HL Deb 13 November 2003 vol 654 cc1573-96

3.30 p.m.

Debate resumed.

Viscount Goschen

My Lords, those noble Lords fresh to the debate, who did not attend before lunch, will have missed the extraordinary spectacle of the noble Baroness, Lady Hollis, arguing vigorously against government legislation—that is, the orders regarding the Regulation of Investigatory Powers Act being considered today—being applied to her own department. A number of noble Lords in the Chamber seemed to have puzzled faces because the noble Baroness's comments appeared to drive a fairly substantial coach and horses through the arguments being advanced by her noble and learned friend the Attorney-General as to the effectiveness and the necessity of the regime.

Indeed, we live in dangerous times. No Member of the House who spoke on any of the orders today—either against or for the amendments—would do anything which would weaken the ability of the appropriate agencies to prevent terrorism, nor to prosecute serious offenders. However, we must recognise that the public's trust in the integrity of the law enforcement process will be weakened if advantage is taken by the Government to take additional powers in this climate without proper safeguards. If it were realised beyond this Chamber and beyond the speciality press the degree to which the Government have awarded themselves new powers under the two Acts to which we are referring—that is, the Regulation of Investigatory Powers Act and the Anti-terrorism, Crime and Security Act—there would be considerable disquiet.

In addition, there is the great laundry list of organisations contained in the communications data order which is being added to those bodies which can acquire communications data. Not only the police, security services, Customs and that type of organisation, but also National Health Service trusts, ambulance services, the Department of Transport and fire authorities will be able to acquire all types of data under Section 21(4) of the Act. Of course, those are all very worthy bodies, but as the noble Earl, Lord Erroll, asked just before lunch, why could their inquiries not be forwarded through the police? Would it not be much more appropriate to use a regime through the police, such as that for search warrants? If the net is cast absurdly wide, abuse would not be just expected, it would be guaranteed. With the addition of the bodies contained within the communications data order, how many additional individuals will be authorised to acquire the data?

There has also been a great deal of argument about whether the requisite powers already exist and whether they are just being brought under the safeguards of the Act. Up to a point, that may be so. But are the original powers being rescinded? When my noble friend Lady Blatch asked that question this morning, I think that the answer from the noble and learned Lord the Attorney-General was that if the powers were rescinded, it would be difficult not to disrupt other powers. That appears to be an extremely weak argument. How can the Government have it both ways? How can they say that while they have the existing powers they would like to have them under a new regulatory regime, but they will retain the old powers, just in case.

We are also concerned about the definition of communications data. I recall the long and tortuous debates—the noble Lord, Lord Bassam, represented the Government—when we discussed the original Regulation of Investigatory Powers Bill and the great changes made in another place because of those representations. The key point is that it is far from clear. It was not clear three years ago and it is less clear now.

In an age of cookies and hyperlinks being attached to e-mails and voice mail being accessed electronically, are these communications data or communications themselves? They may sound like esoteric points, but they are very important. The noble and learned Lord drew a firm parallel between the interception or the monitoring of communications data and the interception of communications itself. When communications largely were written by letter, that clear definition could be made; now it cannot. As we have heard, a firm picture can be built up of an individual's life and with whom he or she is in contact, just by the use of communications data.

We need specific answers from the noble and learned Lord about the capacity that the commissioner will have to oversee the enormous number of requests. The Home Office has admitted to at least 500,000 possible requests. I should be interested to know how that figure compares with the total number of police investigations. But it is a huge number, which the industry thinks might be three times higher. We have heard from some speakers today that the commissioner will have a staff of four to monitor a possible 1 million transactions, which would be extraordinarily difficult to do. What is the commissioner's budget? How many staff will there be? How many inquiries do they expect?

The noble Lord, Lord Phillips of Sudbury, also put a powerful case for a provision to be made to require the commissioner to inform the subject of a wilful misuse, subject to the interests of national security. At Question Time yesterday, the noble Baroness, Lady Scotland, was asked that exact question by the noble Countess, Lady Mar. The Minister ducked the question just as it was ducked earlier today. How can one complain without knowing whether abuse has been made of one's own data?

A number of serious concerns have come from around the House. I suggest that satisfactory answers are needed before accepting the orders.

Lord Goldsmith

My Lords, I shall take the orders in turn. Many points have been raised; I shall try to deal with what seem to be the main points raised in opposition to the orders. If there is a point or a question that I do not address, I shall seek to do that later. No doubt noble Lords who consider that it is necessary for the purposes of the debate to ask questions will do so, but I am very conscious of the time and the other business of the House.

I shall start with the intrusive surveillance order. If my memory and my notes are right, the only questions in relation to that order were those asked by the noble Baroness, Lady Blatch. First, how will that now relate the system in Northern Ireland to that in England, Wales and Scotland? Secondly, why cannot the Northern Ireland police deal with the matter?

As the noble Viscount, Lord Colville, said, this will bring Northern Ireland into line with England and Wales. It will mean that the Northern Ireland Prison Service will be able to do what the Prison Service in England and Wales can do. Rather than creating a different system, it will be brought into line.

In answer to the question why the police cannot deal with it, it is for the prison services to manage their estate, not for the police to do so. Just as in the case of England and Wales, if there were any concerns that a mutiny or a hostage situation in a prison might arise, it would be for the prison services to take steps to deal with it, and so it will be for the prison service in Northern Ireland to deal with.

Lord Smith of Clifton

My Lords, I thank the noble and learned Lord for giving way. I apologise for having intervened at an inappropriate moment but I, too, asked a question about the prison service for Northern Ireland.

Lord Goldsmith

My Lords, the noble Lord is quite right; I was just about to come to that. He asked whether the Northern Ireland Assembly can be told about intrusive surveillance conducted by the Northern Ireland Prison Service. The answer is no, but the Chief Surveillance Commissioner reports on the exercise of powers under Part II of RIPA, and that report will be published by Parliament. So the information will be made available in that form, certainly to the Northern Ireland Assembly. However, no report as such is made to the Northern Ireland Assembly. I hope that I have given a reasonable assurance.

As regards the first order on intrusive surveillance, the only objection raised about it, if objection it was, was the question: why cannot the police deal with it? The answer is that it is simply not appropriate to tell the Prison Service that, while it is responsible for managing the estate, it must look to someone else for this. We do not expect that to happen in England and Wales and we should not expect it in Northern Ireland. I hope that, at least so far as concerns that issue, the noble Baroness will not press her amendment.

