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[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
40Clause 102, page 62, line 25, leave out
paragraph (b) and insert--
"(b) for the purposes of prevention or detection of crime or the
prosecution of offenders which may relate directly or indirectly to national
security."
The Commons disagreed to this amendment for the following reason:
40ABecause it is not appropriate to limit the power conferred by this clause in
the manner proposed by the amendment.
Lord Rooker: My Lords, I beg to move that the House do not insist on their Amendment No. 40 to which the Commons have disagreed for their reason numbered 40A.
I shall be brief. We have made it clear that the retention of communication data provisions in the Bill will be proportionate and necessary and, I repeat, they will comply with all the data protection legislation and be wholly consistent with the European Convention on Human Rights and our Human Rights Act obligations.
We have listened to and acted on the concerns of noble Lords by providing on the face of the Bill for consultation with the Information Commissioner on the code of practice. The code of practice will also need to be approved by both Houses of Parliament under the affirmative resolution procedure. These are all new provisions since the Bill came from the other place, so the Government have moved on the issue.
However, I must make it clear that it is impossible to distinguish at the retention stage what data may be relevant for national security or terrorism purposes. I must remind noble Lords that the data will be retained not by the Government but by the communications providers. The provisions do not extend the access powers agreed by Parliament 18 months ago in the Regulation of Investigatory Powers Act, which are also compatible with human rights legislation. There cannot be any mass trawls. Only data used for billing purposes--date, time, place, telephone number, period of call--will be retained, not conversations or messages between individuals.
Earlier today, your Lordships' House voted not to press an amendment to restrict the purposes for which data may be disclosed by public authorities under the provisions of Part 3 of the Bill. The provisions in Part
11 are not about access to data but about its retention by communications service providers. It makes no sense to limit Part 11 to national security. Part 11 will be proportionate and it will follow EC law and the European Convention on Human Rights. There will be consultation with the Information Commissioner and the code will be subject to parliamentary approval.It is our intention and our avowed desire to carry out the terms of this provision in voluntary agreement with the industry. We do not want to have to move to a statutory provision. Under a voluntary arrangement and given the code of practice, it is almost implicit that the Information Commissioner and the industry have a veto. If they do not agree, it cannot be done voluntarily. We should then have to go down the statutory route, which has its own built-in sunset clause. So there is a safeguard--a double lock, as it were--on that part of the Bill's provision. Therefore, I hope that noble Lords will see that the Government have moved considerably in this respect on data retention. Bearing in mind the principle behind the decisions made on Part 3, I hope that the original amendment will not be pressed. I beg to move.
Moved, That the House do not insist on their Amendment No. 40 to which the Commons have disagreed for their reason numbered 40A.--(Lord Rooker.)
The noble Lord said: My Lords, I am grateful to the Minister for setting out the
present position. It is my belief--and, I think, that of the House--that he
under-estimates the communications data that can be captured under this part of
the Bill. It is true that the content of telephone conversations and other
communications cannot be pried into. However, as is well known in the industry,
the "where, when, how, to whom and with whom?" of all communications,
the website hits that anyone makes in the course of the daily round, if trawled
automatically, enables the state and the "relevant authorities" to
build up a personality profile that tells a great deal, in intimate detail,
about citizens. That is the background.
There have been repeated assurances by Ministers in the course of the past year
that the very thing that is being done would not be done. Perhaps I may give an
example. On 10th May, when Patricia Hewitt took part in an on-line question and
answer session for the Guardian, the following question was asked:
40BLord Phillips of Sudbury rose to move, as an amendment to the Motion that the
House do not insist on its Amendment No. 40 to which the Commons have disagreed
for their reason numbered 40A, leave out "not".
"The police (NCIS and ACPO) are still
pressing for a new law to compel ISPs to log the addresses of all e-mails sent
and received, websites browsed, and newsgroups perused, for ALL their
customers indiscriminately, for up to 7 years. . . . Will Labour enact such a
law in its next term?".
