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Baroness Blatch: My Lords, the information that we had this morning was that it had been available since 18th September, but that does not alter the fact that those of us who asked for it have not received it.

The most extraordinary point that I want to raise relates to a Written Question put down by my noble friend Lord Skelmersdale, which was answered on 5th November, one week ago. The Question was as follows:

The Answer given by the noble Baroness, Lady Scotland, was:

    "No orders giving such directions have been laid".—[Official Report, 5/11/03; col. WA 111]

That Answer came one week ago.

Even the Joint Committee on Human Rights, in its latest report, has argued that after a draft of the code has been laid and approved by resolution of each House of Parliament, the Secretary of State should bring the code into force by statutory instrument. As we all know, the code, unlike the order, is not subject to the parliamentary approval of both Houses.

Due to the emergency nature of the anti-terrorism Act itself, the parent Act, there has been insufficient discussion in both Houses. There was no discussion whatever in the House of Commons about the issue of retention. There was, fortunately, some discussion in this House, but there was not enough.

I turn, finally, to the orders dealing with retention. It would be wholly wrong to ratchet up the powers granted to law enforcement and government without ensuring that a correct balance is struck between those powers and individual rights. We have palpable concern that the proposals for data retention fail this test, as the Joint Committee on Human Rights said. It observed that it was not able to say that it was satisfied that the arrangements in the draft code would be proportionate to legitimate objectives. That should, and does, set alarm bells ringing as to whether it is right to pass these orders into law.

Contemplating the Retention of Communications Data (Extension of Initial Period) Order 2003, it is worth reminding ourselves of the thinking that underpinned the House's scrutiny of Part 11 of the Anti-terrorism, Crime and Security Act 2001. The Government's proposals for data retention were deemed a legitimate and appropriate response to the emergency situation. However, and evidently this is acceded to by the Government, it was also added that,

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because of the threat to civil liberties and individual rights posed by the proposals, it was appropriate to make any mandatory scheme specifically subject to a sunset clause. In fact, the presumption at the time, and certainly the impression conveyed by Ministers, was that not only could a voluntary scheme be put in place relatively quickly, but also that there were no reasons to move a mandatory scheme.

During your Lordships' scrutiny of Part 11 of the Act, the noble Lord, Lord Phillips of Sudbury, in particular sought to persuade the Government to recognise how muddled that approach was, not least because of the likely futility of a voluntary scheme and the absence of any proper linkage back to the Regulation of Investigatory Powers Act, the Data Protection Act and the Human Rights Act—a matter with which the noble Lord, Lord Lester, will no doubt deal in speaking to his amendment. For whatever reason, those warnings went unheeded. It cannot be denied that there is a serious tension between the passage of these orders and other statutes.

We are now nearly two years on and, contrary to expectation, the Home Office has so far been unable to initiate the voluntary scheme. Indeed, far from showing any sense of urgency, it could be said that they have been somewhat lackadaisical in their efforts to implement one. In these circumstances, we feel that it is inappropriate that the will of Parliament as expressed in the sunset clause—and I repeat that the Government have also acceded to this point—should be subverted for the convenience of the Home Office, the more so because it has demonstrated such a casual attitude. At the heart of this is the sense that, if data retention is so important and so urgent, two years should have been more than enough time to implement a voluntary scheme in the first instance. In effect, by accepting this order, we are circumventing the very purpose for which this House put the sunset clause on the face of the legislation. That strikes me as ludicrous.

I turn to the Retention of Communications Data (Code of Practice) Order. I have already suggested that a voluntary scheme for data retention is doomed to failure. In fact, I suspect that the Government have come to the same conclusion—that was more than hinted at in our meetings with officials. Bluntly, it is unsettling to realise that in all sorts of ways, the Home Office is only going through the motions of attempting to establish the voluntary scheme because it is the only route to what, despite protestations and commitments to the contrary, it has decided it wants all along—namely, a mandatory scheme.

However, be that as it may, it is generally recognised that very few, if any, communications service providers will sign up to a voluntary scheme. The reasons are obvious. The proposals are fraught with legal uncertainty, a matter with which, as I say, the noble Lord, Lord Lester, will no doubt deal in due course. There are myriad issues here, including potential breaches of Article 8 of the ECHR and so on. However, I shall confine myself to what I understand to be the nub of the issue.

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Communications service providers will be legally required to retain data under the code of practice in breach of the provisions of the Data Protection Act. It is unreasonable to suppose that a CSP should be required to expose itself to that sort of liability. What flows naturally from that is that it is inconceivable that the voluntary scheme in the code of practice can be effective.

