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House of Lords

Wednesday, 16 July 2014.

3 pm

Prayers—read by the Lord Bishop of Carlisle.

Census 2021

Question

3.07 pm

Asked by Lord Naseby

To ask Her Majesty’s Government, in relation to the next census due to take place in 2021, whether they have now rejected the possibility of replacing the traditional census format.

Lord Wallace of Saltaire (LD):My Lords, the Government recognise the value of the census but believe that it is outdated in its current form and could be more effectively and more cheaply delivered. Decisions about its future after 2021 will be announced in the usual way but the Government agree with the conclusion of the Public Affairs Select Committee that the census needs to change.

Lord Naseby (Con): Has my noble friend read the Economist of 5 April? It said:

“Britain’s decennial population count has been saved. Now make it work better”.

The Office for National Statistics also stated in March that it,

“recognises that special care would need to be taken to support those who are unable to complete the census online”.

In the light of both those statements, can my noble friend tell the House what safeguards there are to ensure that the roughly 20 million who are not literate online, and the half a million who were left out from the last census, will be able to take part in this new census?

Lord Wallace of Saltaire: My Lords, the Government are of course keen to encourage people to respond online. The paper-based census takes a great deal of time to analyse and transpose. It was some 16 months from the last census in 2011 until the first data became publicly available. If more people do it online, that could all be done a great deal more quickly but in 2021, although we already understand that 80% of households now use the internet daily, there will of course be support from the usual recruited field force to assist those who do not use online materials.

Baroness Whitaker (Lab): My Lords, following the very pertinent question from the noble Lord opposite, can the Minister give the House an assurance that the new category—that is to say, since 2011—of Gypsies and Travellers will not be lost in any new system, because it has already yielded invaluable factored information about the disadvantage experienced by these communities?

Lord Wallace of Saltaire: My Lords, I think that all Members will recall that we use a field force to go and find the people who are the most difficult to get hold

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of and those in whom we are most interested. The Office for National Statistics estimates that the last census was some 94% complete. We suspect and fear that that the 6% we missed were strongly represented among the most vulnerable elements of the population.

Lord Greaves (LD): My Lords, the Minister referred to the delay last time between the census and the publication of the first results, and indeed to the further delays for the more detailed results. The forms are not complicated. Putting the information into databases and publishing it should not take 18 months, two years or even more. It is a simple task to get the information from the forms, whether the information is collected digitally or on paper, and then publish it. Can we have an assurance that the Government are looking at making this much more efficient and quick next time?

Lord Wallace of Saltaire: It is part of our mission to try to get the information ready for use more rapidly. It is also part of our mission, and the Office for National Statistics and the Public Affairs Select Committee reports both touch on this, to use the administrative data that are available to the Government so that we do not just have a snapshot of where we are every 10 years but, rather, we can have a rolling set of information about what we have. For example, if you want to know how many children there are living in a local authority area, the Government have that information in the form of recipient addresses for those on child benefit.

Lord Wigley (PC): My Lords, given that presumably there will be a census organised on a UK basis from London in the year 2021 irrespective of the technology that is used, can the Minister give us some commitment on behalf of the Government that figures relating to the number of Welsh speakers living in England will be collected? The figures at the moment relate only to Wales, and whereas other languages are collected in England they are not in relation to Welsh speakers in England. This is very misleading.

Lord Wallace of Saltaire: I note the noble Lord’s question. We have not yet decided exactly how many questions there will be in the next census. I should correct him, however: the census covers Great Britain. The arrangements for Northern Ireland are a little different.

Lord Wills (Lab): My Lords, I welcome the Government’s acceptance that the census needs to be updated. I also welcome what I take to be the Minister’s announcement today that the Government are planning to reuse administrative data to get more accurate and timely information. However, can he confirm that such reuse of administrative data will be coupled with a sample of annual household surveys to ensure that whatever conclusions are drawn from those data are accurate?

Lord Wallace of Saltaire: That is one of the issues currently under consideration. We have some time yet before we go final for the next census. Administrative data are an important issue. At the moment the Government are involved in an open policy-making process with

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stakeholders to discuss how we might modernise the various structures of law that apply to different departments and different local authorities about how one collects administrative data. It is our intention in the autumn to publish a White Paper on this.

Lord Stern of Brentford (CB): My Lords, I speak as the president of the British Academy and on behalf of researchers who are working on the big social and economic issues of our time. In thinking about the census design, will the Minister place a high priority on its enormous value in validating other surveys that are at the heart of much of the research on these issues in the UK? Without the ability to validate them against the census, it is extremely difficult to use those to their full extent.

Lord Wallace of Saltaire: My Lords, we are well aware of the relevance to the social science community of government data in all their forms. The administrative data, some of which are not yet available, are also of considerable importance to social scientists of all sorts. I know that consultations are well under way, including with the British Academy, and I am sure that they will be taken fully into account.

Lord Harrison (Lab): My Lords, the previous census recorded the increase in the number of us who profess no religion. Will the Minister ensure that that question is re-examined as there was a lot of controversy about it last time?

Lord Wallace of Saltaire: My Lords, there is a great deal of discussion about how many questions to put on the census on each occasion because the more questions you put on, the less likely it is that everyone will fill them in completely. That discussion is well under way, but we do not have to decide that until we are a good deal closer to the next census.

Lord Roberts of Llandudno (LD): My Lords, with a multilingual Britain, will the forms be available online or offline so that everybody is able to fill them in and understand the full implications of their answers?

Lord Wallace of Saltaire: My Lords, I do not have full information about how it will appear online, but I note the question about the many different languages. The administrative data include a very good indicator of the changing ethnic and linguistic composition of local authority areas. The best indicator about changing composition is the first language of children coming into reception class in primary school. That is a rolling indicator that the Government can use to supplement the census.

Northern Ireland: National Crime Agency

Question

3.16 pm

Asked by Lord Empey

To ask Her Majesty’s Government when they expect the National Crime Agency to be fully operational in Northern Ireland.

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The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD): My Lords, we fully support the efforts of the Northern Ireland Justice Minister David Ford to secure the support of the parties for the full extension of the NCA’s remit to Northern Ireland. We want to see an early resolution of this issue to avoid serious gaps emerging in law enforcement in Northern Ireland in areas where there is deep public concern, such as drug enforcement, human trafficking and other forms of serious criminality.

Lord Empey (UUP): My Lords, I rather suspected that the Minister would answer in those terms. Is she aware that the Northern Ireland Executive has not discussed the National Crime Agency this year? Is she further aware that the Police Service of Northern Ireland has neither the personnel nor the financial resources to fulfil the functions that should be carried out by the National Crime Agency, which is a matter of grave concern?

Baroness Randerson: My Lords, the Government are well aware of the impact on the PSNI and of the need for agreement to be reached as soon as possible. I understand the noble Lord’s concern. It is clear to us that the NCA in Northern Ireland obviously has less capability than elsewhere. However, this is a devolved matter and it is right that discussions are ongoing between the Justice Minister, the NCA and the political parties—but UK Government Ministers and officials remain full engaged.

Lord Trimble (Con): My Lords, I understand the Minister’s desire to proceed by agreement, but with regard to the particular issues of trafficking, drugs and the related matters that she mentioned, is it the Government’s view that it is in the national interest that the National Crime Agency be fully operational throughout the United Kingdom on those issues?

Baroness Randerson: My Lords, in our view it is clearly in the national interest that the National Crime Agency is fully operational throughout all parts of the United Kingdom. However, the Sewel convention must apply at this point, and it is clear that we do not normally intervene and legislate on matters within the competence of the devolved Administrations without their consent.

Lord McAvoy (Lab): My Lords, this is no nationalist versus unionist argument; clearly it is about the national interest. The non-involvement of the National Crime Agency in Northern Ireland was highlighted the other day when a Treasury Minister, from that Dispatch Box, indicated that HMRC was having difficulty in collecting taxes, VAT and so on. Despite the mention of the Sewel convention and the Justice Minister, surely it is time that some leadership was shown by the Northern Ireland Office in bringing these people together to get agreement, in the national interest.

Baroness Randerson: My Lords, the Government have taken the view that agreement is most likely to be obtained under the leadership of David Ford, the

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Justice Minister, who, after all, has support across the parties in Northern Ireland. It is important that we ensure that his discussions with the parties and with Keith Bristow of the National Crime Agency, which are active and ongoing, are facilitated. I assure noble Lords that my right honourable friend the Secretary of State for Northern Ireland is fully engaged in the process, and that the Home Secretary remains prepared to consider proposals that are put forward.

Baroness Harris of Richmond (LD): My Lords, the National Crime Agency, as my noble friend said, is doing a terrific job under the leadership of the very able director-general, Keith Bristow, who told an audience at the Police Foundation conference two weeks ago that last year, 93% of five to 15 year-olds in the UK used the internet, which makes them very vulnerable to predators in that online space. Does my noble friend believe that some politicians in Northern Ireland could be endangering the lives of their young people by not letting the NCA investigate appalling internet crimes, some of which involve children?

Baroness Randerson: My noble friend makes an important point, and I very much hope that politicians in Northern Ireland who have not found themselves able to reach agreement so far on the remit of the NCA and its answerability in Northern Ireland are listening at this time, or will read the record afterwards, in order to realise the seriousness and importance of reaching agreement.

Baroness Butler-Sloss (CB): My Lords, since this is a matter of enormous concern throughout the United Kingdom, and not just a Northern Ireland issue, what can the UK Government do about it?

Baroness Randerson: My Lords, I hope that I have made it clear that the Government are very closely involved in this, and that we remain optimistic that agreement will be reached. I understand the frustration that noble Lords are exhibiting at the length of time it is taking to reach agreement, but the talks and discussions are ongoing, and the work within the office of the Justice Minister is very much an active piece of work; we are reassured of that fact.

Lord Kilclooney (CB): My Lords, if, as the Minister says, this is a matter of national interest, is it not time that it ceased to be a matter for a devolved Government?

Baroness Randerson: I think that noble Lords will appreciate that, having established devolution, it is very important that one trusts it to work its way through, despite issues and problems that arise on the way.

Palestine

Question

3.23 pm

Asked by Lord Hylton

To ask Her Majesty’s Government what is their response to the formation of a Palestinian Government of unity with the prospect of elections in 2014.

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The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, we welcome the formation of a new interim technocratic Government for the Occupied Palestinian Territories. We have made it clear that our continued support for the new Government will depend on their commitment to the principles of non-violence and an acceptance of all previous agreements and obligations, including Israel’s legitimate right to exist. However, we believe that the current crisis in Gaza decreases the prospects for elections in the near future.

Lord Hylton (CB): My Lords, I thank the noble Baroness for her reply. She will appreciate that my Question was tabled a month ago. Will Her Majesty’s Government work towards a common European vision that would enable ordinary Israelis and Palestinians to demand effective ceasefires, together with an agreed ending to occupation and blockade? Are there not major incentives and penalties that Europe could apply?

Baroness Warsi: My Lords, the view of the United Kingdom, and indeed of the European Union and the wider world, is that there should be a ceasefire and it should come as soon as possible. The noble Lord will also be aware that the unprecedented package that the European Union put forward in the event of an agreement when the Kerry talks began is clearly the kind of incentive to which the noble Lord refers. The prize for peace is a much better life, both for Palestinians and Israelis.

Lord Anderson of Swansea (Lab): My Lords, does the noble Baroness agree that, however welcome the formation of a unity Government, we are still some way from the development of a negotiating partner for Israel which can deliver; and that, given the failure of the unity Governments in the past and the deep divisions within the partners of Fatah and Hamas, perhaps the most appropriate response is considerable caution?

Baroness Warsi: My Lords, we welcome the formation of a new interim technocratic Government for the Occupied Palestinian Territories. We feel that reuniting Gaza and the West Bank under a Government committed to peace is a necessary condition for resolving the Israeli-Palestinian conflict. We have to be positive at all times; when we find a partner that agrees to the quartet principles, we should see it as a genuine partner for peace.

Lord Alderdice (LD): My Lords, I very much welcome my noble friend’s announcement of the British Government’s approach, which appears to chime with the approach of the Obama Administration. However, part of the agreement is that there should be subsequent elections in the Palestinian Territories. Is my noble friend further prepared to recognise that the outcome of those democratic elections, if they are held in a free and fair manner, should also be respected, and that whatever Government or Governments emerge from that should continue to be part of any negotiating process?

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Baroness Warsi: My noble friend makes an important point. However, sadly, the original timetable of six months from June—which was when it was anticipated that elections would take place once the technocratic Government had been formed—looks much more vulnerable because of the current situation. At this stage, all minds are focused on a ceasefire but, of course, we hope that elections will follow thereafter.

Lord Turnberg (Lab): My Lords, leaving aside the failure of Hamas to accept the ceasefire that Israel accepted yesterday, does the noble Baroness agree that it is extremely difficult for Israel to continue to exchange security intelligence with a Government who get their main support, or part of it, from an organisation that is committed to Israel’s destruction, let alone to engage in meaningful negotiations with them?

