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Lord Rooker: That is not a matter for the Government. That is a matter for the committee.
The Earl of Northesk: I hear what the noble Lord says. No doubt we shall have to return to the matter on Report.
The Minister says agreements will necessarily be commercially sensitive. There is no reason why they should be. They merely spell out the types of traffic data and the length of time that data should be retained.
I also hear what the Minister says about the devolved administration in Scotland. That satisfactorily deals with that point.
I have no doubt we shall return to a number of these issues on Report but, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 165A to 167 not moved.]
6.45 p.m.
The Earl of Northesk moved Amendment No. 167A:
- Page 62, line 22, leave out subsection (5) and insert—
The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 167B, 168, 169, 170, 171 and 174. This is the issue that has consumed the attention of the committee at almost every turn; namely, its scope.
As the Minister conceded at Second Reading:
If investigations have proceeded and are proceeding so successfully under the existing law, is it necessary to seek the proposed extension of powers? There is a case for limiting data retention to the purpose of safeguarding national security or countering terrorism, as is proposed in the amendment. At Second Reading I referred your Lordships' House to the Home Secretary's Tribune article of 26th October in which he indicated that the voluntary regime would apply:
But as the noble Lord, Lord McIntosh of Haringey, stated on Wednesday of last week:
Quite so, but that is precisely what is objectionable. It is based on a presumption that all communications data might be useful in law enforcement, but not necessarily to prevent terrorism. The Joint Committee on Human Rights made the point eloquently:
This goes to the heart of the reasoning that underpins these amendments.
Have the Government considered the practical difficulties of the measure? In order to counter the terrorist threat law enforcement needs focused intelligence. But the retention of data in case it may have relevance to a terrorist investigation, effectively necessitates the retention of all communications data. In respect of a single Internet service provider, this could be in excess of 500 terabytes a day—something like a single DVD for each second of traffic. Will information relevant to an inquiry be extracted quickly from such vast accumulations of data?
Management of compliance with such a requirement will impact detrimentally upon the ability of communication service providers to conduct their businesses efficiently and effectively.
The Data Protection Act gives data subjects rights of access to information about them as individuals. Do the Government suppose that this important protection will be manageable either for individuals or communications service providers when all data is retained?
I turn to the issue of proportionality. The Minister suggested at Second Reading and repeated again today that all powers used will be fully in line with the European Convention on Human Rights and the Regulation of Investigatory Powers Act. There will be no generalised expeditions; they will all be related to specific inquiries and will conform to the terms of the legislation. I do not doubt the sincerity of those statements, but unfortunately they are not to be found on the face of the Bill.
As I observed at Second Reading, the Information Commissioner, the Joint Committee on Human Rights and the Delegated Powers Scrutiny Committee all expressed doubts on this. I quote from the Information Commissioner's memorandum on the Bill:
I shall take this opportunity to make more detailed comments about the amendments. Amendments Nos. 167A and 167B are alternative approaches designed to achieve the same objective: introduction of a clear proportionality test and alignment of the Bill with similar principles already enshrined in RIP. This is necessary to ensure legal clarity.
Amendments Nos. 168 and 169 speak for themselves. I make the point that the use of the phrase Xcountering terrorism" is not without precedent. It was used at Section 3(3)(a) of the Interception of Communications Act 1985.
I turn to Amendment No. 171. Its purpose to tie the measures on the face of the Bill back to RIP. I am sure that the Minister is well aware of the obvious point that there is provision in Section 25(3)(b) of the 2000 Act for restricting by order the purposes for which data can be obtained by communications service providers in relation to national security. Clear legislative provision is required in the Bill to the effect that retained data cannot be obtained by law enforcement or intelligence services for any other purpose than national security. That is the amendment's aim.
There is more that I could say but I conclude with a comment—and a question—from the Constitution Committee. I hope that the Minister will respond to it
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): If this amendment, or alternative Amendment No. 167B, is agreed to, I shall be unable to call Amendments Nos. 168 to 170, owing to pre-emption.
Lord Phillips of Sudbury: I shall speak to those amendments appearing in my name; that is, Amendments Nos. 168, 170, 171 and 174. Again, I wholly identify myself with the comments of the noble Earl, Lord Northesk.
Enough was said at Second Reading for the Minister and the Government to be aware of the widespread concern about this part of the Bill. The effects of the warehousing arrangements that these provisions will allow will create a source of potential information for the state which, frankly, has been contemplated only in the novels of George Orwell. We, like the Conservative Front Bench, feel as strongly as we can that the Bill has been introduced for entirely legitimate reasons; namely, national security in the face of an emergency threat. However, we do not and will not accept that it is legitimate to go beyond that and Xpiggyback" on that legitimate purpose the complete range of criminal offences, at whatever level.
I remind the Committee of a report by the National Criminal Intelligence Service, which was leaked last year and is now available in full on the Internet. The report was publicised in the Observer. The memorandum proposes the creation of a Xnational traffic data warehouse" on grounds that are found in this and the succeeding clause. The unease that that creates on these Benches is added to because the memorandum is also the fruit of MI5, MI6, GCHQ, ACPO and Customs and Excise. One need not dwell in the lands of paranoia to believe that a fundamental issue of basic and traditional liberty is involved, and that that makes this group of amendments not only necessary but essential.
On Amendment No. 171, unless it or something like it is agreed to, the practicality of retaining this vast amount of communications data, with regard to the implementation of the RIP Act, will be extremely unsatisfactory; indeed, that Act will not be workable. Under Section 22 of that Act, it is possible for a relevant public authority to collect data if it is authorised by what is called a Xdesignated person". Subsection (4) allows a designated person to involve,
I hope that I have not lost the Committee—I have only just not lost myself! My point is serious and I hope that the Government will respond to it.
X( ) A code of practice, issued and revised by the Secretary of State and business, may contain such provisions as appear necessary for the purpose of safeguarding national security.
( ) Provisions in the code of practice will be proportionate to what is required for the safeguarding of national security."
XCommunications data has been central to the investigation into the terrorist attacks of 11th September. This data has been available because of the excellent co-operation shown by communications service providers.".—[Official Report, 27/11/01; col.152.]
Xstrictly in the case of a criminal investigation against suspected terrorists".
XWhen the anti-terrorist squad, for example, or any other bodies look for terrorism, they look for activities that one can discover but which may not themselves be terrorist activities. Those activities involve other criminal activities that could lead one to terrorists".—[Official Report, 28/11/01; col.401.]
XThere is no express limit to the scope of the powers. They could be used to secure highly sensitive data for the purpose of investigating very minor offences or even for monitoring people's communications without any grounds for suspecting them of any offence or of threatening national security".
XIt raises a number of concerns about its compatibility with convention rights. The starting point must be that the proposed legislation will involve an interference with the Article 8 rights of individuals".
XThese provisions raise complex and often controversial issues. It seems questionable to us that they should be attached to a Bill on terrorism and security. Is their inclusion compatible with the proper exercise of the functions of Parliament and the proper operation of the principle of parliamentary sovereignty?".
I beg to move.
Xa postal or telecommunications operator",
but the Bill refers to Xcommunications providers". It can require such people to collect communications data and to hand them over to the relevant authority. Unless we agree to the amendment or something like
it, it will surely be possible for the authorisation and notice procedures in Section 22 to be used not only in relation to communications data involving national emergencies and national security but also in relation to any communications data that are held by the particular communications provider.
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