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Recently, RIPAs entire architecture has been subject to criticism, as the Minister will know, by a roundabout route. As a result of an EU directive implemented by the Government, the voluntary agreement on the retention of material has become permanent with the service suppliers, and the Government now have access through the EU directive to the information to which they had access under that agreement. That raises an interesting issueand I hope that the Minister can answer this pointas we introduced a voluntary agreement designed specifically to deal with terrorism that was extended much further in RIPA. Through an EU directive, the boundaries of the provision have extended far beyond what was originally envisaged in the voluntary agreement effectively to cover every aspect of Government activity in this country.
That is not a happy state of affairs, and although I accept that new clause 5 is reticent in tackling the underlying problems in the legislation, which may require radical amendment, it at least offers us an opportunity to reconsider the road that we took when RIPA was passed. I do not think that the issue is going to go away: the public concern that has been expressed is entirely legitimate, and there is growing anxiety about the extent to which we may be creeping into a surveillance society. One of the arguments made for RIPA was that it would bring under one umbrella all the states investigatory powers to obtain information on communications retention. However, that has not happened, as far as I am aware. Departments such as the Department for Work and Pensions have completely separate powers, enacted by the House, which undermines the need for RIPA in the first place.
I hope that the Minister will respond to my concerns and consider carefully whether, in fact, there are not better ways in which to proceed. I do not entertain huge hopes that we will succeed this evening in a Division, but I hope that at least the new clause will send the Minister a signal that the matter ought to be revisited, preferably by the Government after further consultation, because it raises the question of creeping, incremental powers for the state, which is not desirable without further debate. As often happens in the House, we have succeeded in putting together a package that will have a substantial impact on the liberty of the individual without appreciating the full force of what we are about. I hope that the Minister will respond positively to the proposal, even if he does not support the new clause, and explain how the Government propose to approach those problems in future.
The Minister for Security, Counter-Terrorism, Crime and Policing (Mr. Tony McNulty):
I have no doubt that many of matters raised by the hon. Member for Beaconsfield (Mr. Grieve) are legitimate matters for debate, but this is not the time for that debate. As he suggested, new clause 5 will not achieve what he seeks to achieve, not least because of the orders that were passed on 1 October in the House. We can debate the rocky road that we have travelled on RIPA, but that is a debate for another time. The new clause seeks to address the list of public authorities that may obtain communications data under chapter 2 of part 1 of RIPA, but it fails to achieve that aim. RIPA already provides that an order specifying additional public
authorities that may obtain communications data must be debated and approved by a resolution of each House.
We had a substantive public debate in 2003 in which we set out public authorities necessary and proportionate requirements for obtaining data, and explained why various authorities had investigating and detecting duties in safeguarding public safety and public health. Parliament discussed the Regulation of Investigatory Powers (Communications Data) Order in November 2003, an order amending that order in 2005, and a further amendment in 2006. Public authorities requirements were set out in the explanatory memorandums for each order. The new clause does not undo any of those orders.
Mr. Grieve: I recommend that the Minister read the debate on the 2003 order. It was an extremely bad- tempered event, because the Government were late in presenting the relevant material to the House and they did not wait for the report from the Joint Committee on Human Rights. Many of the criticisms that I have made today were voiced then, but the Government have not done anything about them.
Mr. McNulty: I was not challenging the notion that those debates were bad temperedI have read them, and that is extremely clearbut they are over, and orders and secondary legislation have been passed. There is nothing in the new clause that changes any of that, even though the hon. Gentleman said that that is the aim of the new clause.
I am happy to debate RIPA and what public authorities should, or should not, be allowed to do, and what they can do with the three different grades of communications data. Much of the discussion of the orders that came into force on 1 October was based on erroneous facts. It was thought that hundreds of authorities would be allowed access to the highest level of communications data, but that is not the case. It was suggested that any number of public authorities would be allowed to access that data for tax purposes, but that is simply not the case. Naturally, Her Majestys Revenue and Customs can do so, because that is part of its duty. We were given the impression that, notwithstanding the detailed orders and regulations, there would be a free-for-all, in which, as the hon. Gentleman implied, every arm of the state would have ready access to the most detailed communications data. That is not the case, but new clause 5 fails to address that. It may a useful device in airing the notion that we need a detailed debate on the relevant provisions in RIPAI give the hon. Gentleman thatbut this is not the time to hold that debate.