I turn now to the second order covering directed surveillance and covert human intelligence sources. I did not note any specific objection made to that order. Thenoble Baroness, Lady Blatch, asked a question about the definition of a "service manager". Perhaps I may deal with that.

Baroness Blatch

My Lords, for the sake of accuracy, I believe that the noble and learned Lord is speaking to the third order on the Order Paper, not the second one.

Lord Goldsmith

My Lords, yes, but it is the second order that I dealt with earlier; I addressed them in a different order. However, the noble Baroness is quite right. Perhaps I may continue to deal with the orders in the same way that I addressed them in my opening remarks.

The only point I noted in relation to this order was a concern expressed about the description of a "service manager". I took that reference in the order to be the identification of prescribed officers for local authorities. The description does not arise in relation to any other body, but I want to refer to a comment made by the noble Baroness about the Environment Agency. The order states that the prescribed officer for local authorities is an assistant chief officer, assistant head of service, service manager or equivalent.

The simple point is this: to find titles for different local authorities which represent the same level of seniority requires the use of a number of terms, reflecting how they are used in different local authorities. I am told by the local authorities and by the commissioners that it will be well understood that to describe someone as a "service manager or equivalent" is to describe someone who is second or third in the chain of command, similar to an assistant chief officer or an assistant head of service. I can assure the noble Baroness that the term does not cover a catering services manager.

The noble Baroness raised this point in relation to the Environment Agency, as I recall, to ask whether it could be someone who is simply a team manager. I may have misunderstood her, and if so I apologise unreservedly.

Baroness Blatch

My Lords, that is what it says in the order.

Lord Goldsmith

My Lords, the order does not refer to a "team member", it refers to an "area management team member". Being a member of an area management team is not the same as being simply a team member. With respect, that point is not a reason for opposing the order.

I turn to the communications data order, listed second on the Order Paper and probably the one on which most time was spent in debate. I start by addressing a question that was touched on by many noble Lords: why does it matter to pass this order? Two things will happen if noble Lords do not accept the order. First, by voting it down, noble Lords will be voting to strip away the safeguards which are contained in the Act and the order. It will mean that there will be no purpose limitation on access by individual agencies; there will be no limitation on the type of data that they can access; there will be no limitation on the level of person who has to authorise; there will be no independent oversight; and there will be no report to Parliament.

3.45 p.m.

The Earl of Erroll

My Lords, I rise to correct the noble and learned Lord the Attorney-General. Under the existing powers on which we would have to fall back, all those protections are already in place. Further, under the Data Protection Act 1998, the Chief Surveillance Commissioner is at present referring material to the information commissioner in order to protect the individual. I agree that, under a proper R1PA, the position would be better, but we now need the safeguards to be properly in place.

Lord Goldsmith

My Lords, in a moment, I shall outline the present position as regards the way that particular agencies access information. However, there can be no doubt about the safeguards which are set out in the order, requiring that data can be gathered only for particular purposes, only for certain types of data and authorised only by particular persons, and oversight carried out only by a particular commissioner who reports to Parliament. All those would disappear if this order does not go through.

Lord Lester of Herne Hill

My Lords, I am grateful to the noble and learned Lord the Attorney-General. Does he agree that that catastrophic consequence would arise only if the orders were not replaced by new orders that contained more effective safeguards? There is nothing to stop the Government coming back to the House with fresh orders containing more effective safeguards.

Lord Goldsmith

My Lords, we are now bringing to the House orders containing effective safeguards. To reject the orders would mean that the safeguards that we are seeking to put forward, safeguards that the industry wants, will not be put in place. With respect, it is perverse to say, "We are not prepared to accept an order containing safeguards because we are concerned about those safeguards". If we want to build on the safeguards which are set out in the order, there are ways to deal with those concerns.

I do not doubt for a moment the importance and sincerity of the questions that have been raised. The Government have made it clear that they accept entirely that the question of privacy is extremely important. Last year the Home Secretary accepted that we had got it wrong. A consultation document was put out that was well received, and I hope that noble Lords will have had the opportunity to look at it.

Let me identify some of what will happen in the future if this order goes through. We will be able to look at the commissioner's annual report. Some of the questions raised by noble Lords were based on the assumption that either there is or there might be abuse. The commissioner's report, enabled by this order, would allow us to look at what the commissioner finds. If the commissioner finds general abuse and the need for more safeguards, then that would be a matter for consideration. Alternatively—I suggest 1o noble Lords that this would be very important—if the commissioner finds that a particular authority is using the powers in inappropriate ways, he can recommend to the Home Secretary that such a person should be taken off the list. That safeguard would not be introduced if the order is voted down.

We will be able to look at the commissioner's resources. The question has been put to the commissioner as regards what resources he will need in order to take on these new responsibilities. He has not yet come back to the Home Secretary with his response. However, what resources he needs will be made available to him.

Lord Phillips of Sudbury

My Lords, I am most grateful to the noble and learned Lord for giving way. Is he suggesting that the Government are minded to bring in further powers, ones that are not available either in the present RIPA order or in the Act, which would enable the Interception of Communications Commissioner to take steps with regard to individual transgressions and to name the people concerned in his report?

Lord Goldsmith

My Lords, this relates to the amendment tabled by the noble Lord, Lord Phillips of Sudbury. If he will permit me, I should like to deal with it when I come to the amendment because I have something to say which I hope he will find helpful in relation to that issue.

I said that I wished to make two points. The first point is that the safeguards and the strict regulation that we have been discussing will not be brought in if the orders are voted down. The second point concerns what will happen to the requirement that authorities should be able to exercise these powers, which all noble Lords who have spoken agree is extremely important.

Without bringing in the RIPA power for access to communications data, authorities will be thrown back on one of two alternatives. The first alternative, which many authorities adopt at the moment, is to call upon communications service providers voluntarily to disclose data under the Data Protection Act. There is an exemption for non-disclosure. The noble Baroness looks surprised, but that is the fact. Communications service providers currently provide information voluntarily under an exemption in the Data Protection Act, most usually under the crime exemption provided in Section 29(3).

