§ 4.48 p.m.
§ House again in Committee on Clause 94.
§ Lord Dixon-Smith moved Amendment No. 157A:
Page 54, line 13, at end insert—
( ) Where a person who has been required by a constable to remove an item under subsection (2)(a) claims to be female—
(a) removal shall not be required until a female officer is present; and
(b) prior to the removal of the offending item, the person required to remove the item shall be informed that there is a fixed penalty of £50 if they have made a false declaration of gender.
§ The noble Lord said: I have slight difficulty in my mind about Amendment No. 157A and the opinion of the Committee. However, my motivation in tabling the amendment is that the Bill gives power to remove items of clothing used for disguise purposes in potentially riotous situations. I was not clear about the drafting of the clause and to that extent this is a probing amendment. I am unclear as to whether the normal protections—for example, searches and the removal of clothing would in other circumstances normally be undertaken only by people of the same sex—would apply in relation to this particular matter. It is apparent that Clause 94 does not make that a specific requirement as in other parts of the Bill.
§ Having faced that hurdle, it is not impossible to envisage somebody, who for religious reasons is sensitive about these matters, quite inadvertently being caught in circumstances where the police require the removal of facial cover. This could create problems of great sensitivity for people in that situation. I believe that we should do what we can to ensure that in so far as possible in the circumstances their sensitivities are acknowledged. That deals with the motivation behind the first part of my amendment.
§ I have recently been exposed to masked demonstrators. At first sight—even half an hour later—I could not tell whether they were male or female. I thought that my senses were reasonably gender-attuned. When people wear black head coverings which also conceal the eyes and modern clothing that is generally shapeless and formless it is difficult to tell whether they are men or women. I sought to deal with the situation where an individual refused to remove a head covering on the grounds of sensitivity and tried to delay proceedings by claiming to be a woman when he was not. That gives rise to paragraph (b) of the amendment which would make a 735 false declaration of gender a fixed penalty offence in that situation. I could think of no other way to do it. I may be told that I have a nasty, suspicious mind; if so, I am sorry. However, I believe that it is a valid point to make. More importantly, I believe that this is a valid question to put to the Minister. This appeared to be the most appropriate way to do it. I beg to move.
§ Lord Rooker
I apologise to the noble Lord for being a few seconds late. The order was changed and I was half-way down the stairs. I take the noble Lord's point, but I am fairly certain that I can satisfy him.
I return to one matter to which I referred in an earlier debate. The code of practice for the Police and Criminal Evidence Act provides guidance in this area:Where there may be religious sensitivities about asking someone to remove a face covering using the powers in Section 25 of the Crime and Disorder Act 1998, for example in the case of a Muslim woman wearing a face covering for religious purposes, the officer should permit the item to be removed out of public view. Where practicable, the item should be removed in the presence of an officer of the same sex as the person and out of sight of anyone of the opposite sex".That is the guidance in the code of practice which for practical purposes is about as clear as it could be.
We are talking about an outer layer of clothing—a face covering—which by any definition is not an intrusion into privacy. I also said in earlier debate that immigration staff had no difficulty about it. The amendment refers to someone who claims to be female. There are people who come to this country for operations and present their passports at ports. At first sight the position is not quite clear. We have no problems with that. We treat people sensitively and humanely. As long as we can make the identification it is perfectly all right. We have not experienced any difficulties about that.
There is no power of forcible removal under Clause 94. The police may require the removal and it is an offence not to comply, but I do not believe that there is any difficulty in relation to this issue. There is power to use force in a police station to remove covering for a photograph, but that arises under Clause 92. The guidance to the PACE code of conduct will take full account of the issues which have been raised. As the noble Lord said, this is a probing amendment. I am not aware of any concern about this matter. I accept that it is a matter of sensitivity. It will be dealt with in the most sensitive way at the time the police make such a request, for which they must have reasonable grounds in the first place.
§ Lord Dixon-Smith
I am grateful to the Minister for his reply. To a certain extent the noble Lord puts my mind at rest. I am not quite sure that he has fully answered the question whether the Bill as drafted supersedes the current code of practice which was drafted to deal with a slightly different situation. One must face the situation that the circumstances in which these powers may be used are somewhat unpredictable 736 and haste may well overcome politeness. It was with that in mind, and to hear the Government's response, that I tabled the amendment.
§ Lord Rooker
I apologise if I have not made it clear. The code of practice is to be rewritten. The code will be subject to consultation in the normal way early next year and will be fully worked up. The code will be revised to incorporate all the additions in the Bill. We shall double- check it to put beyond doubt that we can deal with the issues raised by the noble Lord. The existing code already provides guidance to police in this area, but we shall check it and consult upon it to make sure that we have got it right.
§ Lord Monson
Referring to the second leg of the amendment, can the Minister tell the Committee what would happen if a person purporting to be a woman was taken to a police station, asked to remove a headdress and found to be a man? As the law stands, would that be an offence? I suppose that the person would be detained for further questioning because it would obviously be a suspicious thing to do, but would it be an offence?
§ Lord Rooker
I cannot answer the noble Lord's question without advice. However, the purpose is to establish the identity of the person so that the police can pursue their investigations. The person may lie about age, gender, nationality or other matters. I suspect that in the case referred to, other than wasting a little police time in the investigation it would not be an offence. But the main purpose of the provision is to identify the person concerned. I suspect that that does not answer the noble Lord's specific point, but I am not qualified to do so. One is amazed to discover what is not an offence. Until yesterday it was not an offence for anyone to own a nuclear weapon! It is not an offence to dress in another gender's clothing, but that is not the issue. The purpose is to identify the person.
§ Lord Elton
I believe that when the original code of conduct was formulated there was some form of parliamentary exposure. Can the noble Lord tell me, perhaps later, whether this matter will be subject to such exposure, or will it simply form the subject of discussion with organised bodies?
§ 5 p.m.
§ Lord Rooker
I am speaking off the top of my head. I have nothing in front of me. If it were subject to parliamentary exposure in the past, after the way we have put this Bill through the House I shall use my best endeavours to make sure that it is subject to parliamentary exposure. However, I suspect that it is part of PACE that the code of practice is subject to parliamentary exposure.
§ Lord Dixon-Smith
I am most grateful to the Minister. The supplementary debate, if I may so describe it, has gone a long way to put my mind at rest. With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.737
§ [Amendments Nos. 158 to I58A not moved.]
§ On Question, Whether Clause 94 shall stand part of the Bill?
Before my noble friend intervenes, perhaps I may say a few words. I remember so well a murder case some years ago in which I prosecuted. The murderer at the time he committed the murder was wearing a beard. In order to disguise himself and prevent himself from being found out, he removed the heard after he had committed the murder.
This strange clause, which in my opinion is quite unnecessary—
§ Lord Rooker
I can give the answer before the question is put. A beard—facial hair—does not qualify as an item under this legislation.
I merely give that as an illustration of the kind of confusion that can arise if we try to deal with matters of this kind by legislation. The courts already have power to take note of, for example, a change in disguise. This clause goes into detail which is unnecessary because the courts have the power to take note of anything which a constable may have done in the particular circumstances, or which anyone failed to do. As regards emergency legislation, to try to introduce clauses which supplant the powers that the court already has is unnecessary. I hope that my noble friend will agree and argue against the retention of Clause 94.
