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This involves the House of Lords discussions on Part 11 of the Bill: Retention of Communications Data
http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds01/text/11204-13.htm
Clause 101 agreed to.
[Amendment No. 163ZA not moved.]
Schedule 7 agreed to.
Clause 102 [Codes and agreements about the retention of communications data]:
The Earl of Northesk
moved Amendment No. 163A:
Page 62, line 7, leave out from "State" to "a" and insert ", business representatives and the Information Commissioner shall jointly issue"
The noble Earl said: In moving Amendment No. 163A, I wish also to touch upon the other amendments in the group, Amendments Nos. 164, 164A,B,C and D, 165A, 174A and 176C. That said, I do not propose to weary the Committee by speaking to each and every amendment in turn. Some general observations should suffice to explain their thrust.
They pursue two discrete, albeit intertwined, strands of thought, first, that a broad range of business interests should be involved in the drafting of the code of practice and, secondly, that the Information Commissioner should also be involved. With respect to the first of those matters, I acknowledge and compliment the Government on the way in which representatives of communications service providers have been involved thus far in the development of the proposals on the face of the Bill. As the Minister will be aware, they still have outstanding concerns, not least that the current drafting lacks legal certainty in a number of key areas. None the less, their involvement to date has been helpful. It chimes with the Government's assurance that they would work with business to produce the code of practice.
That said, the Bill is potentially very wide in application. It extends, so far as I can tell, to any telecoms service provider, even those of private networks. For example, as I read the Bill, it is conceivable that the PDVN will fall within its scope and could be obliged to retain all its communications data. Perhaps the Minister can address that point in due course. It therefore makes sense that the Government should be subject to a statutory
4 Dec 2001 : Column 755
requirement to consult with a broad range of business interests in devising the code of practice, if only because--this is a particular concern of the CBI--a limitation of the scope of consultation could penalise existing business practices.Moreover, pro-active involvement in the drafting of the code from a broad base should lessen the likelihood of non-compliance and thereby reduce the need for the Secretary of State to issue directions. Address of these concerns is embodied in a package of amendments comprising Amendments Nos. 163A, 164A, 165A and 173A, although, inevitably, there is some cross-referencing within these as to the potential role of the Information Commissioner.
Turning to that matter, I express considerable surprise that the Government have not included the Information Commissioner as an appropriate consultee. As the Committee will be aware, she has statutory responsibility for promoting and enforcing the Data Protection Act 1998 which, in turn, sets legally enforceable standards in relation to the processing of personal data. With that remit, it is incredible that the Government feel that she has no role to play in the drafting of the code. As she herself has observed in her memorandum on the Bill,
In fact, there is an even more significant reason as to why the involvement of the Information Commissioner is so essential. Those Members of the Committee who have followed the development of data legislation will be only too well aware of what a tangled web it already is. The tensions that exist between the Data Protection and Regulation of Investigatory Powers Acts are legion and a dangerous minefield for the unwary. One need only contemplate the huge difficulties that the Information Commissioner has had in preparing a code of practice on the legal business practice regulations to get a flavour of how inconsistent the law is here. It would, in my view, be the height of lunacy to enact the provisions on the face of the Bill without ensuring that mechanisms are in place to ensure that the code of practice has at least some consistency with existing legislation. Such a task is within the Information Commissioner's remit and so it is essential that she be formally consulted about the code. At the very least that would undoubtedly improve its legal clarity and ensure that the interests of users are more formally taken into account. I beg to move.
Lord Goodhart: Amendment No. 164, in the names of my noble friends and myself, is probably in the wrong place in the clause. Nevertheless, we strongly support the principle that the Information
4 Dec 2001 : Column 756
Commissioner should be actively involved in consultation and in the preparation of the code and we believe that that should be on the face of the Bill.Lord Rooker: It is probably inadvisable to repeat what I have done in previous debates today, namely, to address every amendment in the group. As the noble Earl said, the thrust of the amendments is encapsulated in two issues: that of the business interests and that of the Information Commissioner. He asked specifically whether the measure included any telecoms provider. That is the case. It includes private networks. Our main objective is to include the public networks such as BT, Orange and Vodaphone. However, private networks are also included. I refer to the intranets of private companies, universities and, indeed, the PDVN, which is a private network. However, as I say, our central objective is to include the public networks.
It is important to discuss the matter with all providers. That practice must be followed with regard to the code of practice. We have every expectation of reaching a voluntary agreement on the matter. Co-operation since September 11th has been extremely good. The key clause is, indeed, Clause 102 which sets out a voluntary code of practice which may be revised.
Retaining the data is one thing but what is done with it will fully conform with human rights legislation and the Regulation of Investigatory Powers Act. I hope that there is no scintilla of doubt about that. We fully intend to conform with all the legal requirements. As I and Ministers in another place have already said, the data that are retained do not include messages or conversations. That bears repeating. We do not seek to monitor the content of telephone conversations or e-mails.
