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Baroness Blatch: My Lords, I am grateful to all noble Lords, and in particular to the noble and learned Lord the Attorney-General. As I said at the outset of the debate, he undertook to deal with these complex orders at very short notice, and his expertise has certainly shown through in the way in which he has dealt with some pretty penetrating questions from all parts of the House.
There have been many powerful and persuasive speeches in favour of the amendments. I speak now of the non-fatal amendments as opposed to my own amendments, which are fatal. Many of the concerns that I flagged up at the start of the debate have been reinforced by almost all the speeches that followed. The cases put via the amendments in the names of the noble Lords, Lord Lester and Lord Phillips of Sudbury, and my noble friend Lord Northesk were advocated with care, were constructive and were based on points of principle.
I want to pick up some of the points mentioned by the noble and learned Lord in his response on the amendments. First, I shall deal with the discussions taking place with Liberty. We have all been in receipt of a missive from Liberty that is as current as only yesterday. There is no hint whatever from Liberty that any discussions are taking place along the lines suggested by the noble and learned Lord. I am not suggesting that he is personally responsible for what he has said, because he is in receipt of advice from Home Office officials.
However, we have been with such officials, met Home Office Ministers, been to conferences, and met people from the industry and all sorts of very learned people concerning the orders. On no occasion whatever have our fears been allayed and have we been told that there are constructive, active discussions to address some of the points made in the amendments. Had we been told that, it might have made quite a difference to what appeared on the Order Paper today.
However one looks at the present statute, there is no duty to inform. I believe that the noble Lord, Lord Phillips of Sudbury, is as much concerned about duty to inform the person aggrieved by the abuse as about simply informing the Prime Minister or some third-party body that abuses have taken place. The individual citizen who is on the receiving end of malicious, vexatious abuse of the system has a right to be informed. If we do not do that, trust in the system will be destroyed.
I shall deal with penalties. Again, if wilful, vexatious and reckless activities take place that result in abuse of the system against an individual by an invasion of privacy for the wrong reasons, that must be considered a breach of the law. That needs to be addressed.
The noble and learned Lord was very carefulhe used his words wisely, as he always doeson the intrusive surveillance order to refer to the system as it covered England and Wales. He did not mention Scotland. Therein lies an interesting point.
Lord Goldsmith: My Lords, I am so sorry. The noble Baroness is quite right. I have a note on that. The answer is that the Scottish regime is dealt with by the Regulation of Investigatory Powers (Scotland) Act, which I am toldI have not checked it myselfis in the same terms as the English Act so far as the matter is concerned.
The concern addressed by the noble and learned Lord on directed surveillance referred to my query about service managers. I have had his interpretation of what such a manager is. That is either a personal view of his or the view of the Home Office, but there is no definition or qualification anywhere in the statute. It is not referred to in the primary Act or the order, so it is very much in the interpretation of the chief executives who appoint people for such purposes to be responsible for a level of authority. That is a very real area of concern. If what the noble and learned Lord said was somewhere in statute and there was some qualification, we would feel more assured.
Lord Goldsmith: My Lords, as the noble Baroness pauses for breath, as it were, I want to come back on her point about the involvement of Liberty. Obviously, I am grateful that she said that I had not said anything false, but I am told that the noble Lord, Lord Phillips of Sudburyhe may be able to confirm itis participating with the Home Office in the Liberty work. If that is right, it may give the noble Baroness assurance that the work is actually taking place.
Lord Phillips of Sudbury: My Lords, perhaps I should speak for myself. Liberty and Justice are running a project into the whole realm of privacy, and what we are discussing today is at the heart of it. I chair an advisory committee on which certain noble and learned members of the Home Office team are lending their great knowledge. If that helps, I shall be happy.