§ Lord Dixon-Smith
We tabled notice of our opposition to Clause 94 with the same motivation as led us to have the earlier debate on the first group of amendments. These clauses amend the previous legislation, the Police and Criminal Evidence Act 1984. In the new circumstance, the power to require the removal of facial covers and so forth is enormously expanded.
The provision could actually apply to any demonstration or gathering and not merely to disturbances that might be related to terrorist activity. The difficulties we have were expressed in arguments that I have already enunciated once today and it is superfluous to enunciate them a second time. That is the reason why this and some of the following clauses are before us.
§ Lord McNally
We share the concerns, not just on the Question of whether this clause shall stand part, but in relation to later clauses. Much of the earlier debate covers the dilemma that has gone right through the coverage of the Bill. I refer to the Government's desire to respond properly and with due urgency to a real threat from terrorists and concerns expressed by learned Lords and others that they are trying to sweep into this Bill powers that are neither emergency nor directly affect terrorism.
As regards this particular stand part Question, I might throw a line to the Minister. Things have changed a great deal since he was on the other side of 738 the line to the noble Lord, Lord Callaghan, in Grosvenor Square all those years ago. The noble Lord, Lord Callaghan, as Home Secretary, was giving moral support to the Metropolitan Police when Grosvenor Square was filled with demonstrating young people, among whom the noble Lord, Lord Rooker, counted himself today.
That is a reminder of a little piece of history and I am sure that the noble Lord, Lord Callaghan, will take note of it in Hansard. The fact is that protest has moved on since those innocent days. Face coverings are used in the most sinister and intimidatory ways, just as the Internet is used to mobilise and organise, and mobile telephones are used to direct during demonstrations. They are highly sophisticated operations which the early protestors would hardly recognise.
I understand the need to acknowledge the fact that the nature of protest has changed. However, that does not get us away from the fact that the ways in which protestors and terrorist threats are dealt with are different; they should be dealt with at different paces and with different kinds of parliamentary scrutiny. I think this doubt will continue through many of the issues that the Government are talking about.
I think they would find sympathy on these Benches, but not for a response in an emergency to a terrorist threat. That is why we have doubts that clauses such as Clause 94 should remain in this Bill.
§ Lord Desai
Perhaps I may say as someone who was in Grosvenor Square at least on two occasions, not very far from a police horse as well—that was a very existential moment in my lifethat at the time those demonstrations were not at all described as peaceful. At the time they were thought to be very sinister and dangerous.
It is easy now to say, "Oh yeah, at that time we were benevolent, everybody was happy and had flowers in their hair". It was not like that at all. Every Home Office Minister at every demonstration described those demonstrations as sinister. That is what the Home Office is for and that is why we have a Home Office. I think, in retrospect, the attitude to major demonstrations in the past couple of years was very alarming. The Government are frightened of people just demonstrating.
There may be more anarchists—they were all Trotskyites or communists in the 1960s—but it remains true that many demonstrators, whether masked or not, are not violent. They are riot intimidating anyone, unless the police take that view. If the police decide to hem them in, as happened last May, problems occur and then we have arrests.
I do not want to say much more than that, but in my view this particular part of the Bill has elevated demonstrators into terrorists, or has removed much of the difference between them. From being intimidating masked animal liberation fighters, to make them into Al'Qaeda terrorists, is a leap of several degrees. I think that we shall regret that. That is all that I can say. 739 Sadly, the provision will pass, but we shall regret it. It is not a minor extension of existing powers, it is a major attack on people's right to demonstrate.
§ Lord Rooker
I disagree with the last words spoken by my noble friend Lord Desai. Clause 94 is not major. It will become new Section 60AA in the Criminal Justice and Public Order Act 1994, as amended by the Crime and Disorder Act 1998. The 1994 Act itself gives police powers to require the removal of face coverings worn for the purpose of concealing identity, and to seize any such items. Clause 94 amends the face-coverings power only so that an authorisation can be given where an inspector reasonably believes that activities may take place in an area that are likely to involve the commission of offences. That is a modest and proportional extension of existing police powers.
I should not have raised the issue in the first place—I realise that—but I think that my noble friend Lord Callaghan of Cardiff would be proud to be part of the Labour Government that ensured that this country was not sucked into the Vietnam War, and that issues were freely raised and campaigned about. I realise how those demonstrations were described in those days, but I do not remember anyone wearing a face mask. A lot of them became television stars. Some of them have made an industry out of it for the past 30 years—I could name one person, but I shall not.
In a mature democracy, we should embrace people who want to demonstrate and air their views; the point is how they go about it and their effect on others who are neutral. We are here dealing with intimidation and possible criminal activity. That is why Clause 94 is wholly justified.
§ Lord Dixon-Smith
I am grateful that we have had this discussion, if only because I learnt that the noble Lords, Lord Rooker and Lord Desai, appear to have enjoyed the same riotous youth. That is interesting.
We have gone over the principles of the debate sufficiently this afternoon, so we should not pursue the detail any further. We must think carefully about what the Minister said about the clause and related amendments.
§ Clause 94 agreed to.
§ Clause 95 [Powers to require removal of disguises: Northern Ireland]:
§ Lord McNally moved Amendment No. 159:
Page 55. line 39, after "of" insert "terrorist"
§ The noble Lord said: It occurred to me that we might make separate arrangements for Government Members who want to announce that they were in Grosvenor Square in 1968. I cannot believe that the Minister was talking about the Foreign Secretary when he mentioned someone who has made a career about his presence there. I am sure that that was furthest from his mind.740
The Minister of State for Northern Ireland, introducing the clause in the Commons, said:
I want briefly to put it on record that the Government are taking this valuable opportunity to extend"—
to Northern Ireland".—[Commons, 26/11/01; col. 765.]
§ We are worried that the Government have taken opportunities to sweep powers into the Bill. As the noble Lord, Lord Dixon-Smith, said, that is a recurring theme and this is just one more example of it. I beg to move.
§ Lord Rooker
I referred to Amendments Nos. 158 and 159 earlier. We have to legislate separately for Northern Ireland, but the issues are the same, so I should only repeat myself if I gave again the answer that I gave then.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 159A not moved.]
§ Clause 95 agreed to.
§ Clauses 96 and 97 agreed to.
§ 5.15 p.m.
§ Clause 98 [Jurisdiction of MoD police]:
§ Lord Dixon-Smith moved Amendment No. 160:
Page 59, line 45, after "offence" insert", which he might reasonably assume to be terrorism"
§ The noble Lord said: Amendment No. 160 is grouped with Amendments Nos. 161, 162 and 163. They raise the same point in relation to Clause 98, which deals with the Ministry of Defence Police, and Clause 100, which deals with transport police, as were raised in the first group of amendments that we discussed today. It is superfluous to repeat everything that was said then. I simply reiterate that those arguments are as valid for these amendments as they were then. I beg to move.