The information that we shall require providers to retain is information that they hold now for billing purposes. We have all seen telephone bills. Some are more detailed than others. But it is known that if one has a mobile phone--indeed, these days it applies also to landline telephones--the bill supplies the date of the call, the phone number dialled, the duration of the call and the date on which it took place. The billing address is also a useful piece of information. All those data are important. The content of the call is not retained and we do not seek that. As I said, our intention is to operate a voluntary system. From the conversations and discussions that we have had so far, we have every reason to believe that we shall arrive at a voluntary agreement.
I could go through all the amendments at length but I do not propose to do so, save for one--Amendment No. 164D. I ask Members opposite not to fall over because I am going to accept it. The parliamentary draftsman produced a better form of wording, but I asked what difference it would make. The answer was: none. It is much easier to make it abundantly clear--I hope that this meets the noble Lord's point about the Information Commissioner--that we have no intention of cutting out the Information
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Commissioner in any way, shape or form. He has a statutory function to perform and will be consulted fully beforehand.What we do not consider to be a good idea is a joint code issued by government, industry and the Information Commissioner. That would be wholly impractical. The buck stops with the Home Secretary. However, the fact is that we shall accept the amendment without any knock-ons in relation to technical drafting. In any event, I cannot see anything wrong with the wording. Amendment No. 164D is acceptable to the Government and I hope that in due course the noble Lord will move it. I sincerely hope that he will because, as I said earlier today, the timing for reprinting the Bill for Report stage is crucial. Therefore, we shall accept that amendment.
Having said that, I am quite happy to deal in detail with the other amendments in this group. I return to my initial remarks concerning the legal aspects of what we do with the data. Perhaps I may mention one matter. At Second Reading, I believe, a noble Lord said that there would be information overload. There will be no such thing. We do not seek block transfers of information. We are asking the providers to keep the information that they use for billing purposes for a period which will be set out in the code. That period has still to be agreed. Requests for such information would be made only when the Government needed access to it. It will not be a wholesale transfer, and there is no question of information overload in that respect. I cannot go over the details of the code because they have still to be agreed. But we require that provision and shall continue with our discussions. We expect to be able to secure agreement to a successful voluntary code.
Lord Lucas: I want to pick up on one point made by the noble Lord. Most communications data have nothing whatever to do with billing. Almost all the communications data concerned with Internet transactions have nothing to do with billing because billing is done simply on, as it were, a leasing-of-a-facility basis. Therefore, I hope that the Minister does not believe that he needs that data because the billing data are sufficient. He is talking about a vast amount of data. Several new computers a day will be required for the length of time that the noble Lord wants to hold such data if he is to access the entire amount. It is very important that the Government know what they want and restrict their demands to what they want and what they can use rather than to the vast amounts of data which are there.
Lord Rooker: I accept that data retention in relation to e-mail is wholly different from that for telephones. The information that I have in front of me appears in two columns, and my remarks were related exclusively to telephone data. For obvious reasons, e-mail is more difficult in that respect. Nevertheless, the Regulation of Investigatory Powers Act will guide how
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information is sought. However, we are not seeking to over-burden industry. As I said, the idea is that the code of practice will be agreed by industry.Lord Phillips of Sudbury: While the Minister is on a roll and has kindly conceded the need to consult the Information Commissioner, I wonder whether he has overlooked Amendment No. 164B. That amendment calls for consultation with all interested parties, including Internet providers and, now, the Information Commissioner. Quite rightly the Minister has referred to the interaction of this piece of legislation with the Regulation of Investigatory Powers Act. They will be infinitely inter-related, and that will cause some of us further excitement. However, Section 71 of the RIP Act expressly provides that, before issuing a code of practice, the Secretary of State shall,
Lord Rooker: I should not want to put that on the face of the Bill. We shall publish a draft code and shall consider any and every comment and representation on it from wherever it comes. The requirement to consult all interested parties, as opposed to industry and the Information Commissioner, does not prevent anyone--individuals, citizens or whoever--offering advice and comment on the draft code.
However, we should bear in mind what the noble Lord said a few moments ago about the vast amount of information and the millions of people involved. That would make a nonsense of the procedure because someone would run to my learned friends and say, "You have missed 2 million people in the North of England because all interested parties are on the Net or have mobile phones". We are concerned with the providers and with the mechanics of the issue. We shall do our best to ensure that all those with a relevant interest--that does not exclude anyone else making a comment on the draft code--will be considered.
Lord Phillips of Sudbury: That is a very fair point. However, I simply wondered whether the Minister agreed that the duty to consult should not be on the face of the Bill. But, as in the RIP Act, perhaps a provision could be included stating that the Secretary of State will consider any representations made to him. It would be a passive duty.