Baroness Warsi: The noble Lord will be aware that no members of Hamas have formed the technocratic Government, which of course we welcome. However, it is important that we do not leave aside positions as regards the ceasefire. We welcomed Egypt’s attempt to secure a ceasefire, the Palestinian Authority’s endorsement of it and President Abbas’s commitment in calling on the different Palestinian factions to accept it. The Israelis’ acceptance in principle of the proposed ceasefire and the support for it from the Arab League are positive things, which I hope will soon form the basis of a ceasefire.

Baroness Hussein-Ece (LD): Can my noble friend say whether media reports that Hamas was not even consulted on the so-called peace deal that Egypt announced are true, and that members of the Knesset themselves learnt about it from the media?

Baroness Warsi: It is important that any ceasefire and agreement have the agreement of the Palestinian and Israeli peoples through their elected representatives. There has been some reporting about the basis of that ceasefire. Although my noble friend raises an important issue, if the possibility of a ceasefire is on the table, it is important that we do all we can to support that process.

Baroness Uddin (Non-Afl): My Lords, I take this opportunity to condemn the merciless attacks on innocent women and children in Gaza. While I accept the premise of this Question and its importance, does the Minister accept that the real issue of concern for the international community should be the illegal occupation and the continuation of illegal settlements?

Baroness Warsi (Con): My Lords, there is no doubt that unless the underlying causes are resolved, this dispute will continue and we will see eruptions of the violence that we saw in 2008 and 2012, and which we see again in 2014. That is why we were supportive of the Kerry talks and that is why it is important that we have a ceasefire and that both parties can get back to the discussion table to try to resolve those underlying issues.

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Lord Lexden (Con): Are there to be international observers at the Palestinian elections, if and when they take place?

Baroness Warsi (Con): My Lords, I am not sure. Certainly, we hope that these elections will happen in due course, but I am sure these are matters that will be discussed at the time.

Lord Palmer of Childs Hill (LD): My Lords—

Baroness Morgan of Ely (Lab): Does the Minister agree that any Palestinian Government should take better account of the needs of the youth of the territory, bearing in mind that 55% of the Palestinian population are under the age of 25, one-third of the youth are unemployed and 48% of Gaza youth have suggested that they would support an uprising against Hamas and believe that the new generation of leaders would do a better job? What can Her Majesty’s Government do to support the needs of Palestinian youth to help them get their voice heard in the future of their territory?

Baroness Warsi: The noble Baroness is absolutely right. This boils down to people and their futures. The Palestinian people and the Palestinian youth have a right to a strong, stable future where they can have the ambitions that we so take for granted. However, the tragedy of the current situation is that, unfortunately, if you look at what is happening on the ground, because of this current crisis Hamas is becoming more popular. That is not in the interests of the Palestinian people, it is certainly not in the interests of Israel and it is not in the interests of world peace.

Royal Mail Sale

Question

3.31 pm

Asked by Lord Young of Norwood Green

To ask Her Majesty’s Government what recent assessment they have made of the value for money achieved from the sale of Royal Mail.

Lord Popat (Con): My Lords, the Government’s overall objective in selling shares in Royal Mail was to protect the universal postal service by ensuring that Royal Mail has a sustainable and secure future. The sale raised £2 billion for the taxpayer and it enables Royal Mail to access the private sector capital that it needs to invest in growth. The sale guards against the real need for Royal Mail to request additional taxpayer support in the future.

Lord Young of Norwood Green (Lab): My Lords, I thank the Minister for his reply, even though it was what I expected. If the enhanced share price, which today stands at 479.60p, was just market “froth”, can the Minister explain why the long-term priority shareholders sold their stakes for huge profits? Given that the National Audit Office has said that the business department’s

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desire to sell Royal Mail before the election next year resulted in a knockdown price that cost taxpayers £750 million, does the Minister feel that there are any lessons to be learnt for any future sale?

Lord Popat: My Lords, there are a number of questions in the noble Lord’s question. First, let me cover the share price. The share price for Royal Mail is very volatile. It reached £6.15 in January and stands at £4.79 as of this morning. The Government achieved their intention to ensure that Royal Mail started with core, long-term, stable investors who understood the business, along with some hedge fund participation to ensure liquidity in the aftermarket. This was absolutely real value for money and such a success story of this Government.

Noble Lords: Oh!

Baroness Wilcox (Con): Would the Minister remind the House that the Labour Party failed completely in its own attempt to sell Royal Mail, and was much relieved when this Government managed to sell it for what was certainly at that time a fair price, in order to save the post offices which we still have and—most importantly—to save the pension scheme, which had no money left in it at all?

Lord Popat: My noble friend raises a very important question. The party opposite failed to achieve a sale or to find a solution to the problem of Royal Mail. This Government have taken a loss-making public enterprise and turned it into a highly successful, respected public company. Both the National Audit Office report and last week’s Select Committee report reached the important conclusion that we had successfully achieved our objectives. The Royal Mail IPO has inspired other companies in the UK to go for a flotation.

Lord Low of Dalston (CB): My Lords, the noble Lord will be aware that much concern has been expressed by Royal Mail and others at the threat posed to the sustainability of the universal postal service by the rapid rise of direct delivery competition in postal services, which are able to cherry pick the lowest hanging fruit without any obligation to serve less profitable and harder-to-reach markets. Would he agree that, in those circumstances, it would be helpful if Ofcom, which has responsibility for the integrity of the universal service, undertook a full review of direct delivery as a matter of urgency, instead of in 2015 as planned, and determined quickly any regulatory changes needed to protect the universal service?

Lord Popat: My Lords, the businesses complement each other. As the chief executive of Royal Mail has said, it is unthinkable that the two companies will not always work very closely. Ofcom is an independent organisation and it will regulate and oversee the function of the Royal Mail.

Lord Clarke of Hampstead (Lab): My Lords, we certainly do not need to be reminded of the failure of the previous Labour Government, because I still feel

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the shame about how the Bill was introduced in this House. However, putting that to one side, could I ask the Minister a question that is pretty much along the lines of the previous question? I am sure that he will recall the assurances that the Government gave to Royal Mail and the British public. In talking about the value of Royal Mail, one should look at the value of the service that it gives. Has the Minister any idea of bringing forward the review, which I am told will not be until next year? The cherry picking is already having a great effect on the ability of maintaining a universal service, and I am sure that the Minister will agree that, if it carries on haemorrhaging the profitable parts of the mail business to unregulated operators, the regulator will quickly have to have another look at Royal Mail’s situation. Could he please give us the assurance that the review will take place sooner rather than later?

Lord Popat: My Lords, here was a company which prior to privatisation was turning around £9 billion a year. It lost money for a number of years, to the tune of £1 billion. Preceding the era of privatisation it made a £300 million profit, hence we went for the flotation, at the time when there was the real threat of the American debt crisis as well as unions threatening to strike—and each strike day costs roughly £30 million, so a £300 million profit can be wiped out in 10 days. It was a successful flotation, and the Secretary of State has appointed the noble Lord, Lord Myners, to look into how best we can do any future flotations.

Lord Stoneham of Droxford (LD): My Lords, despite the generally successful privatisation of the Royal—

Noble Lords: Time!

The Chancellor of the Duchy of Lancaster (Baroness Stowell of Beeston) (Con): I am sorry that we have reached the 30 minutes for Question Time and, even though it is me who is at the Dispatch Box next time, I think that it is time that we moved on.

Leader of the House: Cabinet Membership

Private Notice Question

3.38 pm

Asked by Lord Forsyth of Drumlean

To ask Her Majesty’s Government whether the Leader of the House will be attending Friday’s Cabinet meeting as a full member of the Cabinet.

Lord Forsyth of Drumlean (Con): My Lords, I beg leave to ask a Question of which I have given private notice.

The Chancellor of the Duchy of Lancaster (Baroness Stowell of Beeston): My Lords, I will attend Friday’s Cabinet, as my noble friend and predecessor Lord Hill would have done, and will be able to participate fully in Cabinet discussions just as he would have done.

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Lord Forsyth of Drumlean: My Lords, I am sure that I speak for the whole House in congratulating my noble friend on her appointment, and I am sure that she will do a brilliant job as the Leader of the House. The Companion to the Standing Orders, in paragraph 4.03, on page 61, says:

“The Leader of the House is appointed by the Prime Minister, is a member of the Cabinet, and is responsible for the conduct of government business in the Lords”.

It says so because it is vital that the Leader of the House has the authority of a Cabinet Minister, especially given the large volume of legislation that comes from the other place undebated and unconsidered. She needs the authority to be able to say to other Cabinet Ministers, “This will not wash”, and to say to the Prime Minister, “I think you need to think again”.

Can my noble friend reassure me that the Prime Minister will bring the situation into line with our Standing Orders and with the guidance in the Companion? Is she really happy with a situation where, for the first time in the history of this House and of Cabinet government, there is no Cabinet Minister in this House? What sort of signal does that send to the Civil Service and others about the authority of this place in its important duty of revising legislation?

Baroness Stowell of Beeston: My Lords, my noble friend raises a number of important points. Clearly he is right to question whether the Leader of the House of Lords is fully equipped to do that job. I am absolutely confident that the Prime Minister has given me the authority I need to represent your Lordships in Cabinet. A few months ago, in answer to a Question on another topic, I said that sometimes I liked to think of myself as an action woman. I like to get things done. I do not need status in order to get things done. I have the authority I need and I shall be judged on the work that I do.

Baroness Royall of Blaisdon (Lab): My Lords, I have no doubt that the noble Baroness can get things done. This is not about her status; it is about something much more profound. When I heard about this yesterday, I simply did not believe that it could be true. When it was confirmed later in the day, I was deeply dismayed that the Prime Minister could treat this House with such contempt. The men previously appointed to this post by the Prime Minister sat at the Cabinet table as full members. When it is in government, my own party will reverse this. I shall refer the issue to the Constitution Committee and I hope that it will ask the Prime Minister to give evidence.

I have a number of questions but for the moment I will confine myself to this. Other than for a party chair, what are the precedents for a political party paying part of the salary of a Cabinet Minister? Given that the Leader is the Leader of the whole House and not just of the Conservative Benches, surely this is both improper and unethical.

Baroness Stowell of Beeston: I would emphasise to the noble Baroness and to all noble Lords that I shall sit around the same Cabinet table and participate fully in its discussions in exactly the same way as all my predecessors did. It will be a great privilege to do so.

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As to her question about the salary that the post attracts, I can assure the House that careful consideration is being given to the propriety of any arrangement.

Lord Cormack (Con): My Lords, what is at stake here is not the status of my noble friend but the status of this House.

Baroness Stowell of Beeston: I can tell my noble friend that I believe that we have a duty to uphold the reputation of the House as a serious and distinguished institution that serves the public interest. That is what we will be judged on and that is what I intend to do. I hope that I have the support of all noble Lords in fulfilling that responsibility.

Lord Laming (CB): My Lords, does the Leader accept that she commands the full support of the House? There is no doubt about that. Lest there be any doubt, she should understand that the Cross-Bench Members of this House join with all other noble Lords in saying we believe that it is most important that the Leader of this House is a full member of the Cabinet.

Baroness Stowell of Beeston: I am grateful to the noble Lord. As I have already said, I understand why noble Lords are raising this issue. However, if I were concerned that the status I have been given as Leader were in any way diluted and would affect the practical way in which I shall conduct myself in fulfilling my responsibilities, I would clearly question it. I do not believe that it does.

Lord Dholakia (LD): My Lords—

Baroness Scotland of Asthal (Lab): My Lords—

Baroness Stowell of Beeston: I believe that we have not heard from the Lib Dem Benches.

Lord Dholakia: My Lords, does my noble friend agree that the important aspect of this appointment is that the status of a full member of the Cabinet enjoyed by the former Leader, the noble Lord, Lord Hill of Oareford, is in no way diminished by the present appointment? Would she give a categorical assurance that this will be so?

Baroness Stowell of Beeston: I say to my noble friend that, in all practical ways, I will contribute to Cabinet in exactly the same way as my predecessor. That is what the Prime Minister asked me to do.

Lord Cunningham of Felling (Lab): My Lords, I first join with the noble Lord, Lord Forsyth of Drumlean, in saying that this Question has nothing to do with the ability or the integrity of the noble Baroness. These issues concern the status of this House. Does not history tell us that since 1902 the Leader of this House has been a full member of the Cabinet? What has happened is not that the noble Baroness has done anything wrong; it is that the Prime Minister has diminished the standing and rank of this House.

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Baroness Stowell of Beeston: Some historians might question whether there has ever been a Leader of the Lords who was not a full member of the Cabinet. Some documentation I have seen suggests that one of my most distinguished predecessors, my noble friend Lord Carrington, was not a full member of the Cabinet when he was Leader of your Lordships’ House. I refer back to my point that the most important issue, in the context of the status of this House, is how we all conduct our responsibilities.

Lord Crickhowell (Con): My Lords, it may be true about the time when my noble friend Lord Carrington was Leader of the House, but at least two other Cabinet Ministers at that time were from the House of Lords. Is my noble friend aware that there is no constitutional or formal limit on the size of the Cabinet? The only limit arises on paid members of the Cabinet under the 1975 Act. Therefore, it ought to be possible to arrive at a solution that enables the Cabinet to be large enough to provide what the whole House thinks should happen: that the Leader is a member of the Cabinet.