§ Lord Wallace of Saltaire
I rise to support the amendment. It was with a sinking feeling that we found the clauses in the Bill. They are highly familiar to me as a former defence spokesman for my party—they are, indeed, exactly the same as the clauses that we were discussing under the Armed Forces Discipline Bill just before the election. We have a range of fundamental questions about whether the provisions are necessary to the Bill. The amendments seem to us to be the absolute minimum that we can do to link the provisions to the anti-terrorist procedures, rather than simply slipping through something that failed to be passed before the election.
§ Earl Attlee
I apologise for not flagging up the issue that I want to raise by means of an amendment. I hope that the Minister will be able to give me an answer. If not, I am sure that the Committee will understand why.
741 The Minister will have thought carefully about introducing the provisions for the MoD Police, but what about the service police—the Royal Military Police, the RAF Police and the Royal Naval Police? I appreciate that they must be the subject of a reserved power under the affirmative resolution procedure. but did the Minister consider the position of the service police when he discussed the Bill with colleagues?
§ Lord Bradshaw
I rise to speak to the amendment concerning the British Transport Police. The British Transport Police is a substantial body of people spread throughout the country. They have long laboured under the disability that if a miscreant is found on railway premises, they are unable to pursue him beyond the boundary fence. They cannot chase someone into the street or over the fence, because their powers as police constables lapse when they reach the open air, as it were. Unlike the Ministry of Defence Police, or the nuclear police force, they are trained at Ashford as ordinary constables. Basically, they are an unarmed police force.
The Minister told us that there was a trawl of measures from the shelves of various ministries and that some of those measures have been put into the Bill. For reasons of safety, it is important that transport police officers should be given an extended jurisdiction so that they can pursue miscreants beyond the boundaries of railway premises. While I fully support the premise that the extension of powers to combat terrorism should form the sole impetus of the Bill, we have long awaited an extension of the area of jurisdiction of the British Transport Police. I hope that, whatever decision is taken as a result of the amendment moved by the noble Lord, Lord Dixon-Smith, the power of the British Transport Police to act as constables with the same jurisdiction as other constables will be introduced, subject to the approval, where it is appropriate, of the local police force.
§ Lord Faulkner of Worcester
I am delighted to follow the noble Lord, Lord Bradshaw, who made similar remarks in a debate on an Unstarred Question which I tabled on 13th November, which drew attention to the consultation paper on the future of the British Transport Police entitled Modernising the British Transport Police. The provision in Clause 100 of the Bill is not a last-minute proposal; rather it is a power that has been needed for a long time. At present the proposal is moving through a process of consultation and the Government's proposals for extending jurisdiction have received widespread support both in this House and outside. Like the noble Lord, Lord Bradshaw, I hope that there will be no weakening as regards the inclusion of Clause 100 in the Bill.
In the debate on the Unstarred Question the noble Lord, Lord Condon, described the BTP as an,efficient and very effective police force which plays a valuable role in a number of areas of public safety".—[Official Report, 13/11/01; col. 532.]742 He cited the combating of terrorism as the first of those areas, where the BTP is second only to the Metropolitan Police in the number of terrorist incidents with which they have had to deal over recent years.
For all those reasons, it is important that we support Clause 100 and take advantage of the provisions of the Bill to extend the jurisdiction of the British Transport Police in order to allow them to carry out their job outside railway premises. It must be done in order to protect us all.
§ The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach)
I am grateful to noble Lords for the way in which the amendments have been introduced. Perhaps I may deal first with the Ministry of Defence Police and then move on briefly to the other police forces that have been mentioned in the amendments grouped with Amendment No. 160. However, I should say now that I am grateful to the two noble Lords who have spoken in support of Clause 100 in the Bill.
To return to the Ministry of Defence Police, the amendments arise out of the provisions of Clause 98. The purpose of the clause is to permit the MoD Police to act outside their normal jurisdiction in certain defined circumstances. I should remind the Committee that the MoD Police are a properly constituted civil police force. We are not discussing here the powers of the military police, quite properly referred to by the noble Earl, Lord Attlee. I shall respond to the question he put to me in his intervention; that is, whether the Government would consider extending powers to the service police forces—the provost forces. The answer to the noble Earl's question is no. We have considered the matter, but we do not think that it would be appropriate. Services police are made up of service personnel with authority only over personnel subject to the service discipline Acts. We do not seek to extend their powers.
The Ministry of Defence Police already have authority vested under the Ministry of Defence Police Act 1987 to exercise police powers outside the defence estate at the request of a Home Department police officer provided that it is "in the vicinity" of defence property. We believe that that power has proved too vague and too restrictive to meet the needs of the force under today's conditions. We seek therefore in subsection (2) of Clause 98 to repeal that power and to insert two new and more clearly defined powers as set out in subsection (4).
First, there is an authority to exercise police powers anywhere when requested by another police officer, but only in respect of a significant and specific incident, investigation or operation. I have used the word "significant", but I should not have done so. I refer only to a specific incident, investigation or operation. That proposal appears to have been accepted, at least to the extent that no amendments have been tabled on it at this stage of our proceedings.
Secondly, there is an authority to exercise powers in an emergency, but only in respect of a person whom they suspect of having committed, being in the course
743 of committing or being about to commit an offence, or to save life or prevent or minimise personal injury, and—this is important—where action is needed in a timescale which renders it impossible to secure the attendance of another police officer or a request to take action.
The noble Lord. Lord Wallace of Saltaire, with the battle scars to remind him of the occasion, spoke of this as a rehash of a Bill that was passed only in part before the general election. I hope that these proposals will make him feel easier. Having taken the tenor of the debates held during the proceedings on the Armed Forces Bill, to which the noble Lord referred, we do not propose to resurrect the power proposed in that Bill, which sought to enable the MoD Police to enter into standing agreements with Home Department forces to police areas adjacent to defence property. We think that the powers now being sought will suffice to meet the needs of the force in all likely scenarios. Thus, that change has been introduced.
We believe that the changes set out in the Bill represent a sensible but strictly limited clarification and extension of the powers of the MoD Police to enable them to do the job they have been set, to further co-operation with other police forces and to meet the expectations of the public. The public does have expectations and we must do our best to meet them. However, the powers are especially important at a time of heightened terrorist threat when defence property could very easily become a terrorist target. Lastly, the powers parallel closely those which we seek for the British Transport Police.
In dealing with the amendments, perhaps I may say why we are not able to accept them. Together their effect would be to restrict to a narrow range of incidents the authority of MoD police officers to act outside defence property in an emergency; namely, terrorist incidents where there is danger to life or the risk of personal injury. That would mean that a Ministry of Defence police officer whose assistance in an emergency was sought by a member of the public outside defence property would still be unable to act as a police officer except where terrorism was involved.
From that arises the question whether it is easy to put over in every case precisely whether the incident is one that involves terrorism. The phrase used in Amendment No. 160 is,offence which he might reasonably assume to be terrorism".But what is it reasonable to assume is terrorism? What of the case of going equipped to commit criminal damage, or the use of a stolen car? Would it be reasonable for a Ministry of Defence police officer to assume that that constituted an act of terrorism? What of the possession of a stolen passport? Perhaps I may cite as an example an individual acting suspiciously and tampering with a vehicle. He may be attempting simply to steal it, which would not be an act of terrorism. Alternatively, he may be seeking to place a bomb under the car. Clearly that would be such an act.
