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Mr. Coaker: What is the point of having a consultation if, as the hon. Gentleman implies, the Government have already made up their mind to have a central database? We have not made up our mind. I know the hon. Gentleman keeps putting that out there. We have said we will consult on a variety of options.
James Brokenshire: The problem that the Minister has is that he talks about consultation but it was said that no legislation would come forward until that consultation had taken place. This legislation, by way of secondary order, is part of that framework. It was contemplated that the communications data Bill would implement the EU directive. What are we doing here today? The Minister himself has said that it is to implement the directive. So, where is the consultation? It is all very well for him to push back and say that we are trying to pre-judge the consultation. Surely what we are doing today, without putting the necessary safeguards in place, is precisely what the Minister has accused me of suggesting?
Will the Minister also comment on what additional powers would be required through primary legislation to put such a database into effect, over and above the powers sought under this statutory instrument, in the context of existing RIPA powers, the access it gives and the associated provisions contained within it? I understand that it may not extend to social networking sites—that point was raised earlier—but, outside that, surely there is a means through RIPA, which contemplates national security and various other things, at least to get the communications data and establish it in that way. To what extent is what we are potentially putting on the statute book by virtue of these regulations an integral part of the interception modernisation programme? Because it appears to create a legal construct around which the IMP could proceed without further primary legislation.
The Home Secretary, in her speech to the IPPR on 15 October 2008 in relation to the interception modernisation programme said:
“The changes we need to make may require legislation. The safeguards we will want to put in place certainly will. And we may need legislation to test what a solution will look like.”
I deliberately emphasised “may” in the Home Secretary’s comments, not “will”. The requirement for legislation comes up only in the context of safeguards. Will the Minister be clear, will the Government require additional legislation to put in place the IMP? If so, are these regulations part of such a legislative framework? How can the Minister expect this Committee to give its approval to these regulations if we are not clear on the context in which they may be used and when the Government have failed to spell out their overarching policy position?
The Home Secretary also gave a commitment that a wide-ranging consultation was required before proceeding to legislation, yet we now have legislation preceding consultation. The Home Secretary claimed that she wanted a well-informed debate characterised by openness, reason and reasonableness. She said that her aim was to achieve a consensus. Yet the Government’s approach in bringing forward this order in this way appears calculated to create division where the concepts of openness, reason and reasonableness have been left behind. The Government had an opportunity here to start this important debate on the role of communications data and the protection of national security in a positive way. It is highly disturbing that they appear to have calculated by their actions today to take a different path.
5.4 pm
Tom Brake: I, too, start by saying that it is a pleasure to serve under your chairmanship, Ms Anderson.
I echo many of the points made by the hon. Member for Hornchurch, though I will not repeat them. We echo entirely the concerns he has expressed in relation to RIPA and the access to data that will be governed by RIPA. There was the opportunity for standards to be introduced at EU level in relation to the directive, but the vote that was carried allowed national Governments to decide how access to the data would be governed. That is why RIPA is governing access to the data.
The hon. Gentleman referred to some alarming examples of the way in which RIPA has been used. When the Act was passed in 2000, it applied to nine organisations, such as the police and security services; I believe that now it applies to 800 public bodies, including all councils. One has to question whether that was the original intention back in 2000. We are all familiar with the examples cited in the media of RIPA being used to check whether people live in the catchment area of a school to which their children are applying, and to check whether people are cleaning up after their dogs. Clearly, RIPA has been used in a way that was completely unintended and we do not have the safeguards before us today to provide assurances that that type of abuse will not happen in relation to accessing these data as well.
The Minister may point out that in 2007, when this issue was last discussed, we supported the statutory instrument at that point, but in the past couple of years all the concerns about RIPA have come to the fore, as have, incidentally, concerns about the ability of Government and other public bodies to safeguard data. We are talking about the retention of large quantities of data for 12 months, but no real evidence has been put before hon. Members today that there are sufficient safeguards to ensure that those data will be secure and will not be left on a train or left on a disc drive for people to access.
A further guarantee that we could have expected but which is not available relates to the concern that the data and the accumulation of data may be used in the way that Liberty has talked about. The concern is that there will be a data mining opportunity—an opportunity for people to trawl through the databases and try to identify data that may be helpful.
I should like now to make a couple of specific points about the proposals. The cost has been identified as £46.58 million over three years. Will the Minister clarify whether that figure contains the costs, or some of the costs potentially, that we are aware of in terms of the charges that the mobile phone companies have made to the police for accessing their data? I know that this measure does not cover mobile telephony, but internet access and internet e-mail can go via mobile phones as well. Will the Minister clarify where the boundaries lie? Is someone accessing their e-mail via their mobile phone covered under mobile telephony or under the internet discussion that we are having today? Where are the costs allocated in those circumstances?
Will the Minister also clarify how many companies we are talking about? How many companies are included and how many are not included? That will be a dynamic list. Presumably, companies that are not on it will go on it and companies that are on it will drop off it. It would be useful for hon. Members to understand how that process will work and who is responsible for reviewing the list. Clearly, that will have to happen on an ongoing basis from now on to ensure that the list is up to date.
The hon. Member for Hornchurch referred to the implementation group. It would be useful to have clarified precisely who is on that group, whether it has a budget and whether it has a date by which it will automatically disband or whether the Minister believes that it will continue in existence. Clearly, it is possible that as the technology moves on, best practice or the guidance that is issued will have to change; it will not be static. As the Minister said, technology moves on. The information that needs to be obtained will come in different formats. I imagine that the implementation group may therefore have to continue in existence well beyond the point at which this system is implemented.