Baroness Stowell of Beeston: I can assure my noble friend that all options have been carefully explored. The decision the Prime Minister has made is the right one given the constraints under which he has to operate. I share his view on that matter.

Baroness Scotland of Asthal: My Lords, can the noble Baroness accept from all of us that she has our wholehearted support? However, can she not understand that this is a matter of constitutional importance? When she stands at the Dispatch Box she represents the whole of this House. When she says, on behalf of the Prime Minister, that she understands his position, will she not accept that no one else in this House does? Will she convey to him, in the strongest possible way, that it is this House’s view that he has committed what amounts to a constitutional outrage that this House does not accept?

Baroness Stowell of Beeston: I believe that, in making his appointments yesterday, the Prime Minister ensured that we have a Government well equipped to serve the people of this country. I have made the point about the status of the Leader of this House. Clearly, I understand the very strong views that have been expressed during the supplementary questions to this Question. However, for my part, I want to focus on how I do my job and what I do.

Baroness Royall of Blaisdon: My Lords, I realise that a Private Member’s Bill is now due to be introduced, but this is a self-regulating House and there are two or three more noble Lords who wish to put a supplementary question to the Leader of the House. I have the greatest sympathy for the noble Baroness but I ask whether, in this self-regulating House, those Members who still have a question to put to her can do so.

Lord Newby (LD): My Lords, I remind noble Lords that we are indeed a self-regulating House—but a House that has very clear rules about how we conduct our business. Noble Lords opposite are great defenders of the Companion. I propose that we respect the Companion in this regard.

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Lord Bassam of Brighton (Lab): My Lords, with the leave of the House, we could continue this session for at least another five minutes so that these important and valuable constitutional questions could be addressed. I think that the House is owed that by the Government.

Lord Elystan-Morgan (CB): My Lords, I respectfully put to the noble Baroness the Leader of the House that the Act which limits the number of Cabinet members to 23 essentially creates a first and second division. The first division comprises ex officio members of the Cabinet, and that is a special status. In the 300-year life of the Cabinet as we know it, there has never before been a situation when at least one Member of the Lords, and probably than one Member, was not an ex officio member. Has the Prime Minister done this out of oversight or out of a deliberate policy in relation to this House?

Baroness Stowell of Beeston: My right honourable friend the Prime Minister clearly has to operate in accordance with the legislation that prescribes how many Cabinet posts can attract a salary. He has made his decisions on his appointments, as he is at liberty to do, and I believe that he has made those decisions properly. I understand that noble Lords want to keep debating this matter but, as there is very little more for me to offer beyond what I have said so far today, I can only repeat what I said: some important points have been made but I am quite clear that the status that the Prime Minister has afforded me accords me to do my job appropriately.

Lord Foulkes of Cumnock (Lab): My Lords, does the noble Baroness recall that when Gordon Brown was Prime Minister, he had not just my noble friend Lady Royall as a full member of the Cabinet but my noble friends Lord Mandelson and Lord Adonis as well—there were three full members of the Cabinet. The noble Baroness is Leader of this House. Surely she recognises the view of this House. Why can she not go back to the Prime Minister and say, “This is the view of the House”, and then come and tell us whether the Prime Minister will reconsider his decision in the light of the views of this House?

Baroness Stowell of Beeston: My Lords, the Prime Minister in the previous Government was responsible for the appointments that he made and I am not going to comment on them. However, the one thing that I will say to the noble Lord is that it was the previous Government who decided to make a very substantial constitutional change to this House, leading to the removal of the Lord Chancellor from this House. As I have said, many points have been made in this debate and I am grateful to all noble Lords for what they have said.

Chancel Repairs Bill [HL]

First Reading

3.54 pm

A Bill to make provision for ending the liability of lay rectors for the repair of chancels.

The Bill was introduced by Lord Avebury, read a first time and ordered to be printed.

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Select Committees

Membership Motion

3.55 pm

Moved by The Chairman of Committees

That Baroness Stowell of Beeston be appointed a member of the following Committees, in the place of Lord Hill of Oareford: House, Liaison, Privileges and Conduct, Procedure and Selection.

Lord Foulkes of Cumnock (Lab): This Motion is debatable. We are talking about appointing the Leader of the House to various committees. If Members of the House wanted to pursue the issue that we were discussing earlier, we could discuss it now. This is a self-regulating House. It is unbelievable that one distinguished Member of the House—he is leaving now—should get up and move a Private Member’s Bill when it was clearly the wish of the House, indicated by my noble friend the Opposition Chief Whip, that we wanted to ask more questions and have this discussed. It is a pity that this House is being steamrollered in such a way.

Lord Elton (Con): My Lords, we are now on the next business. I suggest we get on with it and rely on my noble friend the Leader of the House to take the message that we have given her to the Prime Minister and to ask him to read Hansard.

Motion agreed.

Supply and Appropriation (Main Estimates) Bill

Supply and Appropriation (Main Estimates) Bill

Second Reading (and remaining stages)

3.56 pm

Moved by Lord Newby

That the Bill be read a second time.

Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time and passed.

Data Retention and Investigatory Powers Bill

First Reading

3.57 pm

The Bill was brought from the Commons and read a first time. Standing Order 46 was dispensed with.

Data Retention and Investigatory Powers Bill

Second Reading

3.57 pm

Moved by Lord Taylor of Holbeach

That the Bill be read Second Time.

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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, when I repeated the Statement of my right honourable friend the Home Secretary last Thursday, I outlined to the House the urgent need for this legislation. I am sure that noble Lords will agree with me that it is essential for both the Government and this Parliament to ensure that law enforcement, and the security and intelligence agencies, have the powers they need to do their duty. Those powers are now at risk. If we do not take urgent action, lives could be lost. As your Lordships’ House has already heard, the situation is pressing. The timetable for this legislation is, accordingly, inevitably very tight, and I will talk about the reasons for that.

However, it may be helpful to the House if I make clear that Members who wish to table amendments for the Committee stage of the Bill are now able to do so. Amendments for the Marshalled List may be tabled up until the rising of the House, at which point the Legislation Office will produce a Marshalled List in the normal way. Members will also be able to table manuscript amendments for the Committee stage of the Bill tomorrow morning. Arrangements for tabling amendments for subsequent stages of the Bill will be announced in due course.

Perhaps I may turn to the legislation itself. I should like to take a moment to reassure the House. This Bill does not provide any new powers. It does not alter or amend existing powers. It simply provides a clear basis, in respect of both data retention and investigatory powers, for the exercise of existing powers. Crucially, and quite rightly, the legislation is sunsetted. Its provisions will be repealed at the end of 2016. The intention—Clause 7 has been amended in the Commons to provide an explicit legal basis for this—is that we will have time in the interim for a proper debate about what powers are required in the future. There will be a review, led by the independent reviewer of terrorism legislation, David Anderson QC, into what powers and capabilities might be required in the future, considered in the full context of the threat. That review will consider capabilities but it will also consider safeguards to protect privacy, the challenge of changing technologies, issues of transparency and oversight, and the effectiveness of current legislation.

David Anderson’s work will be far-reaching. It will provide a robust, independent basis for the subsequent work of a Joint Committee of Parliament, to be established following the general election. There will be a public debate and Parliament will have the necessary time to consider legislation on these important and complex issues. I know that some noble Lords have questioned the timing of the sunsetting provision. I hope now that the Government’s intentions behind that timing are clear.

Noble Lords will also be aware of the wider package of measures, announced by the Prime Minister last week, which will strengthen safeguards and reassure the public that their rights to security and privacy are equally protected. We have now published terms of reference for the various measures, including the privacy and civil liberties oversight board. Following ongoing discussions with the Opposition and consideration in the Commons, we have amended Clause 6 to ensure that the independent Interception of Communications

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Commissioner will now report every six months. I am sure that your Lordships will agree that these measures will help to ensure a better-informed public debate.

I now turn to the purpose of the Bill and the matters before us today. Communications data—the who, where, when and how of a communication, but not its content—can be used to piece together the activities of suspects, victims and vulnerable people. They can prove or disprove alibis, identify links between potential criminals, tie suspects and victims to a crime scene, and help find vulnerable persons at risk of imminent harm. Only this morning, noble Lords will have seen the news that the National Crime Agency has made more than 600 arrests as part of a six-month operation targeting people accessing child abuse images online. Senior officers are clear that, without access to communications data, many of these investigations would hit a dead end.

Those data are held by communications service providers for their business purposes and where they are required to do so by law. They are then accessed by law enforcement, subject to stringent safeguards, where it is necessary and proportionate to do so for a specific investigation. But, as I explained last week, a recent judgment in the European Court of Justice has put into doubt the legal basis on which we require service providers in the UK to retain communications data. As a result, we run the risk of losing access to data that are vital to a wide range of investigations. This could be devastating. It would seriously undermine the ability of the police, the National Crime Agency, the intelligence services and others to prevent and detect crime, catch terrorists, and safeguard and protect children and others at immediate risk of harm.

The Bill also deals with investigatory powers and, specifically, the interception of communications. The content of a communication—the text of an e-mail or a telephone conversation—can play a critical role in the work of law enforcement and the intelligence agencies. The majority of the Security Service’s top priority counterterrorism investigations use interception in some form to identify, understand and disrupt the plots of terrorists. The police and the National Crime Agency rely on interception to prevent and detect serious crimes, including drug trafficking, human trafficking and child sexual abuse.

The House will know that interception can take place only if there is a warrant authorised by a Secretary of State and that can happen only where he or she considers it necessary and proportionate and where the information sought cannot reasonably be obtained by other means. The legislation that provides for interception—the Regulation of Investigatory Powers Act 2000 or RIPA—obliges telecommunications service providers to give effect to interception warrants. This Government, like our predecessors, have maintained that this obligation applies to companies with customers in the UK, irrespective of where those companies are based. Given the increasing reliance of suspects in the UK on internet-based communications, the compliance of overseas companies is increasingly important to the UK’s interception capability. However, in the absence of explicit extra-territoriality, some overseas companies have now started to question their obligations under RIPA. Those companies have made it clear that they

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will comply with the law only where there is an explicit obligation to do so. Unless we put the matter beyond doubt, we could, very shortly, see a damaging loss of capability.

I now turn to the Government’s response to this situation. The Bill before the House today is a narrow and focused response to these two issues: the ECJ judgment and the potential loss of compliance with RIPA. On both matters, it makes explicit what we have always asserted to be the case. The first part of the Bill deals with the issue of data retention. At present, we can oblige companies to retain data where they are issued with a notice under the data retention regulations passed by Parliament in 2009. This means that the data are available when the police need them for an investigation. In spite of the ECJ judgment ruling, we have been clear that these regulations remain in force. However, in the light of the judgment, it is necessary to put the legal basis for these requirements beyond doubt. If we do not, there is a risk that these companies may begin to delete crucial data. Equally, if there were a successful challenge in the domestic courts, this would lead to an immediate loss of data.

Accordingly, Clauses 1 and 2 of the Bill provide a clear basis for data retention. They will replace the existing data retention regulations of 2009, maintaining the status quo. The data types to be covered by this new law will be identical to those in existing law. Although the European Court of Justice was critical of the data retention directive, it recognised the importance of data retention in preventing and detecting crime. Crucially, while the court asserted that the directive itself lacked the necessary safeguards, it did not take into account the robust regimes that exist in member states governing the access to the data. We believe that our retention and access regimes already address many of the ECJ’s criticisms. Among other safeguards, they include an authorisation process that was scrutinised in detail and endorsed by the Joint Committee on the Draft Communications Data Bill, ably chaired by my noble friend Lord Blencathra, and they are subject to robust, independent oversight by the Interception of Communications Commissioner.

The Government have, however, considered the judgment at length and are bringing forward changes that will extend the safeguards in place in order to respond to elements of the judgment and to ensure that the Bill is compliant with the European Convention on Human Rights. These include: the imposition of a requirement on the Secretary of State to consider the necessity and proportionality of a data retention notice before issuing it; specifying that the length of time for which data must be retained should be a maximum, rather than an absolute, period of 12 months; and the creation of a code of practice for data retention, which will place on a statutory footing well-established best practice.

A number of further safeguards will be introduced through the regulations made under the Bill. These regulations were published in draft last week.

Lord Phillips of Sudbury (LD): I apologise for interrupting the flow of my noble friend’s speech. However, he started by saying that the Bill introduced no new

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powers and did not amend existing powers, but he appeared just now to indicate that there were new powers in the Bill. Have I got it wrong?

Lord Taylor of Holbeach: My noble friend has got it wrong: it is about safeguards. I am talking about safeguards, not powers. I am talking about the Bill imposing limits on the discretion of the Secretary of State through the regulations and the Bill itself. If my noble friend will allow me to continue he will see that I am placing that in the context of seeking to provide a basis for continuing the provisions of the Bill without extending the powers that are available to the Secretary of State or the Government under the Bill.

Lord Knight of Weymouth (Lab): I apologise for intervening in the Minister’s speech, but given that he has just been interrupted anyway, on the same point, can he clarify that Clause 4, “Extra-territoriality in Part 1 of RIPA”, is not an extension of the legal powers that the state has in respect of these matters?