This voluntary disclosure places the communications service providers in the difficult position of having to make a decision of whether or not to exercise the exemption. With the police service, that may well be a clear decision, but with other public authorities exercising their statutory functions it may be less clear. Where a public authority which does not have an investigatory function tries it on, it may have no idea whether or not it should exercise the exemption.

Baroness Blatch

My Lords, the noble and learned Lord the Attorney-General said that if the order was not passed the public authorities would have to fall back on the voluntary powers. But it is the Government's intention to have a voluntary scheme. They have not yet expressed their intention for a compulsory scheme. Is the noble and learned Lord now talking about the merits between a voluntary and a compulsory scheme?

Lord Goldsmith

My Lords, unless I am very much mistaken, the powers in RIPA which would be conferred as a result of the access to communications data would enable people to require information to be passed to them. I am getting strong nods from the Box. We are not talking about retention of data; we are talking about the access to communications data. RIPA provides powers which do not exist at the moment and which will not exist unless and until this order is brought into effect.

As to what will happen if communications service providers simply go back to the Data Protection Act exemption, there are potential difficulties. Some have already arisen in certain cases. I am told that the Maritime and Coastguard Agency has been frustrated in trying to obtain communications data that would assist in the location of individuals reported lost in coastal waters. What happens there is that someone manages to make a call but locating that person, who does not know where he is in a storm, depends upon being able to track traffic data. The agency has been unable to obtain that information in certain cases because the service providers have been unable to assure themselves that they were exercising their exemption under the Data Protection Act appropriately.

The noble Viscount, Lord Goschen, referred to the NHS. The NHS Counter Fraud and Security Management Service has tried to obtain communications data to investigate NHS fraud—which is very important to the taxpayer and to the country—and it has found that providers are unclear about what is their service function and whether it is appropriate to disclose data.

Communications service providers have made clear that once this part of the Act comes into force they will no longer disclose information under the Data Protection Act. There is a real risk that, if this order does not come into effect, some providers will take it as a signal that Parliament is of the view that they should not provide the information. That would create further confusion and could lead to great problems, an inability to deal with important matters and perhaps even a risk to lives.

The Association of Chief Police Officers has told the Home Office and, I understand—if I am wrong, I shall withdraw the point—the official Opposition that should the communications data order fail the police service will decide to stop relying on the good will of communications service providers, as they do at the moment, and instead rely upon compulsory Police and Criminal Evidence Act production orders issued by circuit judges.

The problem in relation to that is that some crimes will go uninvestigated because the powers relate only to the investigation of serious arrestable offences; the industry will not be recompensed because the arrangements in place for providers to be recompensed will not be required; the Crown Courts would be flooded with applications for production orders; industry would incur extra legal costs in attending hearings; and there would be inconsistency because the established single point of contact system between the police and the industry would break down. The Government want to ensure that a single point of contact with the industry is established.

The noble Lord, Lord Jenkin of Roding, asked about local authorities. There will be some cases where local authorities will be able to rely upon existing powers—for example, under the Timeshare Act trading standards officers have powers to obtain information. But they do not have such powers in all cases and they would have to go back to relying upon voluntary disclosure by service providers—if they will do it—under the Data Protection Act.

So there is absolutely no certainty at all that voting this order down will not matter or that everything will go on as it does at the moment. There will not be the regulation in place; there will not be the safeguards in place; and there is a very real risk that information that ought to be provided for the protection of all our citizens will simply not be available.

Lord Lester of Herne Hill

My Lords, the noble and learned Lord's reply is predicated on an all or nothing approach. He is saying, "You either accept the orders or you have no orders, and then look where we are". But I do not understand why one cannot have the orders reconsidered to include more effective safeguards than there are already. In that way we could reach a fair compromise that protects the right of privacy and balances it more appropriately.

Lord Goldsmith

My Lords, we need the orders now. We have reached the stage where, having brought forward the orders, the amendments of the noble Baroness, Lady Blatch—I am not talking about the non-fatal amendments—would prevent the orders having effect at all. There is no getting away from it. That is what would happen.

Baroness Blatch

My Lords, perhaps I may suggest to the noble and learned Lord that he is being extremely disingenuous. During the course of my speech to these amendments I emphasised many times that the purpose of both my fatal amendment and the supporting amendments was to give the Home Office time to take them away and re-present:hem. I made it clear time and again that we support the principle; that we support the framework of regulations; and that we believe it is right that all people should come under the same regulatory framework. Everything I said was constructive to that end. The idea that we would be voting the orders out for all time so that their powers are never exercised was not part of my presentation.

Lord Goldsmith

My Lords, I hope, in turn, that noble Lords opposite have heard what I have been trying to say about how we can see if the scheme is operating. I shall deal with some specific points, including those made by the noble Lords, Lord Phillips and Lord Lester, but if the orders are voted down and do not go through today, they will not come into effect.

The question of the noble Lord, Lord Lester, presupposed that the order could introduce more safeguards. The power that Parliament has given under this order is to add authorities and to place restrictions. That is what has been done. I do not believe that the order could, for example, do what the noble Lord, Lord Phillips, would like it to do. There may be another way of achieving that, but it cannot be done by this order. It is not, therefore, a reason for not accepting the order now. Those concerns have been expressed.

4 p.m.

Viscount Goschen

My Lords, I am grateful to the noble and learned Lord for giving way. Could the orders not be amended or brought back with additional restrictions not only in terms of the four columns detailing the bodies that can acquire data at the moment but also to restrict the type of data, not just the purpose for which they can obtain them., which is an existing restriction? I am talking about an additional restriction to acquire the type of data—not just that described under paragraphs (a), (b), (c) and (d). In that way, the Maritime and Coastguard Agency could acquire location data about mobile telephones, for example.

Lord Goldsmith

My Lords, it is already restricted in two ways. First, the order carefully identifies which sort of communications data a particular agency can obtain. There is a difference between what is called traffic data, which tells you about the location of individuals, and subscriber details, which tell you who has a certain telephone number. Certain agencies are limited to the lowest category of communications data. Someone wanting to know who is the cowboy who has been going around fitting dangerous gas heaters, to use the example of the noble Lord, Lord Jenkin, may be able to identify someone only because they have a card with a telephone number. That is subscriber information which one would need.