Mr. Grieve: I disagree with the Minister. If the new clause were accepted, it would immediately create an incompatibility between RIPAs new wording and the scope of the orders passed by the House. The primary legislation would no longer back up the full scope of the secondary legislation, particularly the organisations that have been given those powers.
The hon. Gentleman is far more erudite and expert in those legal matters than I am. I watched with admiration as he danced on the head of a
legalistic pin to good effect, but I am told in substantial terms that what he seeks will not be achieved by the measure. The impact that he seeks to achieve on the orders that came into force on 1 October will not prevail. That is a matter of dispute: the Departments lawyers challenge his viewhe will be used to that position, too. However, there will be opportunitiesI go this far with himto revisit and discuss the substance of the provisions of RIPA with respect to communications data. The new clause is not the way to do that.
Let me deal with the proposals in the Government amendments, which are straightforward. They make it clear that only senior HMRC officials can authorise the use of intrusive surveillance powers. I am pleased to bring the amendments to the House in response to concerns raised in Committee, principally by the hon. Member for Hornchurch (James Brokenshire). Commenting on concerns raised by the Law Society, he asked that the Under-Secretary of State for the Home Department, my hon. Friend the Member for Gedling (Mr. Coaker)he was in Committee, happily, not meconsider whether it could be made clearer precisely who was mandated by the provisions. That is what the Government amendments seek to achieve.
Although I accept the broad thrust of the contextual introduction by the hon. Member for Beaconsfield to debates about RIPA and communications data, this is not the place or the new clause to change that. In any case, the new clause as drafted would not achieve the hon. Gentlemans objective. In that happy consensual spirit on the Government amendments and partially consensual approach on new clause 5, I hope he will withdraw new clause 5 and that the Government amendments, tabled not least at the insistencevery eloquent, I am sureof the hon. Member for Hornchurch, prevail.
Mr. Grieve: Let me start by saying some pleasant things to the Minister. I thank him for the amendments that the Government have tabled in respect of the level of officer in Customs and Excise authorising intrusive surveillance. We are grateful for the Ministers response to the representations made by my hon. Friend the Member for Hornchurch (James Brokenshire). We welcome the amendments and will gladly support them.
On our amendments, there is that classic difference of approach between Government and Opposition, which, I am afraid, will continue to separate us. The Minister may be right that the Bill, which deals with many other matters, was not the easiest place for us to focus on what we perceive to be the serious deficiencies of RIPA. I also accept that amending the legislation in order to achieve all the points that I raised in the course of debate is difficult without a complete overhaul of the architecture of the Act, but it is still worth attempting. I differ from the Minister in the belief that if the amendment were passed, it would alter the way in which the Act can be interpreted and which public authorities could remain on the list of those who could obtain the information.
With that in mind, and with the background fact that the legislation is causing public disquiet, on which there has been a considerable amount of comment, even though I am the first to accept that its origins may
have been reasonable when it was first considered, it is the duty of the Opposition at least to seek the opinion of the House to see how many Members share that disquiet. I shall therefore put the new clause to the vote.
I am grateful to the Minister for showing a willingness to listen to some of the problems that have been caused by this area of legislation. We are undoubtedly living in a period of our history where the power and rights of the state to intrude into citizens lives have increased beyond all recognition, compared with the position 10, 15, 20 or 30 years ago. We are in serious danger of accepting as a norm what our forefathers would have regarded as an outrage. Although there are security considerations that we must balance, on the back of security we are in danger of creating a highly regulated state that is rather poor at bringing about behavioural changes in relation to the observance of the law.
That is one of the big topics that we must face in the House, and I suspect it is one to which we will return over and over again. It would be helpful if we could reach a degree of consensus in all parts of the House on how to strike the balance, but I am pretty well convinced in my own mind that at present the balance is far too skewed towards the intrusive powers of the state and far away from the rights of the individual.
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