Lord Rooker: I am saying that now. Let us forget the code; I am saying that on the Floor of this Chamber. We shall consider all representations. No one will be excluded from making a representation. Those
4 Dec 2001 : Column 759
representations will be considered by Ministers in due course before the final code is published. That is my commitment.The Earl of Northesk: I am not sure whether it is the result of the eloquence of my oratory or perhaps the support of the Liberal Democrat Benches, but I am extremely grateful for the Minister's acceptance of Amendment No. 164D. In the circumstances, I should not push too much more--certainly not within this group. I shall therefore resist the temptation of pursuing the matter of business involvement at this stage.
I heard what the Minister said about public versus private networks. In truth, it raised my hackles somewhat but no doubt we shall return to that matter with later amendments. None the less, I can accept that the Government's focus is on public networks. No doubt we shall return later to a number of other issues raised by the Minister. In the meantime, I am grateful to the noble Lord and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 164 to 164C not moved.]
The Earl of Northesk moved Amendment No. 164D:
"( ) Before issuing or revising a code under this section the
Secretary of State shall consult with the Information Commissioner."
On Question, amendment agreed to.
The Earl of Northesk moved Amendment No. 165:
"( ) Where the Secretary of State issues or revises a code of
practice or enters into an agreement under this section, he shall
publish the code, the revised code, or, as the case may be, the terms of
such agreement."
The noble Earl said: It may be for the convenience of the Committee if I address also Amendments Nos. 165A, 172, 172A and 176B. No doubt Members on the Liberal Democrat Benches will speak to Amendments Nos. 166 and 167.
The powers granted by Part 11 are exceptionally broad and, like it or not, impact significantly on the individual's right to privacy. Whether they should will form the substance of debate on the next group of amendments. The purpose of Amendment No. 165 is to require the Secretary of State to publish the code of practice, revised code or arrangements--to make such documents available to a wider audience. In that way, all of us will be better placed to know the precise terms under which our data are being retained--an important consideration not only in the protection of individual liberties but in guaranteeing equitable treatment among communications providers.
The Minister may suggest that because the codes and agreements could contain commercially sensitive information, the amendment would be inappropriate. It is concerned with ensuring proportionality and
4 Dec 2001 : Column 760
equity of treatment as much for the industry as for the individual. My understanding is that the industry is not unsympathetic to the approach advanced in Amendment No. 165--the more so, if it acts as a brake on any extravagance that might be contemplated for inclusion in any codes or agreements.Amendment No. 172 is no less important. It seeks to ensure that every
code of practice issued by the Secretary of State is laid before
Parliament. The principle of data retention is at the heart of the right
to privacy. That being so, it is appropriate that codes should be
subject to parliamentary scrutiny--a point well made by Justice in its
submission to the Delegated Powers and Regulatory Reform Committee:
That thread is followed through in Amendment No. 172A. More significantly, it takes account of paragraph 23 of the committee's report on the Bill. We hope that the Government will heed that sound advice.
Amendment No. 176B seeks to prove the extent to which Scottish Ministers will be consulted about Part 11 powers and how appropriate such consultation will be. I have it in mind that RIPA is a reserved matter and presume that data retention powers would be too. Bearing in mind that our debates have demonstrated the great potential threat to individual rights posed by the proposals, it is essential that the devolved administration should be kept within the loop of progress and development.
We see the sense of Amendments Nos. 166 and 167 and support them. I trust that my remarks offer adequate comfort to Members of the Committee on the Liberal Democrat Benches. I beg to move.
Lord Phillips of Sudbury: We wholly concur with all that has been said about the amendments--several of which have mixed parentage across Opposition Benches. I emphasise the importance of ensuring that the code should be subject to negative approval by the House of Lords and the other place, given the importance that the Government and the industry attach to the code.
Amendment No. 165 requires publication by the Secretary of State when issuing or revising a code, which extends to any agreement made under the section. That might sound contentious but we believe that complete transparency in the functioning of that important part of the measure will benefit the Government, industry and the world beyond. It will sustain public confidence in a level playing field and in that individuals and particular firms are not being picked off by the Home Office for one reason or another.
Lord Rooker: The Home Office is not going to pick off anyone. I know there is a general view that the Home Office is oppressive. That is not true--it is a very liberal establishment.
4 Dec 2001 : Column 761
The amendments require the Secretary of State to publish any code of practice, revision to a code or agreement; and to lay before both Houses a code of practice or revised code. We cannot accept the amendments as tabled because we could not publish the full agreements, as they are likely to contain detailed, commercially sensitive and confidential information about individual service providers. However, we expect the code of practice to be more general in nature than the full agreements. I am happy to give the Committee an undertaking that we will publish a code of practice or revised code where it does not contain such sensitive information.
I remind the Committee that the code of practice and agreements under the code are entirely voluntary. They will not be imposed by the Government on communications providers. Similarly, I shall be happy to place in the Libraries of both Houses summaries of any agreements or directions that do not contain sensitive commercial information, which will ensure that Parliament is informed as to which communications providers there are agreements with, what data they are retaining and for how long. That information could also be published on the Home Office website.