Lord Jenkin of Roding

My Lords, with respect, the local authorities are already using many of these powers under RIPA. Of course they do not deny that if the order comes in, there would be additional safeguards and additional powers. As they point out, the same powers will be conferred on a number of additional bodies. I was greatly reassured by what my noble friend said; the local authorities will not be deprived of using their powers—they have RIPA powers already.

Lord Goldsmith

My Lords, they do not have RIPA powers at the moment to access communications data because the order has not been passed so the powers have not come into force. They have the ability to ask communications service providers voluntarily to provide information to them under the exemption in the Data Protection Act. That is a voluntary provision by the communications service providers except in those cases where there are specific powers. There are some specific powers—there are timeshare powers, the Serious Fraud Office has powers, and so forth. Local authorities are not operating powers under RIPA to get access to communications data because the order has not come into force.

The Earl of Erroll

My Lords, the noble and learned Lord made a point about traffic data. This is where we had problems, as I mentioned in my speech. Regarding paragraphs (a), (b) and (c), I cannot find the Maritime and Coastguard Agency among the bodies that are allowed to access the traffic data which the noble and learned Lord has defined as the stuff that tells you where the person is. I cannot find the agency in the list of bodies that can access such information. I can only see the security services, intelligence services, Government HQ, the Armed Forces and the police. In fact, the Maritime and Coastguard Agency will not be able to access such data under these powers unless it comes under paragraph (b), in which case a huge number of bodies also have access to them, which was my point earlier. Subsection (4)(a), (b) and (c) give the definitions of data. This is one of my points—it is not clear and the blurring of the edges is causing us problems. The Government should go through this; some caveats have to be included so that they can come back with something better in the future.

Lord Goldsmith

My Lords, with a little assistance, I am sure I can answer the noble Earl's question in a moment.

I said in answer to the noble Viscount, Lord Goschen, that there were two points. First, the order restricts the type of data. Secondly, as I said this morning, the authorities cannot use their powers except for a function that they have. That, in itself, results in a significant restriction on what they do. I respectfully commend the consultation paper to noble Lords because it sets this out so clearly and deals with a lot of the concerns that have been expressed.

In answer to the noble Earl, the Maritime and Coastguard Agency comes under the area operations manager of the Department of Transport. That is on page 5 of the order.

I want to deal next with the shortcomings that are alleged. I am trying to identify from what noble Lords have said what the shortcomings in the legislation are. The first such concern is whether there is any penalty for misuse in the legislation. There are other sanctions for misuse of data. Section 55 of the Data Protection Act makes it an offence knowingly or recklessly to obtain personal data without the consent of the Data Controller. An official of a public authority misusing the power to acquire communications data could commit this offence.

The Earl of Erroll

My Lords, I am terribly sorry, but the answer the noble and learned Lord has given me is nothing to do with the question. Page 5 is about the people who are authorised and the purpose for which they are authorised. My question was about having access to traffic data, which the coastguard agency is not allowed, which will give them the location.

Lord Goldsmith

My Lords, may I draw the noble Earl's attention to page 4? In Part 1, under the heading to Schedule 2, it reads: Individuals in additional public authorities that may acquire all types of communications data within section 21(4)". I hope the noble Earl is now satisfied.

The Earl of Erroll

Absolutely, my Lords.

Lord Phillips of Sudbury

My Lords, again, I am grateful to the noble and learned Lord for giving way. The definition of personal data in the Data Protection Act is much more limited than communications data under RIPA. I have checked that with the noble and learned Lord's officials.

Lord Goldsmith

My Lords, I was going on to say that there are certain safeguards and penalties already.

However, the Home Secretary acknowledged in the consultation paper that there is a concern about where the balance should lie between respect for individual privacy and the need to protect the public from crime and terrorism. It is not limited to access to communications data—it is much wider than that. It includes the use of CCTV, the use of automatic number plate recognition cameras, covert surveillance, and so forth. I entirely understand why notifying individuals where that right has been improperly interfered with is a concern. It has been raised by noble Lords and has been acknowledged in the consultation paper.

The Home Secretary and his officials are working on proposals which will address the privacy balance with the organisation Liberty and researchers working for the office of the Information Commissioner. Obviously, it is for the Home Secretary to say when he will bring forward proposals for consultation by the public and Parliament, but proposals will be brought forward, perhaps early next summer. So the issue about which the noble Lord is concerned is under active consideration as part of a wider question of the balance between privacy and powers. I hope that the noble Lord will find it helpful, therefore, to know that the issue he is concerned about, which cannot be sorted in this order as there is not the power to do it, is under active consideration. The very cogent remarks that he and other noble Lords have made on this subject will be taken into account in that consideration. I hope that he finds that assurance helpful.

The noble Baroness referred to the sharing of information, particularly with overseas authorities. I want to deal with the big points. This raises two issues: first, will United Kingdom public authorities acquire communications data on behalf of foreign agencies? The answer to that is yes, but it will happen only where the normal safeguards apply—that is, it is necessary for the prevention of crime and, in this respect, contrary to the belief of the noble Baroness, the dual criminality requirement applies in relation to the use of this part of the powers. It will have to be proportionate in the particular circumstances of the case, and the authority in question will have to assess that for itself.

The second issue concerns what other restrictions are in place. The vast majority of public authorities which obtain communications data have no need to disclose them to anyone outside the United Kingdom. There are some occasions when it might be necessary and right to do so. As noble Lords said, in debate on the Crime (International Co-operation) Bill, with trans-national organised crime it is often very important that there is co-operation between international agencies in the right case.

If the foreign agency is within the European Union, it will be bound by the data protection directive and its own data protection legislation. The data will be protected in the same way there as they are here. The directive also recognises the need to protect data that might be transferred out of the European Union. The eighth data protection principle says: Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data". That is a requirement before such information should be passed across. The public authority that contemplated disclosing information would need to assess that data would be adequately protected and what steps could be taken to ensure that. We would be happy to set out and lay in a report before the House the particular circumstances in which that might happen—saying, for example, under what treaties it might happen.

As regards legacy legislation, I repeat what I said in opening. Some authorities have general powers. The Serious Fraud Office, for which I have ministerial responsibility, has them. Those powers can be, and are occasionally, used to access communications data, but they are also used to access a great deal of other information. It is the basic power under which directors can be required to answer questions. We cannot conceivably repeal that section, because that would prevent all other methods of gathering information from being operated. Once the order is in place, the communication service providers will be saying, "We will provide information to you under RIPA—that is what the order says, and in accordance with the safeguards set out in it". That is what will happen.

