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Viscount Goschen: Perhaps I may direct the attention of the Minister to my earlier intervention
which concerned Amendment No. 170. Can the Minister explain to the Committee how, if subsection (5)(b) is removed, the Secretary of State's power to combat international terrorism will be constrained, given that he will then be able to draft the code in such a way as to include any provision as appears to him to be necessary for the purpose of safeguarding national security?
Lord Rooker: I cannot do so other than to repeat what I have already said. All I shall do is repeat my comments in dealing with Amendments Nos. 170 and 171 which were taken together. All I can do is suggest that the noble Viscount looks at Hansard tomorrow. I am quite happy to stand at the Dispatch Box for another 10 minutes and go through it again, but I do not believe that that would be a good use of the Committee's time.
Viscount Goschen: With the greatest respect, that answer is not worthy of a government Minister who seeks to explain the Bill. I do not want to hear merely a repetition of what the noble Lord said, because it did not satisfy me. The Government have said that the Bill is designed to combat international terrorism. Under subsection (5)(a) the Secretary of State is allowed to draft a code in consultation in such a way as to include any provision he likes which will assist in combating terrorism and preserving national security. If he can do anything he likes to achieve those aims, why is subsection (5)(b) necessary?
Lord Phillips of Sudbury: To add to that, if what the Minister has said and repeated is correct why do we need (a) and (b) at all? According to the Minister's explanation, the Secretary of State should be able to make such provision as he likes with regard to the retention of data—full stop. I rise in a genuinely helpful spirit. I understand the dilemma of determining whether a crime is or is not related to national security. Why cannot one say in subsection (5)(b) words to the effect, Xwhere the Secretary of State makes provision for the purposes of the prevention or detection of crime or the prosecution of offenders which may be related to risks to national security"? I believe that that would address the perfectly fair point that the Minister seeks to make about the blurring of the edges in terms of not knowing whether a crime is or is not related to national security.
The provision starts by saying that the Secretary of State may do something. One needs a double Xmay" so that it reads Xwhich may be related". One would have thought that that would go a long way to satisfy the Members of the Committee on this side of the Chamber.
Lord Lucas: I believe that the Committee understands the direction from which the noble Lord comes. The Minister will be aware that individual learning accounts have been abandoned by the Government because terrorists have been using that open door to fill their pockets with cash. Therefore, very ordinary crimes can be used to fund terrorism, but
the powers in subsection (5)(a) cover that. It is absolutely clear that that provision allows the Secretary of State to do anything which appears to him to be necessary for the purpose of safeguarding national security, which includes all those estimable things which the noble Lord, Lord Rooker, says the Government wish to do. Subsection (5)(b) must, logically, cover matters which are not necessary to safeguard national security and such a provision should not be in the Bill.
Lord Rooker: Earlier one Member of the Committee said that the Secretary of State could do what he wanted. The whole point is that he cannot. I cannot emphasise enough that it is a voluntary code. The Secretary of State is not taking powers here. We hope to obtain a voluntary agreement with industry, not to impose it. We want a voluntary working arrangement. To argue that the Secretary of State can do what he wants is not true.
I suspect that many noble and learned Lords will trawl over what may be in the mind of the Secretary of State in defining Xnational security". Already one Law Lord has pronounced on it in the Rehman case, although we were informed last night by another distinguished member of the legal profession that we should not accept the opinion of one judge. Nevertheless, it is for the Secretary of State to interpret that.
I do not believe that I shall satisfy the Committee. The noble Lord, Lord Phillips, has just rewritten part of one of the limbs of the clause while on his feet. I do not detect a great deal of difference between that and what is now in subsection (5)(a) and (b).
There are good reasons for the way in which the provision is drafted, but it must be agreed with industry and the Information Commissioner. The Secretary of State will not have a draft code to offer for this purpose unless the interpretation of subsection (5)(a) and (b) is acceptable. The whole point about the voluntary code is that if industry does not buy into it, we shall not have one. The Information Commissioner must be consulted. If they do not buy into it, we shall not have a voluntary code. Whatever suspicions the Committee may have, each of the textual interpretations of the limbs will be satisfied certainly by the time of the publication of the voluntary code, because it will have been done with the agreement of industry and the Information Commissioner.