For avoidance of doubt, I repeat that we on these Benches are well seized of the significance and importance of data retention in the fight against crime and terrorism. We would welcome the opportunity to make common cause with the Government in implementing a scheme that is fit for the purpose and that strikes the right balance between the needs of the state and the rights of the citizen. Part 11 of the Anti-terrorism, Crime and Security Act and these orders are not such a scheme. It is in the gift of the Government to introduce a new Bill in the next Session to deal with this matter properly and sensibly. We would welcome that and we would give it all possible co-operation. In such circumstances, I can offer the Minister a guarantee. If such a Bill were to come forward, we would work tirelessly with the Government to ensure its enactment at the earliest opportunity.

I have covered many issues of real concern. There will be more elaboration by other noble Lords during our debate. My plea is to invite the noble and learned Lord to accept that there is real desire on our part to arrive at an effective, deliverable scheme with proper safeguards for the British people. I beg to move.

Moved, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 11th September".—(Baroness Blatch.)

Lord Richard: My Lords—

The Deputy Speaker (Lord Elton): My Lords, the original Question was that the draft order laid before the House on 11th September be approved, since when an amendment has been moved, to leave out all the words after "That" and insert the words, "this House declines to approve the draft Order laid before the House on 11th September". The Question I now have to put is that this amendment be agreed to.

Lord Richard: My Lords, I was trying to ask the noble Baroness a question before she sat down. Perhaps I can at least metaphorically ask her a question before she sits down. I should start by apologising for having missed the first two or three minutes of her speech.

Do I take it from what the noble Baroness has said this morning that the Front Bench of the Official Opposition are moving a fatal Motion on a statutory instrument? She will know, as I do—I have good cause to know—that throughout the whole period when we were in opposition we did not move a fatal amendment. We certainly did not vote on a fatal amendment. Indeed, there was a practice, verging on a convention of this House, that statutory

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instruments were not voted on in a fatal way. The only example I can think of in recent years, I suppose, involved the Rhodesia order in the mid-1960s.

If the noble Baroness will be kind enough to address herself to that question, I would be greatly obliged. Is it now the policy of the Official Opposition to move fatal amendments to statutory instruments in this House?

Lord Smith of Clifton: My Lords, I should like to ask the noble and learned Lord the Attorney-General a question on the intrusive surveillance order. Is there expected to be any provision by which the Northern Ireland Assembly will be able to monitor the activities of the Prison Service?

The Earl of Northesk: My Lords, I rise to speak to the amendment in my name on the Order Paper.

There is no doubt that communications data can be of immense help in the fight against terrorism and crime. None of us would disagree with that. Moreover, I readily accept that law enforcement agencies believe delivery of powers to retain and access data to be a matter of urgency. Equally, I am entirely happy to state my support for the underlying principle of the RIPA orders; namely, that activity which has thus far been unregulated should be regulated under a single—I repeat, single—procedure. Notwithstanding my support for those general principles, the devil is in the detail, as usual. Happily, the eloquent contribution of my noble friend Lady Blatch has covered many of the points of concern. It would be invidious for me to repeat her arguments. I merely say for the record that I wholeheartedly support and endorse her comments. That said, there are a few additional points that I believe are relevant.

There is a perception that the subject matter of all five of these orders is the exclusive province of "anoraks", or "geeks" or "techies". It is true that it would be quite easy to fall into the trap of mouthing incomprehensible techno-babble in speaking to them. However, I shall try to avoid that. Rather I think it useful to attempt to measure them against a statement of general principle. One that I have in mind is the following:

    "Any limitations on individual freedom must be proportionate to the threat; they must be sanctioned by law and cannot take place on an ad hoc basis; and they must be implemented in a way which ensures that there are safeguards and that the activities of the executive are subject to monitoring, scrutiny and accountability".—[Official Report, 26/3/03; col. 852.]

Those are fine words, but they are certainly not mine. They are those of the noble and learned Lord the Lord Chancellor in March of this year in his then incarnation as a Home Office Minister. I think we can therefore safely assume that they are a fair representation of the Government's view.

Evidently these orders represent a "limitation on individual freedom". The Joint Committee on Human Rights has highlighted the fact that data retention and access raise,

    "very important issues relating to the rights to respect for private life and for correspondence".

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That being so, I fear that, as a generality, the orders do not stand up to the general statement of principle of the noble and learned Lord the Lord Chancellor. I quote again from the Joint Committee's report on the data retention orders:

    "It is [therefore] particularly important to establish the necessity for and proportionality of standard retention of all communications data. However, we have insufficient information which would enable us to satisfy ourselves that those requirements are met".

Evidently there is doubt that the Government's proposals for data retention are "proportionate to the threat".

