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Viscount Goschen: The noble Lord, Lord Bassam, will tell the noble Lord, Lord Rooker, if he has not already done so, about how fierce the battles were in this House concerning the Regulation of Investigatory Powers Act. Deeply held opinions were voiced by noble Lords and the legislation was substantially rewritten as a result.
The Government will be aware that the proposal in effect to add to that Act further provisions about the retention of communications data will be taken seriously by Members of this House and interested parties outside, in particular by the communications industry. We know how serious the issue is and how potentially dangerous it could become if it is not handled correctly—that could affect the economic well-being of this country and the communications industry in particular.
As has often been made clear during the Bill's passage through this House, we are prepared to accept additional measures provided that they are purely for the purpose of safeguarding national security. When the Government introduced the Bill and when they discussed it outside—in the press, for example—they made it clear that that is their reason for introducing the legislation. However, when we tried to pin down the Government over safeguarding national security or countering terrorism, they argued that they would like to take such steps but that such provisions would prevent them from accessing data and conducting investigations that might, on the off-chance, provide leads in the fight against terrorism.
The Government will have to be clear in their response to this group of amendments. Clause 102(5)(b) contains an additional rationale for the provisions in the code. It states that the code may contain any such provision that is needed,
- Xfor the purposes of the prevention or detection of crime or the prosecution of offenders".
- XA code of practice or agreement under the section may contain any such provisions as appears to the Secretary of State to be necessary . . . for the purpose of safeguarding national security".
7 p.m.
Lord Elton: It is easy to anticipate the Minister's response. It will be, as it has been so often, that any crime is potentially a terrorist crime, whether it is shoplifting, breaking the speed limit or blackmail. For that reason we are hesitant about giving the Government the emergency power procedure for the processing of this Bill.
I ask a simple question. I thought that I had brought with me all the relevant legislation, but I do not have the Regulation of Investigatory Powers Act, and hence I do not have Chapter 2 of that Act. I would like a definition of Xcommunications data". I presume that that does not mean the information transmitted—for example, the contents of a conversation—but the fact that two telephones, or two communications stations, have been in touch with each other, the time when they were in touch and for how long and, if one of them was a mobile, where it was. I seek reassurance that that huge amount of information is now to be warehoused.
I also have a question for the noble Lord, Lord Phillips of Sudbury. Amendment No. 171, in the second line under subsection (10), says,
- Xmay only authorise or require that",
Lord Lucas: I entirely support what has been said. Perhaps the Minister can enlarge on the rights under the Data Protection Act for an individual to obtain such data that is to be retained. Considering some of the wilder possibilities, in relation to packet headers there will be vast amounts of data. It will be extremely difficult for a communications provider who is asked to dig out anything that is relevant from their records to do so without incurring a great deal of time and expense.
Recently it has been established that the data that a mobile phone provider holds of a location from which and to which mobile phone calls are made is personal data and can be retrieved by someone under the Data Protection Act. Therefore, I presume that all such communications data will also fall under that heading. We are not considering imposing an occasional burden on the telecommunications provider to look for something for the Government, but a burden to have to do so for every single customer or citizen of this country, or anywhere else, who happens to cause a
little disruption by asking for the information. We have to understand how enormous this data supply is and how undirected it is.Some of my e-mails go through a mailbox. The information in an e-mail can be picked up as easily as someone can look at my telephone bill, although much of it does not touch the sides and is transmitted as packets. Information is squirted into the Internet and arrives at the other end through whatever routes it may happen to take. There may be no record of it other than the packet headers, which, as has been said, is about a terabyte a day or the contents of a DVD every second. Those enormous amounts of data are impossible to search unless they are on line. If so much information is available about the individual citizen, it comes down to 1984.
We must understand the Government's intentions in relation to particular kinds of data. They must have a clue as to what type of data they are considering retaining and for how long. The retention of some data has immense cost implications, nationally and indeed on individual telecommunications providers. One wonders why the Government will need it. If a terrorist organises himself properly, he will not appear. He will hide or cloak himself and he will not appear in any of the easy places. It will be immensely difficult to track him down.
