do so even in the short time available. Much of that, of course, depends on goodwill in putting together the voluntary code of practice. I do not suggest that there is any bad will on anyone's part, least of all that of industry or the Committee. There is certainly no bad will on the Government's part.
All the indications are that we can arrive at a successful conclusion to the matter but we must bear in mind what the Bill is about. The language that has been used in what were effectively Second Reading speeches on the two clauses we are discussing gives a misleading impression of the content of the clauses and the purpose for which we intend to use them. However, as I say, where we can meet legitimate concerns--we have tried to listen to concerns over the five days of
discussion on the Bill--even in the short time that is available we shall do what we can to seek to accommodate the Committee.Lord Thomas of Gresford: I have not so far intervened in the discussion on this section of the Bill but the heat generated by the Minister has drawn me to my feet. I think the starting point has to be Article 8 of the convention stating a right to privacy and this legislation requiring the retention of data so as to make them available for investigative authorities, which is a derogation from that right to privacy. From what he was saying, I am not sure that the Minister entirely appreciates that.
Lord Thomas of Gresford: Perhaps I may finish, then the noble Lord can have his say. This is the first time that I have expressed myself on this matter.
I have had experience of the way in which tracking happens through mobile phones. I know that it is a very valuable tool in criminal investigations. For example, if a murder takes place, the police investigators see whether a starburst of communications has occurred on the mobile phone of a person who is a suspect. Very often, within 10 or 15 minutes of an incident such as that, it is possible to see that a suspect has contacted half a dozen people. Those people are potential witnesses whom the police can investigate. That is one way in which it is used.
Another way in which, in my experience, it is used is to show where a suspect was at a given time. A mobile phone operates in such a way that it must connect with a particular mast. Therefore, it is possible to demonstrate that when the defendant or suspect says that he was in place A, he was in place B or C. I recall one case, for example, in which a suspect was driving up the motorway from London to a northern town. Contrary to his account of what had happened, it was possible to demonstrate--he had admitted that he had his mobile phone with him--that at the time when various things were happening he was in this place and that place and so on. It was possible to track him the whole way up the motorway.
The significance of that is that the investigative authorities--the police or the security services--can at any time gain access to the records held by a communications server and say, "We are investigating a particular matter". They can then pinpoint the location of any individual who holds a mobile phone, for example. Therefore, when the noble Lord says that this measure does not apply to the general public, it does in fact apply to anyone who happens to hold a mobile phone. It is possible to tell where a person was at any time in the United Kingdom and possibly, although I am not certain, abroad. Therefore, the entire public are subject to such surveillance if the investigating authorities wish to take that surveillance on board.
Therefore, I cannot accept, in however heated a manner the Minister expresses it, that this matter affects only "criminals". It can affect any member of the public. Not only that--I am dealing only with mobile phones--but there are other means of communication held by servers to which the investigating authorities can demand access and from which they can ascertain where, when and to whom an e-mail was sent. From what the Minister said when he resisted the amendment which sought to add the word "public" to the Bill, it seems that the PDVN within the Houses of Parliament can hold on to the records of my e-mails. From those, the investigating authorities can see my connections with Al'Qaeda or my private or business connections. They can gain access to all the information that I have sent through e-mail. Those records will be kept and it will be possible to investigate them in due course.
There is a case to be made for the Minister's proposals but for the purposes of the Bill, the measure should be confined to anti-terrorism. If it is to extend beyond that, the proposals should be put before the public for a long debate to which everyone can contribute and for soundings to be taken. That point was made by my noble friend Lord Phillips of Sudbury in opposing Clauses 102 and 103.
I reject the Minister's argument that the Bill does not cover surveillance of the whole public. It potentially provides for surveillance of every member of the community who uses a mobile telephone or e-mail. Let us face up to that. Is such a measure in the public interest at this moment? Is it in the public interest for it to be debated in the confines of rushed anti-terrorism legislation?.
Make no mistake, the Bill widens the powers of the investigating authorities in an unprecedented way.
Lord Phillips of Sudbury: I am grateful for the Minister's response, which included some extremely warm expression of opinion. I do not resent that but I challenge the Minister to re-examine Section 22 of RIPA in relation to the debate on Amendment No. 171. I believe that he will be advised that unless there is some curtailment of the basis upon which information can be disclosed and obtained under the Bill, it will be open to a number of authorities--particularly the police and security organisations--to access a wide range of information, way beyond anything to do with terrorism or related crime.
Section 22 of RIPA deals with national security, prevention or detection of crime, prevention of disorder, the United Kingdom's economic well being, public health and safety, health, taxes, duties and preventing injury or damage to property. The way that the Bill is constructed, information that is collected and retained either voluntarily under Clause 102 or compulsorily under Clause 103 will be accessible for much wider purposes than those for which it was obtained. By rejecting Amendment No. 171, the Minister rejected his own argument just now.