It is appropriate here for me to turn to the amendment in my name on the Order Paper. It is, of course, the case that in respect of the RIPA orders the Home Office is seeking to establish a single procedure for regulation of surveillance activity that is ECHR compliant. As I say, I adjudge that to be both welcome and desirable. However, because it has separate legislative provision under the Social Security Fraud Act 2001, the Department for Work and Pensions and the Northern Ireland social security investigators, in so far as they need access to communications data in their investigations, have elected to exclude themselves from the regime. To my mind that is nonsense. Either we have a single procedure with all—I stress "all"—appropriate public authorities bound by it, or we do not. Leaving the Department for Work and Pensions outside the regime wholly undermines the premise upon which this Home Office policy is based.

There is the additional problem here already mentioned by the noble and learned Lord the Attorney-General and by my noble friend Lady Blatch. In determining which public authorities should be included on the face of the communications data order, the Home Office has assumed that there is equivalence between information and communications data. The justification for inclusion of the authorities listed is that they have all been granted "information gathering" powers in previous legislation. Yet, as my noble friend observed, there are no plans to repeal or rescind any of the "legacy legislation" powers because, so the Home Office argues, information is a different commodity from communications data. The simple fact that the Department for Work and Pensions is outside the RIPA regime and a host of unregulated information-gathering powers remain in statute—again outside the RIPA regime—cannot mean anything other than that an ad hoc approach is being adopted to the whole issue.

I need not dwell on the issue of whether adequate safeguards are in place to protect individual rights. The noble Lord, Lord Lester of Herne Hill, will no doubt cover that ground much more adequately and with far more expertise and eloquence than I. However, I would just make one small point. It is important to realise that, by definition and of necessity, data access under the existing communications data proposals would be to all intents and purposes covert in character. Data subjects, individual citizens, can have no way of knowing whether or not their data have been accessed or for what purpose. That must be wrong. As I understand it, knowledge of this by an individual is a specific right granted by

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provisions in the Data Protection Act. To this extent the safeguards for the individual citizen are less robust than they should be.

There are considerable problems too with "monitoring, scrutiny and accountability" of both the retention and access regimes. I acknowledge that this is probably not relevant per se to the orders. Nevertheless it is important to understand the context in which the respective regimes will operate. It has been estimated that the Office of the Interception Commissioner will have oversight of more than a million surveillance requests per year, although I suspect that the Home Office considers that that figure is rather overstated. Whatever the true figure, even when properly resourced, it is unlikely that the office will be able to examine more than a fraction of the total requests made. It should be noted too that the Information Commissioner has already reported "significant" and "unacceptably high" numbers of errors in RIPA Part 1, Chapter I interception warrants. The Home Office, and, indeed, the noble and learned Lord the Attorney-General, may wish to parade the success rate of the interception of communications and investigatory powers tribunals as testimony of the robustness of this element of the oversight regime. However, for the convenience of the noble and learned Lord I confirm that of the 470 cases considered by them between 1996 and 2003, none was adjudicated in favour of the complainant.

As Dr Chris Pounder has observed—in contrast to the Attorney-General's view—

    "This 100% 'perfection', like 100% support for Saddam Hussein in the recent 'presidential election' in Iraq, is simply not credible".

From a broader perspective he adds:

    "The oversight system is fragmented, overlaps and is riddled with competing bodies".

In effect there is a justifiable case for arguing that "monitoring, scrutiny and accountability" of the oversight regime is less than adequate.

I turn to a matter of which I have given the Government advance notice—the status of the orders in respect of the technical standards and regulations directives. I am extremely grateful to the noble Baroness, Lady Scotland, for the promptness of her written reply to me on that yesterday. None the less I think that it would be helpful if the noble and learned Lord the Attorney-General could state the position for the record.

My antipathy towards data retention as encapsulated in Part 11 of the Anti-terrorism, Crime and Security Act is well known. I stand by the remarks that I made at that Bill's Second Reading; namely, that the provisions fail four essential tests: those of effectiveness, necessity, proportionality and consequence. I need not rehearse those arguments here. They are a matter of record. Quite apart from that, as my noble friend Lady Blatch has already said, the implementation of the Government's voluntary scheme is an exercise in futility. It will be wholly ineffective if only because there is every prospect that very few, if any, CSPs will sign up to it. Nor should we lose sight of the fact that a form of data retention is

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already permitted under extant statute. As the Explanatory Notes to the Anti-terrorism, Crime and Security Bill stated:

    "Whilst the Regulations permit the retention of communications data on national security and crime prevention grounds there is currently no general guidance given as to when these might apply".