As to the human rights implications of Amendment No. 172A, the code of practice and agreement will be drafted in such a way as to be fully compliant with the Human Rights Act 1998. We will consult the Information Commissioner to help ensure that is achieved.
Access to communications data will be under provisions already contained in the Regulation of Investigatory Powers Act 2000. This measure is about retaining data, not about access to them. The 2000 Act requires consideration of the necessity and proportionality of specific notices or authorisations used to access such data. The legislation is structured to ensure full compliance with the European Convention on Human Rights and the 1998 Act. I hope that the Committee agrees that those undertakings will achieve the thoroughly valid intention behind the amendments. We can meet the spirit of the amendments in the way that I have described, so I hope that noble Lords will not seek to press them.
Lord Lucas: The code of practice will apply to something like 100,000 networks throughout the United Kingdom. It will apply to me because I run a little network of three or four computers. The code had jolly well better be a public document. It would be a bit daffy if the Government tried to keep secret something with a circulation that wide. All sorts of people will have to know about the code. The Government should determine that the code will be made public and leave out anything confidential. We shall all need to know about the code, understand what might be required of us and potentially live within it. The notion that the code might under certain circumstances be kept secret is mildly ridiculous.
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I understand the Minister's comments about the agreements having sensitive elements. I hope that he agrees that under the Freedom of Information Act 2000, it will be possible to obtain the parts of any agreement that are not confidential. I hope that such publication will be a matter of course.
Lord Rooker: I did make the commitment that it would be public, except for sensitive commercial parts. During the course of my remarks I did say the code will be published.
I did not address Amendment No. 176B, relating to Scotland. These provisions are a reserved matter. Scottish Ministers would not expect to be formally consulted before the Secretary of State made directions against service providers in Scotland. There is nothing new about that. We have consulted with the Scottish Executive and have confirmed that data retention is a reserved matter and it does not expect to be formally consulted.
The Earl of Northesk: Once again I express gratitude for support from the Liberal Democrat Benches. I should say that the operators' group would be happy for codes of practice to be openly published--I make that point in passing. But I am grateful for the Minister's undertakings, albeit hedged with provisos on commercially sensitive information. That seems eminently sensible.
I remain slightly nervous on the human rights issue. Parliament does have a role to play. It may help if I read part of the relevant passage from the Delegated Powers and Regulatory Reform Committee. In commenting upon this issue, they endorsed the views of the Human Rights Committee and went on to say:
Would the noble Lord consider that a sensible way forward?
Lord Rooker: That is not a matter for the Government. That is a matter for the committee.
The Earl of Northesk: I hear what the noble Lord says. No doubt we shall have to return to the matter on Report.
The Minister says agreements will necessarily be commercially sensitive. There is no reason why they should be. They merely spell out the types of traffic data and the length of time that data should be retained.
I also hear what the Minister says about the devolved administration in Scotland. That satisfactorily deals with that point.
I have no doubt we shall return to a number of these issues on Report but, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 165A to 167 not moved.]
4 Dec 2001 : Column 763
The Earl of Northesk
moved Amendment No. 167A:
The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 167B, 168, 169, 170, 171 and 174. This is the issue that has consumed the attention of the committee at almost every turn; namely, its scope.
As the Minister conceded at Second Reading:
If investigations have proceeded and are proceeding so successfully
under the existing law, is it necessary to seek the proposed extension
of powers? There is a case for limiting data retention to the purpose of
safeguarding national security or countering terrorism, as is proposed
in the amendment. At Second Reading I referred your Lordships' House to
the Home Secretary's Tribune article of 26th October in which he
indicated that the voluntary regime would apply:
But as the noble Lord, Lord McIntosh of Haringey, stated on Wednesday
of last week:
Quite so, but that is precisely what is objectionable. It is based
on a presumption that all communications data might be useful in law
enforcement, but not necessarily to prevent terrorism. The Joint
Committee on Human Rights made the point eloquently:
This goes to the heart of the reasoning that underpins these amendments.
Have the Government considered the practical difficulties of the measure? In order to counter the terrorist threat law enforcement needs focused intelligence. But the retention of data in case it may have relevance to a terrorist investigation, effectively necessitates the retention of all communications data. In respect of a single Internet service provider, this could be in excess of 500 terabytes a day--something like a single DVD for each second of traffic. Will information relevant to an inquiry be extracted quickly from such vast accumulations of data?
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Management of compliance with such a requirement will impact detrimentally upon the ability of communication service providers to conduct their businesses efficiently and effectively.
The Data Protection Act gives data subjects rights of access to information about them as individuals. Does the Government suppose that this important protection will be manageable either for individuals or communications service providers when all data is retained?
I turn to the issue of proportionality. The Minister suggested at Second Reading and repeated again today that all powers used will be fully in line with the European Convention on Human Rights and the Regulation of Investigatory Powers Act. There will be no generalised expeditions; they will all be related to specific inquiries and will conform to the terms of the legislation. I do not doubt the sincerity of those statements, but unfortunately they are not to be found on the face of the Bill.