The only people against whom such data will be useful will be the ordinary, everyday criminals who do not know how to take the #1,000 or #2,000 worth of precautions that would enable them to avoid the Act. The Government must be clearer about why they want these provisions.
The Earl of Onslow: My noble friend Lord Lucas said that the Government must have a clue about what they want to learn. That statement is almost incredible. Recently it has been published that MI5 and MI6 asked to listen to calls made on certain telephone numbers and they got a large percentage of them wrong. I am worried that our forces of law and the forces of our counter intelligence and intelligence services are not as good as they should be. For that reason the Home Secretary has reasonably taken a great interest in the performance of the police. The more one hears about matters going wrong, the more depressed one becomes. I am unsure whether we should give them extra powers to store telephone numbers to which they should not be listening anyway.
The Earl of Erroll: I agree with everything that has been said by the noble Lords, Lord Phillips and Lord Lucas. I was interested to hear the noble Earl, Lord Northesk, say that much of the information that is used to catch terrorists at the moment is obtained by trawling communications data. Was that authorised? Or was such a practice already used? And, if so, in which countries? How much of that data is picked up in that way? If only the packet headers and so on are being kept, that is probably not much use. Are the Government seeking powers to trawl through the contents of such data? Is this yet another back door way in?
It may be considered that noble Lords are being paranoid, but I think back to J. Edgar Hoover, the data that he kept on people and the blackmail that he exerted, which caused big problems in the United States. This provision provides a chance for someone to do that again. History has a habit of repeating itself. One thing that we can learn from history is that we never learn the lessons of history.
Lord Peyton of Yeovil: I am sure that the Government want to do what is sensible and intelligent, but sometimes that is quite difficult. It is easier to do stupid things. I believe that the Government are caught. I am sure that they do not want to do stupid things, but they have not found an easy alternative to the course that they are pursuing in this Bill.
At the outset, the Government said that following the events of 11th September they urgently needed powers to combat the horrors of terrorism in its modern and latest versions. I believe that that aim commanded wide respect among most of the Members of the House including myself. I believe that this is a drafting difficulty, but the Government do not appear to know what they mean by terrorism. Is that so? That is virtually the only explanation.
The noble Lord, Lord Phillips, referred to the Orwellian provisions that we now face. I cannot help but feel that the Government are conscious of the fact that that view of the present proposal is widely held. I am prepared to believe that the Government would want to avoid provoking the kind of opposition that they are provoking on all sides of the House. Therefore, they should come clean and say that it is a difficulty of defining terrorism and confining the provisions of the Bill to that particular purpose.
It seems to me that we are possibly going into Cloud- cuckoo-land if that is really true. But I cannot think of any other reason why the Government should want so obstinately to bring down on their head such a degree of very deeply entrenched opposition. There is no party ingredient in it at all. It is an opposition from people who would willingly arm the Government with any powers that are plainly necessary or desirable to secure the defeat of terrorism. But to give them such powers Xjust for good measure" to perform a much wider function is quite intolerable.
I have become confused. I am sure that I am not the only person. Perhaps the Government will try to clarify things. There have been other occasions, not under the present Government, when I have been told that a certain just and fair measure, which everyone wanted to achieve, could not be taken because it would involve taking an unconstitutional route. Eventually, when the government could not get their way, they would take the matter back and start to think. Finally, they would hit upon an extremely complicated, almost incomprehensible, way of doing what everyone wanted to do but in a manner that subsequently turned out to be fair.
What I am trying to say to the Minister is that I very much hope that he will not be content with the conventional briefing which ends with the word
Xreject". The Minister is capable of great candour and openness. I respect that. He could make a very good impression. He could make a real contribution to the easier passage of the Bill if he took it upon himself to say that he recognised the real difficulty and the depth of genuine feeling that existed on this subject in your Lordships' House and would take the matter away so that he and his colleagues could have a real opportunity to give it fresh thought.
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