To my perception the Government could more usefully have turned their attention to determining appropriate general guidance for the exercise of those extant powers rather than getting bogged down by their ill fated attempts to make credible sense of Part 11 of the Act. I have pursued this issue on a number of occasions and have yet to receive an adequate reply. So, can the noble and learned Lord now confirm that powers for data retention already exist, irrespective of the status of Part 11? Can he also confirm that, in so far as such powers do exist, they were exercised in the wake of the September 11th atrocity? Can he shed some light on the period of time for which these powers were granted, indeed, whether or not even now they are still being actively exercised in the interests of national security and criminal investigation? Can he indicate whether the exercise of retention powers has led directly to any arrests?

I have a host of other issues and concerns—the blurring of the data categories on the face of RIPA, the single point of contact arrangements, the absence of appropriate sanctions against abuse of the access regime, and so on. However, time is short and in the circumstances I refer to them only in passing. In sum, I have deep misgivings as to the wisdom of enacting the communications data order and the two data retention orders irrespective of whether they are amended. I ask myself a simple question; should flawed law be entrenched?

12.45 p.m.

Lord Lester of Herne Hill: My Lords, I should like to speak to the two amendments in my name to the communications data order and the code of practice order. I am very pleased that the Official Opposition, led by the noble Baroness, Lady Blatch, and the noble Earl, Lord Northesk, have supported the principles underlying my amendments.

I am sorry that the noble Lord, Lord Richard, is not in his place when I say that my amendments are not fatal. I would not have dreamed of tabling fatal amendments unless the clock had stopped at 13 and we really were in George Orwell's world of Nineteen Eighty-Four. In those circumstances, I would have done, but I did not. My amendments are designed to send back the orders, to have them returned to us in a form that gives adequate respect to personal privacy.

It is very agreeable to be able to say that I am particularly glad that the noble and learned Lord the Attorney-General introduced the debate, not only because he and I are old and good friends, but because we were colleagues on the Joint Committee on Human Rights. I have no doubt about his personal commitment to human rights as Attorney-General, and it is very good that he should be dealing with the subject today.

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As a member of that committee, I pay tribute to its chair, the right honourable Jean Corston MP. Although she is also chair of the Parliamentary Labour Party, she and my colleagues have always performed their jobs on the committee with conspicuous independence. We do not play politics, as I am sure that the noble Baroness, Lady Whitaker, who is a member of the committee, would confirm.

I said that the clock had not stopped at 13, as it did at the beginning of George Orwell's Nineteen Eighty-Four, but the debate raises very important issues about the right to personal privacy and the principles of legal certainty and proportionality to which the noble and learned Lord the Attorney-General referred. No one other than him has yet said something that I recognise; namely, that such orders are necessary to meet one important principle of the convention, that of legal certainty. That is to say that there has to be lawful authority for the kind of invasions of personal privacy that would otherwise not be regulated by law. Therefore, if one is to have a regime of this sort at all, such orders are certainly necessary. As the noble and learned Lord recognises, that leaves over the key issues of proportionality.

The House has the benefit of two reports that had not been before the other place when it debated the matter. The first is that of the Joint Committee on Human Rights of 10th November, and the second is that of the Joint Committee on Statutory Instruments of 12th November, although the subject matter of that came earlier. When the matter was debated by the Third Standing Committee on Delegated Legislation on 4th November, it was made clear that several Members of the other place wished to have the report of the Joint Committee on Human Rights before them before they approved the orders. However, they did not have that benefit.

That is why it is important in this House to give careful attention to what the Human Rights Committee said. Although reference has been made to part of the report, I would like to focus on the main issues, if I may without boring the House to death, so that the House fully understands the context. I was not present at the meeting that finalised the report on Monday, but I was present before that, and I respectfully agree with what my colleagues put in the report.

There are four main important issues. The first issue dealt with in the report was that:

    "The communications providers which retain the communications data are nearly always likely to be private businesses rather than public officials. If they are not 'public authorities' for the purposes of the Human Rights Act 1998, they are not directly subject to the legal obligation imposed by section 6 of that Act to act compatibly with Convention rights".

The committee was concerned, because it is,

    "unclear how the Draft Code would ensure that the state can discharge its obligations under ECHR Article 8 in relation to the retention and storage of the data".

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The second important issue is that:

    "It is not clear how the Draft Code's standard periods of retention would meet the requirement of proportionality",

in accordance with Article 8. The third issue is that:

    "The availability of the communications data to agencies for purposes other than the protection of national security would call in question the legitimacy of the aim for which the data are to be retained, the necessity for that retention and its proportionality, all of which are elements",

required by our convention rights.

