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Baroness Buscombe: I support the remarks of the noble Lord, Lord Phillips of Sudbury, in relation to the amendment.
Lord McIntosh of Haringey: Let me agree with the noble Earls, Lord Onslow and Lord Northesk. These are complex problems and they are complex amendments. I pay tribute to the care which has gone into their framing. The central aim of this part is to allow—with the safeguards of the Human Rights Act and the Data Protection Act (and I shall return to that point in more detail in a moment) and the duty of confidentiality which is not taken away by this Bill—public authorities voluntarily to disclose information to agencies involved in criminal investigations. They are already permitted to do so—I have said this more than once but it is important to state it—in relation to criminal proceedings and, as the noble Earl, Lord Northesk, recognised, I said that this part simply widens the gateway to include investigations.
Let me pause for a moment to consider the ability under present legislation to disclose information in relation to criminal proceedings. That has been going on for a long time. If it had caused any of the problems suggested here, surely those problems would have arisen by now.
8.45 p.m.
The Earl of Onslow: How does this clause affect September 11th?
Lord McIntosh of Haringey: I shall develop my argument. I shall make that point, as I have done in response to preceding amendments. It is a valid question and I do not duck it because it is important.
It is important that we should realise the practical effect of the amendments. It would be to transform the aim that I have described in this part of the Bill into a form of judicial control over disclosure which might well prevent some of the most important pieces of information being disclosed in time. The noble Earl, Lord Onslow, buries his head in his hands. He has a continuing complaint about our argument that it is not possible always in advance and in time to define what is a terrorist offence because there is no proper definition and, therefore, we have to include criminal investigations and criminal proceedings. But if we are investigating someone who is a potential terrorist, we have to act on the spot; we have to act at the time. The effect of the amendments would be that an authorisation would have to be sought from a judge by the person seeking the information. That information would have to specify what is being sought and it is not
always possible to know what is being sought. That procedure would have to take place before the request for information could even be put to the public official who has to decide whether to give the information.
The Earl of Onslow: As regards the history of obtaining warrants, magistrates can be woken up in the middle of the night. Judges can be incredibly rapid in producing the right permission if they are asked by the right person. They will be woken up in the middle of the night. It is possible to do that. All one is saying is that the ancient rights of Englishmen should not be sacrificed through a perfectly justifiable fear of what occurred on 11th September. We must always be careful to protect those rights. The system is sufficiently flexible if it is properly channelled to protect those rights. I think that that is what the noble Lord, Lord Phillips, is saying. That is what the noble Lord, Lord McIntosh, does not accept as possible. I know that he is sincere; I know that he is a good lad. But I do not believe him in this case.
Lord McIntosh of Haringey: I think that every Member of the Committee should put themselves in the position of those involved in investigations of terrorists and consider the ease with which supporters of Al'Qaeda, whoever they may be, can move from one country to another, from one place to another, and can conceal or destroy evidence which might connect them with the organisation. In this country, we are not always in the position of the retreat from Kabul where the Al'Qaeda had to leave houses full of evidence of their involvement in international terrorism. It does not work that way in this country. If we have delay of the kind involved in prior judicial control, we will lose the scent; we will lose the information; we will lose the opportunity to deal with potential terrorists. It has to be done immediately.
The Earl of Northesk: As I explained at Second Reading, under the RIP Act, the law enforcement authorities are given authority to obtain and retain data, and so on. I do not see the virtue of the argument that the provisions are about giving information to law enforcement that it would not otherwise have.
Lord McIntosh of Haringey: The argument is that we have had the power to ask for information relating to criminal proceedings. If we restrict the power to criminal proceedings, we shall lose the scent and the ability to catch people who are terrorists or supporters of terrorism in this country. That is why it is being extended from proceedings to investigations. If there had been a major problem with proceedings, no doubt somebody would have told us.
The Earl of Northesk: I apologise to the Committee, but I should like to clarify that point by quoting directly from the front page of today's Evening Standard, which says:
- XThe initiative, codenamed Operation Landmark, was the result of a painstaking 10-month investigation by the National Crime Squad and follows an analysis of 16 days' internet traffic to
- 33 paedophile internet groups. Officers discovered data from 9,800 individuals throughout the world who were asking for images of children".
