| Draft Retention of Communications Data (Code of Practice) and (Extension of Initial Period) Order 2003
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Ms Blears: I am sure that the hon. Gentleman will be aware of how codes of practice and general frameworks are developed in legislation—it is not necessarily the case that sanctions will follow. A great deal of legislation contains advisory good practice that we want companies to follow. Quite often, codes of practice are brought into effect; some provide that people shall have regard to them. I am sure that the hon. Gentleman has much experience of legislation that has various levels requiring different degrees of compliance. It is not unique to have something in legislation brought about by co-operation—something that we try to get all parties to buy into. Mr. David Kidney (Stafford): To help the hon. Member for Sutton Coldfield (Mr. Mitchell), I should say that if he had read the law of the land, he would know that if the voluntary scheme is totally disregarded the Government will make the scheme compulsory, if they have to. That is why they are now asking us to extend that period in law. Column Number: 010 Ms Blears: My hon. Friend is right. I tried to emphasise the reason for the second order, which is to extend the sunset clause to give us the option to pursue the matter. I was about to outline one of the examples in which such information proved extremely useful. It is incumbent on us as legislators not only to consider the letter of orders, but to think through exactly how they might be used. I have been told that last year Customs and Excise investigators uncovered a ring that had been involved in the smuggling of £4 million worth of drugs into the United Kingdom; it had also been involved in arms trading and fraud. It took six months for investigators to identify just one of the parties involved in the ring: they then conducted an analysis of the telephone activity of that individual. That allowed them to identify the people who played a central role in the crimes and to chart the links between the relevant mobile phones. Traffic data were offered in evidence at the subsequent trial and formed a significant part of the case against the accused, who were convicted and are now serving 15-year sentences. That shows the importance and relevance of such data and this legislation. Mr. Grieve: I appreciate the Minister's point. I have practised as a barrister and done a lot of Customs and Excise work, so I know that it has for many years been routine to obtain disclosure of telephone records—of who phoned whom. However, the Minister has not explained how the orders would have facilitated that process in the case that she mentioned. It would have been perfectly possible whether or not we had had the orders or the enabling Act that has led to the voluntary code being drawn up. Ms Blears: Perhaps the hon. Gentleman has not seized the point that business processes are changing and people are seeking to destroy their data increasingly early. We need to introduce the measure to extend the period of the retention of data beyond what would normally be the case for business purposes. In the case that I mentioned, it took six months to identify one of the parties involved. If we are moving into a world in which people start to destroy their data after a week, a fortnight or a month, data will not be retained if there is no code of practice. Mr. John Randall (Uxbridge): If it is so important, why is the code not being made compulsory? Ms Blears: It is not being made compulsory at this stage because the 2001 Act sets out a clear path: we will produce a voluntary code of practice, review it if that is necessary, and issue directions. That is exactly what we are doing: we are pursuing the path that was agreed by Parliament in part 11 of the 2001 Act. The disparity issue is at the heart of this matter. The industry has been responsible and co-operative, but it has expressed concerns, one of which was about the disparity. The Government have always made it clear that it would be possible for data retained under the 2001 Act for the purpose of national security to be accessed for purposes other than national security under other pieces of legislation, including the Regulation of Investigatory Powers Act 2000. However, the Government do not believe that that Column Number: 011 disparity will make the retention or accessing of data unlawful. At the moment, data are stored for business needs but are accessed for many different purposes, including crime and national security: they are stored for one purpose and accessed for another. The anti-terrorism legislation does not contain any implicit restriction on the purpose for which data retained under the code might be accessed. The primary legislation does not talk about how the data should be accessed; it addresses retention. Therefore, there is no implicit constraint.The Joint Committee on Human Rights reviewed the matter at length in its report and concluded that the available arrangements for access are likely to provide adequate safeguards against inappropriate disclosure. That Committee is satisfied with the framework that has been created around RIPA: if a public authority accesses information, that has to be done in accordance with article 8 of the European convention. Because a case-by-case approach will be adopted, issues of proportionality and necessity for access can be looked at in that context; that would not be done for retention. The Committee has made the necessary distinction, and it is satisfied that the framework of regulation under RIPA is sufficiently robust and rigorous to give us the necessary protection. Mr. Grieve: I am sorry to trouble the Minister, but I may save her time later. The Joint Committee on Human Rights made the point that judicial review is available in the notice of authorisation under the 2000 Act. How will a person know that he should be applying for judicial review when he will have no knowledge of the fact that potentially his rights have been infringed? Ms Blears: The Joint Committee examined the framework for access. It looked at the way in which RIPA operates and the interaction between RIPA and the Data Protection Act 1998. We have had reassurance from the Information Commissioner that he is satisfied that there is a workable framework within which the data may be accessed. The Joint