The fourth and final issue is that:

    "It is not clear how thoroughly the consultation exercise required by section 103 of the Anti-terrorism, Crime and Security Act 2001 was carried out and how far the fruits of it have been taken into account in the Draft Code".

I shall go back to the first issue, which is about the fact that the communications providers are mainly private and not public, and therefore not subject to direct liability under the Human Rights Act.

We asked the Government,

    "whether it considered that service providers holding information for the purposes of the Anti-terrorism, Crime and Security Act 2001 were to be regarded as functional public authorities for the purposes of the Human Rights Act 1998. The Home Secretary told us that the Government takes the view that the retention of communications data by communications providers is 'a private function that arises out of the commercial service that the communication services providers provide'".

We pointed out that that had "the disadvantage"—it is a serious one—that,

    "the communications providers are not public authorities for that purpose and are not bound by . . . section 6 of the Human Rights Act".

We then pointed out that that makes it absolutely vital to ensure that other safeguards can deal with the problem that the communications providers are not public authorities yet can exercise the powers given to them under the orders. That is a real problem that the House needs to consider.

The more substantial matter is that of:

    "Across-the-board standard retention periods for communications data in various categories".

As the House will know, in:

    "Paragraphs 7 and 8 of the Draft Code . . . the Secretary of State considers it to be necessary for the purpose of national security for service providers to retain communications data for the periods set out in Appendix A to the Draft Code . . . This would not deal with the position under ECHR . . . and the Human Rights Act 1998. If a service provider is a functional public authority when retaining data for national security purposes, it would have to show both that the retention is necessary ( . . . to a pressing social need) and proportionate . . . We therefore asked the Government why it considers that it would be proportionate to retain communications data by reference to across-the-board standard periods of time, without reference to the identity of the user of the service or the circumstances in which the communications took place".

We expressed the view that whether or not the service provider is a functional public authority, the state has an obligation under the convention to take positive steps to safeguard the service user's right to respect for private life and correspondence. I would be grateful if the noble and learned Lord the Attorney-General would confirm that it is the Government's view that they do have a policy of obligation, under Articles 1 and 8 of the convention, in that respect.

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We also asked the Government whether, and if so why, they consider that a code that does not mention the requirement of proportionality would discharge the UK's international obligations. In paragraph 18 of our report, we give the Government's response. Although the following point has been partly quoted, I want to emphasise it because it illustrates the importance of our debate and the view taken by this House. We noted that the provisions had not been debated in another place at all and that after receiving evidence from the Home Office, we had not been able to establish for ourselves how pressing is the need or how often the police and the security and intelligence services find it necessary to make use of such data or are significantly hampered by their absence. We stated:

    "Those matters seem to us to be relevant to the assessment, to be made by each House, of the necessity for the retention which would be sought by the Draft Code, and of the proportionality of the periods set for retention".

Having raised the issue clearly in our report, we hope that the noble and learned Lord the Attorney-General will give more than a blanket or general reply to our dilemma in paragraph 19 of the report. It is important that he satisfies the House on those matters.

We dealt thirdly with the equally important matter of the transfer of data from the terrorist context to other contexts, because of the interaction of the two statutes. We pointed out that the draft order would greatly extend the range of bodies by whom the data could be obtained and how they could be disclosed. The Home Secretary told us the Government do not intend to take any legal or technological measure to restrict the use of the data for national security purposes, because it is their view that if the data are available, they should be accessible to other public authorities for other purposes.

After considering the matter, we recognised that there may be cases not involving national security where it is necessary, as the noble and learned Lord the Attorney-General has submitted, that there should be access to that data; for example, for the investigation of a murder. We pointed out in the report that,

    "we do not consider the relationship between the powers under the two Acts is as straightforward as the Government suggests".

Your Lordships can read that in paragraph 24 of the report.

The report goes on to state:

    "It seems to us that the main safeguard against abuse of the power to access for non-national-security purposes communications data retained under the 2001 Act is the fact that any access will have to be authorised or required by a designated person in a public authority empowered to access such data by the 2000 Act. The designated person will be a public authority, bound by the Human Rights Act 1998".

I am sure that the noble and learned Lord the Attorney-General was gratified to read that:

    "On balance, we were prepared to accept the Government's view that, as a matter of policy, it should be possible to have access to any communications which are available and are relevant to a case if those conditions are satisfied on the facts of a particular case".

We came to the conclusion that the safeguards already mentioned, plus the availability of judicial review of a notice or authorisation and the need to

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comply with the data protection legislation, are capable of being proportionate. I would be grateful if the noble and learned Lord the Attorney-General could tell the House exactly how the judicial review would provide an effective remedy in the sensitive context that we are discussing.

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