The noble Viscount, Lord Goschen, asked whether the number of instances of requiring information data would go up. We cannot be precise until the order comes into effect, but the indications are that, in so far as authorities and providers have followed the RIPA model not in force in relation to access to communications data, the number of requests has gone down. Other parts of RIPA are in force—in relation to directed surveillance, for example. That may be why the noble Lord, Lord Jenkin of Roding, has information from local authorities. There has been something like a 6 per cent reduction in authorisations sought from police forces, the National Criminal Intelligence Service, the National Crime Squad and others in the past year. That is an indication that applying the safeguards in the RIPA order has the result of reducing the number of authorisations and access taking place.

One or two noble Lords asked why the police did not use the provisions in every case. There are specialist investigators for specialist issues. If a trading officer was concerned to investigate defective gas fittings, it would not be sensible to say that the police had to take over part of the investigation. It is more than that, however. There will be a number of areas, such as the Financial Services Agency, where there are specialist investigators who need the powers to do it themselves. It simply is not sensible to say that they cannot make those investigations and that the police must take on that responsibility. The police do not want it.

The noble Baroness, Lady Blatch, raised one point with which I must deal. She complained about an Answer given to a Question asked by the noble Lord, Lord Skelmersdale. The Question was specific. The noble Lord asked: Which orders give directions about retention of communications data".—[Official Report, 5/11/03; col. WA 111.] I emphasise the word "retention".

The Act is very specific; no orders for the retention of communications data—not access but retention— can be given, until the voluntary approach has been reviewed. None of the orders gives directions, and the reply to his Question reflected that. The orders open the way for the voluntary code to be put in place in relation to the retention of data.

The noble Earl, Lord Northesk, referred to an answer that he had received from the noble Baroness, Lady Scotland. I am happy to have that put in the Library, if that would satisfy him as having the answer on the record, to save time reading it out. I am glad to see the noble Earl nodding assent to that.

Finally, in relation to communications data, the noble Baroness, Lady Blatch, said that nothing had changed since last year. With respect, that is simply not the case. The order that the Home Secretary put forward and withdrew was simply a list of public authorities, which did not include the qualifications or restrictions. The new order not only lists the public authorities but restricts access to data to specific purposes, restricts access by the type of data, and restricts who may give authorisations. It is significantly different from the previous order.

4.15 p.m.

The Earl of Northesk

My Lords, I apologise for intervening on the noble and learned Lord. My understanding was that last year there were two orders; one of them was the list and the other contained safeguard elements. What happened in the intervening period was that the Home Office compiled a single order rather than two.

Lord Goldsmith

My Lords, I shall deal with the next issue and get information on that, as I do not have the previous order in front of me. I am working from what I have been told, and do not have it in my recollection.

I turn to the retention of data and the amendment proposed by the noble Lord, Lord Lester. The Government have stated consistently that Part 11 of the 2001 Act provides for the retention of communications data and chapter 2 of Part 1 of the 2000 Act provides for the regulated acquisition of communications data in a way that requires explicitly respect for individual human rights. It follows that the legislation already provides that any communications data retained under the Anti-terrorism, Crime and Security Act 2001, only because of that Act and for no other purpose, can be obtained or disclosed under RIPA, but only in accordance to the fundamental right to personal privacy. That is what lies behind the access to communications data order.

I repeat what I said to the noble Lord when he was speaking—that the Joint Committee on Human Rights, for which I, like him, have great respect, reached the conclusion that, on balance, it was satisfied that other safeguards within the structure of the Regulation of Investigatory Powers Act and the procedures for judicial review were likely to provide adequate safeguards for convention rights. That essentially deals with the issue. I wanted to take that point a little further, as the noble Lord asked who would form the view that retention of data was necessary. The Secretary of State would form the view that data retention was necessary in order to safeguard national security. His decision is based, as it always is in matters of that sort, on reports given him by the relevant agencies. He is not under an obligation to prove that case to the industry; the view has been echoed by the Information Commissioner, who told industry that it was entitled to rely heavily on the conclusions formed by the Home Secretary.

Under the Act, communications data can be accessed only if it is proportionate and appropriate to do so. There will be the stringent oversight regime to which I referred. The clear view of the Government is that the additional retention period is for retention of information that the service providers already keep for business purposes. The retention period may add up to additional days or months, but not years, and is nothing that people need to fear.

Before I turn to the final order, I want to return to the question that I was asked by the noble Earl, Lord Northesk. The second order to which he referred was never laid. The proposal last year did not restrict access to any type of data. Every authority potentially had access, for example, to traffic data. That has been restricted this time round. It is plain that I overstated the case in what I said before but there are still important differences, if only in that respect. But the purposes—in that respect and in the respect that we are discussing—open to authorities have been restricted as well so that now the permitted purposes that each authority may rely upon are clearly identified. That has been done as a result of a process of asking them to prove what they actually need.

The Earl of Northesk

My Lords, I am grateful to the noble and learned Lord for that reply but I now have to ask another question as I fear that he is about to leave the code of practice order. Will he respond to the specific questions that I asked in my speech regarding what kind of data retention regime emanated as a result of the September 11th atrocity, and how longstanding has that been post that event? Have any arrests emanated directly from that?

Lord Goldsmith

My Lords, I am afraid that I cannot answer the question regarding the use of the information that the agencies have retained and what that has given rise to. I certainly cannot do so in terms of the number of arrests. I shall see what more detailed information can be provided and write to the noble Earl. I know from my own responsibilities as Attorney-General the amount of work that has been carried out by agencies since September 11th in order to try to track down those who put our citizens, and citizens of other countries, at risk. Communications data are often a key part of being able to track down such people. I personally have no doubt at all that they are important.

As regards the length of time for retention, as I said previously people do not leave their calling cards at the time that an atrocity takes place. Often it is possible to track the information only after painstaking work undertaken over a period of time. If by the time one tracks information back to a particular individual the communications data is no longer being retained, one comes to a dead end. This is an important matter and the Government so regard it for the reasons that I have given.

I am conscious of how long I have spoken, although I pray in aid the number of questions that I have attempted to answer in the course of speaking. I refer to the extension of the initial period. We now have a voluntary code that can be tested. Until that has happened, it is not possible to enforce a mandatory code. I suggest that the kind of extension which the order seeks is reasonable.

