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Mr. Rogers: Surely the hon. Gentleman will accept that that definition is in the Security Service Act 1989 and the Intelligence Services Act 1994. It is simply an extension of that.
Mr. Hughes: I accept that. Like the right hon. Member for Bridgwater (Mr. King) and my right hon. Friend the Member for Berwick-upon-Tweed, the hon. Gentleman deals with these matters regularly. I still think that we should look at whether the definition is not too wide. As he knows, the Bill does two things: it replicates old legislation and adds new. I hope that he does not believe that, just because it is in the old Act, we should not review whether the definition is too wide.
There are also issues to do with the tribunal and how one deals with complaints. Of course, we are in a bizarre Alice in Wonderland situation: people do not know necessarily that they are having their communications intercepted, so how can they complain about it? None the less, people do complain about that fairly regularly. I think that, without exception, complaints have not been upheld so far; none has been upheld at all. I hope that that is because interceptions have all been done scrupulously and not just that we have presumed that they have been. I give the authorities the benefit of the doubt. It may not always remain the case.
Other countries and regimes--perfectly reasonable neighbour countries of ours--have a more open and accountable system for complaints and for registering what has happened, which allow decisions to have reasons attached to them and people to be able to see the reasons.
I should like us to look again at how citizens can at least be informed better about any complaints that they have and the adjudication on them.
Another big point that was raised by the right hon. Member for Maidstone and The Weald and that has been raised widely with us is to do with encryption and, to use shorthand--it came up in the Terrorism Bill--what is called the reversal of the burden of proof. Big-deal criminals may be more likely to remember the passwords, code or key than hon. Members, who may have more than one password at any one time. I certainly do. The password for my mobile phone is different from the one that I use to send e-mails. Indeed, we cannot help having to change our passwords because the House of Commons system changes them regularly anyway, as do other systems, to ensure that they are not kept the same for too long. Yesterday, I went to my office to deal with some correspondence and was told that my old password had expired and that I had to change it. Not surprisingly, some people forget their passwords, whereas others do not. We shall have to deal with the fact that some people, perfectly reasonably, may not be able to remember or gain access to their password or code.
Mr. Ian Bruce:
Will the hon. Gentleman give way?
Mr. Hughes:
I shall not, as other hon. Members wish to speak and the hon. Gentleman has already intervened.
We cannot place on the accused a burden of proof as severe as that proposed in the Bill. I hope that we shall change the provision, and create a much more reasonable system governing the interception of encrypted material and the application of the balance of proof.
We should also address some more minor issues in the legislation, such as the failure to provide for privileged material. There are also some practical difficulties, such as how the Bill distinguishes between monitoring material and monitoring the contents of material. Another problem is the Bill's provision that interception would be lawful if only one of two communicating parties consented to it. One party's consent should not be sufficient to constitute a valid interception.
Mr. Harry Cohen (Leyton and Wanstead):
I should like briefly to deal with chapter II, clauses 20 to 24, of the Bill. My objective is an assurance that the Bill will provide for proper safeguards for the privacy of individuals. I am concerned that, currently, the Bill seems to be deficient in providing for them.
The White Paper entitled "Interception of Communications in the United Kingdom", Command Paper 4368, was published in the summer of 1998. In Chapter 10, on the
provision of communications data to other bodies, the Government state:
Will the Minister give a commitment that the code of practice will be approved only after full consultation with the data protection commissioner and that the DPC's recommendations will be included in the code? Will he also give a commitment that when a recommendation is not included in the code, the Government will give a full explanation on each detailed point?
In the White Paper, the Government propose that access will be legitimised in dealing with
In reply to a parliamentary question on the application of section 29 of the Data Protection Act 1998, I was told that
Do the Government need to modify the non-disclosure provisions in the Data Protection Act? For example, suppose the police could obtain communications or personal data about an individual. Is it the Minister's intention that such personal data could be communicated to local authorities for the collection of council tax under section 29 of the Bill, should the police decide to volunteer such data--perhaps even if the police were asked to do so by council officials? I would like the Minister to consider this matter and, if appropriate,
write to me about it. I am not convinced that the collection of run-of-the-mill bills is a suitable justification for phone tapping, e-mail tapping and the general interception of communications. Again, I hope that the Minister will provide an explanation.
