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Mr. Ian Bruce: I understand the hon. Gentleman's point. I have read the Bill carefully, and any sensible criminal can take simple measures to avoid being caught by it. Why should all the honest people have to spend literally billions of pounds--thus possibly making Britain the wrong place in which to establish businesses--simply because some criminals can use encryption?
Mr. Gapes: The hon. Gentleman is obviously an expert in criminal activity and avoiding the effects of legislation. Perhaps he will tell us how that can be done. I do not believe that it will be that easy. I suspect that people may try to avoid being caught by the measure, as they always do, because that is the nature of the criminal or terrorist mind. However, we must update our legislation.
One reason for updating legislation is to avoid the current position, in which all sorts of unregulated surveillance activities take place. If we do not regulate those activities, unauthorised, unregulated surveillance will occur because people regard it as necessary, but we shall lack the appropriate regulatory mechanism to bring people to account. That would be the worst of both worlds.
I want the Minister to clarify clause 6(j), which refers to
The Bill refers to interception of non-public networks, such as office switchboards. We are considering a complicated matter. When we started work years ago, most people had one switchboard, a couple of phone lines, and no sophisticated internal networking took place. Nowadays, however, most people work in environments where they can have conference calls, messages left on voice mails, and where all sorts of complex interrelationships exist between technologies. We must be careful that people are not inadvertently caught by the impact of the Bill through no fault of their own but because they had been used as a conduit for information
that was intercepted by someone else. I hope that the Minister will clarify the way in which the measures will work in practice in the commercial and non-public sector, as defined by the Bill.
Mr. Fabricant:
The hon. Gentleman has made a valuable point. Will the Minister clarify that financial institutions, which make a point of recording transactions that take place over the phone--I refer especially to telephone banking--will not come within the Bill's orbit?
Mr. Gapes:
That is a question for the Minister; I shall not respond to it.
Mr. Simon Hughes (Southwark, North and Bermondsey):
It is one of the little ironies of life that, on the day that one Labour Member decides to stand against another for the Labour leadership--[Interruption.]--all right, not quite the leadership, but they are both standing for mayor--in London, we are debating the Regulation of Investigatory Powers Bill. Some Labour Members may now be tempted to make the Bill as tough as they might ever dream of making it to deal with the latest developments. As we have said previously, the Bill--although complex--covers big issues. It is perfectly appropriate to examine it carefully because it takes us into areas where legislation has never gone before.
The crucial question is: what should be the balance between the powers and rights of the state and the powers and liberties of the individual? The Home Secretary argued that the Bill would achieve a better balance, and my colleagues and I accept the proposition that if the state or state agencies are to investigate people, intercept communications and undertake surveillance, that should be regulated by law. It is accepted across the House that many activities are not currently regulated by law; they are either regulated by codes of practice or not regulated at all. As the hon. Member for Ilford, South (Mr. Gapes) said, technology is moving quickly. Mobile telephones, pagers and electronic mail have come upon us in the past few years and we need a regulatory regime. He was also right that in the next few years other forms of communication may arrive for which regulation will also be needed. It is clearly right to establish a framework of regulation and legislation and we must ensure that that which happens without legal justification is put into a context in which legal justification is required. There is no dissent around the House about that. Like the right hon. Member for Maidstone and The Weald (Miss Widdecombe), who spoke for the Conservative party, we on the Liberal Democrat Benches will therefore vote for the Bill's Second Reading. We need a Bill and it is important that the legislation catches up with reality.
However, our view of the Bill as a whole is similar to that of the Conservatives: changes need to be made where, we believe, the Government have the balance wrong
between the individual and the state, and we shall seek to amend the Bill. I was encouraged that the Home Secretary showed his open-mindedness--the Minister of State, Home Office, the hon. Member for Norwich, South (Mr. Clarke), has done that in other contexts--by agreeing to consider reasonable propositions reasonably and I hope that we can make improvements as a result. However, even before I listened to the right hon. Lady's speech, I had in my notes words to the effect that we must make it clear that we may not be able to support Third Reading unless improvements are made. I want to flag that up and hope that it helps the Government to realise that not only are there concerns among those on their own Benches and outside the House, but that both Opposition parties want changes to be made. To get the Bill right, we are willing to work with the Minister and each other.