In that situation, would we really want the officer to hesitate while he considers whether he has the power to act? Even less, would we want that officer to turn away 744 and allow the offence to take place simply because he decided that it was not a terrorist offence? I think that members of the public would be deeply shocked if they thought that Ministry of Defence police officers, when faced with an incident, had to look at it in such a particular light. That is why, with the greatest respect—I understand why the amendments have been put before the Committee—the Government feel that Amendments Nos. 160 to 163 are, not to put too high a word on it, absurd. They would not deal with the problem.
We are attempting to deal with the problem. Whether this course provides the right answer, only time will tell. I do not believe that attitudes such as those I have expressed would have been acceptable before 11th September; I am quite convinced that they would not be afterwards.
My second point is that under the amendments—even where terrorism was involved—an officer from the Ministry of Defence Police would be unable to act unless there was an immediate danger to life or of personal injury. So the fact that it might be terrorism would not be enough unless it was terrorism intended to cause death or injury to a person. Of course, most terrorist acts are intended to do that, but it is possible that the terrorists might seek to destroy empty property for their own purposes—to frighten, to scare. They are clever, intelligent people who make their own calculations.
If these amendments were agreed to, they would prevent a Ministry of Defence Police officer intervening in a situation where a suspect, believed to be a member of an illegal organisation, was scouting. Again, there would be no immediate threat of violence, but time would be of the essence. Under the Terrorism Act 2000—noble Lords involved in that Bill during its passage through the House will remember it with affection—the Ministry of Defence Police are empowered to arrest members of illegal organisations. But where there was no immediate threat of violence, these amendments would prevent prompt action by the Ministry of Defence Police without a prior request to the local police. I hope that noble Lords are persuaded that agreeing to the amendments would lead to an unsatisfactory result.
As to safeguards, we have given a great deal of thought to the Committee's concerns. The powers are limited strictly to genuine emergencies. The clause states that the officer concerned can exercise the police powers granted under it only when the purpose of his action would be frustrated or seriously prejudiced if he did not act before another police officer could be summoned or contacted. Given the speed of radio communications, that places a severe limitation on the powers of the Ministry of Defence Police.
As regards the British Transport Police, Clause 100 will permit officers to act outside their normal railway jurisdiction on non-railway matters in restricted circumstances. It would appear from the contributions made by noble Lords on all sides of the Committee that Clause 100 is widely supported. It has been argued for a long time that the British Transport Police should 745 have extended powers. In our view, the case is well made out and I do not need to trouble the Committee any longer with the arguments. They are very much the same as those I employed in regard to the Ministry of Defence Police. I hope that the noble Lord will withdraw his amendment.
§ 5.30 p.m.
§ The Earl of Onslow
The noble Lord listed the actions the police could not take without these powers. But surely it is right that if I see these crimes being committed, I, as a common citizen, have a citizen's power of arrest? To those of us who have what the Home Secretary calls an airy-fairy, liberal concern for liberty—we call it a deep concern for the proper constitutional government of this country—the noble Lord is saying that if a Ministry of Defence policeman sees the same thing, he cannot do anything because he has to pass by on the other side. I simply do not believe that to be the case.
As for the Minister saying that our worries about the extension of police power are absurd, I believe that it is perfectly reasonable to say that the Government's tendency to ignore civil liberties—of which there have been many examples recently—is not necessarily absurd but plain wrong.
§ Lord Wallace of Saltaire
I accept that the cases of the British Transport Police and the Ministry of Defence Police are rather different. I am less and less persuaded of the case for these specialist police forces. There is an increasingly strong argument that they should be absorbed into the civilian police, but that is a much larger issue.
I remind the Minister of the long history of the Ministry of Defence Police. When we debated the British Transport Police, the noble Earl, Lord Attlee, and I both raised the parallel with the Ministry of Defence Police. The Government Front Bench spokesman at the time said, "Ah, but the MoD Police do not have much contact with the public"—after which we had to remind him about Greenham Common.
My concern began with Menwith Hill and Fylingdales. Extending the powers of the Ministry of Defence Police is not simply to do with the current terrorism Bill. It raises large questions about civil liberties and the kind of demonstrations in which many of us took part in our youth. That is why we wish to circumscribe the extension of these powers as specifically as possible to matters concerned with reasonable suspicion of terrorism.
§ Lord Bach
I appreciate that the thinking behind many of the amendments is far from absurd. It is concerned with the very important issue of civil liberties, which my noble friend Lord Rooker has dealt with on many occasions. However, it is still my submission that in this instance we may be left with absurd situations if the amendments are agreed to. That is perhaps another way of putting the point.
746 The noble Earl, Lord Onslow, referred to a citizen's power of arrest. Of course, the citizen's power of arrest exists, but no one would claim that it is the equivalent of a police officer's power of arrest. If these amendments were agreed to, a Ministry of Defence policeman would not be entitled to stop and search, let alone arrest. The powers of arrest of a citizen are extremely limited and arise mainly where there is certainty that a crime is being or has been committed. Reasonable suspicion is not always enough. A police constable can rely on reasonable suspicion and use a range of powers to prevent a crime occurring and to detain persons to confirm or eliminate criminality. There is a marked difference between I he powers given by our laws to a citizen when he or she bravely makes an arrest and the powers given to a police officer when he or she stops and searches someone or makes an arrest.
I should say to the noble Lord, Lord Wallace, that we do not accept for one moment that the Ministry of Defence Police do not have contact with members of the public. There is enormous contact between that police force and members of the public. Anyone would think that members of the MoD Police dealt only with people in uniform. That is not the case. They police housing estates in which crimes occur; they undergo the same basic training as other constables; and their primary role is to deal with civilians, dependants, contractors, trades people and visitors to sites. We do not concede for a moment that they have less experience of dealing with people than other police officers.
§ Lord Monson
As I understand it, at the moment. if a Ministry of Defence Police officer or a British Transport Police officer sees a man picking someone's pocket or driving a vehicle with a defective rear light outside a defence establishment or British Rail property respectively, he cannot do anything about it. The Minister is maintaining that this is an absurd situation and that it will continue to be the case if the amendments are accepted—even though picking pockets and driving with a defective rear light are absolutely nothing to do with terrorism, which is the purpose of the Bill.
§ Earl Attlee
The noble Lord, Lord Wallace of Saltaire, prayed in aid my name in support of the amendments. However, I support the Government's provisions. The difficulty with the Armed Forces Bill was that, effectively, the provisions were bounced upon us quite quickly over a quite short time-scale, and therefore the House rightly invited the Government to withdraw them. We have now had more time to think about them, post Armed Forces Bill, and I support the Government's provisions.
§ Lord Bach
I shall attempt to answer the question raised by the noble Lord, Lord Monson. The Bill will allow the Ministry of Defence Police and the British Transport Police to act on their own only in the circumstances referred to where there is no opportunity to make contact with the civil police. 747 Where there is a possibility of doing that, and of avoiding the crime, that is their duty. They will be allowed to act on their own only if there is no chance of contacting the civil police—because the offence is immediate or because of the particular circumstances. Members of the public would think it peculiar if someone who was a trained police officer was not able to intervene in such circumstances in order to prevent a crime being committed.
§ Lord Monson
That is the case at present, is it not? As matters stand, MoD and BTP officers cannot intervene.