Lord Taylor of Holbeach: I can indeed do so. Extraterritoriality was assumed by the Government to be part of RIPA, and rightly so, as part and parcel of their legislation. We are making it explicit so that there can be no question of doubt about it. On extraterritoriality, as I said in my opening remarks, RIPA was based on the correct assumption that any firm that provided services here within the UK was governed by the law that we had in connection with these matters. In my view, there is no argument about that. Perhaps I may go on and finish my speech. The noble Lord is gracious enough to acknowledge that this is all of a piece, and I would like to be able to present it to the House as a piece.

I mentioned the number of safeguards to be introduced through regulations made under the Bill. These regulations were published in draft last week to enable parliamentary scrutiny and are available from the Printed Paper Office. The Delegated Powers and Regulatory Reform Committee has considered those regulations and made a report, which I am sure many noble Lords will have considered. I thank the committee’s members for their work. They have, as always, provided a useful and thorough review of the issues. In the case of this Bill, they have done so in a necessarily short period of time.

The committee is of course correct that it would be best to avoid a gap between the passage of this legislation and the passage of regulations. That is why the Home Secretary has been clear that our intention is to ensure that this secondary legislation can be approved by both Houses before the Summer Recess. This should reassure members of the committee, and other noble Lords, that the powers in question will not be exercised in lieu of those regulations being approved. It will not, therefore, be necessary to use the “made affirmative” procedure in this case. However, I thank my noble friend Lady Thomas of Winchester and her committee: their suggestion was a positive one. I am pleased that we have been able, through the usual channels, to ensure a more direct way of achieving the same objective —bringing the regulations into play before the Summer Recess.

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The committee has also invited me to address the potential scope of the delegated power at Clause 1(3). I am pleased to do so. The Government have already published a provisional draft of the regulations to be made under the Bill, and these go no further than the existing data retention regulations 2009. They are, I can confirm, limited to matters relating to the powers conferred by Clauses 1(1) and (2). I hope that this will satisfy the House of the Government’s intention.

The second part of the Bill deals with interception. In relation to interception, Clauses 4 and 5 make it clear that the obligation under RIPA to comply with interception warrants applies to all those companies that provide communications services to people in the United Kingdom, regardless of where those companies happen to be based. These provisions do not extend existing powers. They simply seek to make explicit what has always been asserted to be the case.

I know that many noble Lords will be interested in Clause 5, which clarifies the definition of a telecommunications service. When RIPA was considered by Parliament in 2000, it was intended to be technologically neutral. Much of it relates to fixed line or mobile telephony, so it also covers web-based email and social media communications. We are simply seeking to clarify that definition in order to put this matter beyond doubt.

These provisions will make clear the legal obligation on companies that provide communications services to people in the UK to comply with warrants issued by the Secretary of State. In the absence of such clarity, vital capabilities may be lost in the near future. It is of course never ideal for these matters to be considered in haste, but I trust that noble Lords will agree that it is imperative that we urgently address these issues.

I know that some noble Lords have asked about the delay between the court judgment on 8 April and this legislation being introduced. Following that judgment we needed to balance the necessity to respond quickly with the need to ensure that care was taken to get our response right. We could not have acted prior to that judgment because the precise response needed to be framed in relation to the detail of the judgment. While we are clear that the existing regulations remain in force, we must act now to put this matter beyond doubt, providing a basis in primary legislation and responding to some of the points made by the court.

In relation to interception, as I have told the House, we have reached a dangerous tipping point. It has become clear that without immediate legal clarity we could soon see a loss of vital co-operation. This is not a matter that we are able to leave until after the Summer Recess.

I express my thanks to both sides of the House for the support that they have given to the Bill. It has been constructive, I think, to have spent Monday talking to various Peers about it. I particularly pay tribute to the noble Baroness, Lady Smith of Basildon, for the constructive approach that the Opposition have taken. I look forward to an equally constructive debate in the House as we consider the Bill on Second Reading and at later stages.

I recognise that this is a tight timetable, but I hope that I have made clear the reasons for that. They were accepted in the House of Commons, which overwhelmingly backed the Bill yesterday. I am sure

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that noble Lords agree that we must ensure that the police and the security and intelligence agencies have the capabilities they need to protect the public and keep us safe. That is what the Bill will do. I beg to move.

4.20 pm

Baroness Smith of Basildon (Lab): My Lords, we are grateful to the Minister for his explanation of the content of the Bill before us today. We were clear in responding to the Statement last Thursday that, while recognising the immediate need to retain existing evidence relating to investigations into serious and organised crime and national security, the Government’s handling of this issue raises serious questions and concerns.

Those concerns remain, and I will come back to them, but, at the outset, I welcome the Government’s acceptance of the two amendments that we tabled yesterday in the other place, which gave statutory authority to both a six-month review of this legislation and a wider review of RIPA, the Regulation of Investigatory Powers Act—the legislation that provides for and underpins the whole basis of intercept evidence. That means a much more detailed and fuller consideration not just of the legislation but also of the context, application, implementation, impact and effects—and, importantly, the oversight—of the wider issues involved in retaining data and of intercept evidence. As the Minister said, that will be undertaken by the Independent Terrorism Legislation Reviewer, David Anderson, and we consider that such a comprehensive review is essential.

These are highly sensitive and crucial issues. Fast-tracking this legislation in the week before the House of Commons rises and just two weeks before your Lordships’ House goes into recess, when it could have been brought forward earlier does not inspire the confidence to which we and the public are entitled.

Clauses 1 and 2 provide for the retention of communications data—which is very similar to the powers provided for in the data retention directive and then in the 2009 order that gave effect to it. The directive allowed for data to be retained for up to 24 months, although the 2009 regulations provided a limit of 12 months, as the then Labour Government considered that to be adequate and proportionate. As the Minister explained, legal action then followed and, as a result, the directive was struck out in April this year. Although the UK regulations remain, they could be legally challenged.

We accept the necessity of retaining that data as an essential tool in investigating and providing evidence of some of the most serious and organised criminal activity. We also concur with the judgment of the Constitution Committee in its report today that the ECJ legal judgment means that the 2009 regulations lack legal authority and that new legislation is required urgently to replace them.

However, we are told that the following the ECJ judgment, an assessment had to be undertaken as to the legal framework and what action was required by the Government. Why “following”? I appreciate that the judgment was detailed, but the basic, fundamental issue was clear. Given how important it is, we find it absolutely incredible that, prior to the court decision, the Government appear not to have undertaken the

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necessary work to ensure that a new legislative framework could have been put in place with the appropriate scrutiny of both Houses of Parliament in good time.

In its report today, the Constitution Committee reinforces this point in its comment at paragraph 6, when it says:

“The contrast between the time taken by the Government to consider their response and the time given to Parliament to scrutinise the bill is a matter of concern, not least because of suspicions that are naturally aroused when legislation is fast-tracked”.

It is not the first time. Albeit on a different issue, in July 2012 when the courts struck out the statement of Immigration Rules, it appeared that the Government had not taken the necessary advanced preparation and no action was taken until after the court decision; it was rushed in in the few weeks before recess. This is no way to legislate. Since the first Bill we have been dealing with in this new Session of Parliament was the Serious Crime Bill, I have to press the Minister as to why this legislation was not brought in alongside that Bill to ensure greater scrutiny. We may still have had to accept some truncated intervals but it would have been a significant improvement on what we have now and would have removed some of the distrust and suspicion that fast-tracking has brought.

In its 2009 report Fast-track Legislation: Constitutional Implications and Safeguards, the Constitution Committee set out certain principles that should be addressed when Governments seek to fast-track legislation. Looking at this, it seems that many of those principles have now been met, either in the legislation or by the Government’s acceptance of our amendments yesterday in the other place. Noble Lords will be aware that in the discussions we had with Ministers, we were insistent on a sunset clause. That has been agreed. The 2009 report also referred to post-legislative review; the Government’s acceptance of our amendments regarding the six-month review of the legislation and a statutory basis for the review of the Regulation of Investigatory Powers Act meets that criteria.

The Constitution Committee listed other principles then but there is one on which I seek a distinct and precise response from the Minister, and it is raised again by the Constitution Committee in its report today. Why has this had to be fast-track legislation? I have been clear, and the committee is clear in its report, that the issue is not the time imperative which we now face to ensure that investigations of serious crime can continue but why the Government failed to bring legislation forward before now. The Government have a duty to provide Parliament with a significantly better response than we have received to date.

As we have heard, Clauses 1 and 2 of the Bill, which is now somewhat affectionately known as DRIP, provide for the continuation of powers to retain communications data collected in the UK for a limited time. We are clear that these powers are needed. This information is used to investigate and prosecute some of the most serious crimes, and of course it can be used to prove an alibi of someone wrongly accused of such crimes. My understanding is that these data, held temporarily for up to a year, are used in something like 90% or 95% of all serious and organised crime investigations, counterterrorism investigations and online child abuse investigations.

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For absolute clarity, it would be helpful if the Minister could confirm that nothing in those first two clauses on data retention allows for the content of communications to be retained, only information relating to the fact that a communication has taken place. Can he also confirm that nothing in these clauses in any way extends or enhances the existing data retention directives and that, as the Home Secretary said in her Statement, the number of public bodies able to access communications data will be reduced, as referred to in the judgment of the ECJ? Is he able to say anything more about that at this stage and when the order limiting use of these data is likely to be brought forward?

The Minister commented earlier on the Delegated Powers Committee’s report on this issue. It addressed that in paragraph 7 and suggested using the “made affirmative” procedure to ensure that the regulations are in force before the powers can be exercised. That is a helpful and welcome suggestion, as he acknowledged, because it addresses the illogicality of having fast-track primary legislation if the accompanying and essential secondary legislation which provides safeguards is not made available at the same time. I heard what the Minister said in response to that report in his opening comments. If I understood correctly, he agreed that that should take place but I was not totally clear whether he was agreeing to the procedure or saying that some other procedure would be found to ensure that secondary legislation would be in place when this Bill comes into force. It would be helpful to the House if he could explain that when he winds up.

Clauses 3 and 4 make explicit the territorial provisions in RIPA to put it beyond doubt that interception warrants can be issued on companies which provide services to the UK but are based outside the UK. They also clarify how such warrants can be issued. As I think noble Lords understand—I am sure that the Minister understands this from the meetings that he has had with me and others—this part of the Bill is more complex and illustrates how global the communications world has become. Increasingly our communications are global rather than local, but local communications can also be provided by companies that provide services within the UK while their headquarters may be outside the UK. The distinction between national and international data is extremely blurred in the light of modern technology. Will the Minister confirm that such information is already sought and provided in certain circumstances, and that these clauses ensure that the legal framework is explicit?

We have heard from the interventions from the noble Lord, Lord Phillips, and my noble friend Lord Knight about whether the extraterritorial claims go beyond current legislation. It would be helpful to have further clarification on this. My understanding, and perhaps the Minister can confirm this, is that it does not extend beyond the current practice and application of the law but reassures companies of the legal basis to comply with the legislation.

Lastly, I want to address the issue of safeguards and the wider review. The Government have to recognise that bringing forward these measures under the fast-track procedure means that it is essential that Parliament returns to these issues but that it does so in a completely

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different way. As important as these measures are, we should all recognise that this is temporary. There is a sunset clause to say that these provisions will expire at the end of 2016, when new legislation will have to be in place. Before then, a much wider review has to take place that must inform any such future legislation and oversight arrangements.

We believe that data communication information and intercept evidence are vital in tackling the most serious of crimes, and for national security. I think that all noble Lords recognise that we do not live in an ideal society where all citizens are guaranteed total and absolute privacy, and that modern technology requires legislation protecting security and liberty to be kept up to date and relevant. Equally importantly, we recognise that there must be safeguards to ensure that any collection of information must be proportionate and justified, and that measures should be used only for the purpose for which they are intended. There must be safeguards to protect the public interest and public privacy. The public have a right to confidence that the collection and retention of data meets these criteria. The establishment of a Privacy and Civil Liberties Board, as mentioned in the Home Secretary’s Statement, is welcome but it will have to be set up and operated in a way that inspires confidence in its title. We also support strengthening and enhancing the Intelligence and Security Committee.

Previously, the Government have resisted our calls for an independent review, so we welcome their acceptance of our amendments in the other place yesterday to ensure the statutory review of RIPA and the wider implications of the legislation. There has to be more than that, though; following that review, and before new legislation, there has to be a wider public debate. I said at the beginning that these are sensitive issues; they are also complex ones that strike at the heart of the issues that we care about most. We care about crime, national security and public safety, but we also care about the rights and privacy of individuals. It is not unreasonable for the public to demand both security and liberty. We have to get that balance right. We have to have public understanding of the issues and public consent, and fast-track emergency legislation does not give us that.

We support the Bill and are content that it maintains the existing capabilities, and we are content that the proposals do not extend the application of existing frameworks but provide a secure legal position and fill an immediate gap to ensure that vital evidence will not be lost. However, these issues, with all their complexities and sometimes seeming contradictions, are not short term. They will be with us for a long time and we need proper, sustainable policies that command support, not just temporarily but for the longer term. The real challenge has yet to be met.

For all the concerns about the nature of today’s debate and the use of fast-track legislation, we should use this debate as a starting point. It is an opportunity to welcome the broader, wider review; to strengthen oversight; to properly and effectively consider the balance between liberty and security, between privacy and public safety, in a world where technology is developing faster than at any other time in history; and to ensure

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as far as possible that this is not a private debate but one that, through honesty and clarity, provides confidence that we can get the balance right.