The Minister of State, Home Office (Mr. Charles Clarke):
And Ken Livingstone.
Mr. Hughes:
The Minister tempts me. If the hon. Member for Brent, East (Mr. Livingstone) turned up at any of the debates on the Bill, no doubt we could work with him, too. Some of us did not stand for that particular election, not least because running a campaign out there and doing a job in the House seemed incompatible, but that is a separate debate.
I want to flag up a warning about the Bill's dangerous provisions, as those in which we think the Government are going too far in favour of the state and against the individual are part of a worrying trend. I occasionally crossed swords with the hon. Member for Ilford, South--who is not in his place, but was a moment ago--in Committee debates on the Terrorism Bill. The Minister was also a member of the Committee. Two of my complaints were that the definition of terrorism was too wide and that making the legislation permanent was not a good idea. There are the same underlying concerns about this Bill: that the definitions are too wide, that powers given to Ministers are too great--my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) referred to that and I shall come back to it later--and that the balance is wrong.
The House is also debating the Freedom of Information Bill, which does not give the citizen enough powers and does not take enough powers away from the Executive. Tomorrow, we shall discuss on the Floor of the House a Bill that will take more rights away from the individual and give more powers to the authorities. I must tell Ministers and Labour Members that the Government have got the balance wrong. They were not elected to take more and more rights away from individuals and to give them to the state, but they are doing just that. These measures may have a populist and popular short-term appeal, but if they continue down this road they will increasingly lose support not only in their heartlands, but in other places where people are concerned about these issues too.
Mr. Fabricant:
The hon. Gentleman cannot have it both ways. He cannot say that the Bill will have to be
Mr. Rogers:
Of course the hon. Gentleman can have it both ways--he is a Liberal Democrat.
Mr. Hughes:
Had I said that, the point made by the hon. Member for Rhondda (Mr. Rogers) may have been valid, but I did not say that. I said that we shall have to ensure that legislation encompasses the developments in technology, but the Bill is too broad because it gives the Secretary of State the power to designate, without coming back to Parliament with legislation, any body that has the right to intervene. Furthermore, definitions of the national interest in one form or another, that are not defined elsewhere in legislation, allow a wide interpretation. I did not suggest that the Bill was too wide in the way the hon. Member for Lichfield (Mr. Fabricant) implied.
My right hon. Friend the Member for Berwick- upon-Tweed and I are not persuaded by the argument for giving the Executive greater powers to interfere in the lives of individuals. The Secretary of State illustrated the point by saying that whenever he is asked whether someone has had his telephone tapped he is unable to give an answer. However, people would be less reassured to know that the decision is being made by a Minister, who is part of the Executive and in charge of the police or certain parts of the intelligence services, than they would be if it were taken by a member of the judiciary. The separation of powers is very important, not least because we do not have a written constitution.
I disagree with the Minister. I believe that the public would be more reassured if judges, who are not part of, and are free from, the Executive, made such decisions and not Ministers, however well they may carry out their responsibilities. Although Ministers have not been criticised for abusing their powers, that does not mean that they will not face temptation and will not give into it.
The right hon. Member for Maidstone and The Weald properly argued that we must get right the difficult balance between regulation and a liberal trading and commercial society. That is not easy. We want to ensure that there is maximum opportunity for global commerce, but clearly the internet, e-mail and other forms of communication allow transmission of illegal material--pornography is a good example. Such material is much more accessible now than ever before. Parents raise such concerns with us all the time. That material needs to be regulated, because people do not want their kids to be able to download it in their front room. Kids often play a double bluff with parents to find out the password and to access such material.
The Secretary of State may tell us that he is advised that the Bill complies with the European convention on human rights. As of October this year, that will be able to be tested in the courts. Having engaged in a couple of seminars and discussions, I do not think that this country has begun to understand the impact that the human rights legislation will have on people's lives, or to realise how many court proceedings will take place in magistrates courts, county courts, Crown courts and the High Court to test that legislation. The two main issues here are the right to fair trial and the right to privacy, both of which are enshrined in the convention and tested in this Bill.