Lord McIntosh of Haringey: I cannot complain about the noble Earl, Lord Northesk, quoting from the front page of the Evening Standard, because I have already done the same this evening, although from an earlier edition. I have not seen the article to which he refers, so I do not have anything useful to say about it.
However, I have something useful to say about the other constraints on the process. The noble Lord, Lord Phillips, spoke as though the only constraint was the Human Rights Act and the Data Protection Act was not effective for this purpose. The Data Protection Act will apply in most cases, imposing restrictions on disclosure. It also gives the individual the right to ask the data controller what disclosures about them have been made in certain circumstances. The Data Protection Act is policed by the Information Commissioner. Surely that provides an alternative avenue of redress. If we add to that the fact that the duty of confidentiality on public officials towards patients or customers is in no way diminished by the provisions of the Bill, it will be seen that, although this is an extension, it is a justifiable one.
I wish that the noble Baroness, Lady Park, was in the Chamber, because this is about intelligence. All that we know about the prevention of terrorism has highlighted the need for the co-ordination of agencies, particularly when there is a clear case for the free flow of information and a need for clear and effective channels. All that is implicit in the Bill. The prior judicial control required by the amendments would put at risk the intelligence work that is essential for that incredibly difficult task.
The provisions will mean that public officials understand their obligations better, especially thanks to the publicity that has been given to the matter in the past few days. That means that they are more likely to respect the safeguards.
I have to come back to the point made by the noble Earl, Lord Onslow. Of course we cannot limit the provisions to terrorism as such, because of the interaction between terrorism, drug trafficking and money laundering. Drug trafficking and money laundering are very often precursors to terrorism or tools for terrorists. If the powers covered only the act of terrorism, we would weaken our ability to deal with terrorism. That is why we need a wider definition.
The Earl of Onslow: The noble Lord mentioned drug trafficking and money laundering. We all agree with the Government that those activities have to be properly policed and stamped on and that people who indulge in them should be chucked away to get a striped suntan. Nobody is arguing with that. We are arguing that using the powers produced by emergency legislation to go on a hunt for a drug trafficker and then incidentally coming up with something on
terrorism is the wrong way to do it. By all means do it properly—I believe that there is a new 400-odd clause Bill on the subject in another place—but for heaven's sake let us concentrate on terrorism aspects in this emergency legislation, which is difficult enough for us to understand anyway. It is complex and we do not really have time to digest it. Let us limit its scope as much as we can, not because we are pro-drug trafficking or pro-money laundering, but because we want to get the legislation right in both cases.
The Earl of Northesk: Before the Minister answers that point, perhaps he will address the substance of the question. Do the provisions in the Bill open up the possibility of an enormously wide range of data matching and data sharing across public authorities? Parliament has previously sanctioned such behaviour on a case-by-case basis via primary legislation.
Lord McIntosh of Haringey: I think that I can deal with both those points at the same time. The noble Earl, Lord Onslow, talks about a hunt and the noble Earl, Lord Northesk, talks about data matching. They are both basing their comments on the false assumption that it is possible for investigatory authorities to conduct a trawl for information. That is not the case. Clause 17(2) simply defines in extenso what is meant by a criminal investigation. There is nothing more sinister than that. Public authorities involved in criminal proceedings or investigations can ask public officials for information relevant to their search. The list of such public authorities is quite limited. It does not remotely cover all public authorities and is nothing like the definition of public authorities provided in the Human Rights Act. If they are required to specify exactly what they want in advance to a judge, they will run the risk of missing it and of asking for the wrong thing.
Under the clause, the public official has to decide whether there should be disclosure of the information that he has in his power. He has to bear in mind the relevant data protection and human rights legislation, the duty of confidentiality and all the other protections that we have when weighing up whether it is relevant to the case and whether he is justified in disclosing it for the purposes of the investigation. I repeat, if we deny that possibility, we will weaken the intelligence effort and reduce the chances of catching terrorists. That will leave us all a little bit more at risk.
To require judicial control at the beginning would not only cause a delay, it would require the investigatory authorities to know more precisely what they are looking for than is likely at the early stages of investigation and it would prevent public officials from volunteering information that they suspect is relevant to an investigation relating to terrorism. Those are serious defects in the amendments.
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