The answer was "No". The same categorical answer was given on three
occasions.
Lord Rooker: My Lords, will the noble Lord give way? This Bill would not be before the House if it were not for the events of 11th September. So what is the use
of quoting an answer by Patricia Hewitt which was made months before that date? What on earth is the relevance of that?
Lord Phillips of Sudbury: My Lords, that is a partially fair point and I do not seek to deflect it. But I am saying that Ministers are now going back on their determination--before 11th September, I admit--to have nothing to do with such a provision. The whole issue is the correct balance between our traditional civil liberties and the needs of the moment. I need not remind the Minister that ours is the only country in Europe that is enacting new laws in the present situation. This House wants new laws. But the question addressed by the amendment is: how far should they go?
Clause 102 gives complete discretion to the Secretary of State to issue a
voluntary code of practice. Everyone hopes that such a code will be the one that
sticks. But Clause 103 gives the Minister compulsory powers of direction. There
is no limit on those powers. He does not have to come back to Parliament. Their
contents can apply--and, it is expected, will apply--to the whole industry. The
Minister and those on these Benches have batted remarks back and forth on the
issue of "trawling". The Minister resolutely maintains that there will
be no trawling. We resolutely--
Lord Rooker: My Lords, will the noble Lord give me the opportunity to make a further point? What he says is not true. He is close to misleading the House. The powers are time-limited if we go down the statutory route. The Secretary of State would have to come back to Parliament after two years and obtain affirmative resolutions for the powers to continue. So it is not fair to say that there is no time limit on the powers in Clause 103. There is a time limit and it is set out in Clause 104. Indeed, the clause is headed:
I want to return to the important issue of trawling, as it worries many Members of this House. A document issued by the Home Office last month entitled The Retention of Communications Data--with the unhappy subheading, Supplementary Regulatory Impact Assessment--says this on the impact on civil liberties:
Perhaps I may remind the House that, in giving directions, the Secretary of State only has to "have regard" as he thinks necessary for the prevention or detection of crime or the prosecution of offenders. The provision is completely general. We want the words to be inserted:
Perhaps I make two more points. First, the oversight and care, as it were, of the data collection machinery provided for in various statutes is in our view wholly inadequate. One of the reasons we feel strongly about this is that there is no effective oversight of the whole business.
To give one example, the parliamentary Intelligence and Security Committee recently commented that the tribunal set up under the Regulation of Investigatory Powers Act to control access to information and data did not even have enough staff to open the mail. I believe that we shall find that the Interception of Communications Commissioner, Lord Justice Swinton Thomas has a staff of two or fewer. Concerns on this side relate to the inadequacy of the oversight and protection of the citizen and his or her confidential information.
The National Criminal Intelligence Service is building--and has made it quite clear that it wants to go on building--a national traffic data warehouse. That is its aim. Indeed, a senior member of that body said recently, "We want to have all the information we can lay hands on. It's up to you fellows to stop us".
That is what this amendment is about: stopping an excessive and insufficiently controlled acquisition and retention of data information which can then be accessed under the Regulation of Investigatory Powers Act, and with limited protection under the Data Protection Act. Your Lordships will know that, in certain circumstances, if the Secretary of State issues a certificate, none of the eight principles of the Data Protection Act will come to the aid of a citizen at all, even if he or she knows that his or her privileged information has been breached. That is a huge problem.
For all those reasons, it is our strong wish to see the amendment remain. I beg to move.
Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 40 to which
the Commons have disagreed for their reason numbered 40A, leave out "not".--(Lord Phillips of Sudbury.)Baroness Buscombe: My Lords, I support what the noble Lord, Lord Phillips of Sudbury, has said. While we welcome the agreement of the Home Secretary to subject the code of practice on data retention to affirmative resolution, we do not believe that that concession is enough. We believe that Lords Amendments Nos. 40 and 44 properly limit the scope of the proposed data retention provisions without in any way undermining the capacity of law enforcement authorities and intelligence agencies to counter the threat from global terrorism.
