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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

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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

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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

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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-a-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.

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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.


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