Let me make a more general point. We are living in an age in which we must ensure that the individual can resist the requests made to all of us to give information all the time, often unnecessarily. I can give a practical, not very exciting example. When someone telephones one of the statutory undertakings to pay a gas, electricity or water bill, that person is often asked for all sorts of information beyond his or her postcode. More and more information is required from those who want a loan or bank overdraft.
The danger is that, in our present society, the information held on us is growing, while the information that we have about who is holding it diminishes in relative terms. The ability to keep up with who controls the information is a real issue in respect of the rights of the individual, not just against the public state but against private corporate society, nationally and internationally.
The other day, I visited a prison and saw how it monitors prisoners' activities. Obviously, the issue is different in prisons, but I was struck by the detailed computerised tables enabling those in authority to track connections, conversations, links and meetings. They can listen in to telephone calls, and play back calls made a month or two earlier. The police do the same on a regular basis. I have examined some of their activities as well. They can trace telephone calls, and can tell where they are being made from and to.
There is a huge collection of information, not all of it lawfully and properly obtained. As the Home Secretary reasonably said, the Bill is not just about discovering what is being said by intercepting communications, but about discovering what communication is taking place--who telephones whom and when they telephone, who visits whom and when they visit. That is a different issue, involving a whole different set of information--even if those concerned do not actually hear what is being said by sitting in or bugging conversations.
I believe--as do others who have written to all of us, including the organisation Justice, and as does the data protection commissioner--that it would have been better to have two general regimes rather than nine to deal with the different kinds of intervention and interception. There are nine--arguably more, but certainly nine--regimes of control, some of which have Secretary of State authorisation: that applies to interception of communications under part I, intrusive surveillance in the context of bugging and burglary, and intelligence and armed forces surveillance. Other regimes have circuit judge authorisation, commissioner authorisation, designated persons authorisation or self-authorisation in the case of, for instance, the police.
Although we have one tribunal, which is a good thing, we might well do better as legislators, in the interests of the citizen who wants to know what is going on, if there were only two methods of giving authority and two methods of judging.
There are various specific questions about definition. I hope that we will look at the definition in clause 25, whereby surveillance is regarded as intrusive if it involves residential premises or private vehicles, but business places, for example, are not mentioned. The definition of what is covert in clause 25(8) has been criticised, because it does not depend on whether someone believes that a surveillance operation may be in progress. The data protection commissioner, among others, argues that it should. Clearly, there are issues of definition as to what
is a private telecommunication system and what is a public one in relation to being able to control people in the workplace. Several definition issues like these need to be resolved.
Bigger than that are the great powers that the Bill leaves to the Secretary of State to designate other bodies to do the interception, or surveillance. My right hon. Friend the Member for Berwick-upon-Tweed gave an example, which comes up in clauses 6, 27 and 29. The Child Support Agency, a Ministry of Agriculture, Fisheries and Food inspector and all sorts of people could be designated. We should put those in the Bill and not allow as yet unknown, relatively lowly officials to be able to have what are very wide powers. It may be proper to allow an official in the middle of the night to authorise that telephone bugging can change from one number to another when someone changes their phone number, but it should not necessarily go wider than that.
A much more worrying issue is the definition of the purpose for which one can intercept communication. I hope that we shall look at two definitions again. One is the definition of serious crime. Wider and more worrying is the definition--it comes up, for example, in clause 5(c)--that says that
a person who, for the purposes of any international mutual assistance agreement, is the competent authority of a country or territory outside the United Kingdom.
I interpret that to mean that it allows our Government to give authority to someone in another Government or international organisation to undertake the interception on our behalf. However, I would be grateful for some exact clarification of that phrase and of whether it has a wider application than the interpretation that I have just given.
a warrant is necessary on grounds falling within this subsection if it is necessary . . . for the purpose of safeguarding the economic well-being of the United Kingdom.
That is a very wide definition. As far as I am aware, it is unqualified elsewhere in the Bill. All sorts of things could be regarded as necessary to safeguard the economic well-being of the UK: ensuring that the stock exchange did not collapse, or that the pound was not affected. However, it could be much less significant than that.
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