Crimes are a legitimate reason for retaining the data. I was not involved in the Act passed last year, although like other Ministers I followed it as closely as I could. Both Houses recognised this matter. Some Members of the Committee have already taken part in this debate. I come fresh to the matter in a sense, but Members of the Committee have been round the course before and know the dark secrets of the debates which took place.
The reality is that both Houses passed the Bill and it received Royal Assent. This matter was recognised when it was debated last year. It is probable that if we
left out one or other limb the code of practice would be a glass half-full. I rest my case on the basis that, since it is voluntary, industry must agree it; otherwise, there is no voluntary code. The Information Commissioner will be involved, otherwise we will not get a voluntary code. For those reasons, I am quite confident that by the time a voluntary code has been agreed all the nuances and doubts about Clause 102 and subsection (5) will have been settled to everyone's satisfaction.
Viscount Goschen: Perhaps I may raise a small point. The Minister said that the industry has to agree. Is that really the case? I had thought that industry had to be consulted; that is, that the Secretary of State will consult and then decide whether to agree with the sentiments expressed by industry.
Lord Rooker: I have repeated the point that the Government will not impose the code. It is a voluntary code. I cannot make the point any more clearly than that. If industry does not want the code of practice, it will walk away from it. We would then have to look to the powers in Clause 103. We want to put in place a working voluntary code. I am being tautologous because I cannot explain this in any other way. Perhaps noble Lords have an agenda, or it may be a question that the penny has not dropped, or that I have not made the point.
I appreciate the healthy degree of scepticism felt about what the Government are doing and about the intentions behind those actions. I am trying my inadequate best to make the point that if industry does not bite as regards the voluntary code, it will walk away from it. We shall then have an unworkable voluntary code and we shall have to move on to a statutory code. We do not want to do that. Our first priority is to establish a working agreement with industry and the Information Commissioner to establish a voluntary code.
Lord Lucas: The note from the Box has given it all away: ordinary crime will serve as a good enough purpose for keeping such information. So it might, but that has nothing to do with what should be covered by this Bill. It would be good to see this provision in another Bill dealing with ordinary criminal matters. That would give us time to consider its implications; that is, whether we would like to see traffic violations and other offences subject to the extended timescales contained in this legislation rather than those that were implicit in the Regulation of Investigatory Powers Bill.
I have two further questions for the noble Lord. First, I refer to the point made that the data to be retained will be those which companies ordinarily would keep. If I understand that correctly, it will not involve the header information on packets in Internet traffic, which makes up the vast proportion of communications data carried over the Internet. That would mean that, for example, terrorists using a hotmail account or those wise enough to attach their own server to the end of a phone line will be entirely exempt from any of the effects of this part of the legislation because none of the communications data
concerning them would be caught under any circumstances. I would be grateful if the noble Lord could confirm that that is what he meant to say.Secondly, can the noble Lord answer the question I put to him as regards the Data Protection Act; that is, whether any data held under this provision will be subject to the right conferred by the Data Protection Act for the individual concerned to request a copy of it?
Lord Rooker: To be honest, I know to my certain knowledge that I have answered that question. I have said already that the data will be retained but that it could not be accessed by an individual if it was disproportionate. I have covered the point regarding the Data Protection Act. I do not see any affirmative nods from noble Lords opposite, but I know that I have addressed this matter.
Individual access to data would be subject to the provisions of the Data Protection Act. However, there is the issue of disproportionality as regards the individual. In an earlier intervention—I do not know whether the noble Lord's remarks are speeches or interventions—the noble Lord made the point that the threat or, if you like, the attack on the system was to overload it with requests for information. That was a wholly negative point but, nevertheless, one that has been well noted. So far as the individual is concerned, the Data Protection Act will cover that.
As regards the noble Lord's other point on extra data, I probably now have to hand an extra note. I do not fully understand the details of headers and so forth. I have never used hotmail, although I have used Internet and e-mail services. I believe that I shall have to repeat what I said with regard to Amendment No. 177H. If I have not addressed the point, I apologise to the Committee.
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