I am conscious that I have not touched at all on the point made by the noble Earl, Lord Northesk, about the Department for Work and Pensions. My noble friend Lady Hollis, as a Minister in that department, set out the position. The fact is that the department has a special power post-dating the two Acts. Noble Lords heard what my noble friend said about the circumstance in which that came into effect. The fact that the department seeks to stay outside the regime does not undermine the great benefit to the public, providers and authorities of bringing in this strictly regulated scheme which will apply to everyone else.

Lord Lester of Herne Hill

My Lords, I am grateful to the noble and learned Lord for giving way. In deciding what position I should take on behalf of the committee on which I have the privilege of serving, it would help me if the noble and learned Lord the Attorney-General could be a little clearer about what is proposed to occur between now and July—next summer. During that period will there be full consultation on how the right to privacy might be further strengthened without damaging the legitimate aims of this legislation? It would very much help me if we could be told something a little more specific about that.

Lord Goldsmith

My Lords, I am afraid that I cannot be more specific than I have been. The issue was stated very clearly in the consultation paper and discussions are already taking place with Liberty and with officials from the office of the Interception Commissioner. Although I cannot tie the Secretary of State regarding when matters will be brought forward, I hope that it will be by the date that the noble Lord indicated.

The Earl of Northesk

My Lords, will the noble and learned Lord comment on the issue raised by the noble Viscount, Lord Colville, regarding the status of the draft directive on data retention? That would be extremely helpful.

Lord Goldsmith

My Lords, the noble Viscount gave me leave not to reply to that point as he cannot be present this afternoon. However, I thought that I should inform him of the position. I promised to write to the noble Viscount with the answer. I understand that the directive will come into force and that the noble Viscount may be mistaken regarding the date. I am told that there is no question about our not having implemented the directive in time. I think—but I shall clarify this in writing—that there will be implementation of the directive by the due date which is December of this year. I cannot assist further on that matter. I hope that the noble Earl will forgive me on the basis that I have been relieved of answering the examination paper in that respect.

I say to the noble Lord, Lord Lester, that if there is any further information that I can provide about the detail of what is going to take place, I shall write to him and place a copy of the letter in the Library of the House so that other noble Lords are aware of it.

I have spoken for a very long time. I have tried to answer what I believe are the main points. The noble Earl, Lord Northesk, might think that there is a directive regarding data retention. That is not the case. The directive concerns electronic communications and privacy. I do not know whether that helps him.

The noble Earl also asked about the length of retention following the atrocity of September 11th. Communication service providers voluntarily preserved data generated on September 11th and the days immediately around it. The Home Secretary is very grateful for that assistance.

I have attempted to demonstrate why these orders are important. The Government recognise the concern that arose last year and carried out an important consultation that contained considerable detail. That consultation was welcomed. The orders that are now proposed—particularly regarding communications data, which has been the subject of most debate—are welcomed by the industry. The industry wants certainty and clarity. Other measures may emerge that can be put in place but they are not for this order. By putting these orders in place we can get on with the regulatory scheme that Parliament wanted to have when it passed RIPA. For that reason I very much hope that noble Lords will support all the orders.

Lord Phillips of Sudbury

My Lords, before the noble and learned Lord sits down I should be most grateful if he would help me decide exactly how to react on the Motion in my name. I am grateful to the noble and learned Lord for his sympathetic comments vis-à-vis the prospect of an offence being legislated for breach of Chapter 2 of Part I, bearing in mind that at present there is none. The noble and learned Lord said that the consultation would take place and held out the implicit promise that legislation may arise in its wake.

However, the noble and learned Lord did not refer at all—I do not blame him given the massive task he has this afternoon—to my amending resolution. That of course was concerned with requiring the interception of communications commissioner to inform citizens where there had been a wilful or reckless breach of their communications data. I got no hint from the noble and learned Lord on whether that would form part of the consultation and ensuing legislation. I would be most grateful to know.

4.30 p.m.

Lord Goldsmith

My Lords, the answer to that clear question is yes, that will form part of the legislation. I should also have said—we had the short passage of arms before—that we take a different view at the moment on what the commissioner could in any event do under the powers that he has, but he could in the Government's view take on further reporting tasks if he wished to do so.

Baroness Blatch

My Lords, I am grateful to all noble Lords, and in particular to the noble and learned Lord the Attorney-General. As I said at the outset of the debate, he undertook to deal with these complex orders at very short notice, and his expertise has certainly shown through in the way in which he has dealt with some pretty penetrating questions from all parts of the House.

There have been many powerful and persuasive speeches in favour of the amendments. I speak now of the non-fatal amendments as opposed to my own amendments, which are fatal. Many of the concerns that I flagged up at the start of the debate have been reinforced by almost all the speeches that followed. The cases put via the amendments in the names of the noble Lords, Lord Lester and Lord Phillips of Sudbury, and my noble friend Lord Northesk were advocated with care, were constructive and were based on points of principle.

I want to pick up some of the points mentioned by the noble and learned Lord in his response on the amendments. First, I shall deal with the discussions taking place with Liberty. We have all been in receipt of a missive from Liberty that is as current as only yesterday. There is no hint whatever from Liberty that any discussions are taking place along the lines suggested by the noble and learned Lord. I am not suggesting that he is personally responsible for what he has said, because he is in receipt of advice from Home Office officials.

However, we have been with such officials, met Home Office Ministers, been to conferences, and met people from the industry and all sorts of very learned people concerning the orders. On no occasion whatever have our fears been allayed and have we been told that there are constructive, active discussions to address some of the points made in the amendments. Had we been told that, it might have made quite a difference to what appeared on the Order Paper today.

However one looks at the present statute, there is no duty to inform. I believe that the noble Lord, Lord Phillips of Sudbury, is as much concerned about duty to inform the person aggrieved by the abuse as about simply informing the Prime Minister or some third-party body that abuses have taken place. The individual citizen who is on the receiving end of malicious, vexatious abuse of the system has a right to be informed. If we do not do that, trust in the system will be destroyed.

I shall deal with penalties. Again, if wilful, vexatious and reckless activities take place that result in abuse of the system against an individual by an invasion of privacy for the wrong reasons, that must be considered a breach of the law. That needs to be addressed.