§ Lord Faulkner of Worcester
Does my noble friend recall what happened in 1994, shortly before the Lord Mayor's Show? A police constable—admittedly from the civil force, but that is important, as I shall explain—routinely stopped a man who was having trouble with the gears of a van, and who took out a gun and shot him? The van was found to contain explosives. Had that officer been a member of the Ministry of Defence Police or the British Transport Police, he would have had no power to order the man to stop the van and explain what he was doing. These two clauses are important, because they will give such police officers the protection that the civil police would have in those circumstances.
§ The Earl of Onslow
Has the noble Lord had vast correspondence from the general public and seen leaders in the newspapers saying, "We cannot allow this anomaly to go on. We must give the Ministry of Defence Police extra powers"? I simply do not believe that.
In the case referred to by the noble Lord, Lord Faulkner, the policeman stopped the man purely by accident. It had nothing to do with suspecting that the man was a terrorist. It was because the wretched car would not work. No Ministry of Defence policeman would assume, even now, that because the car was not working he had to stop the man or that he might be shot or find explosives. The 1994 corollary does not wash.
Those of us who are worried about the creeping creation of a national police force would be quite happy to have a general debate on the need for such a force and on its proper constitution. There may be a case for that. But the trouble is that it is being introduced under the guise of something else, by stealth, and without proper thinking behind it. That is the complaint. I am convincible of the need for a national police force. I am not convincible of the need to introduce it in dribs and drabs, without a proper plan.
§ 5.45 p.m.
§ Earl Attlee
If the British Transport Police or the Ministry of Defence Police intervene outside their current jurisdiction using the new powers, can the Minister confirm that Home Office police forces will have primacy over the handling of an incident?
§ Lord Bach
Yes, I can give that confirmation. I am grateful to my noble friend Lord Faulkner of Worcester for his example. I could give others, but it may not be necessary to do so. I appreciate and respect the concern expressed by the noble Earl, Lord Onslow, about civil liberties and the need not to change matters just for the sake of it. But I am afraid that, following the events of 11th September, we live in a different world. They woke us up to what terrorists were capable of. Perhaps we should have woken up sooner—I know that noble Lords on all sides of the Committee feel that we should have done so.
The British public would not understand it if an MoD policeman saw some suspicious activity—whichcould not necessarily be connected with terrorism at the time but which later turned out to be a preliminary act in the course of committing a terrorist offence—and that officer was not able, because of the law, to intervene and possibly stop the event taking place. That is not an attack on civil liberties. That is protecting freedom, is it not?
§ Lord McNally
The Minister keeps returning to the mantra, "Things changed on 11th September". We all agree on that. But we understand that, tomorrow, the Home Secretary will publish a White Paper on policing which may involve new primary legislation on policing. Surely the noble Lord is not suggesting that in the new post-11th September world we should abandon the normal procedures of parliamentary scrutiny for powers that are sought by the executive. That is the point that Ministers seem unwilling to accept. Following the events of 11th September, there are matters requiring immediacy and urgency that both Houses are ready and willing to concede. But there are other matters which must receive proper scrutiny. I suspect that, tomorrow, the Home Office will announce matters covering the police which will certainly reflect on the events of l1th September, but which will also need the kind of close scrutiny that Parliament must protect and must reserve to itself.
§ Lord Bach
I do not think that, during the course of my brief foray into the Bill, I have said anything to imply that I do not believe that it is entirely appropriate that both Houses of Parliament should scrutinise the Bill with enormous care, as the Committee is doing at present. It is absolutely right and proper that it should do so. Parliament is a protector of our freedoms. But the Government are also entitled to give their views as to why we believe that certain actions and certain changes are necessary. As we have all woken up to a certain extent since September 11th, we can, with some justification, defend what we are doing on that basis. I hope that the noble Lord is not suggesting—I do not believe that he
749 is—that this particular Minister, or any Minister in this place. is suggesting that proper scrutiny is not a necessity for a Bill of this kind.
§ Lord Dixon-Smith
We have had a good debate on this group of amendments. The Minister has rightly laid out the dilemma in the existing position as regards Ministry of Defence Police and the British Transport Police. I accept that there is a logical case for what the Government seek to do in the Bill. That, however, is not the argument.
The argument is about whether it is appropriate to deal with matters of this nature, which are more relevant to normal police matters and normal criminal legislation, in a Bill that is being rushed through its parliamentary procedures as a specific consequence of the tragic and dreadful events of 11th September. That is the fundamental argument which will probably continue to divide us.
As I have said, this is the fifth consecutive day of debate on the Bill. That is not unprecedented, but it is extremely unusual in the practices of this House. I speak as someone who has had to spend a great deal of time on the Bill, as have the Minister and his colleagues. I should be surprised if anyone who has been through that mill is prepared to say, hand on heart, that we have been able to give complete and adequate consideration to the Bill's provisions and to their consequences. I do not feel that we have been able to do justice to the seriousness of the matters before us because of the procedures that we are indulging in. I have said sufficient. This has been a recurring theme. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 161 not moved.]
§ On Question, Whether Clause 98 shall stand part of the Bill?
§ Lord Wallace of Saltaire
It is undoubtedly convenient for the Government to bring back as part of this Bill what would otherwise have been a separate short Bill on the future of the Ministry of Defence Police. However, we are not here to assist the convenience of the Government.
Paragraph 68 of the report of the Joint Committee on Human Rights, published on 14th November, notes that the powers that will be conferred on the Ministry of Defence Police engage rights under eight different articles of the European Convention on Human Rights. The report points out:The ordinary constabularies are subject to elaborate mechanisms designed to provide safeguards for those rights, including subjection to various Codes of Practice, recording requirements, complaints procedures and training programmes.… It is not clear how those safeguards will be applied to, and operated by, the Ministry of Defence Police, the British Transport Police, and the Atomic Energy Authority special constables".The report then says, in some of its strongest language:Until the extent to which the safeguards surrounding the procedures of Home Office police forces will apply to the Ministry of Defence Police, the British Transport Police, and the Atomic Energy Authority special constables in their new functions is 750 clarified, we are unable to be confident that the Bill provides adequate safeguards against abuse of or interference in human rights. We draw these matters to the attention of each House".That is as strong an invitation as we could ask for us to give very careful consideration to these clauses.
As I have said on a previous amendment, there is a long history of discussion on the Ministry of Defence Police. There have been a number of worrying cases of the use and abuse of powers against people innolved in demonstrations against American intelligence bases—particularly those in Yorkshire and elsewhere—or against nuclear weapons. The particular issue of American intelligence bases gives rise to another set of large questions about extraterritoriality and about the Ministry of Defence Police in effect operating under the authority of another government, which creates particular concerns about the protection of human rights and civil liberties.
The particular issues on which those sections of the Armed Forces Bill failed to meet with the approval of this House were the authority of the police committee and whether the force should be subject to the same sort of independent police committee as civilian forces have. We also retain concerns about the quality of the complaints procedures and training programmes. I have heard unofficially from a number of members of the Association of Chief Police Officers that many of them have some reservations about the quality of the training programmes in the Ministry of Defence Police.