As I observed at Second Reading, the Information Commissioner, the Joint Committee on Human Rights and the Delegated Powers Scrutiny Committee all expressed doubts on this. I quote from the Information Commissioner's memorandum on the Bill:
I shall take this opportunity to make more detailed comments about the amendments. Amendment Nos. 167A and 167B are alternative approaches designed to achieve the same objective: introduction of a clear proportionality test and alignment of the Bill with similar principles already enshrined in RIP. This is necessary to ensure legal clarity.
Amendment Nos. 168 and 169 speak for themselves. I make the point that the use of the phrase "countering terrorism" is not without precedent. It was used at Section 3(3)(a) of the Interception of Communications Act 1985.
I turn to Amendment No. 171. Its purpose to tie the measures on the face of the Bill back to RIP. I am sure that the Minister is well aware of the obvious point that there is provision in Section 25(3)(b) of the 2000 Act for restricting by order the purposes for which data can be obtained by communications service providers in relation to national security. Clear legislative provision is required in the Bill to the effect that retained data cannot be obtained by law enforcement or intelligence services for any other purpose than national security. That is the amendment's aim.
There is more that I could say but I conclude with a comment--and a question--from the Constitution Committee. I hope that the Minister will respond to it
4 Dec 2001 : Column 765
in due course, particularly, as I understand it, in the absence of any formal response as yet to the point. It stated:
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): If this amendment, or alternative Amendment No. 167B, is agreed to, I shall be unable to call Amendments Nos. 168 to 170, owing to pre-emption.
Lord Phillips of Sudbury: I shall speak to those amendments appearing in my name; that is, Amendments Nos. 168, 170, 171 and 174. Again, I wholly identify myself with the comments of the noble Earl, Lord Northesk.
Enough was said at Second Reading for the Minister and the Government to be aware of the widespread concern about this part of the Bill. The effects of the warehousing arrangements that these provisions will allow will create a source of potential information for the state which, frankly, has been contemplated only in the novels of George Orwell. We, like the Conservative Front Bench, feel as strongly as we can that the Bill has been introduced for entirely legitimate reasons; namely, national security in the face of an emergency threat. However, we do not and will not accept that it is legitimate to go beyond that and "piggyback" on that legitimate purpose the complete range of criminal offences, at whatever level.
I remind the Committee of a report by the National Criminal Intelligence Service, which was leaked last year and is now available in full on the Internet. The report was publicised in the Observer. The memorandum proposes the creation of a "national traffic data warehouse" on grounds that are found in this and the succeeding clause. The unease that that creates on these Benches is added to because the memorandum is also the fruit of MI5, MI6, GCHQ, ACPO and Customs and Excise. One need not dwell in the lands of paranoia to believe that a fundamental issue of basic and traditional liberty is involved, and that that makes this group of amendments not only necessary but essential.
On Amendment No. 171, unless it or something like it is agreed
to, the practicality of retaining this vast amount of
communications data, with regard to the implementation of the
RIP Act, will be extremely unsatisfactory; indeed, that Act
will not be workable. Under Section 22 of that Act, it is
possible for a relevant public authority to collect data if it
is authorised by what is called a "designated
person". Subsection (4) allows a designated person to
involve,
but the Bill refers to "communications providers". It can require such people to collect communications data and to hand them over to the relevant authority. Unless we agree to the amendment or something like
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it, it will surely be possible for the authorisation and notice procedures in Section 22 to be used not only in relation to communications data involving national emergencies and national security but also in relation to any communications data that are held by the particular communications provider.I hope that I have not lost the Committee--I have only just not lost myself! My point is serious and I hope that the Government will respond to it.
Viscount Goschen: The noble Lord, Lord Bassam, will tell the noble Lord, Lord Rooker, if he has not already done so, about how fierce the battles were in this House concerning the Regulation of Investigatory Powers Act. Deeply held opinions were voiced by noble Lords and the legislation was substantially rewritten as a result.
The Government will be aware that the proposal in effect to add to that Act further provisions about the retention of communications data will be taken seriously by Members of this House and interested parties outside, in particular by the communications industry. We know how serious the issue is and how potentially dangerous it could become if it is not handled correctly--that could affect the economic well-being of this country and the communications industry in particular.
As has often been made clear during the Bill's passage through this House, we are prepared to accept additional measures provided that they are purely for the purpose of safeguarding national security. When the Government introduced the Bill and when they discussed it outside--in the press, for example--they made it clear that that is their reason for introducing the legislation. However, when we tried to pin down the Government over safeguarding national security or countering terrorism, they argued that they would like to take such steps but that such provisions would prevent them from accessing data and conducting investigations that might, on the off-chance, provide leads in the fight against terrorism.