Baroness Blatch: My Lords, my point stands, because it was in the context of something happening imminently. I took from the noble and learned Lord the first thing that he said rather than the qualified statement
The noble and learned Lord suggested that the communications data order would have two results. First, it would strip away safeguards. There would be no purpose definition, no limitation on access, no definition of what the level of person was to authorise such applications for access, and no independent oversight. The noble Earl, Lord Erroll, dealt with some of that. However, one of the interesting pointsit links to a point made by my noble friend Lord Jenkin of Rodingis that the local authorities and many other bodies that exist have more scope to do what they are doing at the moment.
One of the arguments put forward by the Home Office was that the provisions were about regulating and making things more restrictive. More restrictive was the very phrase used by the noble and learned Lord. At the moment, bodies are relatively unrestricted and relatively unregulated. That is why we always agreed in principle that to be restricted and have proper definitions of types of access, and certainly to have a regulatory framework, was right. That is rather a weak first point.
The second point was that authorities with RIPA powers would be thrown back on the alternative voluntary system. I make an abject apology to the noble and learned Lord, because my mind jumpednot surprisingly; I have had a towel round my head for about a month on these ordersfrom the RIPA orders to retention. I apologise most profusely to him for that. I understand what he is saying about the voluntary scheme, but the system is in place now. The past two years are probably some of the most vulnerable years in terms of possible acts of terrorism and such activity. It does not seem to me that the world has fallen apart and that people have been prevented from accessing the kind of information that they need.
Something that the noble and learned Lord said over and again gives me cause for concern. I shall ask him a direct question. Does the RIP Act override the Data Protection Act in terms of protection of the individual? Service providers might be concerned about their vulnerabilityabout betraying the privacy of an individualbut he went on to say that the information could be found under RIPA. What is the interaction between the two Acts? Which has primacy over the other? To what extent is the individual protected, and under which statute?
I repeat that the purpose of voting down the orders is to give an opportunity to the Government to strengthen the safeguards rather than to go away and lose them in the back room. That would act as a spur and we might just see something on the statute book by June or July of next year.
Interestingly, the noble and learned Lord pointed out that if the orders were voted down, the safeguards would not be put in place. That is a decision for the department. If they are threatening to do nothing if the orders are voted down, one has to ask what the Home Office is doing. We regard them as important; I believe that the Liberal Democrats regard them as important; the Government say that they regard the provisions to be important; they sympathise with the safeguard that we would all like to see in the orders. The case for getting a move on is more than made.
The Government said that the current situation cannot continue while they rethink the flaws. The world will not fall apart if RIPA is not introduced and the situation continues. The noble and learned Lord described a chaotic situation, but the Home Office and the Government have sat on their hands for two years and allowed that to exist. They have had two years in which to be much more proactive on the matter. They cannot have it both ways. They cannot claim, on the one hand, that the world is pretty chaotic, but, on the other, sit around and do nothing about it.
Until now, Ministers and Home Office officials have argued that the RIPA orders do not represent more powers. They have said that since we currently have 48 different statutes operating in many different ways, with unregulated bodies and no restriction on the type of access, we need a single framework under which everybody operates. We have accepted that argument. The noble and learned Lord may claim that only if the orders are passed will the Government gain more powers. There are either more powers or there are not. I do not know what they are if that is the noble and learned Lord's argument.
I turn to my final point. The noble and learned Lord said nothing about my example of Zimbabwe or about that of the Greek policeman seeking access to information. I understood his response to everything else. I understood his comments on the difficulty of rescinding legacy powers. However, his comments on legacy powers totally answer the point raised by the noble Baroness, Lady Hollis. All the fears that she expressed about the Government's impotence under RIPA were answered simply and succinctly by the noble and learned Lord.
On retention, I wish to be clear. I said unequivocally that retention is an important weapon in the armoury for those who are seeking to detect crime and fraudulent activity. It is also the case that if the orders are not put in place, there is nothing to stop the Government introducing a voluntary scheme. They have had two years in which to do so. The sunset clause could be enacted in a couple of weeks. Nothing has been done in those two years. The voluntary scheme is not in place. It could quite easily have been brought into play. If the two retention orders are not enacted, that would not prevent the Government putting a voluntary scheme into place. We all know that it is a doomed scheme anyway. Anyone
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