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Lord Elton: With due respect, perhaps I could elaborate a little because I think that the Minister genuinely does not see where we are coming from. Parliament has decided that if someone is arrested on suspicion of burglary he shall nevertheless have his human rights protected in certain ways because he may be innocent. The Government are saying that such a person will have his human rights diminished because he may be a terrorist, and that that will apply to all cases. That is where we are coming from.
There is difficulty distinguishing what is a genuine terrorist-connected event and what is not. I sympathise with the Minister about his difficulty, but if he understood that those are the two polar opposite points of view that we occupy he would at least see what we are driving at.
Lord Rooker: To be honest, I have no difficulty at all. We have said that the operation of the Bill will fully comply with data protection and human rights legislation. There will be no problem with anyone's human rights being put at risk by our misuse of the Bill. I can accept that Members of the Committee have doubts about that that I have not yet been able to satisfy, but if I may continue I may make some inroads on that. I shall certainly do my best.
We fully agree that the provisions of the code and the agreements must be proportionate to what they are intended to achieve. Otherwise, our purpose is defeated. If they are not proportionate, they will be thrown out, deemed irrelevant and be subject to all kinds of attack. So there is no need for an explicit proportionality clause. The code must comply with the
principles set out in the 1999 telecommunications regulations and the Data Protection Act 1998. Both of those pieces of domestic legislation implement EC directives that were designed to be compliant with Article 8—the right to privacy—of the European Convention on Human Rights. Proportionality and necessity are key principles of the ECHR.So there is no secret agenda to undermine anyone's human rights in the operation of the Bill. We intend to make our legislation and our operation of it fully compliant with human rights legislation. That is absolutely clear. I make that pledge as firmly as I can.
I turn to Amendment No. 167B, which would have two effects. It would change the purpose for which data may be retained by communications service providers under the code of practice and agreements and introduce a refinement to necessity and proportionality. The amendment is intended to replace the crime detection and prevention purpose with a counter-terrorism purpose. I have already said that that betrays a misunderstanding of how the terrorists operate.
I turn to Amendment No. 168. Without winding-up the noble Lord, Lord Peyton of Yeovil, I must tell him that Xresist" is the first word on my brief, not the last one. I do not know if he has been here all day, but I have accepted one amendment from the Opposition Front Bench, so it has not been a completely futile operation.
The amendment would change the purpose for which the data may be retained and so we are faced with the arguments which applied to the previous amendments. If we restrict to countering terrorism the purpose for which data may be retained under the code and the agreements, it would make no sense in practice. Indeed, it would not effect—I repeat that it would not effect—the access to the data. I ask Members of the Committee to keep in mind throughout all the debates the distinction between the retention of the data as regards this legislation and the access to the data which is governed by another piece of legislation the operation of which is overseen by the Interception Commissioner.
Lord Phillips of Sudbury: The Minister distinguished between access to the data and retention of the data. The amendment I moved is designed to cure the difficulty because it would apply to access as well as to retention.
Lord Rooker: We have no problem about the access rules. The operation of access would be laid down and is governed by legislation which is already on the statute book with an independent Interception Commissioner to oversee it. Therefore, we do not see the necessity of including it in this legislation. It deals solely with the retention under the code of practice.
The Earl of Northesk: Does the Minister recognise the fact that there may be some benefit in linking the
access regime to the retention regime, which is the purpose of Amendment No. 171? It creates a tidier whole.
Lord Rooker: No, I do not. I have not yet dealt with Amendment No. 171, but I do not agree with the noble Earl. In this respect, it is important to keep the retention separate from the access. As regards retention, we are seeking voluntary agreement. We have every reason to believe that we can arrive at such an agreement which is completely acceptable to the entire industry. It will be achieved by a code of practice which the Government will not enforce. It will be voluntary.
Access to the information by those who carry out the investigations is governed by legislation which was well debated in both Houses. It would be a mistake to link the two—and I say that before I have dealt with the amendment. It may be that there will be reference to it in the code of practice—that is not ruled out. However, we are not writing the code of practice here today. The code of practice is for discussion and consultation with industry and the Information Commissioner.
I turn to Amendments Nos. 170 and 171.
The Earl of Northesk: Perhaps I may make the obvious point that if it is appropriate to have the regime of access on the face of primary legislation in the Regulation of Investigatory Powers Act, why is it not appropriate to have it on the face of this Bill instead of hiding it away in the code of practice?
Lord Rooker: The noble Earl refers to having access under the Bill. That does not make sense because it is about retention. I merely point out that I am not writing the code of practice here today. I cannot say what will be in it because it will be a matter for discussion with industry. It is a voluntary code; the Government will not impose it. I cannot pre-judge what the results of consultations will be. I do not know whether it will be seen appropriate to refer to access to the information. We do not have a fixed view on the matter and that is the whole point about having discussions on a voluntary code of practice.
