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Lord Jenkin of Roding: My Lords, my noble friend Lady Blatch delivered what I can describe only as a devastating attack on the way that this whole matter has been handled by the Home Office. I have every sympathy with the plea that she has made for the Government to take away these orders and think again. We have heard other attacks. My noble friend Lord Northesk and the noble Lord, Lord Phillips of Sudbury, have very much reinforced that case.

I ask only one question and, in a sense, I ask it of my noble friend Lady Blatch. I do so on behalf of the local authorities. I declare an interest in that I am a vice-president of the Local Government Association and a joint president of the Association of London Government.

Local authorities make regular use of the powers to intercept—in particular, with the communications data and the directed surveillance and covert human intelligence sources—frequently to detect and so prosecute serious fraud, which they are under a duty to do in order to protect local communities and local families. However, if the orders are now withdrawn, as has been sought, or if they are voted down—the noble Lord, Lord Richard, made the point that this is a somewhat unusual procedure—will local authorities continue to have the powers which they currently use?

Can I also be assured that there would be no lacuna between the powers being defeated today and the point at which the orders are brought back in a more acceptable form? Local authorities would be devastated if they found that suddenly their powers to detect rogue traders were stopped. Glass fitters have been mentioned. There is another case of an electricity fitter who left equipment in a thoroughly dangerous state. The only way that local authorities can get such people is through the use of telephone and other information. I hope that I can be given that assurance.

Viscount Colville of Culross: My Lords,—

Baroness Blatch: My Lords, it may be for the convenience of the House if I respond to my noble friend, given that he directed the question to me. In the meetings that we have had, I have received reassurance on two points. One is that the RIPA scheme is doing no more than bringing under a single umbrella and a single regulatory framework all the organisations which currently have powers to seek and access information. It is absolutely true that no single power to access information is being rescinded as a result of the orders, and we believe that that is a problem. It means that the orders under which local authorities presently operate will continue and that there is respite time for the Government to take away the orders and bring them back in good order. However, in the mean time, having spoken to Home Office officials, my

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understanding is that local authorities will be able to continue to pursue crime and disorder in their localities.

1.15 p.m.

Viscount Colville of Culross: My Lords, I believe that the noble Baroness is correct. I declare the interest that she has already declared to the House—that is, I am a Surveillance Commissioner. I operate under Part 2 of RIPA and I have visited a very large number of local authorities under the aegis of the noble Lord, Lord Jenkin of Roding. I am sure that they will be able to continue to act in the way described, whether or not the orders are made. However, I wish to put in a word for the RIPA orders to be endorsed by this House. I shall do so very briefly, otherwise we shall never finish in time for the Law Lords.

The first one brings the intrusive surveillance procedures and safeguards in Northern Ireland prisons on to the same basis as prisons in England, Wales and Scotland. At present, there is no system to deal with that. I have talked to the Prison Service in Northern Ireland, which would benefit from having this power, and I am sure that the prisoners would benefit from the supervision that they would receive under that order.

So far as concerns the communications data order, there is, indeed, great confusion, particularly among local authorities and, I believe, other public bodies as well. Until Chapter 2 of Part 1 is brought into force, there is a very haphazard system whereby they can find out the type of information about which the noble Lord has just spoken. They need it to enforce their duties and the powers that they have under other legislation. Therefore, it would be very convenient for them, although perhaps not essential, that this order should be made.

I believe that the third order should be approved. It brings up to date Statutory Instrument 2417, which is now hopelessly out of date. It includes a whole collection of public authorities which no longer exist but it does not include many public authorities that do exist. The whole system of authorising officers needed to be reviewed, and a fourth column has now been included in the schedule, which describes under which category of necessity each public authority can operate. All those issues will make for greater clarity, will bring the measure up to date and will make it far easier to carry out the duties that the Office of Surveillance Commissioners must carry out under Part 2. It would be the greatest possible pity if the order were to fail.

I do not want to say very much about the Anti-terrorism, Crime and Security Act matters because they are not in the least within my jurisdiction or much within my knowledge. However, I believe that two things could be said. Earlier, a noble Lord said that there are a large number of commissioners and other bodies that supervise this whole matter. So there are, and one will now be the Information Commissioner under the orders and procedures that occur in Part 11 of the 2001 Act.

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I want to ask the noble and learned Lord the Attorney-General a question. There is now a directive—2002/58/EC—which pulls together this whole matter. Having read it, it seems to me to provide a very sensible regime—probably rather better than cobbling together Part 11 of the 2001 Act with the Data Protection Act, which, although it bears some resemblance to the ECHR regime, certainly preceded it and is not entirely in tune with it. When will the directive be implemented? It would take the place of both these matters; it is entirely up to date; and it should have been introduced in this country by 31st October last. Perhaps that would be a good opportunity to reconsider this issue and pull together all the threads.

Lord Cobbold: My Lords, briefly, I support the amendment of the noble Lord, Lord Phillips of Sudbury. My personal concern is that there are still inadequate safeguards for the individual citizen against the possibility that those gathering permitted information may accidentally or deliberately come across data of a personal or market-sensitive nature which they can obviously exploit.