4.34 pm

Lord Paddick (LD): My Lords, it is clear to me, having served as a police officer for more than 30 years, how important it is for communications companies to continue to retain the data that the Bill requires them to keep. Having said that, as a Liberal Democrat, I am extremely concerned to ensure that any invasion of privacy is undertaken only where it is absolutely necessary, proportionate and compliant with both the European Convention on Human Rights and the European Court of Justice judgment.

As the Minister said, there are two main aspects of the Bill: data retention and interception. On the first aspect, it is important, but not widely understood, that this legislation is about data being retained by private companies, not by the Government or their agencies, so that those investigating crime can make specific requests for data about specific individuals. It is also important, but widely misunderstood, that these data give only the context and not the content of the communication: the date, time, place and identities of those involved in the communication, but not what was said.

My noble friend Lord Macdonald of River Glaven will talk about his experience as a former Director of Public Prosecutions, but my experience is, as the noble Baroness, Lady Smith of Basildon, indicated, that there are very few prosecutions of those involved in serious and organised crime or terrorism that do not use such data. Indeed, some cases heavily rely on such data. I cannot overemphasise the importance of these data for crime detection purposes.

Despite the reassurances given by the Minister, there are justified and serious concerns about the haste with which this legislation has been laid before us. My noble friends Lord Carlile of Berriew and Lord Strasburger will take up those points. That is not to say that there are not justified and serious concerns about the use of these data. It is not just the data of those suspected of crime that are retained, but everyone’s data.

There are concerns that access to the data is being given where such action is not considered to be proportionate. In addition to the police investigating serious crime and the security services and the police investigating terrorism, other agencies, such as local authorities, can access these data for relatively minor matters. That is why the Liberal Democrats are insisting that the range of agencies that can access the data is restricted. Will the Minister please inform the House of what those restrictions will be?

There are also concerns that even those agencies that have legitimate access to the data might make requests that are not justified or proportionate. That is why the Liberal Democrats are insisting that annual transparency reports are produced to ensure that the number of requests does not significantly increase under this legislation. Will the Minister confirm that this will be the case?

The second area is the interception of the content of communication, which requires a warrant signed by a handful of senior government Ministers, and the apparent extension of this power overseas. Will the

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Minister confirm that it was always implicit in the Regulation of Investigatory Powers Act, passed by the former Labour Government, that the power extended to companies whose infrastructure is overseas and that this Bill merely clarifies and does not extend its geographic reach? I know the Minister made that statement in his opening remarks, but it would be helpful for it to be emphasised because it is a major concern of many non-governmental organisations.

More generally, there are genuine and serious concerns about the whole area of intrusion into privacy and where the balance needs to be struck between privacy and security, as the noble Baroness, Lady Smith of Basildon, said. That is why the Liberal Democrats are insisting that there is a fundamental review of RIPA. We are very pleased that that was taken up in the other place by the party opposite and put into legislation. We need a fundamental review of all other legislation in this area and a sunset clause in the Bill to ensure that this review is undertaken. We need a proper debate in this country about how far we are willing to allow the state to intrude into our lives to keep us safe. Such a conversation has been delayed for far too long, and I am very pleased that, through the negotiations by the Deputy Prime Minister, this review will allow a proper discussion of these vital issues.

Can the Minister also confirm that an independent privacy and civil liberties oversight board will be established to advise the Government, not only on this review but on an ongoing basis, and that the Intelligence and Security Committee will in future be chaired by an opposition MP, to provide further confidence that there is a proper check on the activities of the Government and their agencies?

The new oversight board, the review of RIPA and the new annual transparency reports to be made to Parliament are all things that the Liberal Democrats supported at our recent party conference, where we called for a new digital Bill of Rights. Far from being a new intrusion into civil liberties, the Bill, alongside the package of changes also announced, will, I believe, strengthen civil liberties. We need to go further and enshrine a new digital Bill of Rights in statute, but these measures are an important step in the right direction.

The Liberal Democrats are very concerned about this whole area of privacy and security, which is why we have sought the concessions the Government have promised. That is why, when the Home Secretary saw this case as an opportunity to bring forward the communications data Bill again, we again blocked it. However, we accept these changes, on the basis of one final and vital point—that it is clear that this new Bill does not extend the power to intrude into people’s privacy.

As the Minister has said, this is not about extending the law further via emergency legislation rushed through Parliament. It is about retaining the status quo, which has been undermined by recent legal developments at the European Court of Justice, and the Government are in discussion with major non-UK telecoms providers. On that basis, and subject to the agreed concessions coming into force, we support the Bill.

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4.41 pm

Lord Butler of Brockwell (CB): My Lords, I should say at the outset that I am satisfied that the Government need the legislation before the House today. But like the noble Baroness, Lady Smith of Basildon, and others, I am very critical of the way in which Parliament has been treated on this matter. Taken with the subject discussed in the Private Notice Question earlier, this is a bad day for the relationship between Government and Parliament.

The Intelligence and Security Committee, on which the noble Marquess, Lord Lothian, and I represent this House, was warned a week ago today—last Wednesday, the day before the Home Secretary’s Statement—that this emergency legislation was to be introduced. The imminence of that Statement was widely reported in the next morning’s media, ahead of the Home Secretary’s Statement, so it appears that the media were briefed at the same time.

Why has Parliament been given so little time to consider this Bill? The two issues that it addresses have been apparent for weeks, indeed months. The ruling of the European Court of Justice was issued on 8 April. It was clear from that moment that the regulations that the intelligence agencies and the police in the United Kingdom use to seek details of communications from providers had become vulnerable to challenge. So the need for action, which this Bill addresses, has been known about for three months.

The second issue that the Bill addresses is the assertion that powers to require data from providers abroad have extraterritorial effect. But several of the communications providers based outside the United Kingdom have made no secret of the fact that they are willing to respond to requests for communications data only if they are required to do so by legislation. There is nothing new in that. Nor did it only become apparent last week that some of the major providers were based outside United Kingdom jurisdiction, or were about to move there. That, again, has been known for a long time.

The House may remember that following the Home Secretary’s Statement last week, which the Minister repeated, I raised this issue with him. He gave me a reply that at the time seemed good to me. However, on reflection, I find that I am not persuaded by it. The Minister explained that the delay between the ECJ judgment and the announcement of this legislation was due to the fact that the Government had been working with the law enforcement agencies and the data providers to get the details right. That is very understandable. Therefore the Government were discussing this problem with Microsoft, Yahoo! and other providers. Why were they not willing to discuss the issue similarly with Select Committees of Parliament when they were already discussing it outside the House? If the Government could reach a conclusion about the necessity for this legislation one week before the House of Commons went into recess, it beggars belief that they could not have reached that conclusion three weeks before the Recess, thus giving Parliament proper time to consider the Bill.

In 2012, when faced with the growing difficulty of getting access to communications data, the Government published a draft communications data Bill, as the House will remember. That Bill provided for a substantial

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extension of the Government’s powers, and the Government, very properly, provided the opportunity for a Joint Committee of both Houses and the Intelligence and Security Committee to examine the Bill and report on it. Both committees made some criticisms of the draft Bill, and the coalition decided not to go ahead with it as a result of the reservations of the Liberal Democrat members of the coalition. Unlike that Bill, this Bill does not break new ground, so the Government’s failure to give Parliament longer notice of it and enable Parliament to satisfy itself about its details is more difficult to explain. Those who take a conspiracy view of government might be tempted to speculate that having burned their fingers through consultation on the communications data Bill, the Government thought it wiser to bounce Parliament rather than to run the same risk again. The Minister owes the House an explanation of that.

I criticised the Government for their delay in consulting Parliament about the Bill. I have also asked myself whether the Bill is so urgent that it has to be treated as emergency legislation in the few days remaining before the Summer Recess. On this I believe the Government have a more convincing story to tell. I understand that the Government take the view that the UK regulations based on the European directive do not automatically lapse as a result of the ECJ judgment. One might therefore take the view that it could be several months before they could be challenged in a UK court, which would enable Parliament to consider the Bill properly in the autumn. However, I am advised that following the ECJ judgment, and ahead of a challenge, communications providers might feel obliged to destroy data that are no longer needed for their own operational purposes, and that evidence valuable for the prosecution of crime or prevention of terrorism might be lost. Similarly, the co-operation of communications providers outside the jurisdiction is sufficiently valuable in the prevention of serious crime and terrorism that I accept that the assertion of extraterritorial coverage should not be delayed. Therefore on the substance of the legislation, as I said at the outset, the powers in the Bill are necessary, subject always to the reservation that there has not been time to study its provisions in the detail that would have been desirable.

When the Intelligence and Security Committee examined the communications data Bill, which extended the Government’s powers, we were satisfied with the case in principle for extended powers, subject to important issues of detail. Although our committee has not had as much opportunity as it would have wished to examine the present Bill, it would be odd to cavil at the maintenance of existing powers which have been shown to be very important for the investigation and prevention of serious crime. Therefore, with regret that the Government have not given Parliament the time to examine the Bill properly in detail, I support the legislation.

4.50 pm

Lord Howard of Lympne (Con): My Lords, in view of the support for the proposals in the Bill, which has been voiced by the last three speakers—hedged around with caveats though that support was—I hope that I can be relatively brief in my support for those proposals. It is, of course, for my noble friend the Minister to

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reply to the criticism made by the noble Lord, Lord Butler, but it does not seem to me to be wholly unreasonable that the Government waited until they knew how they were going to proceed before putting proposals to Parliament or its committees. They could not know how they were going to proceed until they had completed their consultations with the companies to which the noble Lord referred. That does not seem to me to be unreasonable. However, that is really a matter for my noble friend the Minister. I propose to address my brief remarks to the substance of the Bill and the general proposals. They have not yet been challenged, but the debate is young and there may be those who may yet wish to challenge them.

One of my honourable friends in another place said yesterday that we should be cautious about allowing technology to infringe our freedoms. I would put it rather differently: I believe that we should embrace technology in order to protect our freedoms. The greatest freedom that any citizen can have is the freedom to carry out his or her lawful business without the danger of being blown up or being the victim of some other serious criminal offence. If the law enforcement authorities are to be able to carry out their job and protect that fundamental freedom, it is essential that they have the powers which are contained in this Bill.

The point was put extremely eloquently yesterday in another place. If noble Lords will permit me, I shall do something which I do not believe I have ever done before, which is to quote—with approval—from the observations of my immediate successor as Home Secretary, Mr Jack Straw. He said that,

“where there is a suspect for a crime, it is for a crime that has been committed in the past. The police will not know who that suspect is until they come to the police’s attention, at which point they have to get historical evidence. These days, part of that historical evidence will be in data records. They have to be able to access everybody’s data records in order to find those of one particular person, because the police, no more than the rest of us, are not given powers of clairvoyance with which to anticipate who is and who is not to be a suspect. Unless or until I hear from opponents of this Bill and of data retention how the police can be expected to identify in advance those who are going to be suspected of crime, I have to say that the whole logical basis of their argument completely falls away”.—[

Official Report

, Commons, 15/07/2014; col. 734.]

Mr Straw was absolutely correct in those remarks. They go to the nub of the need for the powers contained in this Bill. He went on in his speech to explain that the supervisory powers over the authorities which have the ability to exercise the powers contained in the Bill has been extended and strengthened in recent years. I believe that that supervision is robust, and that it is adequate to protect the essential liberties of the citizen. I commend these proposals to the House.

4.53 pm

Lord Knight of Weymouth: My Lords, I have to start —like the noble Lord, Lord Butler, who made such an excellent contribution—by saying that the Government’s handling of this Bill has been a disgrace. I cannot repeat any better why it is a disgrace, and it would be ridiculous of me to try to compete with the noble Lord’s analysis. To have given Parliament three days when they have had three months to consider their response is a disgrace. Although my ministerial experience, at just

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five years, is much more limited than that of the previous speaker, whom I equally respect, particularly his experience as Home Secretary, I know that when there was the threat of a case in the European Court, Ministers would receive a risk analysis. I find it difficult to believe that no one in the Home Office had a plan B. If they were to lose that case, the thinking was not going on within government as to how they were going to handle losing the case and the uncertainty with which they would then have to deal with the RIPA powers. So I am afraid that that is my starting point.

I would also strongly agree with my noble friend Lady Smith of Basildon and others when they say that there is a need for Parliament to be seen to address the very real public concerns over the balance of privacy and security and the desire for personalisation of digital services. Some of us use digital services very heavily and are only just becoming aware of how much our desire for all those personal services that come through on our phones and tablets generate metadata that are now the subject of this legislation. Given the need for Parliament to be seen to address and debate, and lead a debate in the wider public, on those concerns, it is an affront to see the legislation railroaded using the fast-track mechanism. The basis of my comments is to analyse whether some of that is justified.

