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Baroness Nicholson of Winterbourne moved Amendment No. 68:
The noble Baroness said: I wish to say that these amendments are drawn to my attention by the excellent organisation Liberty, although I do not in fact belong to it. However, the concerns are mine as well, or I would not be putting them forward. I want to encapsulate them all by suggesting that the clause contains a very large exemption, about which a number of people are extremely concerned. The objective behind the amendment is to ensure that the security services comply with the data protection principles; that they are required to register under the Bill; and that they comply with the notification requirements of Part III.
Perhaps I may remind noble Lords that the security services--the Secret Intelligence Service, GCHQ and the Security Service--have been exempt from the protections provided to individuals by the 1984 Act. It is proposed in this particular clause that processing of data for the purpose of safeguarding national security will be exempt from all of the data subjects' rights in Part II of the Bill, from the enforcement provisions in Part V and even from the need to register under Part III of the Bill.
Is this really necessary? These are blanket exemptions. Do all the data protection principles set out in Schedule 1 have to be set aside? For example, the requirement that data be,
that is the third principle; that data be,
the fourth principle; that it should be,
the first principle. Why should these principles not apply to the security services? Personally, I should have thought that it was exceptionally important that they did. On top of that, is it necessary or acceptable in a democratic society that these simple, essential principles should be set aside?
There is also a point of applying the principles specified by the court on an application for judicial review to remove the requirement if a tribunal should reach a decision by applying the test which would be applied in judicial review proceedings. Perhaps the justification of this suggestion is that the judicial review test is too strict, as the tribunal would only allow an appeal where a Minister's decision was considered so unreasonable as to be perverse.
To delete Clause 27 entirely is one way forward, and I have attached my name to the amendments which would do just that. The purpose, as I have already stated, is simply to stop this proposal that the security services should be totally exempt. I beg to move.
Lord Williams of Mostyn: In this grouping, if I have it correctly, are Amendments Nos. 68 and 71, the amendments to which the noble Baroness, Lady Nicholson of Winterbourne, has just spoken, Amendment No. 74 also in her name, Amendment No. 75, which is a government amendment and Amendment No. 79, which is the further national security amendment in the name of the noble Baroness.
I understand the underlying concerns expressed by the noble Baroness and, as she says, by a number of organisations of repute in this country. Clause 27: the point of it is to safeguard national security. It is self-evident. There are going to be circumstances in which personal data will need to be processed by the appropriate agencies to safeguard national security. Clause 27 makes it possible for that processing to be carried out without the otherwise subsisting controls putting national security at risk. There will be nothing between any of us in this Committee on the need for a national security exemption. The real question is what should the scope of the exemption be.
The noble Baroness believes that national security can be adequately protected by an exemption from fair processing, subject information and non-disclosure exemptions and that exemption can never be necessary from the other principles or notification requirements, if I have her argument right. This is where we part company. The exemptions as currently drafted can apply only if they are required. I refer to Clause 27(1)(c) on page 16 of the Bill. So a requirement is needed. If the exemptions are not required, the Bill will not allow them to be applied. However, if they were to be required, I believe that they should be available.
It is plain that applying any of the data protection principles could have the potential to damage national security. The noble Baroness's amendments would have the effect of placing compliance with all the requirements that she would exclude from the scope of the exemptions above. That would have the consequence of putting that interest, which I recognise, above the national interest in national security, and there, again, we part company.
The noble Baroness's amendments would require the security agencies to notify their processing to the Data Protection Commissioner. Notification is about transparency, and it must be reasonably anticipated as being possible that such transparency will not always
The noble Baroness rightly said that the new Bill will provide a fuller application of data protection regime principles to national security activities than is now the case. I repeat this because I recognise its importance. We say that the Bill allows exemptions to be claimed only if and to the extent that they are required for the purpose of safeguarding national security. If they are required, then they must be available.
Baroness Nicholson of Winterbourne: Could I question the Minister on requirements, if they are required, before the Bill comes before their Lordships' House? I have knowledge of the mechanisms of requirements in terms of authorisations for telephone tapping by the Home Secretary. I know that, had the Home Secretary been required to sign all the authorisations for all the tapping that was going on, he would not have had time to do anything else. Therefore, if I recall correctly, the police were evading the issue, very intelligently, and perfectly within the law--although outside the spirit of what I understood to be the law--because they were tapping the echoes and not the data-flow. Every data-flow creates an echo and they were tapping the echoes. The number of activities, therefore, were many. When the Minister talks about exemptions and requests for exemptions, I simply wonder how that will be achieved and monitored.
Lord Williams of Mostyn: I recognise that one is putting that duty on a Minister of the Crown. If, in the past, Secretaries of States did not discharge their duties properly, that is a matter of regret to me. There are, of course, different controls for the interception of communications which are subject, in any event, to review and to reporting by the reviewing commissioner. One sees the answer to the noble Baroness's question: it is a certificate signed by a Minister of the Crown, asserting the requirement that is needed.
There has to come a time, when, however alert one is to individual liberties, the executive needs to take decisions on national security matters. Those are particularly sophisticated and subtle questions. I regret to say this. But the world in which we live makes them not suitable for general public debate. I suppose some people would say that that is totalitarian, but in fact it is not. It recognises that there are difficult decisions to be made. They will have to be made by a Secretary of State, who, after all, is a member of an elected Government, a subject of controls of different sorts--sometimes rightly from the media, sometimes from another place should it wish to be alert to the powers that it has--and subject to Members of your Lordships' Chamber.
The Secretary of State will have to certify the requirement. That is a solemn obligation which I do not myself believe a responsible politician would lightly set on one side.
Baroness Nicholson of Winterbourne: I thank the Minister for that further explanation. There are many things that cannot be discussed in public but accuracy and fairness are both vital imperatives in a democratic society, and that citizens' privacy should not be invaded by the security services without due course is a bulwark of freedom. There is little that I can add to the points that I have made and I am confident that the Minister has taken them into account. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn moved Amendments Nos. 69 and 70:
The noble Lord said: I have already spoken to Amendments Nos. 69 and 70. I beg to move.
On Question, amendments agreed to.
Lord Williams of Mostyn moved Amendments Nos. 72 and 73:
The noble Lord said: I have already spoken to this amendment and to Amendment No. 73. I beg to move.
On Question, amendments agreed to.
[Amendment No. 74 not moved.]
Page 15, leave out line 44.
"adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed"--
"accurate and, where necessary, kept up to date"--
"processed fairly and lawfully"--
Page 15, line 44, leave out ("any of").
Page 16, line 1, leave out ("any of the provisions of").
Page 16, line 3, after ("exemption") insert ("from that provision").
Page 16, line 5, leave out ("the exemption") and insert ("exemption from all or any of the provisions").
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