The noble and learned Lord was very careful—he used his words wisely, as he always does—on the intrusive surveillance order to refer to the system as it covered England and Wales. He did not mention Scotland. Therein lies an interesting point.

Lord Goldsmith

My Lords, I am so sorry. The noble Baroness is quite right. I have a note on that. The answer is that the Scottish regime is dealt with by the Regulation of Investigatory Powers (Scotland) Act, which I am told—I have not checked it myself—is in the same terms as the English Act so far as the matter is concerned.

Baroness Blatch

My Lords, I believe that there is a difference, but I would be dancing on the head of a pin if I pursued that any further.

The concern addressed by the noble and learned Lord on directed surveillance referred to my query about service managers. I have had his interpretation of what such a manager is. That is either a personal view of his or the view of the Home Office, but there is no definition or qualification anywhere in the statute. It is not referred to in the primary Act or the order, so it is very much in the interpretation of the chief executives who appoint people for such purposes to be responsible for a level of authority. That is a very real area of concern. If what the noble and learned Lord said was somewhere in statute and there was some qualification, we would feel more assured.

I am winding up on all the orders, so that I save time later.

Lord Goldsmith

My Lords, as the noble Baroness pauses for breath, as it were, I want to come back on her point about the involvement of Liberty. Obviously, I am grateful that she said that I had not said anything false, but I am told that the noble Lord, Lord Phillips of Sudbury—he may be able to confirm it—is participating with the Home Office in the Liberty work. If that is right, it may give the noble Baroness assurance that the work is actually taking place.

Lord Phillips of Sudbury

My Lords, perhaps I should speak for myself. Liberty and Justice are running a project into the whole realm of privacy, and what we are discussing today is at the heart of it. I chair an advisory committee on which certain noble and learned members of the Home Office team are lending their great knowledge. If that helps, I shall be happy.

Baroness Blatch

My Lords, my point stands, because it was in the context of something happening imminently. I took from the noble and learned Lord the first thing that he said rather than the qualified statement that came later, which was that something was going to happen, and it was likely to do so in spring or summer next year. If that is the case, in 13 days' time we expect a line in the Gracious Speech to indicate that the work is going ahead and that something will appear on the statute book during the coming legislative Session. However, I hold out no great hope on that.

The noble and learned Lord suggested that the communications data order would have two results. First, it would strip away safeguards. There would be no purpose definition, no limitation on access, no definition of what the level of person was to authorise such applications for access, and no independent oversight. The noble Earl, Lord Erroll, dealt with some of that. However, one of the interesting points— it links to a point made by my noble friend Lord Jenkin of Roding—is that the local authorities and many other bodies that exist have more scope to do what they are doing at the moment.

One of the arguments put forward by the Home Office was that the provisions were about regulating and making things more restrictive. More restrictive was the very phrase used by the noble and learned Lord. At the moment, bodies are relatively unrestricted and relatively unregulated. That is why we always agreed in principle that to be restricted and have proper definitions of types of access, and certainly to have a regulatory framework, was right. That is rather a weak first point.

The second point was that authorities with RIPA powers would be thrown back on the alternative voluntary system. I make an abject apology to the noble and learned Lord, because my mind jumped— not surprisingly; I have had a towel round my head for about a month on these orders—from the RIPA orders to retention. I apologise most profusely to him for that. I understand what he is saying about the voluntary scheme, but the system is in place now. The past two years are probably some of the most vulnerable years in terms of possible acts of terrorism and such activity. It does not seem to me that the world has fallen apart and that people have been prevented from accessing the kind of information that they need.

Something that the noble and learned Lord said over and again gives me cause for concern. I shall ask him a direct question. Does the RIP Act override the Data Protection Act in terms of protection of the individual? Service providers might be concerned about their vulnerability—about betraying the privacy of an individual—but he went on to say that the information could be found under RIPA. What is the interaction between the two Acts? Which has primacy over the other? To what extent is the individual protected, and under which statute?

I repeat that the purpose of voting down the orders is to give an opportunity to the Government to strengthen the safeguards rather than to go away and lose them in the back room. That would act as a spur and we might just see something on the statute book by June or July of next year.

Interestingly, the noble and learned Lord pointed out that if the orders were voted down, the safeguards would not be put in place. That is a decision for the department. If they are threatening to do nothing if the orders are voted down, one has to ask what the Home Office is doing. We regard them as important; I believe that the Liberal Democrats regard them as important; the Government say that they regard the provisions to be important; they sympathise with the safeguard that we would all like to see in the orders. The case for getting a move on is more than made.

The Government said that the current situation cannot continue while they rethink the flaws. The world will not fall apart if RIPA is not introduced and the situation continues. The noble and learned Lord described a chaotic situation, but the Home Office and the Government have sat on their hands for two years and allowed that to exist. They have had two years in which to be much more proactive on the matter. They cannot have it both ways. They cannot claim, on the one hand, that the world is pretty chaotic, but, on the other, sit around and do nothing about it.

Until now, Ministers and Home Office officials have argued that the RIPA orders do not represent more powers. They have said that since we currently have 48 different statutes operating in many different ways, with unregulated bodies and no restriction on the type of access, we need a single framework under which everybody operates. We have accepted that argument. The noble and learned Lord may claim that only if the orders are passed will the Government gain more powers. There are either more powers or there are not. I do not know what they are if that is the noble and learned Lord's argument.

I turn to my final point. The noble and learned Lord said nothing about my example of Zimbabwe or about that of the Greek policeman seeking access to information. I understood his response to everything else. I understood his comments on the difficulty of rescinding legacy powers. However, his comments on legacy powers totally answer the point raised by the noble Baroness, Lady Hollis. All the fears that she expressed about the Government's impotence under RIPA were answered simply and succinctly by the noble and learned Lord.

On retention, I wish to be clear. I said unequivocally that retention is an important weapon in the armoury for those who are seeking to detect crime and fraudulent activity. It is also the case that if the orders are not put in place, there is nothing to stop the Government introducing a voluntary scheme. They have had two years in which to do so. The sunset clause could be enacted in a couple of weeks. Nothing has been done in those two years. The voluntary scheme is not in place. It could quite easily have been brought into play. If the two retention orders are not enacted, that would not prevent the Government putting a voluntary scheme into place. We all know that it is a doomed scheme anyway. Anyone who knows anything about the subject will say that the only scheme that will work is a compulsory one, but the Government have not shown their hand on that.