Yesterday, as is my wont, I gave some friends and some of their family who are over from Canada a tour of the Palace of Westminster. Highlights of that tour are always things such as the Magna Carta; there is a copy in the Content Lobby, and we will enjoy celebrating its 800-year anniversary next year. Then there is the statue of Lord Falkland, where the sword was cut to allow a suffragette called Marjory Hume to be taken off to prison in 1909, and the plaque commemorating Nelson Mandela speaking in Westminster Hall. Best of all is the broom cupboard in the Crypt, where Emily Wilding Davison hid on the night of the 1911 census, and the phrase at the end that Tony Benn put there:

“By such means was democracy won for the people of Britain”.

That tour contains in its highlights all those moments where we recognise hard-won civil liberties for us as individuals, both here and around the world. It is incumbent on us as a Parliament and those who serve at any given time in this Parliament to protect those liberties as strongly as we protect the safety and security of the people in this country.

We also need to remember that we have a different tolerance of our own privacy, because we agree to become public figures when we agree to come here, than do most people who live in our country. The information in Who’s Who would probably allow anyone who wanted to steal some of my information to do so, because it has my mother’s maiden name as well as my date of birth, which are the sort of questions that you get asked online. We understand that when we fill out the entry in Who’s Who and we are aware of the risks that we take when we do so. I hope when we make up our security information online that we are also aware of it and are accordingly cautious.

We also need to be aware of the issue of metadata. When I sat in the audience in the Donmar Warehouse theatre a month or so ago, as a guest of my noble friend Lord Mitchell, watching the play “Privacy”, we

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heard gasps from the audience when they found out how the default settings on an iPhone mean that Apple knows exactly where we are and exactly when at any given time, unless we change those settings. They were some of the greatest moments of theatre that I have seen in some years—it was my first profession— when I heard the gasps of the audience who saw the pictures of their houses flashed up on the back of the screen, because the researcher had researched them using metadata to show where they all lived. That is metadata, the subject of the Bill—and that is something that we have to be cautious about.

There has been a breakdown of trust in recent years between the people of this country and the state, particularly those pursuing criminal investigations. This is because of Hillsborough and Savile; because of phone hacking, and plebgate. We must have an active debate on a regular basis because of PRISM and because of the powers that the private sector and, through it, the state and GCHQ have to access our data. As a Parliament we have been remiss in not debating Snowden as actively as we should have and as actively as they have done in the US. If we do not, I think we are failing the public

I am persuaded by the arguments that Clauses 1 to 3 are necessary. I believe that security and the ability to continue criminal investigations mean that we have no choice but to pass Clauses 1 to 3 of this Bill. This was well put by the noble Lord, Lord Paddick. We need the status quo for criminal investigations.

I welcome the concessions that my right honourable friend the Shadow Home Secretary, Yvette Cooper, has won in getting the RIPA review and six-monthly reporting into the legislation. I worry that the thinking behind these reviews is through the prism—if that is not the wrong word—of security and law enforcement as the starting point, rather than the data privacy of individuals. I should also like to see a review of the operation of the Information Commissioner’s Office. According to its website, it is:

“The UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals”.

That office needs to be the guardian of members of the public on these issues. I hope the Minister will be able to give an assurance from the Dispatch Box that the Information Commissioner’s Office will be included in some of that review work.

Clause 4 concerns what I will call the new powers overseas because I cannot pronounce extraterritoriality very well. I struggle to see the emergency for this to be included in a fast-track Bill. In the report of the Constitution Committee, published today, paragraph 11 says:

“It is not clear why these provisions need to be fast-tracked”.

It may not be fashionable to quote Liberty but it says that Clause 5 of DRIP, read together with Clause 4 (8), gives the Government “new, express powers” to go to foreign webmail providers and demand that they hand over or obtain communications data. The objectives of the snoopers’ charter are therefore met via another route. That is their charge. If the Minister were able to respond to that, I think that supporters of Liberty would be pleased to hear it.

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As I am sure your Lordships will all have done, I have received a letter from a list of highly credible legal experts on internet law. These are professors from a whole range of our best universities. They say that this clause,

“introduces powers that are not only completely novel in the United Kingdom, they are some of the first of their kind globally”

The letter continues,

“the proposed Bill arguably breaches EU law to the extent that it falls within the scope of EU law, since such mass surveillance would still fall foul of the criteria set out by the Court of Justice of the EU in the Digital Rights and Seitlinger judgment”.

They would say that the reassurance which the Minister gave, following my intervention, is not true. I am sure that everything the Minister is saying is on good advice and in good faith. I know him to be a completely honourable and truthful man and I do not question what he is saying. However, I would value it if he were able to publish or circulate to Members of your Lordships’ House the advice he has received that this legislation, particularly Clause 4, is not in further breach of EU law, and that it will not extend the legal rights—not the practice but the legal rights—of government in respect of these matters.

On balance, very reluctantly, I support the Second Reading of this Bill, but I question whether Clause 4 should continue to be in the Bill.

5.04 pm

Lord Macdonald of River Glaven (LD): My Lords, I am not going to labour the importance of communications data in serious criminal trials. That has been widely acknowledged. However, I cannot think of a single major terrorist trial in recent years in which this material has not been deployed to significant and sometimes determinative effect. As the central purpose of the Bill is simply to preserve a situation in which this material may be accessed and used under appropriate lawful authority, I support it.

Of course, the ambit of the Bill goes far beyond phone calls. The world has changed, bringing with it the internet, e-mails and social media. I listened with great interest to what was said a few moments ago by the noble Lord, Lord Knight. However, I do not believe that any sane rule of law jurisdiction can confer on the internet a form of immunity so that what occurs there cannot be used as evidence of criminal wrongdoing if it is such evidence. As for extraterritoriality, it is difficult for me to understand why e-mails to and from individuals in the UK should be accessible if they are routed through a UK server but somehow inaccessible if they are routed through the United States. For my part, I prefer these matters to be resolved by legislation, which can be debated, amended, repealed and improved, rather than by nods and winks between our authorities on the one hand and overseas providers on the other, which is what may have happened too frequently in the past.

The point surely is the means by which the state obtains access to the preserved material. If these means are proportionate and prescribed by law, the process is consistent with the rule of law. There is nothing in the Bill that alters the mechanisms by which this preserved material may be accessed by the state. It remains, in criminal cases, by warrant following suspicion. The Bill has nothing to do with a snoopers’ charter or with

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Operation Tempura. It mandates the limited preservation of data so that, where real suspicion exists, they may be accessed by lawful authority. It is not the bulk collection of data for random mining by the security agencies or the police. It is not a snoopers’ charter.

I make two other points. First, since the Snowden revelations first appeared in the Guardian and since we first learnt about Operation Tempura, many people have called for a wholesale review of the Regulation of Investigatory Powers Act. I have been one of them. We have argued that RIPA is hardly capable of regulating this sort of activity in 2014 and that the technological means of communication have altered so dramatically since the year 2000, when it was passed, that we need fresh legislation. The Bill brings that review in its wake. I welcome that very strongly. Secondly, many of us have looked with some admiration at the work of the Privacy and Civil Liberties Oversight Board, which was set up following a recommendation by the 9/11 Commission in the United States, and have called for the establishment of a similar board in our country. It seems, and I would welcome the Minister’s confirmation, that we will also have a privacy and civil rights oversight board in the United Kingdom.

From my perspective, these are powerful reforms, both coming in the wake of the Bill. My noble friend Lord Paddick referred to others. These powerful reforms show balance and the advantages of coalition. With respect to some of my noble friends, I very much doubt that we would have had these reforms without coalition. In combination, the Bill and these reforms seem to herald an environment with more respect for the appropriate relationship between national law enforcement imperatives and the prize of personal freedom. The Bill, set out as it is with clarity about extraterritoriality, in combination with these reforms will place us in a better environment than we have hitherto seen in this area. I welcome and support it.

5.09 pm

Lord Lloyd of Berwick (CB): My Lords, this debate has clearly attracted the attention of a large number of experts on this subject. We have already heard from five such experts on the Back Benches. My only justification for taking part is that I was the first ever Interception of Communications Commissioner, appointed as long ago as 1985. I think I can claim that, whatever my expertise may be, it at least antedates that of all the other experts in the Chamber today.

In the Statement that the noble Lord read the other day, he referred to the important role that communications data play in prosecutions. He mentioned that they are relied on in 95% of all prosecutions, and I have no reason at all to doubt that figure. However, as for the purpose for which the evidence is used, we were told that it is in order to identify criminal associations between people and possibly to answer a defence of alibi. Some of your Lordships must have thought that those were very narrow justifications or purposes for which the information is used, and they would have been very right to be puzzled by it. As we know, the evidence can be given to prove that a telephone conversation has taken place between two people. However, the contents of that telephone conversation

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cannot be used in evidence, yet that is by far the best evidence that there could be because it would mean that the criminals could be convicted out of their own mouths.

Before I am called to order by the noble Lord for venturing far beyond this Bill, he will understand why I am doing so, as this is a subject that I have been interested in for a very long time and I find it impossible not to mention it. No doubt, if there is to be a review of RIPA, it will be covered.

As for the Bill, it is clear that we must continue to be able to use communications data in court. For that reason, we must be able to serve valid retention notices on those who provide communications services to retain data for up to 12 months.

The 2009 regulations which contain those provisions are based on the data retention directive of 2006. Through no fault of ours, that directive has been held to be invalid by the ECJ—not the ECHR, which is of course the usual culprit in these matters. Therefore, it seems to me that we must give those regulations a better foundation. That is all that the Bill does; so far as I can see, it does not alter them or add to them in any way.

As for the other part of the Bill—the so-called extraterritoriality provision—I have certainly always understood that interception powers are applied to companies providing communications services in this country, wherever those providers are based. Apparently, that has now been questioned but, to my mind, the questioning is without foundation. All companies operating in this country must surely be subject to the same regime, and that is all that that part of the Bill achieves. It is extraterritorial—a word which always raises hackles—only in the sense that it enables us to serve warrants on companies which are based outside the country but operate within the country. Therefore, I can find no objection to that part of the Bill.

This, in my view, is a necessary and urgent Bill, and I can find no fault in it. I therefore urge the House to accept it.

5.15 pm

Lord King of Bridgwater (Con): My Lords, I join noble Lords who have expressed their regret—the noble Lord, Lord Butler, did so most forcefully—at the speed with which this legislation has come forward, and questioned whether there is a convincing explanation of why the European Court of Justice judgment, made in April, ended up with one day in the House of Commons in late July. I have my own suspicions as to how that happened. We seem to be quoting a lot from the other place, but if anybody reads Mr Jack Straw’s attempt to read the European Court of Justice judgment—which he found pretty incomprehensible and a load of porridge, as I think he described it—they will see that that may have been part of the extension of the problem. When this matter was raised in the debate on the Statement I warned the House that one is right to be deeply suspicious of emergency legislation that appears in this way. I should also say, deeply cynically, that that is even more the case when such legislation comes with all-party agreement. That is a time to fasten your seat belts and wonder what the background to it really is.

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After that unhelpful opening comment for my noble friend, I should also say that I would regard it as pretty unacceptable if the Bill involved a major extension of powers. However, if it is true, as the Government maintain—and as is widely accepted, including by the Constitution Committee—that something that was lawful may now cease to be so, then a different situation obviously arises. Having said that, I certainly accept that this legislation is necessary. I absolutely recognise the critical importance of the retention of data and appropriately controlled interception in our fight against the increasing challenge of terrorism, crime, paedophilia, organised crime or whatever it might be.

The redeeming feature of the Government’s legislation is the sunset clause. I see that an amendment was moved in the other place that this should last only until Christmas, but that is quite inadequate. Having put this emergency legislation in place, we now need to have a serious look at the issues which arise out of it. I will quote again from the other place. I was impressed by the speech made by a former colleague, Yvette Cooper, who I was delighted to have serving with me under my chairmanship of the ISC. As a new Member of Parliament, she was immediately put on the ISC and made a very useful contribution to it. She rightly called for this not to be such a short sunset period, but to provide the opportunity for a major review of the issues of liberty and security. I am delighted to see that the ISC is going to conduct such a review. She also, in passing, made a comment about the many private companies that are making far more use of our private data than any police or intelligence agency has ever dreamed of doing. Some of us would be delighted to see this included as part of the consideration in any review that is conducted.

The former Attorney-General, Dominic Grieve, intervened to say that the question of interception is nothing new. This has been taking place since the telephone was invented. Alan Johnson then made an even more interesting observation that when he joined the Post Office there was a whole section in St Martin’s Le Grand post office entirely devoted to the steaming open of envelopes. Professor Christopher Andrew, in his study on this, identified that in 1969 that section opened 221,000 items. This is part of the background to some of these practices but it is not to say that any of this is justifiable unless it is strictly controlled, under proper legal authority and there is some accountability for the actions taken and the challenges that exist.

When I chaired the ISC, which goes back to when it started 20 years ago, it was clear that even then the agencies were struggling to keep up with the development of new technologies; with the amount of different systems and ways in which criminals, terrorists and others could communicate; and with how to keep some sort of effective protection against them. That was pre-Twitter, pre-Facebook and pre all the developments that have taken place.

The challenges now are definitely all the greater. Huge opportunities are offered to terrorists, to those involved in serious organised crime and to criminals who are very sophisticated in some of their methods of communication. It is a temptation for them. It is

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also a temptation for the agencies—not for any improper purpose but because they are trying to protect us and to keep us safe. They will be continually pushing against the limits of the constraints of legislation in the interests of trying to make sure that this country is as safe as it can possibly be. The challenges of oversight, of proper legislative authority and control, and of public confidence are very important.