The Government will have to be clear in their response to
this group of amendments. Clause 102(5)(b) contains an
additional rationale for the provisions in the code. It
states that the code may contain any such provision that is
needed,
"A code of practice or agreement under the section may contain any such provisions as appears to the Secretary of State to be necessary . . . for the purpose of safeguarding national security".
In other words, if paragraph (b) were deleted, the Secretary of State, after consultation with the industry and the Information Commissioner--subject to the other provisos within Clause 102--would be able to draft the code in such a way that he could access the information and communications necessary to safeguard national security. If paragraph (b) were omitted, there is no question that the Government could not do what they wanted to do to counter
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terrorism in respect of accessing communications data. However, if the Government insist that they require the inclusion of paragraph (b), or similar provisions, that would mean that they want to go much further than the prevention of terrorism; it would suggest that they wanted to use the provisions as a general power in order to examine a wide range of crimes, which may be very serious but which do not involve the emergency. I look forward to the Minister's response.Lord Elton: It is easy to anticipate the Minister's response. It will be, as it has been so often, that any crime is potentially a terrorist crime, whether it is shoplifting, breaking the speed limit or blackmail. For that reason we are hesitant about giving the Government the emergency power procedure for the processing of this Bill.
I ask a simple question. I thought that I had brought with me all the relevant legislation, but I do not have the Regulation of Investigatory Powers Act, and hence I do not have Chapter 2 of that Act. I would like a definition of "communications data". I presume that that does not mean the information transmitted--for example, the contents of a conversation--but the fact that two telephones, or two communications stations, have been in touch with each other, the time when they were in touch and for how long and, if one of them was a mobile, where it was. I seek reassurance that that huge amount of information is now to be warehoused.
I also have a question for the noble Lord, Lord Phillips
of Sudbury. Amendment No. 171, in the second line under
subsection (10), says,
Lord Lucas: I entirely support what has been said. Perhaps the Minister can enlarge on the rights under the Data Protection Act for an individual to obtain such data that is to be retained. Considering some of the wilder possibilities, in relation to packet headers there will be vast amounts of data. It will be extremely difficult for a communications provider who is asked to dig out anything that is relevant from their records to do so without incurring a great deal of time and expense.
Recently it has been established that the data that a mobile phone provider holds of a location from which and to which mobile phone calls are made is personal data and can be retrieved by someone under the Data Protection Act. Therefore, I presume that all such communications data will also fall under that heading. We are not considering imposing an occasional burden on the telecommunications provider to look for something for the Government, but a burden to have to do so for every single customer or citizen of this country, or anywhere else, who happens to cause a
4 Dec 2001 : Column 768
little disruption by asking for the information. We have to understand how enormous this data supply is and how undirected it is.Some of my e-mails go through a mailbox. The information in an e-mail can be picked up as easily as someone can look at my telephone bill, although much of it does not touch the sides and is transmitted as packets. Information is squirted into the Internet and arrives at the other end through whatever routes it may happen to take. There may be no record of it other than the packet headers, which, as has been said, is about a terabyte a day or the contents of a DVD every second. Those enormous amounts of data are impossible to search unless they are on line. If so much information is available about the individual citizen, it comes down to 1984.
We must understand the Government's intentions in relation to particular kinds of data. They must have a clue as to what type of data they are considering retaining and for how long. The retention of some data has immense cost implications, nationally and indeed on individual telecommunications providers. One wonders why the Government will need it. If a terrorist organises himself properly, he will not appear. He will hide or cloak himself and he will not appear in any of the easy places. It will be immensely difficult to track him down.
The only people against whom such data will be useful will be the ordinary, everyday criminals who do not know how to take the £1,000 or £2,000 worth of precautions that would enable them to avoid the Act. The Government must be clearer about why they want these provisions.
The Earl of Onslow: My noble friend Lord Lucas said that the Government must have a clue about what they want to learn. That statement is almost incredible. Recently it has been published that MI5 and MI6 asked to listen to calls made on certain telephone numbers and they got a large percentage of them wrong. I am worried that our forces of law and the forces of our counter intelligence and intelligence services are not as good as they should be. For that reason the Home Secretary has reasonably taken a great interest in the performance of the police. The more one hears about matters going wrong, the more depressed one becomes. I am unsure whether we should give them extra powers to store telephone numbers to which they should not be listening anyway.
The Earl of Erroll: I agree with everything that has been said by the noble Lords, Lord Phillips and Lord Lucas. I was interested to hear the noble Earl, Lord Northesk, say that much of the information that is used to catch terrorists at the moment is obtained by trawling communications data. Was that authorised? Or was such a practice already used? And, if so, in which countries? How much of that data is picked up in that way? If only the packet headers and so on are being kept, that is probably not much use. Are the Government seeking powers to trawl through the contents of such data? Is this yet another back door way in?
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It may be considered that noble Lords are being paranoid, but I think back to J. Edgar Hoover, the data that he kept on people and the blackmail that he exerted, which caused big problems in the United States. This provision provides a chance for someone to do that again. History has a habit of repeating itself. One thing that we can learn from history is that we never learn the lessons of history.