Lord Goldsmith

My Lords, perhaps the noble Baroness is not aware that under the Act, we cannot put forward a mandatory scheme until a voluntary scheme has been tried.

Baroness Blatch

My Lords, I shall come to that point. The Government have had two years in which to put a voluntary scheme in place, to make a judgment about whether it works and to move on to a compulsory scheme. They have chosen not to use the two years that Parliament gave to them. If the Government put a voluntary scheme into place now and if, in 18 months' to two years' time, they believe that the case is made for a compulsory scheme, that is such an important issue that the Government should come back to Parliament. There are two reasons for that; first, because it is such a fundamental issue; secondly, because the issue rode on the back of an emergency anti-terrorism Bill. It spent one day in the Commons and was shunted through this House under the emergency procedures. There has not been a full discussion in either House on the ramifications of the measures.

If the Government wish to proceed to a voluntary scheme, we will co-operate in making sure that that has full parliamentary time.

Lord Richard

My Lords, when the noble Baroness spoke earlier, I tried to ask her a question before she sat down. If the noble Baroness comes to it, perhaps she will allow me to ask a question on it after she has spoken.

4.45 p.m.

Baroness Blatch

My Lords, that will be my final point. The noble and learned Lord the Attorney-General introduced the debate on the basis that RIPA does not grant any new powers. He cannot claim on the one hand that it does not grant any new powers, while claiming on the other that it does. If the orders are not enacted, the sky will not fall in and the Government will have an opportunity to get the orders right.

Finally, I shall address the specific point of the noble Lord, Lord Richard. First, the power to divide was exercised as recently as 2000 on the matter of a free leaflet that was being sent to all voters in the London mayoral elections. Although the exercise to vote down an order is a rare occurrence, this House affirmed in 1994 its unfettered freedom to vote on any subordinate legislation submitted for its consideration.

I shall add my own words to that. If a question comes before Parliament, whether it be this House or another place, to which the answer is yes or no, with no powers to amend, we must have the freedom to say yes or no. I agree that that freedom should be extremely rarely used and that the reasons for it should be carefully thought through, but the whole area of invasion of privacy, of getting the balance right between detecting fraudulent and terrorist activity, and of the freedom of the individual is fundamental to the people of this country. That is why it is an important issue.

Lord Richard

My Lords, I am bound to tell the noble Baroness that her argument is casuistic verging on pedantic. We had a clear convention in this House when I was Leader of the Opposition; namely, that the Opposition did not vote on statutory instruments. That was a firm convention. It was urged on me when I was Leader of the Opposition by, among others, the noble Baroness herself. It now seems that we are moving into a new doctrine for a new era, where if the Opposition take the view that an issue is so fundamental, they will vote against a statutory instrument. That is wrong and the Opposition should not do it.

Lord Carter

My Lords, perhaps I may add my voice to that of my noble friend Lord Richard. He is absolutely right. The noble Baroness is not out of order if she divides the House. As she said, a Motion tabled in 1994 by the noble and learned Lord, Lord Simon of Glaisdale, showed that the House has the power to divide on orders if it so wishes. It was used once, in 1968, under a Labour government; it was not used at all during the 19 years when we were in Opposition; it was used once during the five years when I was Chief Whip—on the GLA Bill, when the Opposition also divided on the negative instrument for good measure. I accept that it is not out of order, but there has been a long-standing convention that this House does not divide on orders. They cannot be brought back to the House and they are not subject to the Parliament Act. I have no doubt that they will fall in this Session if the noble Baroness divides the House. It is her choice. Her Back-Benchers divided the House last night on the cannabis order and her Front Bench abstained. Only a few weeks ago, I was on the Woolsack when she spoke to an education order. She had put down a Motion to decline to approve the order, but said that she would not change the habit of a lifetime and divide the House. The House should be aware of what we are embarking on. Last night, there was a Division on an order that the Government won, but that changed the convention. If the Opposition choose now to go down that road, they should know where they are going. At the moment, we are the Government; one day, no doubt, we will be the Opposition. We have long memories.

The Earl of Onslow

My Lords, I have been listening to the debate and I understood the noble Lord, Lord Carter, to say that one day our party will be the Government and his will be the Opposition and we are doing something silly. I hope then he will divide the House because there seems no point in the convention that an order cannot be amended and we can never do anything about. We might as well let everything go through completely and not allow any change to be made.

Lord Richard

My Lords, the noble Earl must realise that that has been the state of affairs for a very long time. For 19 years when his party was in Government that was the state of affairs that this House accepted and the Labour Party lived up to. Now we find that because the Conservative Party does not like a particular resolution they want to divide the House against it. It is a denial of the conventions of this House and I am bound to say that I feel very strongly about it.

Lord Roper

My Lords, it is worth remembering that we are discussing a group of amendments and that the majority of them are non-fatal. The amendment we are now discussing is fatal, but that is not the case with a number of others, which I trust we shall reach shortly.

Earl Russell

My Lords, as one who took part in the debate on 20th October 1994, perhaps I may point out that there was a general agreement in the House that there was in normal circumstances a convention that one did not divide on fatal Motions. However, that convention was dependent on another convention; that was the exercise of restraint by the Government in the importance of the matters they put into fatal Motions. If the noble Lord would care to read the debate, he will find that recollection borne out. That is the point at issue.

Lord Richard

My Lords, I am not sure whether that remark was addressed to me, but if it was perhaps I may reply. When I was leading the Opposition, there were many occasions on which I took the view that what the then government were doing was absolutely appalling and that they had done it without sufficient consultation and discussion. I felt strongly that they should not do it. However, if a proposal came in front of the House as a statutory instrument, I did what all in opposition have done up until now; that is, I held my nose and did not vote against it.

Earl Russell

My Lords, the patience of opposition is very great but it is not total.

Baroness Blatch

My Lords, on the particular amendment before us, I was not influenced one jot by what has just been said. However, as I said in my first speech today, I have been influenced by my discussions with the noble Viscount, Lord Colville of Culross, with those in the Home Office and other colleagues. I shall not move the first fatal amendment.

[Amendment not moved.]

On Question, Motion agreed to.