The major change proposed by the Bill is one of compulsion. Most disclosure categories identified in clause 21--for example, crime prevention--can already occur legitimately under the Data Protection Act without the need for new legislation. The only difference is that, under the Act, disclosures are legitimised on a case- by-case basis where the data controller--the telecommunications company--has to be satisfied with respect to the conditions. The controller always has the option to refuse to disclose.
Under the Bill, the data controller has no choice but to disclose if an official or officer claims that the demand for the personal data is justified under the criteria outlined in the Bill. In addition, it is not clear whether disclosures could be wider than the case-by-case disclosure of the Data Protection Act. For instance, instead of a disclosure relating to specific individuals, the provision could permit the disclosure of a database, so that the authorities could then select what might be useful.
Will the Minister state that requests will not relate to whole databases of information? Will requests be limited to case-by-case issues where the demand for information is limited to simple, precise circumstances? How will Minister stop these clauses being used for fishing expeditions, which would invariably breach privacy? I request clear answers to those questions before the Bill becomes law.
The Government have not yet presented evidence that the current voluntary arrangements under the Data Protection Act have failed, and that compulsion is therefore necessary. I ask the Minister a simple question--have some telecommunications operators not co-operated with the police and other authorities, if asked? Will the Minister provide the evidence that the current voluntary arrangements have failed and that compulsion is needed? If he cannot, why is this change being made?
On warrant signing, the latest report into the operation of the Interception of Communications Act 1985, Command Paper 4364, shows that, in the last full year of the previous Conservative Administration--under the then Home Secretary, the right hon. and learned Member for Folkestone and Hythe (Mr. Howard)--1,073 intercept warrants were signed. By contrast, in the first year of this Government, my right hon. Friend the Home Secretary presided over an increase of more than 50 per cent., and 1,646 warrants were signed. That is between six and seven a day. We need an explanation, if only to reassure hon. Members that my right hon. Friend is not suffering from repetitive strain injury.
the analysis of communications data can provide much information about the way in which people live their lives
and that access by the authorities to such data can provide valuable intelligence. However, the White Paper also recognises--and I agree--that
there is a balance to be struck between the privacy of the individual and the needs of society as a whole to be protected from crime.
The White Paper adds that access to communications data--for example, which telephone numbers have been called, for how long, and when they were called--will be subject to a code of practice. However, I note that in clauses 62 and 63 of the Bill, on codes of practice, there is no mention of involving the data protection commissioner. Some observers who are less charitable than I am might therefore draw the conclusion that the Government's intention is not to refer the code to the official who is tasked to protect individual privacy.
the prevention or detection of crime; . . . the apprehension or prosecution of offenders; . . . the interests of national security; . . . the purpose of safeguarding the economic well-being of the United Kingdom; . . . the urgent prevention of injury or damage to health; and . . . the assessment or collection of any tax or duty or of any imposition of a similar nature.
Those factors of legitimation find expression in clause 21. I should like to focus on the last factor, on the collection of taxes.
the assessment or collection of any tax or duty or of any imposition of a similar nature
meant that the phrase is
likely to include national insurance contributions and the council tax but not fines.--[Official Report, 8 April 1998; Vol. 310, c. 262W.]
It therefore follows that the "balance to be struck" in the Bill includes the possibility of the disclosure of communications data, if properly authorised, for purposes such as collecting national insurance contributions or road traffic tax. Given that these taxes are, at most, a few pounds a week--less than the cost of a cappuccino per day--some might find this wide-ranging power to be a disproportionate use of state power. There seems to have been a loss of balance here, and I hope that the Minister will explain that.
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