Lord Peyton of Yeovil: I am sure that the Government want to do what is sensible and intelligent, but sometimes that is quite difficult. It is easier to do stupid things. I believe that the Government are caught. I am sure that they do not want to do stupid things, but they have not found an easy alternative to the course that they are pursuing in this Bill.
At the outset, the Government said that following the events of 11th September they urgently needed powers to combat the horrors of terrorism in its modern and latest versions. I believe that that aim commanded wide respect among most of the Members of the House including myself. I believe that this is a drafting difficulty, but the Government do not appear to know what they mean by terrorism. Is that so? That is virtually the only explanation.
The noble Lord, Lord Phillips, referred to the Orwellian provisions that we now face. I cannot help but feel that the Government are conscious of the fact that that view of the present proposal is widely held. I am prepared to believe that the Government would want to avoid provoking the kind of opposition that they are provoking on all sides of the House. Therefore, they should come clean and say that it is a difficulty of defining terrorism and confining the provisions of the Bill to that particular purpose.
It seems to me that we are possibly going into Cloud- cuckoo-land if that is really true. But I cannot think of any other reason why the Government should want so obstinately to bring down on their head such a degree of very deeply entrenched opposition. There is no party ingredient in it at all. It is an opposition from people who would willingly arm the Government with any powers that are plainly necessary or desirable to secure the defeat of terrorism. But to give them such powers "just for good measure" to perform a much wider function is quite intolerable.
I have become confused. I am sure that I am not the only person. Perhaps the Government will try to clarify things. There have been other occasions, not under the present Government, when I have been told that a certain just and fair measure, which everyone wanted to achieve, could not be taken because it would involve taking an unconstitutional route. Eventually, when the government could not get their way, they would take the matter back and start to think. Finally, they would hit upon an extremely complicated, almost incomprehensible, way of doing what everyone wanted to do but in a manner that subsequently turned out to be fair.
What I am trying to say to the Minister is that I very much hope that he will not be content with the conventional briefing which ends with the word
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"reject". The Minister is capable of great candour and openness. I respect that. He could make a very good impression. He could make a real contribution to the easier passage of the Bill if he took it upon himself to say that he recognised the real difficulty and the depth of genuine feeling that existed on this subject in your Lordships' House and would take the matter away so that he and his colleagues could have a real opportunity to give it fresh thought.Lord Phillips of Sudbury: Before the Minister rises, I was asked by the noble Lord, Lord Elton, whether the wording was right or clear in my Amendment No. 171. The wording is not as clear as it should be. Where the amendment states:
"may only authorise or require access to data".
Lord Rooker: We have had a very interesting debate on this group of amendments. I really enjoyed the speech of the noble Lord, Lord Peyton. However, I do not think that it had a great deal to do with the amendments. I shall address his points. They are valid and could have made in relation to various parts of the Bill. Indeed, I recall that he has made them on various parts of the Bill.
My candour will continue unabated but measured. There will be no going over the top. However, there have been a few misconceptions. To describe the legislation as Orwellian is fanciful. I cannot say often enough that we are not interested in the content of any communication. The noble Lord shakes his head. The noble Earl, Lord Erroll, from the Cross-Benches said that we were off to do the dirty deeds that were done in America and that central government would be blackmailing people. It is preposterous to make those kind of remarks and allegations on the basis of what has already been said and written. We are not interested in the content of any communication between two people, either over the Internet or by telephone. That is it--period.
We are interested in the information that is already retained by business for its purposes, namely, the two numbers that may have communicated with each other, the date and the duration of the call, and, also, because in certain circumstances it is possible to access the information, the locations of where the calls were made and received. That is nothing new.
I shall try to answer all the points in the debate. Members of the Committee have gone through these important amendments and I have statements that I want to make regarding them. I start by saying that the NCIS report that was referred to is not the basis of these provisions. There is no warehousing. There will be no excessive retention period. I cannot say what the retention period will be. That will be a matter for discussions and for the code of practice. The Observer said that the period would be seven years. The Government do not accept that. We are not talking
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about that kind of period. For the avoidance of any doubt the period will be shorter. It is no use my speculating further. That will be in the code of practice and it is no good my trying to speculate about the content. I have indicated the kind of data that we are talking about. It is business data that is already held by business. It will be a matter for consultation. The principle of proportionality has to apply anyway.I ask Members of the Committee not to confuse retention of data with access to it. Access to data is not governed by the Bill and these clauses. That is a matter for the Regulation of Investigatory Powers Act. The Interception Commissioner, whom no one has mentioned, is involved with that. We have said, and I repeat, that we shall fully comply with all the rules laid down in that Act, as well as the human rights legislation, in operating the retention provisions.
There are two issues here--retention and access. The provisions deal with the retention of data. The access of it will be governed by other legislation.
