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Lord Rooker: My Lords, the amendment seeks to extend the category of people who can commit these offences. I want to make it clear that anyone who commits an offence within the UK under the provisions of this part will be caught by it whether or not he or she is a UK citizen. Therefore, the first paragraph of the amendment is not necessary. I realise that when one looks at the drafting that might not appear to be the case and I am seeking more advice—
Lord Dixon-Smith: My Lords, I am not concerned with anyone who commits the offences within the United Kingdom. That is not the difficulty. The problem is with the person who travels abroad and commits the offences, but on return to this country is not so chargeable.
Lord Rooker: My Lords, I am sorry; I have mislaid my copy of the amendment. Someone illegally resident in the UK will be caught by this part.
Clause 80 provides that the offences in Clauses 78 and 79 can be committed outside the UK but only when they are committed by Xa United Kingdom person" as defined in the Bill. We fully admit that that is a limitation provision. It reflects the policy of exercising extra-territorial jurisdiction very sparingly indeed. We assert such jurisdiction only in respect of XUK nationals", or a similar definition, in justified cases; for example, where we are required to do so under international obligations or where the crime committed is considered to be particularly serious, as in this case.
Any further extension of jurisdiction to those other than UK nationals has been limited to the few areas where there is international consensus and where there are treaties on the matter; for example, international rules and conditions exist in respect of hijacking and piracy. We do not believe that the right conditions are in place for taking the approach proposed in respect of offences under Clauses 78 and 79. For the reasons I have given, we do not intend to seek a further extension of jurisdiction.
The situation is hypothetical and I take the noble Lord's point about the planning taking years. However, I humbly point out that I have made that point more than once from this Dispatch Box as the Bill has been going through the House. I have tried to persuade noble Lords not to make some of the technical adjustments to the Bill which they have then made.
Lord Dixon-Smith: My Lords, I should say, XTouche", but we submit that we have not changed the
substance of the Bill. We have sought to remove the extraneous matter from it and by and large that is what we have done.The Minister does not surprise me with his answer. However, I am bound to say that he does disappoint me. It strikes me as somewhat paradoxical that a genuine UK resident could be at a disadvantage compared with someone who might be living here illegally. I agree that we are dealing entirely with hypothetical situations and we must all hope that they remain hypothetical. Perhaps none of us will know the answer to that.
I should have preferred to hear the Minister say that he could consider this little local difficulty. He has not chosen to do so but I do not intend to press the amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 102 [Codes and agreements about the retention of communications data]:
Lord Rooker moved Amendment No. 10:
- Page 62, line 27, leave out subsections (3) to (5)
The noble Lord said: My Lords, I rise to move Amendment No. 10 and to speak to the other amendments grouped with it. I shall be brief because we debated the matter last Thursday when I promised to bring forward an amendment to introduce parliamentary approval of the voluntary data retention codes of practice. It will provide a further safeguard to ensure that data protection and human rights legislation is complied with. Together with the duty to consult the Information Commissioner and the industry, it will, I hope, ensure that an appropriate balance is struck between security and civil liberties.
The practical effect of the amendment is to split the process of drawing up the code of practice into two stages. First, there will be a consultation with the parties directly involved: the service providers, the law enforcement agencies and the Information Commissioner. That will lead to the publication of a draft code. The next stage is a period of public consultation when comments will be welcomed from any quarter, irrespective of whether people were consulted in the first place. Following that consultation, the code will be laid before Parliament for approval by the affirmative resolution procedure.
The same process will apply to any subsequent revisions, including any necessary transitional arrangements for moving from the initial code to later versions. For clarity of drafting, the first clause of this part of the Bill, covering the voluntary scheme, has been split into two. The proposed amendment sets out the principles of the voluntary provisions in one clause and the mechanism for setting it up in a second. I believe that that goes a considerable way to meeting the points which were raised during our debate a week ago and I therefore hope that noble Lords will support the amendment. I beg to move.
Lord Lester of Herne Hill: My Lords, I support the amendments, but I want to draw the attention of the House to the fact that, as frequently in the recent past,
legislation is being enacted which will not work as noble Lords believe that it will if all that they read are the words in the Bill. That is because the words in Clause 102 and in the proposed code must be read in accordance with the Human Rights Act. I am beginning to feel a little guilty about continually mentioning the Human Rights Act—
Lord Pearson of Rannoch: Hear, hear!
Lord Lester of Herne Hill: My Lords, I am pleased that the noble Lord, Lord Pearson of Rannoch, is being entirely consistent in his opposition to anything which smacks of Europe, even when it concerns the fundamental rights and freedoms of British citizens and others in this country. I want to make the point because it is important. I remember making it in connection with the data protection legislation and a series of other measures.
I shall begin at the beginning. On 4th December (at col. 791 of the Official Report) the Minister properly made it clear that the code of practice and the agreement would not be drafted in a way that was incompatible with data protection or human rights legislation. Quite properly, he repeated that statement today.
Let us look at Clause 102, in the context of which the code and the proposed code are to be made. Clause 102(6) states:
- XA code of practice or agreement . . . may contain any such provision as appears to the Secretary of State to be necessary . . . for the purpose of safeguarding national security; or . . . for the purposes of prevention or detection of crime",
- Xwould be likely to prejudice national security",
The problem is that none of that language is the same as Article 8(2) of the European Convention on Human Rights, which is the exception clause to the fundamental right to respect for personal privacy; nor is it the same as what appears in the data protection principles. The difference is that it does not use the test of necessity/proportionality—which is the key test, the fair balance test—to decide whether keeping communication data in the way that is empowered under this part of the Bill is necessary in a democratic society. Accordingly, it will be left to judges, administrators and Ministers, under Section 3 of the Human Rights Act, to give effect to Clauses 102 and 103 and to the draft code so far as possible in a way compatible with the right to personal privacy and the test of necessity. Similarly, Ministers and any other public authority will be required under Section 6 of the Human Rights Act to act in a way compatible with Article 8 of the convention—the right to personal privacy.
In the end, if there is a dispute about any of this by anyone who is made subject to requirements—the communication providers, for example—the judges will have to take this language, both in the draft code which becomes the code and in Sections 102 and 103, and read them in a way which is compatible with the right to personal privacy.
I very much regret that governments keep on, in spite of the Human Rights Act, using wide language as in, for example, Clauses 102 and 103. I am sure that they will do the same in the code, in a way that will lead to incompatibility with the European human rights convention and with data protection principles. It would be much better if the test that was used in legislation was the test of necessity/proportionality without this much looser language.
Although I agree with the amendment, which is designed to enhance consultation and accords with undertakings already given, I am sorry to have to say that, unless the code itself is drafted in a way which is compatible with data protection principles and the Human Rights Act, judges will have to fit it all together in due course. Lawyers will have to be paid almost as much as engineers might receive in similar circumstances, and the lawyers will have to come to the rescue of the engineers of this Bill because the engineers will have failed in their design project and its execution. I have great respect for engineers—as much respect as I know the noble Lord has for lawyers.
6.00 p.m.
The Lord Bishop of Portsmouth: My Lords, following what the noble Lord, Lord Lester, said, in spite of what I said earlier I have great respect for engineers, as the son of an architect, and also for lawyers. However, I am neither a lawyer nor an engineer but a simple soul.
I ask a genuine question, which is whether the deletion of Sections 3 to 5 amounts to going back on concessions made earlier.
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