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The Earl of Northesk: I support the noble Lord, Lord Phillips. I do not propose to repeat all the arguments that I advanced at Second Reading, especially at this time of night. It is enough to say that I sought to demonstrate then how a mandatory data retention scheme fails four tests: necessity, effectiveness, proportionality and consequence. I acknowledge that the Minister has worked tirelessly over the past few hours to persuade the Committee otherwise, and I pay tribute to him for that, but I remain unconvinced.
I merely emphasise two points. First, there is no evidence whatever that a lack of data retained has proved an impediment to the investigation of the atrocities on 11th September. Despite ample opportunity throughout the Committee stage, the Minister has not challenged that view.
The reality is that communications providers, within the terms of the existing legislation, already routinely hold data for several months or years. To confirm that point, one need look only at how mobile telephone data are retained and the maximum period that mobile telephone companies are prepared to admit that they retain such data.
That being so, the Government have an obligation to make a stronger case for changing the status quo to the extent of seeking reserve powers for a mandatory scheme. The Information Commissioner implied in her draft memorandum on the Bill that it was inappropriate for such an important area of public policy to be determined in a rushed way.
Mandatory data retention, both of itself and more widely, runs counter to government policy. On three separate occasions in the past year, Ministers gave assurances that there were no plans to introduce such
a proposal. For example, in their joint letter of 28th January to the Independent, Charles Clarke and Patricia Hewitt stated:
- XWe have no plans to introduce legislation mandating the retention of such data",
The noble Lord, Lord Phillips, said rightly that a mandatory scheme might be tolerable if it were adequately constrained in terms of scope. I am entirely happy to agree with that, but the mandatory scheme, as it is currently constructed in the Bill, is a step too far.
Viscount Goschen: I shall be brief as we have discussed these issues a number of times this evening. The Government are asking a lot in asking Parliament to accept Clauses 102 and 103. The noble Lord, Lord Phillips of Sudbury, and my noble friend Lord Northesk on the Front Bench have highlighted the principal issues.
The central point seems to be that the Government are picking a fight unnecessarily. No Member of the Committee has argued that the Government should not have a means of securing the retention of communications data to combat terrorism. No one has argued against that. The problem arises because the Government and the Home Office are being greedy in asking too much for things that go far beyond the principal aim of combating terrorism. There are a number of other constraints on the direction of the compulsory scheme about which we are concerned. There is an opportunity for the Government to narrow down their focus. If they did that and acceded to the points that have been made this evening, they would lose none of their ability to combat terrorism and they would secure the agreement of the Committee.
10.30 p.m.
Lord Rooker: Although I should not say this, during the course of the debate I have been the model of a listening Minister. However, I have just listened to some incredibly extravagant language which is frightening to people outside the Chamber. To talk about the Government conducting mass surveillance is preposterous. Let us get the matter clear. I invite the Committee to admit that the general public are not affected by this legislation. The general public have nothing whatever to fear. To talk about mass surveillance of thousands and thousands of people on the part of the Government, as Members of the Committee have just said, is extravagant in the extreme.
Lord Phillips of Sudbury: May I?
Lord Rooker: I shall give way to the noble Lord in a moment. He had long enough on his feet if I may say so.
It is also a fact that mobile phone providers do not admit everything. Mobile phone providers do not admit that a mobile phone is a human tracking device. They do not talk about the matter in that way and mobile phones are never deployed in that way, but that is what they are effectively. Let us not beat about the bush. The Government do not seek to invent that phenomenon, but it is a part of the technology.
As I say, the general public are not affected by this legislation. I deny the case that some Members of the Committee have made in that respect. The Interception Commissioner will not have the relevant power in relation to data retention until Chapter II of Part I of the RIP Act is implemented next year. Therefore, he has not carried out any sampling. Black boxes and e-mail concern the content of communications data which this Bill is not about. Members of the Committee who constantly raise those issues are trying to send out a subliminal message that we are attempting to do something which we are patently not; that is, retain the content of communications. We are not in that business at all. I have received advice on this matter as important points have been raised and allegations made. The tribunal's staff has been increased and I understand that the backlog of cases which grew last year, and which is unacceptable in a public authority, has now been eliminated.
There will be no warehousing of data stored by communications service providers. Each individual request for access to data has to be justified. To talk—as Members of the Committee have done—of mass trawls of thousands of people is not on. That is not what this legislation is about. It is not what the code of practice will cover. We must be more moderate and realistic as regards what is on the face of the Bill as opposed to what people think is on the face of the Bill or what the media may say is on it.