As my noble friend Lord Northesk said on Report, there is a very real risk that the vast accumulation of data that the Bill currently envisages could prove counter-productive and, thereby, hinder the work of the intelligence services in their challenging task of fighting terrorism. As the Minister has always insisted, investigations under the Regulation of Investigatory Powers Act, and on advice from the Information Commissioner, have proceeded, and areproceeding satisfactorily. With excellent co-operation from communication service providers, why do the Government require this extension of power?
Yesterday in another place the Parliamentary Under-Secretary of State argued that CSPs are unhappy with your Lordships' amendment to Part 11. He said:
Lord Rooker: My Lords, I shall be brief. I shall reply to the central points that have been raised. First, we have made it absolutely clear that there will not be a data warehouse. Secondly, this is not a matter of mass surveillance, even though the retention by data providers of people's information is necessary. The Data Protection Act will cover that. That data cannot and will not be touched by the law enforcement authorities unless the regulation of investigatory powers tests are met: they are necessity and proportionality. As I said before, quite extravagant language is being used which is designed to frighten people into believing that they will be subjected to mass surveillance. They will not be.
I shall set out some of the points. The code of practice will set out the time limits. In this House we have already agreed that it will not be seven years. We were specifically asked about an article in the Observer
and we said that it would not be seven years. I cannot say what it will be, but the implication is that it will be less than seven years because we need to achieve agreement on the code of practice.Britain is not the only country to have data retention legislation. Belgium and France have such legislation. Contrary to what has been asserted by the noble Lords opposite, this is not the only country to introduce emergency anti-terrorism laws. France and the United States have done so. It is not true to say that we are isolated in that respect.
This is not an extension of police powers, but service providers will retain information that they already collect. This is not new, but we want them to retain that information a little longer so that if there are grounds for checking up on people, the information is there to be used.
The practice of retaining information has been carried out on an informal and
voluntary basis since 11th September. It has proved extremely useful and we
have had excellent co-operation from the data providers. I have no criticism
of the Internet and telephone networks service providers. However, it is
important to put such matters on a statutory basis with all the protections
that this Bill provides, contrary to the assertions made by the noble Lord,
Lord Phillips.
Lord Phillips of Sudbury:
My Lords, I thank the Minister for that reply. I stand corrected if France has
introduced legislation. I specifically said "Europe". If that is
right, I believe it is right to say that France is the only other country that
is doing anything.
Baroness Whitaker:
My Lords, does the noble Lord accept that the Federal Republic of Germany has
also recently introduced an anti-terrorism Act?
Lord Phillips of Sudbury: My Lords, if the noble Baroness, Lady Whitaker, says so I certainly shall accept that. I would be interested to know exactly what that country has introduced.
The protections to which the Minister referred are in place, but it is not true to say that there is no extension of powers in this Bill. The retention powers are new and potentially they are for the whole industry and for the industry's entire capture of traffic data. That is why, through this amendment, we seek a limit to those powers.
On Question, Whether the said amendment (No. 40B), shall be agreed to?
Their Lordships divided: Contents, 196; Not-Contents, 145.
Resolved in the affirmative, and amendment agreed to accordingly.
Original Motion, as amended, agreed to.
Lord Rooker: My Lords, I beg to move that the House do not insist on their Amendment No. 44 to which the Commons have disagreed for their reason numbered 44A.
Moved, That the House do not insist on their Amendment No. 44 to which the Commons have disagreed for their reason numbered 44A.--(Lord Rooker.)
44BBaroness Buscombe rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 44 to which the Commons have disagreed for their Reason No. 44A, leave out "not".Moved, That the House do not insist on their Amendment No. 44 to which the Commons have disagreed for their Reason No. 44A, leave out "not".--(Baroness Buscombe.)
On Question, Amendment No. 44B agreed to.