Amendments Nos. 170 and 171 would remove the prevention/detection of crime as a purpose for the retention of data and would prevent data which are retained under Part 11 provisions from being accessed under the Regulation of Investigatory Powers Act for any purposes other than national security.
Before seeking to change the purposes for the retention of communications data set out in the Bill, it is important to understand something about how terrorists operate. I repeat the point about drawing the distinction between terrorist activity, attacks on national security and other crimes. The distinction is a false one. Terrorists often engage in a whole raft of criminal activity, whether drug running, people trafficking, bribery and corruption, in order to finance and supplement their main business.
Furthermore, restricting the purpose for which data may be retained under the code and the agreements to countering terrorism would make no sense in practice. Those two arguments—that is, the messiness of the distinction between terrorism and other forms of crime and the impact on the effectiveness of the law enforcement agencies—preclude us from restricting the retention purpose to national security alone.
Amendment No. 171 proposes to amend the access provisions in the Regulation of Investigatory Powers Act 2000. Data retained under the provisions in this Bill will be kept for a dual purpose in data protection terms: first, for business purposes—billing, traffic management, direct marketing and so forth; and, secondly, for law enforcement purposes—the two purposes set out in Clause 102(5). It will therefore be impractical to distinguish between data held pursuant to these provisions and any other data.
If two conditions are met—first, that communications data are available, whether held under the provisions of the part or for any other legitimate reason and, secondly, the Regulation of Investigatory Powers Act access thresholds of necessity, proportionality and so forth are passed—why should public authorities be prevented from obtaining data for the reasons set out in the statute?
The noble Earl's amendment would mean that no communications data could ever be accessed by authorised public bodies for any purpose other than national security. It would completely undermine a whole chapter of the Act which was passed by this House only a year and a half ago. Our conviction at the time was that all the purposes listed in Section 22 were justified and I see no reason for that to have changed. I hope that that is a satisfactory explanation.
I turn to Amendment No. 174. It would restrict the grounds for seeking an order to impose mandatory directions to Xsafeguarding against terrorism". I would argue that noble Lords are again making a false distinction between terrorism and other crimes.
In terms of communication, we must recognise the centrality of communications data to the non-terrorist related business of the security, intelligence and law enforcement agencies. The only acceptable criteria for introducing a mandatory scheme is if the voluntary scheme fails. We do not want it to fail. The Government fully intend to use their best endeavours to ensure that a voluntary scheme is operated in co-operation with industry.
In that regard, I hope that Members of the Committee will be reassured that the access provisions under the Regulation of Investigatory Powers Act are subject to judicial oversight by the Interception Commissioner, who is a senior member of the judiciary. He is responsible for ensuring that access is carried out in accordance with the principles of necessity and proportionality set out in the European Convention on Human Rights.
As regards the period of retention, there will be consultation about what is reasonable for industry and what is necessary for law enforcement. We shall have to come to a measured conclusion to get that right.
There will be arguments and, I suspect, disagreements in debate and I hope that we shall then arrive at a conclusion that is acceptable to everyone; that is, the Information Commissioner, the Government and the information providers.The period must be compliant with EC directives. If it is too long, which I suspect will be the seven-year figure mentioned in the Observer, it will be subject to challenge by the European Commission. We are not completely free agents and that is right. We bound ourselves to an international treaty which we have introduced in domestic legislation.
As regards the definition of Xcommunications data", I regret that I was asked the question because I now have the answer in front of me. I know that if I read it out at this time of night I shall get it in the neck. However, I shall make a start. In the Regulation of Investigatory Powers Act 2000, Section 21(4) gives a definition of Xcommunications data" and it means any of the following. I shall not read it all, but paragraph (a) states:
- Xany traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunications system by means of which it is being or may be transmitted".
- Xany information which includes none of the contents of a communication . . . and is about the use made by any person—
- (i) of any postal service or telecommunications service; or
- (ii) in connection with the provision to or use by any person of any telecommunication service".
- Xany information not falling within paragraphs (a) or (b) that is held or obtained, in relation to persons to whom he provides the service, by a person providing a postal service or telecommunications service".
We have had a fairly long debate—I make no complaint about that, far from it—in which a number of questions have been asked and red herrings have been put forward for public consumption. I hope that I have either squashed or eaten them. We do not seek to know the contents of telephone or e-mail communications between people; nor do we want business to retain them or access them. I cannot make it clearer than that. We seek to work with industry in a wholly voluntary way. Our fallback position is there, and in part the matter is subject to a sunset provision to demonstrate our goodwill. We seek genuine co-operation in the interests of law enforcement.
I agree that this matter is being put through the House in an Xemergency" fashion, but this measure is related to an emergency and we need better information. We have not sought to use a blunderbuss but voluntary access. Since the events of September 11th we have had good co-operation with the industry that has proved to be extremely useful, for which we are extremely grateful.
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