Members of the Committee have raised fair points regarding the Data Protection Act. I am not criticising them. There are some key questions to be answered so that we do not get unjustified public concern. Under the Data Protection Act there is no need to comply with subject access if it involves disproportionate evidence. Guidance on the subject of access can be put in the code after consulting the commissioner. I have already said that at present if data is stored for business purposes it can be accessed for law enforcement. No data have been obtained unlawfully. That will not change.
I cannot comment on the issues raised about the wrong digit in telephone intercepts. I personally do not deal with that and know nothing about any mistakes. From my experience in the other place, I can say that there is far more scrutiny and oversight of the security services these days. They are now on a statutory footing. It is a tribute to the previous government that they put them on a statutory footing. Mistakes can be made. The beauty about today's system is that it is more likely that the mistakes will be discovered. We can learn from that. That is not an unimportant point.
The RIPA--I hate using that terminology because it does not sound good on the box, friends tell me--the Regulation of Investigatory Powers Act provisions are not yet implemented. They will not be until next year. There may have been data about 11th September that would have been of use had it been retained, not destroyed, by service providers. They all have their own business rules for retaining data and operate differently. We are trying through the code of practice--which I again emphasise is voluntary--to create a system so that we all understand what we are doing.
The amendments would have two effects: they would change the purpose for which data may be retained by communications service providers under the code of practice arrangements and introduce a proportionality clause. They would remove the crime detection and prevention purpose and restrict the
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code's provisions to national security. Frankly, that betrays a misunderstanding of how the terrorists operate. We cannot draw a distinction between terrorist activity and other crimes; that would be incredibly difficult. There is a necessity issue connecting other crimes to crimes of terrorism, but there is a legal issue about setting that out in the Bill. In any event, as I said before, if the provision were narrowed to purely terrorist activity we would not have the opportunity to catch other people involved in funding, organising and being ancillary to terrorist activities--helping them to take place.Lord Peyton of Yeovil: I thank the Minister for giving way. When he uses the words "it would not catch", I suspect that the Government are facing difficulty in saying exactly what they mean and no more. In the Minister's words, the difficulty is to catch other things.
Lord Rooker:
There are two reasons. Defining terrorist activity is
not easy. It is defined in the Terrorism Act 2000, but
terrorism consists of ordinary crimes such as murder. We
know, because of how terrorists have changed the way in
which they work in recent years--how they conduct their
activities--that they use other crimes that would not
normally be considered terrorist. That is the point. If
we can lock down such other crimes that may fund and
assist terrorist activity, we can take precautions
against that activity. That is the object of the
exercise. So, even if we could find narrow definitions
and include them in the Bill, it would not make sense to
do so.
Viscount Goschen:
I am grateful to the Minister for giving way. I think
that to an extent we are talking at cross-purposes. Many
Members of the Committee who have spoken in favour of
restricting the provision to national security agree
with part of his argument. However, could not
subsection(5) just read: "The code of practice may
include any such provision as appears to the Secretary
of State to be necessary for the purposes of
safeguarding national security"? Surely that on its
own would give the Minister all the powers for which he
is looking.
For example, if the Secretary of State felt that
trawling through information relating to drug
trafficking was useful for catching terrorists, he could
say, "That is my purpose; I will therefore spell
out the code in that manner". All that we are
trying to do is to narrow down the provision so that it
is not deliberately used for crimes totally unrelated to
terrorism.
Lord Rooker:
I want to address all the amendments because arguments
for them have been deployed at some length and I do not
want to short-change the Committee. I shall go through
each amendment, because it is better to put the argument
on the record.
The two purposes included in the Bill are consistent
with the terminology of the Regulation of Investigatory
Powers Act 2000 and the Telecommunications (Data
Protection and Privacy) Regulations 1999. I keep going
back to this but in due
4 Dec 2001 : Column 773 Removing the second purpose of the code and agreements,
which is to prevent and detect crime and to prosecute
offenders, would make no sense in practice. It would not
affect requests to access the data, which will be
regulated not under the Bill but under the Regulation of
Investigatory Powers Act 2000 and overseen by the
Interception Commissioner. However, it would undermine
the operational efficiency of the police in combating
crime because their wider responsibilities could not be
taken into account in drawing up the code. The provision
will rely heavily on the code, which, I repeat, is
voluntary.
The second part of the amendment is simply unnecessary.
Lord Lucas: I thank the Minister for giving way. He is saying that the provision in paragraph (a) deals entirely adequately with everything that the Government want for the security situation but that they will hang on to a wider provision just because it is there. The Bill is emergency legislation, and we should not have provisions in it that have nothing to do with the security situation.
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
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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 "resist" 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
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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.
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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 "safeguarding 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.
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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 "communications 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 "communications data" and it means any of the following. I shall not read it all, but paragraph (a) states:
"any 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".
Paragraph (b) provides:
(ii) in connection with the provision to or use by any person of any telecommunication 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 "emergency" 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.
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, "where 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 "may" so that it reads "which 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 "national 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.