I give the Government notice that we are minded on these Benches to re-introduce on Report the amendments that led to the failure of those clauses in the Armed Forces Bill just before the election. Those amendments dealt with the establishment of an autonomous and independent police committee for the MoD Police.
When I saw the list of members of the police committee of the MoD Police I felt with a sinking heart that I knew far too many of them. They are almost all officials. They operate with a secretary from the Ministry of Defence. They are in no sense independent. We are entitled to ask under any conditions, even when we are concerned with the prevention of terrorism, that those safeguards should be provided. We expect to have some assurance from the Government by Thursday at the latest that if they continue to find it convenient to include Clauses 98 and 99 in this Bill, they will yield to the House on the issues raised in the report, which we also raised during the debates on the Armed Forces Bill.
§ Viscount Bledisloe
On the previous amendment, my feelings and sympathy were entirely with the Minister, because, pace the noble Earl, Lord Onslow, the fact that clauses produce an undesirable result is no possible argument in favour of amending them to produce yet more absurd results.
However, on the Question whether the clause shall stand part, I am much more in sympathy with what the noble Lord, Lord Wallace, has said. The powers conferred in the clause raise many problems that cannot properly be addressed within the time frame of 751 the Bill. The Government have two choices. First, they could abandon the clauses and bring them back at a later stage in a police Bill. However, if, as I gravely suspect, they are not minded to do that, surely they have given a cogent reason why this part of the Act—indeed, the whole Act—needs a sunset clause. Afterall, only a quarter of an hour ago, the noble Lord, Lord Bach, candidly said that only time would show whether the Government had got the right answer. Surely that is an overwhelming reason for the whole topic to be revisited in a short time in a calmer and more leisurely manner.
§ The Earl of Onslow
I was very struck by what the noble Lord, Lord Wallace, said—this had slipped mymemory—about the fact that there is to be a new report on the police. The current worry about police competence and behaviour is wider than I have been aware of during my life. Home Office leaks suggest that the Home Secretary is thinking of taking powers to remove chief constables if they do not perform. That will need legislation. If that is the case, I wonder whether it would not be better to drop these clauses and put them into a police Bill. If any of the leaks coming out of the Home Office are right, such a Bill will be necessary. Then we could look at control, discipline, civilian non-government influence and other issues—and even, possibly, whether there is a need for specialist Ministry of Defence and transport police forces.
The proposals may be the right answer, but surely it is miles more sensible to act with thought and consideration. I do not believe that a three-month or six-month lack of extended powers for the Ministry of Defence Police will make a smidgen of difference to terrorist activities. Perhaps I am a little cynical, but I cannot see any way in which the Bill would have had any effect on the behaviour of the terrorists before September 11th. There was a general failure of intelligence. Had the intelligence been as good as it was in the novel The Day of the Jackal we would have got the terrorists and stopped what happened. There is an element of over-reaction now, some of which I go along with partially. Going back to what the noble Lord, Lord Dixon-Smith, said, please let us think before we do anything. If we do, we might have a chance of getting it right. If we do not think, we will not get it right.
§ 6 P.m.
§ Lord Burnham
Your Lordships are always being told that we should not make Second Reading speeches in Committee. I fear that on this occasion, a number of Members of the Committee, including the Minister, are making speeches that relate not to this Bill but to a previous one—the Armed Forces Bill—which we discussed before the general election.
The noble Lord, Lord Bach, knows only too well that when we discussed that Bill we said that it was not necessary to produce it in quite such a hurry and that it need not be in force before December. However, the Government decided that they wanted to get on with 752 it in May. As a result, in spite of what was said by my honourable friends in another place, it was decided to eliminate Part 4, comprising Clauses 31 to 34, from the Bill.
I listened to what Members of the Committee and the Minister had to say on the previous amendment. The Minister is singing the old song that he and his noble friend sang when we said that we were working in too much of a hurry and could not resolve matters. That was particularly true on the issues raised in the previous amendment about the powers of the Ministry of Defence Police and how much authority they have outside their immediate areas and various other matters.
The Minister also said that the Government did not intend to revive Part 4 of the Armed Forces Bill. However, it seems appropriate that because there is so much argument about the Ministry of Defence Police that such a Bill should be revived. We should have the chance to resurrect that part of the Armed Forces Bill, have full-blooded debates and procedures on it and eliminate those parts of this Bill which would be inappropriate if such a debate were to take place.
§ Lord Bach
I have already explained to the Committee the purpose behind Clause 98. It permits the Ministry of Defence Police to act outside their normal jurisdiction in certain defined, limited circumstances. The Committee knows well—some Members more than others—the history of the Bill discussed before the general election and will know of the existing authority that the Ministry of Defence Police have under the 1987 Act to exercise police powers outside the defence estate at the request of a Home Department police officer provided it is in the vicinity of the defence property. I do not know whether that right is being objected to.
I take the point made by the noble Lord, Lord Wallace, that it is an issue that he has raised many times over the years. We believe that for the situation in which we find ourselves, which is likely to last. it is important to make these changes now. We reject the suggestion of the noble Earl, Lord Onslow, that all this is completely irrelevant and has nothing to do with what happened before or after 11th September. We do not believe that. We think that it is time that we got it together to defend ourselves in the best possible way against terrorists and others because that is what the public expects of us.
It is in that spirit that we bring the clause to the Committee. We believe that the limited nature of what we are suggesting and the absurdities that the proposed changes would represent, as discussed at length on the previous group of amendments, show that it is a necessary clause to the Bill. It is a sensible clarification and extension of the powers of the MoD Police to enable them to do the job that they have been set and to allow further co-operation between police forces. I repeat, and make no apology for doing so, that the clause meets the expectations of the public.
These powers are especially important because of the heightened terrorist threat when defence propertyagain I am repeating myself—could so 753 easily be a terrorist target. It is right to scrutinise and consider these clauses carefully, which is what is happening. The easy historical criticisms of the Ministry of Defence Police seem to be completely and obviously misplaced. The MoD Police are subject to the Police Complaints Authority in respect of complaints by virtue of Section 96 of the Police and Criminal Evidence Act. That has been the case for a long time.
We are considering the issue of police committee membership. Members of the Committee will know that we have added three independent members to the committee and we are looking to see whether more needs to be clone. It has been suggested that meetings of the police committee should be held in public. The chief constable has said that he would welcome that proposal in the light of his experience in the West Yorkshire Police. We are not determined that the structures of the Ministry of Defence Police should necessarily remain the same. Things are moving along.
I return to the argument that for the circumstances in which we find ourselves Clause 98 is a sensible and limited response so that the Ministry of Defence Police can carry out the functions that they are meant to do. I hope that Clause 98 will stand part.
§ Lord Wallace of Saltaire
The Minister has failed to persuade us that Clauses 98 and 99 are a necessary response to terrorism. I welcome his suggestion that things are moving, but I remind him that all is still not well with the Ministry of Defence Police. A number of inquires are under way and there are unresolved complaints that leave big questions as to whether or not they have the same standards as a civilian force.