The Earl of Erroll: My Lords, I want to make one or two comments on the commercial side of this subject. I shall not take very long because I agree with, and shall heartily support, everything that has been said so far.

In principle, like everyone else I thought that the concept of RIPA was good as it would bring everything together. Then I suddenly remembered the old saying: "Just because you are paranoid doesn't mean to say they're not out to get you". So, what is the fear?

My remarks will address the second order, the Regulation of Investigatory Powers (Communications Data) Order 2003. As the noble Lord, Lord Phillips, so accurately said, the terms of the order enable a picture to be built up of a person's life. The definition of data which fall within Section 24(4)(a)(b) will determine the information district authorities and people working at fairly low levels can obtain to build up a picture of someone's life. Some of that could be commercially sensitive, and on this point I agree with my noble friend Lord Cobbold.

Unscrupulous people could build up a picture of someone's life. For example, a person trying to "chase up" a divorce case, who knew someone at the right level in the local authority, could, if the right data were released, obtain a picture of when and where someone was at a particular time and with who they communicated. As has been mentioned, from the point of view of foreign agencies and commercial intelligence, it could be useful to know who senior executives are talking to in other companies, particularly if one were bidding for large contracts. One would be able to build up a picture of what was going on. I do not think people realise how much intelligence information is gathered from analysing publicly available data. The order would

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make a lot of data more or less publicly available, particularly if one was abroad because of the lower level of scrutiny. Assurances on that point would be useful.

The key words here are "strictly regulated", on which I agree with the noble and learned Lord the Attorney-General. The problem is the word "strictly". I am concerned about self-authorisation—authorities will authorise themselves to proceed with inquiries—and the word "proportionate". Thousands of people will be involved. The police, four other bodies and intelligence services will be authorised under RIPA. This will add another 28 bodies or types of body to that. Will the people who are trained to carry out such authorisations understand the word "proportionate" and what that is to mean?

I am told that there will be checks from around eight oversight bodies. However, according to Home Office figures, we are talking of half a million general requests per year. That is some 2,500 inquiries per working day. Not many of those will be got through and checked by just four people. I do not know what the resources are, but that needs to be considered.

There is no requirement in the code of practice to report to the oversight bodies what one is up to; they will have to come in and investigate. The other point is that you do not know what it is that you do not know. Will you catch in your trawl what is going on?

One of the interesting points made is that if we do not pass the order it will cause a lot of trouble but that it does not really matter because the police carry out 85 to 90 per cent of the requests. I find that interesting. If only 10 per cent of requests are to come from all the other bodies, why are they not channelled through the police, who would do a brilliant job of ensuring that other authorities are not abusing their power? Police services would have to be increased slightly to do that, but it would be a wonderful check. I would prefer checks to be done by the police than by an outside body. The other threat is that we should have to proceed under the existing powers of PACE and so forth, and for authorisations to be carried out by circuit judges. That would be wonderful as there would be yet more checks. We are removing the checks and balances, which concerns me.

We are talking about people trying to investigate information on other people—communications data are a subdivision of that. This is where I find real difficulty with the comments of the noble and learned Lord the Attorney-General. On the one hand he says that we need RIPA in order to be compliant with the ECHR. Part of the ECHR concerns the right to a personal and private life. Therefore, paper files are equally relevant to the ECHR. Either these powers are ECHR compliant, in which case RIPA is not so urgent, or they are not, in which case they have to be repealed and come under RIPA, and requests for all information on a person must be regulated by RIPA.

Equally, if it is so important to bring all of this under one umbrella—I echo the noble Earl, Lord Northesk—so that the communication service providers (CSPs)

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know what they are doing and there is one single training process, why are we excluding the Department for Work and Pensions? Unfortunately, we did not realise the implications when this was slipped through. Therefore, it is no good saying that Parliament approved this. Parliament did not understand the implications at the time. A small Bill to remove those powers and bring them under RIPA is essential.

I have two final points. First, I do not know whether people realise but there are 500 to 600 small internet service providers (ISPs) employing five or fewer people. As these 2,500 inquiries go out, some of them will have to trawl for data and will have a serious problem responding to requests. I am not sure how they will handle that without going bankrupt.

Secondly, paragraph 32 of the code of practice states:


    "Once the individual communication service provider has the technical capacity to retain data for the extended time periods . . . then the communication service provider shall inform existing and new customers that the purpose for retention and the periods of retention have been varied to meet with the needs of the Act".

There are no powers to do anything about that; they cannot reject it. Yet that means that everyone with a mobile telephone, an e-mail address and a landline telephone will have to be mailed or informed somehow by their CSP that information has been retained. There is nothing they can do about it anyway. What a waste of money. Of course, I may be wrong.

I do not understand the undue haste. Protections are in place. Interestingly, I learnt that at present, CSPs vet applications. Some are referred to the information commissioner under the Data Protection Act and some are turned down. So, we are not unprotected at present. Measures are in place. I believe that this is a better way to proceed and that this is the way forward for the future but we must get it right. I shall vote to approve the first order. I shall vote in favour of all the non-fatal amendments. I shall not vote for the fatal amendments, with the exception that I shall think about data retention.


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