The notice to obtain access to retained data must specify the conduct that is allowed and the purpose for which the access is required. Therefore, there cannot be mass surveillance in the way that some Members of the Committee have suggested. Having got that off my chest, I shall be happy to give way to the noble Lord, Lord Phillips, but there are one or two areas where I have indicated that we can meet legitimate concerns, particularly as regards some of the issues raised in previous amendments. We shall seek to do so even in the short time available. Much of that, of course, depends on goodwill in putting together the voluntary code of practice. I do not suggest that there is any bad will on anyone's part, least of all that of industry or the Committee. There is certainly no bad will on the Government's part.
All the indications are that we can arrive at a successful conclusion to the matter but we must bear in mind what the Bill is about. The language that has been used in what were effectively Second Reading speeches on the two clauses we are discussing gives a misleading impression of the content of the clauses and the purpose for which we intend to use them. However, as I say, where we can meet legitimate concerns—we have tried to listen to concerns over the five days of
discussion on the Bill—even in the short time that is available we shall do what we can to seek to accommodate the Committee.
Lord Thomas of Gresford: I have not so far intervened in the discussion on this section of the Bill but the heat generated by the Minister has drawn me to my feet. I think the starting point has to be Article 8 of the convention stating a right to privacy and this legislation requiring the retention of data so as to make them available for investigative authorities, which is a derogation from that right to privacy. From what he was saying, I am not sure that the Minister entirely appreciates that.
Lord Thomas of Gresford: Perhaps I may finish, then the noble Lord can have his say. This is the first time that I have expressed myself on this matter.
I have had experience of the way in which tracking happens through mobile phones. I know that it is a very valuable tool in criminal investigations. For example, if a murder takes place, the police investigators see whether a starburst of communications has occurred on the mobile phone of a person who is a suspect. Very often, within 10 or 15 minutes of an incident such as that, it is possible to see that a suspect has contacted half a dozen people. Those people are potential witnesses whom the police can investigate. That is one way in which it is used.
Another way in which, in my experience, it is used is to show where a suspect was at a given time. A mobile phone operates in such a way that it must connect with a particular mast. Therefore, it is possible to demonstrate that when the defendant or suspect says that he was in place A, he was in place B or C. I recall one case, for example, in which a suspect was driving up the motorway from London to a northern town. Contrary to his account of what had happened, it was possible to demonstrate—he had admitted that he had his mobile phone with him—that at the time when various things were happening he was in this place and that place and so on. It was possible to track him the whole way up the motorway.
The significance of that is that the investigative authorities—the police or the security services—can at any time gain access to the records held by a communications server and say, XWe are investigating a particular matter". They can then pinpoint the location of any individual who holds a mobile phone, for example. Therefore, when the noble Lord says that this measure does not apply to the general public, it does in fact apply to anyone who happens to hold a mobile phone. It is possible to tell where a person was at any time in the United Kingdom and possibly, although I am not certain, abroad. Therefore, the entire public are subject to such surveillance if the investigating authorities wish to take that surveillance on board.
Therefore, I cannot accept, in however heated a manner the Minister expresses it, that this matter affects only Xcriminals". It can affect any member of the public. Not only that—I am dealing only with mobile phones—but there are other means of communication held by servers to which the investigating authorities can demand access and from which they can ascertain where, when and to whom an e-mail was sent. From what the Minister said when he resisted the amendment which sought to add the word Xpublic" to the Bill, it seems that the PDVN within the Houses of Parliament can hold on to the records of my e-mails. From those, the investigating authorities can see my connections with Al'Qaeda or my private or business connections. They can gain access to all the information that I have sent through e-mail. Those records will be kept and it will be possible to investigate them in due course.
There is a case to be made for the Minister's proposals but for the purposes of the Bill, the measure should be confined to anti-terrorism. If it is to extend beyond that, the proposals should be put before the public for a long debate to which everyone can contribute and for soundings to be taken. That point was made by my noble friend Lord Phillips of Sudbury in opposing Clauses 102 and 103.
I reject the Minister's argument that the Bill does not cover surveillance of the whole public. It potentially provides for surveillance of every member of the community who uses a mobile telephone or e-mail. Let us face up to that. Is such a measure in the public interest at this moment? Is it in the public interest for it to be debated in the confines of rushed anti-terrorism legislation?.
Make no mistake, the Bill widens the powers of the investigating authorities in an unprecedented way.
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