Of course, there are problems with the protection of defence property, which is the fundamental role of the Ministry of Defence Police. We should also remember that defence property can be sensitive in a host of ways if we come back to the question of the breaking of the ABM treaty and the use of Fylingdales in support of a missile defence system that is owned and operated on behalf of the United States. We shall have a sensitive domestic debate in which the Ministry of Defence Police will again come into contact with civilians who are demonstrating, which has nothing to do with terrorism but which may have a great deal to do with sensitive issues of domestic politics and foreign policy.
I am very sympathetic to the points made by the noble Earl, Lord Onslow, that a police Bill would be a more appropriate place to discuss the relationship of these specialised forces. I was informed yesterday that there are nine such forces, although my informant could not name them all. He mentioned the Tilbury Docks Police, but the three that we have been discussing are the most important. In such a Bill, the role of these specialised forces could be discussed comparatively. The way in which they operate and their standards with regard to the protection of civil liberties and complaints procedures could be 754 compared with the Home Department police forces and thoroughly debated.
As regards defence property, we are thoroughly in favour of the MoD Police being given all the necessary powers to protect it. As regards the relationship with people off a base or at some distance from a base, we then become involved with much more sensitive issues. We shall return to the matter on Thursday. We may well wish to press the point and remove the relevant clauses from the Bill. However, there is room for further discussion between now and then as regards what the Government might wish to concede. I refer to further movement in terms of responding to the extremely critical remarks in the report of the Joint Committee on Human Rights. However, for the moment, I withdraw my opposition to the clause.
§ Clause 98 agreed to.
§ Clause 99 agreed to.
§ Clause 100 [Jurisdiction of transport police]
§ [Amendments Nos. 162 and 163 not moved.]
§ Clause 100 agreed to.
§ 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 755 Government should be subject to a statutory 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,
The [Bill] provides for consultation with communications providers at the point of production or revision of a code. There are a number of other interested parties who should be involved in any consultation process. Given the Commissioner's role in enforcing legislation affecting the retention of data it is essential that she be included formally in the consultation process".
We on these Benches agree with that view.
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.
§ 6.15 p.m.
§ 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 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 757 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 1 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 he 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-afacility 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 758 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,prepare and publish a draft of that code; and"—here is my point—consider any representations made to him about the draft".I believe that, in its own way, Amendment No. 164B was designed to cover the same ground; namely, that the consultation should be wide enough to allow anyone with an interest to respond to the draft code. I should have thought that that would be helpful to the Secretary of State. Therefore, I wonder whether the Minister might review that point.
§ 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 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:
Page 62, line 17, at end insert—
"( ) Before issuing or revising a code under this section the Secretary of State shall consult with the Information Commissioner."
§ On Question, amendment agreed to.
§ 6.30 p.m.
§ The Earl of Northesk moved Amendment No. 165:
Page 62, line 18, leave out subsection (4) and insert—
"( ) 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 I 76B. 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 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:
Part 11 would allow for the creation of a large database of information, which could significantly intrude on privacy rights. In light of this it is particularly important that the code and any directions under Clause 102 should be subject to parliamentary scrutiny".
§ 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.
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.
762 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 he 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:And we invite the House to consider the most appropriate way in which this principle should be given effect. A possible method would be the draft of any code under Clause 102, to be submitted to the Joint Committee on Human Rights for its scrutiny".Would the noble Lord consider that a sensible way forward?
§ 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.]763
§ 6.45 p.m.
The Earl of Northesk moved Amendment No. 167A:
Page 62, line 22, leave out subsection (5) and insert—
( ) A code of practice, issued and revised by the Secretary of State and business, may contain such provisions as appear necessary for the purpose of safeguarding national security.
( ) Provisions in the code of practice will be proportionate to what is required for the safeguarding of national security.
§ 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:
Communications data has been central to the investigation into the terrorist attacks of 11th September. This data has been available because of the excellent co-operation shown by communications service providers.".—[Official Report, 27/11/01; col.152.]
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:
strictly in the case of a criminal investigation against suspected terrorists".
But as the noble Lord, Lord McIntosh of Haringey, stated on Wednesday of last week:
When the anti-terrorist squad, for example, or any other bodies look for terrorism, they look for activities that one can discover but which may not themselves be terrorist activities. Those activities involve other criminal activities that could lead one to terrorists".—[Official Report, 28/11/01; co1.401.]
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:
There is no express limit to the scope of the powers. They could be used to secure highly sensitive data for the purpose of investigating very minor offences or even for monitoring people's communications without any grounds for suspecting them of any offence or of threatening national security".
§ 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?764
§ 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. Do 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:
It raises a number of concerns about its compatibility with convention rights. The starting point must be that the proposed legislation will involve an interference with the Article 8 rights of individuals".
§ I shall take this opportunity to make more detailed comments about the amendments. Amendments 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.
§ Amendments 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
in due course, particularly, as I understand it, in the absence of any formal response as yet to the point. It stated:
These provisions raise complex and often controversial issues. It seems questionable to us that they should be attached to a Bill on terrorism and security. Is their inclusion compatible with the proper exercise of the functions of Parliament and the proper operation of the principle of parliamentary sovereignty?".
I beg to move.
§ 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 preemption.
§ 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,a postal or telecommunications operator",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 766 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 he 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,for the purposes of the prevention or detection of crime or the prosecution of offenders".That is the broadest possible inclusion provision. The rest of subsection (5) states: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 767 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.
§ 7 p.m.
§ 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,may only authorise or require that",which leads one to look for the words "shall be". Without those words I cannot interpret the effect of the subsection. I do not want to appear difficult, but it would help to know the impact of the subsection.
§ 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 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?
769 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 ally 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 770 "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:An authorisation under section 22(3), or notice under section 22(4), may only authorise or require that data",it would better say,may only authorise or require access to data".
§ 7.15 p.m.
§ 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 been 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 771 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 772 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 773 course I shall also give the answer on the definition of communications data. Both of these pieces of legislation refer to national security and the prevention and detection of crime. Maintaining the dual structure of national security and crime prevention ensures that terrorist acts are fully covered.
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 774 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 775 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 he 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.
776 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. 777 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:any information which includes none of the contents of a communication … and is about the use made by any person—Paragraph (c) provides:
- (i) of any postal service or telecommunications service; or
- (ii) in connection with the provision to or use by any person of any telecommunication service".any information not falling within paragraphs (a) or (b) that is held or obtained, in relation to persons to whom he provides the service, by a person providing a postal service or telecommunications service".I have not quoted the provision verbatim, but that is the general thrust of the definition of "communications data" in the 2000 Act.
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 778 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 779 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 780 left out one or other limb the code of practice would be a glass half-full. I rest my case on the basis that, since it is voluntary, industry must agree it; otherwise, there is no voluntary code. The Information Commissioner will be involved, otherwise we will not get a voluntary code. For those reasons, I am quite confident that by the time a voluntary code has been agreed all the nuances and doubts about Clause 102 and subsection (5) will have been settled to everyone's satisfaction.
§ Viscount Goschen
Perhaps I may raise a small point. The Minister said that the industry has to agree. Is that really the case? I had thought that industry had to be consulted; that is, that the Secretary of State will consult and then decide whether to agree with the sentiments expressed by industry.