Perhaps I may add one little personal note. I was delighted to see that Yvette Cooper said that if there were to be a Labour Government they would insist that the ISC should have a chairman from the Opposition, which is very wise. I have great respect for those who have been chairman of that committee, including Margaret Beckett and the current chairman, Sir Malcolm Rifkind. However, if an issue had come up that the ISC had to look at, and its chairman had been Foreign Secretary and responsible for the SIS, MI6 or GCHQ, maintaining public confidence when it produced a report would have been all the more difficult. I am delighted that that has become Labour Party policy and I encourage my noble friend to ensure that we move in that direction.

I am not sure that we have got the message across to the general public: they think that the retention of data is all about reading or listening to everybody’s messages and communications. I do not think that more than one person in 1,000 in this country knows what metadata means, which is the word that is frequently used. As my noble friend said in relation to data, we are concerned about the who, when, where and how, not about what people are actually saying. That is what we are talking about in relation to these data. I think that it is very important to do it.

I support this emergency legislation. If it goes through, it will protect our defences and ensure that they are in place in the next phase. Then we must look at the relationship between privacy and security. Although I have not heard much about it, I welcome the announcement about the privacy and civil liberties board. I welcome the work that it can do in ensuring that while we maintain our defences in a very dangerous world, the rights of the citizen, his liberty and his privacy, are properly protected as well.

5.23 pm

Lord West of Spithead (Lab): My Lords, I start by saying that our nation needs secret intelligence agencies and the clue as to how open they should be rather lies in the word “secret”. Their job is to discover information, often hidden, that is important for our people’s security, safety and prosperity. It has always been important that adequate checks are in place to ensure that the agencies and the state behave in a manner that the nation expects of them.

What is unhealthy is the desperate desire generally, and particularly in some areas of the media, to see secrets and, indeed, to decide what should and should not be secret. Apart from anything else, it shows immense arrogance. I know that the days of thousands of men and women who worked at Bletchley Park keeping quiet for decades have gone, but the propensity of so many people today to divulge secrets about themselves and others on social media seems unfortunate. Indeed, in the case of national secrets it can be very damaging.

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As the noble Lord, Lord King, mentioned, although there are repeated concerns about our Government’s legal and warranted access to communications, we seem to accept quite happily that communications providers and other private firms read the content of our e-mails and use metadata—I actually understand what metadata are—to find out how we shop, how we travel, where we travel, where we live and about our lifestyle for the purposes of advertising. They do all those things, and yet Liberty and other such organisations do not seem to mind at all. Those private firms are totally uncontrolled, while the state is very controlled in what it can do.

Does UK law balance privacy and security in terms of the Government’s activity? I believe that it does. Article 8 of the European Convention on Human Rights states:

“Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security … the economic wellbeing of the country”,

and for the prevention of serious crime. As has been mentioned by a number of noble Lords, to ensure that our agencies stick to the law, they are overseen by the Intelligence and Security Committee, the independent commissioners for oversight, the Intelligence Services Commissioner, the Interception of Communications Commissioner, and the Investigatory Powers Tribunal. I know, from my time as a Security Minister and from travelling around the world, that we have one of the world’s strongest legal and regulatory frameworks governing the use of intercepted intelligence—much stronger than a number of countries in Europe. I believe that the intelligence agencies take their obligations under the law very seriously. When I was a Security Minister, it was implicit in the legislation passed by the Labour Government that it had effect on extraterritorial companies. That was the assumption, for the reasons explained so well by the noble and learned Lord, Lord Lloyd, and other speakers.

As the Minister said—it is worth repeating—the police and intelligence agencies currently use communications data to investigate crimes and catch criminals. They are crucial in 95% of cases. As a result of the European Court of Justice judgment, as was said, there is an imminent risk that this ability, which we have had for so many years, will be lost. The court said that it did not consider that the directive had the necessary safeguards, but it did not really understand our RIPA legislation. However, as far as that goes, we are where we are.

I share the view of my noble friends Lady Smith of Basildon and Lord Knight and the noble Lord, Lord Butler. I am not impressed by the speed with which this has happened. Something funny has happened; I would love to know what that is, and I feel that we have been slightly bounced. I am not happy with that, but we are where we are; that is the reality.

Nevertheless, I believe that this legislation is necessary and proportionate. It will ensure that the communications data required by the police and others continue to be available in the future, as they have been in the past. People refer to a snoopers’ charter, but I hate that

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expression; it really annoys me. We should call it the guardians’ charter— before Mr Rusbridger thinks that it has something to do with his newspaper, it is because I believe that the people who are doing it are guardians of the safety and security of us all. Snooping is a loathsome way of describing it. Do we really think that terrorists and criminals should have means of communication that they can be confident are beyond the sight of the Security Service, GCHQ and Special Branch acting with a proper legal warrant? I think not. It would be a disgrace if that were the case.

I suppose my parting shot is that I see the agencies and Special Branch as allies, not enemies. They are full of good, patriotic men and women working extremely hard, sometimes risking their lives for the good of our nation. They are part of our nation, not some alien force. Clearly, we must regularly review oversight mechanisms and it is right and proper, particularly in the case of emergency legislation, which none of us likes and is normally bad legislation, that we look in detail and include lots of safety caveats. Many noble Lords and Members of the other place have done that. I believe that we have the correct checks and balances in place, including the sunset clause. From what I have heard, they are sound and they are there. But speaking on an emotive level, and I like to go on the emotive level, I find it extraordinary that some of my fellow countrymen see the men and women of our agencies as the enemy. They are not. I would happily have them on my right flank in a fight. They work around the clock to ensure our safety and I believe the majority of our countrymen feel the same.

5.30 pm

Lord Armstrong of Ilminster (CB): My Lords, I do not propose—indeed I am not qualified—to comment on the ruling of the European Court of Justice which has made it necessary to introduce the legislation that we are considering. But as a consequence of what I learnt as a member of the Joint Committee for pre-legislative scrutiny of the Government’s draft communications data Bill, chaired by my noble friend Lord Blencathra, I am sure that it is important—indeed necessary—that there be no doubt about the legality of requirements placed on communications service providers to make communications data other than the content of communications available, mainly for the detection and prevention of serious crime and of terrorist outrages, but also for other purposes, particularly child protection, and to retain those data for longer than they would need for their own commercial purposes.

Yesterday, the Minister described the Bill as a puncture repair to keep the car on the road, not a new tyre. I accept that the Bill does no more than restore the legal cover to the state in which it was, or was believed to be, before the European court’s judgment, and as such I believe that noble Lords can and should approve it. I also believe that the case has been made for extraterritoriality, as was said by my noble and learned friend Lord Lloyd of Berwick. But I remember an occasion in 1993 when the late Lady Thatcher, in a visit to the United States, took the US Secretary to the Treasury robustly to task for the US Government’s attempt to impose their powers extraterritorially. It was so robust that when she had finished the Secretary

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to the Treasury said, “Margaret, you need to watch your blood pressure”, to which she answered, “I should like you to know that my blood pressure is extremely low”.

The inquiries made by the Joint Committee chaired by my noble friend Lord Blencathra persuaded me, and I believe other members of the committee, that a strong and effective system is in place for ensuring that only communications data essential for a specific and justifiable investigation are required from the communications service providers. As another noble Lord has pointed out, this is a real safeguard to protect the privacy of the ordinary citizen going about his or her ordinary business.

In this business, there is constant tension between the need to respect and so far as possible to protect the right of the citizen to privacy in the conduct of his or her life and business, and the duty of the Government to protect the safety and security of the citizen as he or she goes about that life and business. In this tension, there are no absolutes as to how the balance between them should be struck. That balance changes as circumstances change, as the technology of communications changes and develops, which it does with great rapidity, and as new threats to safety and security emerge.

The state of legislation on communications data needs to be constantly reviewed as those changes progress. But, in the end, it is Parliament that must strike the balance. Parliament last reviewed the balance during the passage of the Regulation of Investigatory Powers Act 2000. To save myself stumbling over that in future, I will call it RIPA. The world of communications has changed—as the noble Lord, Lord Macdonald, pointed out—almost beyond recognition in the 14 years since 2000. The determination and ingenuity of those who commit serious and organised crime have not diminished. New threats, or potential threats, of terrorism have appeared in this country. It is high time to look again at the balance and to introduce new legislation to take account of those changes. We are asked today to approve a puncture repair. We should be looking at a new set of tyres.

The Government produced a draft communications data Bill earlier in this Parliament. The committee of the noble Lord, Lord Blencathra, thought that the draft Bill had not got the balance right, and made recommendations for changing it to rectify the balance. The Home Office then revised the draft Bill in the light of those recommendations and made improvements which, in the judgment of many of us, went a very long way towards meeting those recommendations and striking a proper contemporary balance between the right to privacy and the need to protect safety and security. Unfortunately Parliament was denied an opportunity to consider that revised draft Bill.

There will now be no opportunity, this side of the forthcoming general election, for Parliament to consider a full-scale and up-to-date new Bill, finding and striking a new balance between the right to privacy and the requirements of safety and security in this area of communications data. However, there will be a pressing need to do so early in the life of the new Parliament, both because of the lapse of time and the pace of technological change since RIPA was passed in 2000, and now because of the sunset clause in this emergency Bill.

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I welcome the proposal, as provided for in Clause 7, to set up a review by the independent reviewer of terrorism legislation. I have one query about that. The independent reviewer is the reviewer of terrorism. It is not clear from the Bill whether his remit would extend to the use of the communications data regulations for purposes other than countering the terrorism threat, including the detection of serious crime and the other purposes set out in Section 22 of RIPA 2000. I hope that the independent reviewer will have the remit to go that far—he is well equipped and qualified to do so. However, the point should be made absolutely clear.

To change the metaphor, today's Bill, though urgently necessary, does no more than patch the sleeves of the existing and old fashioned jacket. What is required by the end of 2016 is a brand new jacket cut in the latest fashion.

5.38 pm

Lord Hodgson of Astley Abbotts (Con): My Lords, I begin by reminding the House of my involvement with the All-Party Parliamentary Group on Extraordinary Rendition and my trusteeship of Fair Trials International, since I shall want to refer to some of that in a minute or two.

It was quite properly said by the Prime Minister, and indeed by my noble friend Lord Howard in his comments a few minutes ago, that the first duty of a Government is to keep the citizens safe. Before us is a Bill that focuses solely on that objective. Moreover, it is a Bill with a sunset clause: one that is—for my taste —a trifle long, but nevertheless a sunset clause. Add to this the fact that my noble friend took the trouble to invite those Members of your Lordships’ House who were interested to a briefing—for which I greatly thank him. So what’s not to like? For me, like the noble Lords, Lord West and Lord Armstrong, the issue is of course balance: the balance between the need to keep us safe and the need to respect our privacy and our freedom. Never does the one trump the other. As the noble Lord, Lord Armstrong, pointed out, the balance is constantly shifting. It is that sense of balance on which I should like to focus in the next few minutes and on which I hope that my noble friend can provide reassurance when he winds up the debate later.

First, the Bill addresses a technical matter in what is a fast developing field—so fast developing that, we have been told, although the purpose of the Bill is to restore the status quo prevailing before the ECJ judgment, the technical developments in the industry in the mean time require an extension of powers. In the words of the Explanatory Notes, that is to ensure that,

“the definition of ‘telecommunications service’ ensures internet-based services, such as webmail, are included”.

The Explanatory Notes do not use the word “extending” to describe that; they use the word “clarifying”, which I suppose goes to show that one man’s clarification could be another man’s extension.

I am forced to ask myself what other aspects of clarification there are in the Bill on which I hope that my noble friend can reassure me. In particular, I hope that he will dwell briefly on the issues raised by Clause 4, which other noble Lords have raised, which concern extraterritoriality. Noble Lords will have received briefing

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papers circulated on the Bill which argue that RIPA as it stands has never had any extraterritorial powers. Indeed, your Lordships’ Constitution Committee raised that in paragraph 10 of its report. The Government may have acted as if it has, but the legal base does not exist. If that is the case, this would be another extension, not a clarification. Indeed, as the Constitution Committee pointed out, it emphasises the unfortunate necessity of rushing this through if we are actually extending the law, not merely putting a patch on a puncture.

Then there are questions about the utility of the provision: whether modern encryption and other safeguarding mechanisms render any data collection of little or no value. Perhaps my noble friend will enlighten the House later on whether he has had discussions with service providers on that point.

Finally, there are those who want to be reassured that the provisions of extraterritoriality are a one-way street: that there is nothing in the Bill—mutual recognition implied, or the like—which would enable overseas organisations to reach deeper into the personal information of UK residents.

In the Statement that the Home Secretary made on 10 July, which my noble friend repeated in this House, there was reference to the role of communications data in ensuring convictions. My noble friend said:

“It has played a significant role in the investigation of many of the most serious crimes in recent times, including the Oxford and Rochdale child grooming cases, the murder of Holly Wells and Jessica Chapman and the murder of Rhys Jones”.—[Official Report, 10/7/14; col. 280.]