I hope that the Minister will respond to that small number of questions. Unless he is able to provide some safeguards, which I do not think that he is in a position to do, regarding accessing that data, and the standards with which that data will be secured—
Mr. Coaker: To be fair to the hon. Member for Hornchurch, although I disagree with much of what he said, he was clear about what would happen if the Conservatives won the next election. Will the hon. Member for Carshalton and Wallington, for the benefit of the Committee, also be clear about what would happen should the Liberal Democrats be in a position to make such decisions? I think the Committee would like to know. If the Liberal Democrats were in a position to influence the decision, would they abolish the regulations should they be passed today?
Tom Brake: Without having consulted colleagues, my guess is that it would be entirely consistent with the strength of our position on RIPA to seek to repeal the regulations and propose something with much tougher safeguards than those currently in place. I hope that that is helpful to the Minister, and I welcome the trust and confidence that he has in our capacity to romp home in the next general election. But, as I was saying, unless the Minister can produce some real safeguards in his response, I am afraid that I will not support the statutory instrument today.
5.12 pm
Mr. Bone: It is a pleasure to serve under your chairmanship, Ms Anderson. I want to raise two points that have not yet been touched. The net present value of the exercise is £46.58 million, which my hon. Friend the Member for Hornchurch mentioned in his excellent speech. Will the Minister make it absolutely clear that that will fall on the taxpayer and not on companies?
The second issue that concerns me is the rush. The EU directive appears to be from 2006. We are discussing a statutory instrument that says it will come into force on 6 April 2009. The impact assessment in the notes says that the instrument will come into force on 1 April 2009. We do not even know whether the Joint Committee on Statutory Instruments has considered it. What is the rush? Surely, there should be some time. Why must we have it so quickly, and why are there two different dates? Are we working on the absolute minimum amount of time that notice can be given between an instrument being laid and brought into existence? What would happen—would the world collapse—if more time was given to people who have to implement the regulations and have notice of them? There has been a huge delay from the Government since 2006. I do not know if I am being unfair—perhaps the world would collapse if the regulations were not introduced on 6 April. Will the Minister explain that?
5.13 pm
The Minister talked about retention periods being 12 months, and said that that was decided based on experience. Will he talk a bit more about how we arrived at 12 months? I am not aware of what background information he has, and what has led to that decision. However, I am pleased that we are able to come back with a further statutory instrument if we need to extend that period to 24 months. Without access to such data, the detection and conviction rates for some of the most horrendous crimes imaginable, including fatal ones, would plummet. The sooner we move forward with these measures, the better.
5.15 pm
Mr. Coaker: I thank hon. Members for commenting on the regulations, particularly my right hon. Friend the Member for Enfield, North. It is very interesting that a large amount of the debate focused not on the retention of data, which is what the statutory instrument is about, but on regulation 7, which is, partly, about access—it says that retained data can be accessed only according to RIPA requirements.
I appreciate what the hon. Member for Hornchurch said—he has been very open and honest—and the hon. Member for Carshalton and Wallington just about got there in the end. However, the frank reality is that if we do not retain more of these data, they will not be available to the police. They benefit law enforcement, not just on national security, which everyone goes on about, but on serious and organised crime. Were the hon. Member for Hornchurch ever in power, he would have to address the same issue, which was the point that I made to the hon. Member for Carshalton and Wallington. As my right hon. Friend pointed out, some people who have been caught, charged, prosecuted and imprisoned for some of the most serious offences would not have been caught without these measures. The hon. Member for Hornchurch would have to wrestle with such dilemmas should he ever become responsible for these decisions.
I am not saying that people do not want to catch serious criminals; it would be ridiculous to say that. However, sometimes it is not enough to wish for serious criminals to be caught. We have to put in place measures that allow it to happen. The comments from the hon. Member for Carshalton and Wallington were interesting, which is why I spent a long time answering him. He was very close to saying, “But this directive doesn’t cover some things that criminals use—Facebook, My Space, bebo, aspects of Skype—and God only knows where the technology is going.” He was critical and said that the regulations go too far, yet his question to me implied that the directive did not go far enough.
Judgments have to be made. We need to retain more data. We have transposed the first two parts of the directive; this puts all of it together and, essentially, transposes the third part.
Mr. Coaker: That is really helpful because what we have had, for one of the first times, is a clarification of Liberal Democrat policy, which is essentially that they are not opposed to huge databases. What they want is appropriate safeguards. Now, that is a step forward, because I have never heard a Liberal Democrat Front-Bench spokesperson say that they are in favour of large databases. What I have always had from them, frankly, is that such databases are an invasion of privacy, they go too far and we should not be collecting all this data.
What the hon. Gentleman just said is fundamentally different from that approach. He said that it is not the collection of the data that is the problem, which is where the hon. Member for Hornchurch is coming from and where I disagree slightly with him, but that, as long as sufficient safeguards are in place, there is nothing wrong with a big database.
James Brokenshire: Obviously the Minister is trying to characterise this debate in a particular way. For the sake of certainty and clarity, I was equally careful in the remarks that I made, in that I stated very clearly that communications data were required for national security and to deal with serious crime. What the Minister appears to be trying to do is to articulate this debate in the absence of looking at the safeguards and in the void of understanding very clearly where the Government sit in the context of which organisations should be responsible for the retention of data, and whether it should simply be individual telephony and IT companies that retain the data or whether it should be by way of a central IT Government database. That is the central question and why the debate that we are having is so important.
Mr. Coaker: I hear the sound of retreat on this issue.
 
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