§ Lord Rooker
I have repeated the point that the Government will not impose the code. It is a voluntary code. I cannot make the point any more clearly than that. If industry does not want the code of practice, it will walk away from it. We would then have to look to the powers in Clause 103. We want to put in place a working voluntary code. I am being tautologous because I cannot explain this in any other way. Perhaps noble Lords have an agenda, or it may be a question that the penny has not dropped, or that I have not made the point.
I appreciate the healthy degree of scepticism felt about what the Government are doing and about the intentions behind those actions. I am trying my inadequate best to make the point that if industry does not bite as regards the voluntary code, it will walk away from it. We shall then have an unworkable voluntary code and we shall have to move on to a statutory code. We do not want to do that. Our first priority is to establish a working agreement with industry and the Information Commissioner to establish a voluntary code.
§ Lord Lucas
The note from the Box has given it all away: ordinary crime will serve as a good enough purpose for keeping such information. So it might, but that has nothing to do with what should he covered by this Bill. It would be good to see this provision in another Bill dealing with ordinary criminal matters. That would give us time to consider its implications; that is, whether we would like to see traffic violations and other offences subject to the extended timescales contained in this legislation rather than those that were implicit in the Regulation of Investigatory Powers Bill.
I have two further questions for the noble Lord. First, I refer to the point made that the data to be retained will be those which companies ordinarily would keep. If I understand that correctly, it will not involve the header information on packets in Internet traffic, which makes up the vast proportion of communications data carried over the Internet. That would mean that, for example, terrorists using a hotmail account or those wise enough to attach their own server to the end of a phone line will be entirely exempt from any of the effects of this part of the legislation because none of the communications data 781 concerning them would be caught under any circumstances. I would be grateful if the noble Lord could confirm that that is what he meant to say.
Secondly, can the noble Lord answer the question I put to him as regards the Data Protection Act; that is, whether any data held under this provision will be subject to the right conferred by the Data Protection Act for the individual concerned to request a copy of it?
§ Lord Rooker
To be honest, I know to my certain knowledge that I have answered that question. I have said already that the data will be retained but that it could not be accessed by an individual if it was disproportionate. I have covered the point regarding the Data Protection Act. I do not see any affirmative nods from noble Lords opposite, but I know that I have addressed this matter.
Individual access to data would be subject to the provisions of the Data Protection Act. However, there is the issue of disproportionality as regards the individual. In an earlier intervention—I do not know whether the noble Lord's remarks are speeches or interventions—the noble Lord made the point that the threat or, if you like, the attack on the system was to overload it with requests for information. That was a wholly negative point but, nevertheless, one that has been well noted. So far as the individual is concerned, the Data Protection Act will cover that.
As regards the noble Lord's other point on extra data, I probably now have to hand an extra note. I do not fully understand the details of headers and so forth. I have never used hotmail, although I have used Internet and e-mail services. I believe that I shall have to repeat what I said with regard to Amendment No. 177H. If I have not addressed the point, I apologise to the Committee.
§ A noble Lord: Amendment No. 177H is a future amendment.
§ Lord Rooker
Why am I dealing with it now? If I can answer the noble Lord's question then perhaps I shall be able to avoid an extra debate later on. That might be helpful. I shall put on the record a note that I have on Amendment No. 177H, which may answer the point put by the noble Lord. I am keen to give as many detailed answers as possible.
The amendment would require the code of practice, agreement or direction issued under this part to include transitional arrangements. Under the Data Protection Act 1998, retention periods need to be proportionate to the purpose for which the data were collected. Therefore data which will be retained under the code of practice, for both business and law enforcement purposes, will be stored for a different period from data which are held at the moment for business purposes only.
In addition, communications service providers may need time to adjust and possibly invest in new retention and/or retrieval systems. So we recognise that the code will need to make provision for 782 transitional arrangements. However, this amendment is unnecessary. Transitional arrangements are a matter for implementation and will be considered in the course of consultation on the code of practice. Our expectation is that a voluntary code will work and that service providers would not sign up to a code which was not reasonable and practicable.
On the point made by the noble Lord with regard to hotmail and what terrorists might do, to pure lay people like us it seems that they could not possibly be found out if they used other means which I shall not describe. I am surprised at the technological proficiency that is around these days, but if terrorists are in any case technologically proficient, we shall just have to keep one step in front of them.
§ Lord Lucas
If I have understood correctly what the noble Lord said about the Data Protection Act, the data will be accessible by the police but not by the individual to whom that data refer. I am not sure whether that is a delightful conclusion.
So far as concerns Internet headers, I hope that the noble Lord will suggest to someone in the Box that they might drop me a note to answer my question with rather more precision. I shall then be content.
§ The Earl of Northesk
Dark secrets notwithstanding, this has been a wide-ranging debate. I thank all noble Lords who have contributed. I have not kept score, because there was no real need so to do. except to say that, regrettably, the Minister has scored nil.
This side of the Committee has come to an agreement on what would be an appropriate way forward. It is that which makes the Minister's position unsatisfactory to us. I take heart from the opening remarks made an hour ago by my noble friend Lord Goschen. This debate must have felt quite like old times for the noble Lord, Lord Bassam of Brighton. It also struck me that my noble friend has all but shot the Government's fox in explaining that the amendments need not constrain the Secretary of State, or the wholly admirable task ofcountering terrorism, in the way that the noble Lord has sought to argue throughout our scrutiny of the Bill thus far.
I should also point out to the Minister that I have always accepted the Government's assurances on content, a point which I made on Second Reading. Indeed, all my remarks on this amendment have been concerned with the pure business—to use the noble Lord's own word—data. There is no confusion in my mind on that point. I can also assure the noble Lord that I am not confused about the distinction between "retention of" and "access to" data. However, the difficulty is that while the noble Lord insists that all the Government want to see retained is billing data, that is not quite what is set down in the Bill. As drafted, the provisions raise the prospect of vast accumulations of data being retained, which in turn raises concerns about practicality that I have already mentioned.
Most kindly, the noble Lord read out the definition of communications data from the notes on the regulation of investigatory powers to demonstrate the 783 point. In pursuing that a little further, the Bill also confers powers to track the movements of everyone who carries a mobile phone. If business data were the only data already retained, no legislation would be needed. Furthermore, access to such business data is relatively easy. Part of the point of that is that RIP Act powers did not anticipate any degree of bulk retention when the Bill was before Parliament.
As I have said, it would be easy to distinguish between data held for business purposes and for the purposes that are specified in the Bill. Thus a distinction must be made which the noble Lord has not quite explained to our satisfaction. CSPs do not want to hold the data the Bill demands they should hold, albeit they can distinguish the "business data", to use the noble Lord's term.
As to the voluntary code, it is my understanding that the industry has been working towards one for years. The problem is that it has never had any agreement from governments—nor, indeed, from law enforcement authorities—as to what is required of it. The noble Lord may try to rest his case on the code being voluntary, but that cannot work if delivery of the voluntary code is stuck in a pipe in some way.
I make no comment about the futility of this operation, but I am intensely disappointed by the Minister's response—the more so because my noble friend Lord Goschen has indicated a way out. I shall, of course, read extremely carefully what the Minister said. I have no doubt that I shall return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 167B to 171 not moved.]
§ Lord Bassam of Brighton
I beg to move that the House do now resume. In doing so, I suggest that the Committee should recommence not before one minute past nine.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.W