Those are appalling crimes, and it is excellent that modern techniques have brought perpetrators to justice, but the use of those high-profile cases does not mean that we should suspend or blunt our critical judgment about the proposals before us today.

As a parallel example, my noble friend knows my concerns about certain aspects of the European arrest warrant. Defending the warrant, Ministers always use the high-profile cases of murderers, terrorists and paedophiles who have been speedily returned to justice. That is very good, but less publicity—or no publicity—is given to those cases where the process goes awry and innocent people suffer greatly. I am anxious to explore whether, in passing this legislation, we may be opening similar challenges or difficulties.

One answer to the conundrum given in the briefings is that the legislation refers only to the making of a communication—that is to say, as other noble Lords have said, the when, the where and the with whom—not its content. The Minister and the noble Lord, Lord Paddick, referred to that in their comments. However, as I understand it, this is another area where technological developments are beginning to blur familiar distinctions. The noble Lord, Lord Knight, referred to the term “metadata” as being increasingly used to describe the ability to build upon limited information to create a broader picture. My noble friend Lord King said that he did not have a definition but I do, provided by the invaluable Wikipedia. It says:

“Metadata assists in resource discovery by ‘allowing resources to be found by relevant criteria, identifying resources, bringing similar resources together, distinguishing dissimilar resources, and giving location information’”.

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I am concerned that this could—not does but could—take us perilously close to the general mining and profiling of our fellow citizens and, in this regard, it is important to note that the House of Commons Library briefing note provided for the Bill makes it absolutely clear that the use of metadata does not require a warrant from the Secretary of State. With this so-called clarification, the Bill may open up a much greater degree of surveillance of the ordinary citizen than has to date appeared possible.

Given the complex nature of the Bill, it will therefore be vital that the public have confidence in these proposals if they are transparently operated and the Government of the day are frank about them. Those of us who have been involved with the UK’s involvement in rendition have not found it easy to establish such trust with the Government. For years, the previous Administration denied any complicity in rendition but have had to admit that in 2002 two rendition flights landed in Diego Garcia, the British Overseas Territory in the Indian Ocean with a base leased to the US Government. Now we are told that flight records since 2002 are,

“incomplete due to water damage”,

so I fear that the truth will probably never be known.

I share my noble friend Lord King’s concern about the importance of the role of the privacy and civil liberties oversight board. To do its job effectively, its members need the appropriate powers. I understand that there are some terms of reference being circulated; I am afraid that I have not yet seen them. However, the sort of questions are not just about the terms of reference. They are questions such as: will the members of the board be guaranteed a proper degree of security clearance, and how will it actually operate? Will it be a day a week for senior grandees to glance over the issues and make a few ex-cathedra statements, or will they be expected to get their hands dirty and do the unglamorous but necessary work of ensuring that the proper procedures are followed? Only if the latter approach is followed will the public be reassured that the right balance between security and liberty is being struck.

Twelve years ago, in the spring of 2002, another piece of legislation concerning the Anglo-US extradition treaty was rushed through in response to the terrorist threats, post-9/11. In the event, most of the requests under that agreement have been about financial crime. There is nothing wrong with that but it was not what it said on the tin. Latterly, we have had the bizarre case of Mr Gary McKinnon. He may have been an unusual man but he was no terrorist: his crime was to embarrass the Pentagon by hacking into its computer systems. As my noble friend Lady Browning memorably said, the Pentagon should have hired him rather than seeking to imprison him. As we consider this legislation, we need to bear in mind these sorts of unintended consequences that result from rushed scrutiny.

5.48 pm

Baroness Kennedy of The Shaws (Lab): My Lords, like the noble Lord, Lord Hodgson, I have some problems with the Bill. It is utterly wrong that the Bill is being introduced as emergency legislation. Others

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may be quite sanguine about that but I am not. It has involved drawing down this expedited procedure when no emergency need have existed at all as there was plenty of time in the past three months to have dealt with this expeditiously. That is a serious abuse of Parliament. The use of emergency procedure to enact laws that are controversial and have a significant impact on individual rights is happening too often. This is not the first time it has happened and it is the sort of rubber-stamping that makes for careless law.

It is my concern that the Bill is seeking to provide a lawful basis for the unlawful exercise of power by the UK security agencies. I say that because the Snowden disclosures showed that in fact there was a sharing of information by GCHQ with the American security services. They were looking into metadata in ways that none of us knew about and which were certainly not covered by RIPA. It meant that the security services were involved in activities that were not covered by law. It is right that there should be new legislation but this is not the way to do it. It is deeply regrettable that we are having a bite at it in this way.

I am concerned that the excuse being made is that companies would have rushed out and somehow destroyed material in response to the judgment of the European Court of Justice. However, the Government were involved in deep and amicable consultations with provider companies. Indeed, their involvement in those consultations was given as the reason for the delay. Provider companies want to co-operate with the Government. It is in their interests that they have the support of government for many of their activities. I do not believe for a minute that undertakings could not have been given that there would be no rush to destroy material in the knowledge that legislation was in the pipeline.

Although it is generally accepted that RIPA is not fit for purpose—as the noble Lord, Lord Macdonald, said, it was enacted when the internet was in its infancy and no one anticipated that technological changes would enable government agencies to obtain enormous quantities of data on the personal activities and lives of individuals—I do not think it is right to embark on legal reform without full and well informed debate. The noble Lord, Lord King, is right. There is still inadequate understanding by the public of what this legislation will mean, but it is no wonder when there is not proper parliamentary debate and public discussion about giving the state intrusive powers about which they should be concerned. Information is not being given to the public.

When all three main parties agree to a piece of legislation behind the arras, the smell of rat regularly permeates Parliament and it is usually a signal that something else is up. The claim is made that this legislation merely maintains the status quo until a sunset clause expires in December 2016. How does the status quo comply with the ruling of the European Court of Justice that the UK’s data retention directive was contrary to law? And why is the sun setting so far in the distance?

I understand that the main political parties do not want accusations being made of being soft on terrorism and do not want finger-pointing. That is why this is

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being dealt with in this way. That is the truth and the reality of why we are rushing the Bill through Parliament now. It is a sad reflection on the quality of debate about terrorism that there is so much finger-pointing. We live with the fear that we would be blamed if a particular party were to say, “Hold on a minute”.

Legal experts in this field are clear that the Bill now being rushed through Parliament does not even try to comply with the ECJ judgment. Furthermore, DRIP does far more than replace the data retention regulations. It makes substantive changes to the interception warrants, interception capability and communications data access provisions of RIPA. We should always remember that it is the practice of those who draft legislation about the functions of the security services to make it as complex and impenetrable as possible, and that is what this legislation is—obscurantist lawmaking at its height. It is very difficult to fathom what is going on here. One of the tricks is to mix definitions. If Europe uses one set of definitions, we will find that the drafters of legislation here invent their own. If an old law exists, drafters choose to create new language but at times slip into old legislative usage just to confuse.

What we are definitely seeing here is a broadening of RIPA definitions. It is also important to know that words such as “facilitating” flag up to any lawyer that we are moving into “broad interpretation” territory. On 13 July the Sunday Times reported the Home Office as saying:

“The bill clarifies how the current definition should be interpreted, but this cannot change or extend the meaning of the definition in RIPA to capture new services”.

The lawyer Graham Smith says that this is “twaddle”, while the Explanatory Notes attached to the Bill say explicitly that it is intended that webmail and other internet-based services should be caught. There is a suspicion among many experts in the field that something else is going on here and that a significant change is being made without properly explaining the purpose behind it. That should be a matter of concern to this House.

The Minister tells us that it is important to be able to access communication data that can help to place a person in a certain vicinity at a particular time through their phone records. I agree with those who have spoken, who are criminal lawyers like myself, or who have been involved in very serious cases, that there is no doubt that it is invaluable to be able to access this kind of material. In my view, it is right that there should be the retention of data and interception, but with proper warrants and proper controls.

We should all recognise that our phones and other technological equipment are enormously revealing about our movements, activities, associations and interests, and that crime warrants are sought for this kind of material. However, we have to recognise that the disclosures of Snowden showed that we are regularly seeing programs such as Trojan or backdoor programs enter into our material without, one suspects, those kinds of warrants being obtained. Similarly, clouds can be accessed and captured so that they can be used for intelligence purposes without proper procedures being applied. If that were to be the case, we should know about it, and we should be insisting on proper

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controls. There is no doubt that there are important issues here requiring primary legislation, but they should not be subject to rushed law and they certainly need proper debate.

There is another matter of concern. It was announced in the past few days that there will be a privacy and civil liberties board, which will have four members. That may be very welcome but it will replace David Anderson, the independent reviewer of terrorism legislation. Will the new board have the same access to sensitive intelligence? I am glad that the noble Lord, Lord Carlile, is in his place and will be speaking shortly. The argument was always made that having just one trusted individual made that office effective and watertight. I would be interested to know whether it will be the same with the new board.

Secrecy is required for certain aspects of state function, but too often secrecy is overclaimed. It can be a cover for abuse, which is what we are seeking to prevent. That is why safeguards are essential and it is why Parliament has such an important role. The procedures that we are discussing today should have had the opportunity for much greater scrutiny. Civil liberties have to be protected and they require constant vigilance. They are eroded usually by creep, in small slices at a time, and we have to be the guardians of civil liberties and our constitution as well as our security.

5.59 pm

Lord Carlile of Berriew (LD): My Lords, like most noble Lords who have spoken, I support the Second Reading of the Bill on the understanding that its purpose is to preserve evidence of a kind that is currently available to the courts. Indeed, I congratulate the Government on their declared intention to increase the safeguards over the use of communications data, though I shall have something to say about safeguards a little later.

I am concerned that some near-hysterical misinformation has appeared in the media in relation to the use of the data concerned. The canard has been sold—I think that is what you do with canards—wholesale that the Bill is directed mainly, even exclusively, at terrorism. That this is not so is demonstrated by one statistic from the Crown Prosecution Service—my noble friend Lord Macdonald adverted to this—which is that 95% of its serious and organised crime cases include evidence of this kind as part of the proof against the accused, and sometimes it is the crucial proof. There is a necessity to ensure that such crucial evidence remains available and, of course, it is important that service providers know what the law is and where they stand.

All that said, I have three reservations with which I hope the Minister can assist the House. They have grown over the days since the Bill was announced, particularly on reading yesterday’s debate in another place. The first is my concern about the case for urgency. I, too, noticed the observations and reservations of the Constitution Committee, which were published this afternoon. The reasons given by the Home Secretary in the other place on 10 July and yesterday were, I am afraid, far from convincing. I have spent most of the past 15 years trying very hard to disagree with David

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Davis on almost everything, and he has been trying equally hard to disagree with me, but on this subject I agree with him. I also particularly agree with the noble Lord, Lord Butler, who brings to this discussion all his experience of the workings of government. I can see that a shortened period for this legislation might have been necessary, but one day in the Commons and two here just are not sufficient for legislation of this importance. Indeed, with a proper period, the new safeguards could have been included in the Bill and could therefore have been part of a holistic package, as opposed to a less than holy promise. There is absolutely no evidence that I have seen that this Bill could not have been introduced a month ago, and given that we are sitting until, I understand, 30 July, there is no reason why the Bill could not have been given some more days for proper debate in Committee. Indeed, as a veteran of dealing with the Anti-terrorism, Crime and Security Act 2001 when I was independent reviewer of terrorism legislation, I remind your Lordships that Ministers who introduce legislation in haste are later left to repent it in panic.

I now turn to my second reservation. Nothing more than a summary of the intended future safeguards is available. That is hardly a reassuring position. As I understand it, there has been precious little consultation about them outside Parliament. Will the Minister tell your Lordships who outside Parliament has been consulted formally on the safeguards? One of the things that were announced yesterday was the abolition of the independent reviewer of terrorism legislation, who is currently the brilliant David Anderson QC. We have heard much entirely justified praise of him in this debate, but he is being abolished. Can we have an explanation of why? Will the Minister please tell the House when Mr Anderson himself was first informed of the intended abolition of his post? How much earlier than yesterday was it? How long was he given to respond to the proposal? What arrangements exist for a full and proper consultation on the proposal to abolish the independent reviewer, who has the advantages just mentioned by the noble Baroness, Lady Kennedy of The Shaws? Why does the Minister believe that the replacement of the independent reviewer with a committee or board will strengthen the scrutiny of issues, subject to limitations that are necessarily dictated by national security?

I turn to my third concern, which is the about the terms of reference of the proposed, so-called independent privacy and civil liberties board. The first thing I say to my noble friend is: let us be honest about what this board is. It is the counterterrorism oversight board, and we would do well to adopt the title used in the United States so that it is what it says on the tin, as it were. I ask my noble friend to answer these questions. Was Mr Anderson consulted about the terms of reference for that board, which have been published today? If he was, were any of his comments rejected as part of the terms of reference, and if so, which ones? I am sure that the Minister will have information at his fingertips within minutes. In particular, there is the crucial question raised by the noble Baroness, Lady Kennedy. Will members of the board enjoy developed vetted access to be able fully to scrutinise counterterrorism activity by the services? It is crucial that, if his post is abolished,

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someone should have that access. It is important to have a positive assurance of that, otherwise what has been announced is a seriously retrograde step in terms of scrutiny.