The Minister said that the black boxes to which I made reference do not carry communications data--only communications that are beyond the remit of the
clauses. The Minister is flat wrong. I hope that he will take advice and reconsider. The Minister said also, perhaps with the greatest warmth, that the public are not affected. That is not remotely true. The information that is to be retained under Clause 102, and potentially compulsorily under Clause 103, will affect possibly millions of citizens. I urge the Minister to study the wording of Section 103(2):
There is no control over the Secretary of State's
exercise of that discretion or any definitional limit
on the data he can ask to be retained. The Secretary
of State can ask the entire industry to engage in such
a retention. For the Minister to say that the public
are not affected, when the information will be only
about the public, is not true. I hope that the
Minister will, on reflection, agree. It was for those
reasons that I talked about mass surveillance and I do
not withdraw that phrase. I hope that we can reach an
accommodation. What the Minister and ourselves are
concerned about is the same thing. But at the moment
he is under a misapprehension as to what his own Bill
is capable of doing.
Lord Rooker: I do not dissent for one moment. The noble Lord, Lord Thomas of Gresford, added to previous extravagant claims. He may have put it in silken tones but he made out that the Government are hell-bent on mass surveillance of the British public. That is the thrust of what noble Lords have said. I absolutely and flatly deny that. We have no such intention. Millions have now been mentioned. It gets worse each time the noble Lord stands up. Several times I made it absolutely clear that the code of practice will conform to all necessary legislative safeguards, including--and I mentioned this twice--Article 8 of the European Convention on Human Rights. I specifically put that on the record.
If I am not believed, fine, but that is the point I made. It is the Government's intention to operate within Article 8, the Data Protection Act and all other safeguards in human rights legislation. I flatly deny that we are derogating from Article 8 of the European Convention on Human Rights. I made that point at least three times.
On the black boxes, if I am wrong, I shall take advice. The point, however, was that that related to communications. I repeat again, we are not interested in retaining communications data. I have made that clear several times yet noble Lords still refer to this in passing. We have no interest in retaining that data. Some people may be interested to have it, but the Government do not want it. However often I deny this, it is clear I am not making a satisfactory case for noble Lords opposite.
Where we can meet legitimate points for clarification, both on negotiations for the code and on the Bill, we shall genuinely seek to do so. I accept that time is short but there should be some way for both Houses of Parliament to look at the totality of operation of the Bill when it is enacted.
There are millions of mobile phone users. They carry a
human tracking device. The phone companies do not say
that, but that is the reality. A lot more can be
discovered from both the phone and the components
within it. I do not propose to go into details about
that. But let me repeat, we are not embarking in this
Bill on mass surveillance of the British public.
Whatever noble Lords may say, I shall rise each time
and make that point.
It is not the good faith of the Minister that is in question and there is no allegation that he is about to embark on mass surveillance. We question the handing of powers of considerable potential to the executive; those of us on this side of the House will always resist that.
Clause 104 [Lapsing of powers in section 103]:
[Amendments No. 176G and 177 not moved.]
The Earl of Northesk
moved Amendment No. 177A:
"( ) It shall be the duty of the Secretary of
State to receive quotations from businesses on the
costs of complying with the data retention
provisions of this Act and the code of practice, and
to ensure subsequently that the appropriate payments
in relation to capital and operational costs are
made to communications providers."
I say at once that I welcome the Government's acceptance that communications providers should be compensated for complying with the proposed data retention regime. Unfortunately, the Bill's formula could be open to arbitrary decisions. The amendment therefore seeks to ensure that the Government obtain quotations from businesses about the costs involved in complying with the Bill's provisions and that payment is made to capital and operational investments. In
seeking a system of data retention, the amendment recognises that there is a risk that the Government will unintentionally place UK communications providers at a disadvantage vis-a-vis their international counterparts. As has already been mentioned, the Government should not underestimate the possibility that communications service providers will seek to relocate their infrastructure in less onerous regulatory regimes. That is a very real prospect, and more so if the industry infers that the compensatory package is in any way unreasonable or overly burdensome.Amendment No. 177C offers an alternative approach. Indeed, in that it more closely mirrors the wording in Section 24(1) of the RIP Act, it may--I doubt it--find more favour with the Minister. After all--dare I say it--there is something to be said for consistency. I beg to move.
Lord Rooker: I was rather looking forward to a debate on one of the amendments that was not moved. It is unfair--
The Attorney-General (Lord Goldsmith): Oh!
Lord Rooker: I am not trying to cause problems for my noble and learned friend. I wanted to discuss one of those amendments because it related to the fact that in 1911--was that the date?--there was no sunset clause in the Official Secrets Act. We have just passed over the little sunset clause in these provisions. There is a mechanism for returning to the matters. I am sure that Members of the Committee have taken that on board.