Committee on Human Rights is satisfied that the legislative framework, together with the option for judicial review, provides a sufficiently robust platform to assure people that there is compatibility with the European convention. Mr. Shepherd: To repeat the question put by the shadow Attorney-General, my hon. Friend the Member for Beaconsfield (Mr. Grieve), how will the individual whose rights we want to protect be aware that there has been abuse of his rights and thus seek a judicial review? That is the problem at the heart of the matter. There is no mention in the code of practice of article 8 or of drawing a company's attention to its obligations and duties in that context. Ms Blears: The hon. Gentleman is confusing the two matters. The code of practice is about retention. Companies are acting in a private capacity because the information is stored for their business purposes. We want them to retain such information. Acting in a private capacity, they have no duty to comply with Column Number: 012 article 8. They do not have to consider proportionality and necessity, but are entitled to rely on statements from the Home Secretary who, in turn, relies on the assessment of the intelligence threat from the various organisations that report to him regularly on the level of that threat.It is for the Home Secretary to be satisfied that the information is necessary to be retained in such a framework. The code of practice does not have to tell companies that they have to direct their minds to such issues, because that is not a matter for them. I accept that the matter may well become the subject of litigation and be adjudicated on elsewhere, but our interpretation of the legal framework is that it is sufficient for the duties that must be performed. Mr. Shepherd rose—
Ms Blears: I want to press on. The Joint Committee on Human Rights has reviewed the matter. It is satisfied that the access provisions are sufficient to provide the necessary retention. The industry has asked about the necessity of data retention. Industries always maintain throughout such discussions that the business case for retention has not been explored sufficiently with them. Our answer to that is simple. I reiterate that national security is the responsibility of the Home Secretary, and based on reports from the relevant agencies, he has decided that data retention is necessary. My right hon. Friend is not under an obligation to prove that case to industry. That view was echoed by the Information Commissioner, who told industry that it was entitled to rely heavily on the conclusions formed by the Home Secretary. Brian White: One of industry's problems in a climate in which capital is not as freely available as it was a few years ago is that of making its case to banks for the extra investment and systems that would be required to keep the data that the Minister wants to be kept. It has not received a solution to that problem. Will she undertake to reconsider matters after our sitting and to examine ways of providing the industry with information that will allow it to put to boards the financial and business case to allow the data to be kept? Ms Blears: I certainly sympathise with my hon. Friend's point. As chair of the all-party internet group, he is extremely knowledgeable about such matters. Indeed, the group's report formed a fundamental part of the code and the consultation document. He will acknowledge, however, that making the business case cannot tread into the area of revealing highly sensitive intelligence information. That is clearly a matter to be decided by the Home Secretary when people have reported to him. A balance must be struck. Matters of balance always involve the European convention; a proper synergy must be established between the competing rights and interests of individuals, companies and the public. The matter is complex, and the Human Rights Act 1998 is such good legislation because it enables us to strike that balance. Companies' business needs cannot take precedence over the country's right to protect itself against terrorist threats by using intelligence. I know that my Column Number: 013 hon. Friend entirely agrees with that. If there is more that we can do in our consultations with industry, we will gladly do it and provide more extensive reassurance. I am always conscious of the need to strike the right balance between the needs of industry and the needs of the public.Another question asked by industry is, ''Why not a mandatory code of practice?'' The industry felt that a mandatory code was the only route that would give it the firm legal basis that it sought. However, the Act allows for directions to be given by the Secretary of State only after we have the code and the review. We must go down that route, which is the reason for these orders. The Government felt that the concern that volunteers would be acting as public authorities was unfounded. The retention of data is not a public function, whether it is carried out for the communications service provider's own business purposes or under the code of practice; it is a private function that arises out of the commercial service. The accessing authorities will be subject to a stringent oversight regime, which is the responsibility of the interception of communications commissioner, who will submit a yearly report to the Prime Minister. Any suggestion of misuse of powers could lead to the public authority losing its ability further to access data. I emphasise that communications service providers will not be expected to retain any type of data that they would not keep in any case for their own business purposes. We have collaborated extensively not just with industry, but with the intelligence community, civil liberties groups and the general public, as required by the Act. The Joint Committee on Human Rights stated in its report that it was satisfied that the consultation was adequate, and I am pleased about that endorsement. The order represents a move to ensure that sufficient communications data remain available for investigations relevant to national security. We are entirely satisfied that the orders are compatible with the European convention on human rights. They will enable us to lay the code and, if necessary, issue directions under section 104.
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| ©Parliamentary copyright 2003 | Prepared 13 November 2003 |