On the amendments, I have in some ways covered a couple of the points in previous debates but it may help those who are following our proceedings to put those points on the record. We are committed to giving what help we can to service providers, which might take the form of capital investment or running costs. We will work with service providers on that. I repeat that we want to ensure that there is no possibility of that damaging the competitiveness of British industry with its overseas competitors.
As I have said, the wording in Clause 105 is consistent, so far as I am aware--I have not been contradicted yet--with the RIP Act. I recall that similar words were used in our arrangements at the DSS, when we dealt with industry's access to information relating to the Social Security Fraud Act. That legislation began in your Lordships' House and there were great debates on it before it came to the Commons. I was grateful to noble Lords for their scrutiny of it.
Amendment No. 177C would require the Secretary of State to ensure that fair contributions were made towards any costs that were incurred by service providers. Such costs would not be limited to those incurred as a result of the Bill's provisions.
Furthermore, it removes the Secretary of State's responsibility to ensure that any contributions paid are appropriate. I am sure that the Comptroller and
Auditor General will have something to say about such a wide statutory provision. Indeed the Public Accounts Committee will probably be in more uproar than the Human Rights Joint Committee is in relation to this Bill.The existing provisions are and should be consistent with those in the Regulation of Investigatory Powers Act. In the light of that, I hope that the noble Lord will not press the amendment. We seek a genuine arrangement of consensus with industry. We realise that there will be greater burdens on some providers than on others. Therefore, we want to meet the special needs of different providers in the best way that we can.
The Earl of Northesk: Perhaps I should apologise to the Minister for not moving amendments. I had thought that he would be grateful. I am grateful for the comments that the Minister has made. I shall reflect upon them when I read them in Hansard. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Northesk
moved Amendment No. 177B:
Page 63, line 41, at end insert--
"( ) Section 65 of the Regulation of Investigatory
Powers Act 2000 (c. 23) (the Tribunal) is amended as
follows.
( ) In subsection (5), after paragraph (f) insert--
"(g) the making of any request for the retention or
disclosure of communications data in pursuance of any
code of practice issued or agreement entered into under
section 102 of the Anti-terrorism, Crime and Security
Act 2001 and the making of any direction pursuant to
section 103 of that Act."
( ) In subsection (8), after paragraph (f) insert--
"(g) a code of practice or agreement made under
section 102 of the Anti-terrorism Crime and Security Act
2001, or a direction made under section 103 of that
Act.""
The noble Earl said: Bearing in mind the hour, I shall be brief. Communications service providers and individuals should have an appeals procedure against requests for the retention of data or directions issued under the Bill. That is our belief. That would provide the independent scrutiny of such requests that is an essential part of Article 8 of the ECHR and would make for better overall accountability. An appropriate body for such appeals would be the tribunal set up under RIPA. Among other things, that considers complaints from persons aggrieved by certain conduct under RIPA, including conduct in relation to obtaining or requiring the disclosure of communications data. Section 65 of RIPA confers on the tribunal jurisdiction to hear those complaints. Therefore, the amendment seeks to extend the jurisdiction of the tribunal to the hearing of appeals against data retention requests and directions made under this Bill. I beg to move.
Lord Rooker: I too shall be brief. The provisions on data retention in this Bill are not--I repeat not--investigatory powers. Therefore, we believe that they should remain outside the scope of the tribunal that deals with investigatory powers.
The code of practice and agreements are voluntary. There should be no need for a complaints mechanism for a voluntary regime. Before making directions, the Secretary of State is required, under the Bill, to consult with those to whom the directions will apply. Service providers are also free to apply for judicial review of the Secretary of State's decision to make directions. I kept a straight face and did not change my tone of voice while reading that. We are not opposed to judicial review; we are not opposed to scrutiny. In some areas we do not believe that it is necessary because we have a good mechanism in place anyway. I say that in case anyone is contemplating returning to Part 4 debates. Nevertheless, in this area service providers are annoyed about any decision directly from the Secretary of State. Judicial review would be open to them. With that on the record, I hope that the noble Lord will be satisfied and that he will withdraw his amendment.
The Earl of Northesk: I am grateful for the comments made by the Minister. I have one observation. I am bound to contemplate what the position would be vis-a-vis appeals in the event that the Secretary of State ever felt it necessary to impose a mandatory code of practice. I shall reflect on that overnight and I shall reflect on the comments made by the noble Lord when I read Hansard tomorrow. In the mean time, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 105 [Arrangements for payments]:
[Amendment No. 177C not moved.]
[Amendment No. 177D not moved.]
Clause 106 [Interpretation of Part 11]:
[Amendments Nos. 177E to 177H not moved.]
[Amendment No. 177HA not moved.]