Counter-Terrorism and Security Bill — House of Lords, 2015-01-26
Topic: Law and Crime
David John Maclean (Conservative, Centre-right): My Lords, I am afraid that it falls upon me to be the first to break the all-party consensus. I disagree, reluctantly, with the amendments in the names of my noble friends Lord King and Lord Carlile and the noble Lords, Lord Blair and Lord West. The 21 amendments would incorporate practically the whole of that original draft communications Bill—called at the time the snoopers’ charter—into the Bill before us and into law. Before any noble Lords think I have gone soft and wet on terrorism, I will quote the introductory remarks of the conclusions of the Joint Committee’s report: "It is the duty of government—any government—to maintain the safety and security of law-abiding citizens, so that they may go about their lives and their business as far as possible in freedom from fear. This is not only in the public interest; it is in the interest of law-abiding members of the public. For this the law enforcement authorities should be given the tools they need. Reasonable access to some communications data is undoubtedly one of those tools" That is what we said two years ago; I stand by it today. What we said in looking at that draft communications Bill is relevant today because, with 21 proposed new clauses, this is almost a Second Reading: "Our overall conclusion is that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data, but that the current draft Bill is too sweeping, and goes further than it need or should. We believe that, with the benefit of fuller consultation with CSPs than has so far taken place, the Government will be able to devise a more proportionate measure than the present draft Bill, which would achieve most of what they really need, would encroach less upon privacy, would be more acceptable to the CSPs, and would cost the taxpayer less. We make detailed recommendations accordingly", on how to do that. That is what we said two years ago; I still stand by it The problem we faced a couple of years ago when looking at the Bill was that, with the best will in the world and with the right intentions, the Home Office misdirected itself. Its main concern was to make sure that the Bill was future-proof. RIPA was passed in 2000, while our Joint Committee was looking at this in 2012. The Home Office concluded that it was not going to get a new RIPA every year, so if we were to pass a Bill in 2012 or 2013 it would have to be so wide-ranging in scope that it could encompass every new technological gizmo which might come along. Bear in mind that the ghastly—that is not the committee’s opinion but mine—Facebook and Twitter were invented only between about 2005 and 2007, years after RIPA was passed. The Home Office rightly considered that, if we passed a Bill in 2013, we should make it so that it could encompass any future technological change which came along. That was a fatal mistake at the Home Office and, because it made the breadth of Clause 1 so obscure and so wide to capture everything, people called it the snoopers’ charter. That was not pompous rubbish. The way the Bill was drafted meant that it could be called the snoopers’ charter if the agencies wished to make it so Initially the Home Office could not tell us what its real concern was on the grounds of confidentiality, and not letting the terrorists and the bad guys know. Within a couple of weeks most organisations that came before us, including the police, said that all they wanted were "who", "where" and "when", the things they used to get from the original telephones and the mobile telephones. They did not want all the wide-ranging theoretical powers which Clause 1 and the proposed new clauses here could give them. When we came to look at that in terms of the internet, we came across the crucial areas of contention, which were IP addresses and web logs up to the first forward slash. It would seem quite straightforward for someone on my committee to say yes to permitting access to web logs up to the first forward slash. Even if someone was checking up on me and I logged on to bbc.co.uk, that is all you could get. You would not know what else I was on to because after that came the content—the "what"—of the communication It was also pointed out to us that if I was logging on daily to Alcoholics Anonymous, you could not see the rest of the pages, but that in itself could give a message that this person was logging on to that website on a daily basis, and there was a bit of content involved in that. My committee determined—absolutely rightly, in my view—that it was for Parliament to decide on those issues. We could not allow the draft Bill with its very broad-ranging Clause 1—which my noble friend has replicated here—to stand without Parliament being able to say specifically, "Yes, we like that bit and we want to have IP addresses and web logs" or not. It was impossible to extricate that. If noble Lords wish to put down an amendment to ban web logs, it would be impossible to draft the amendment because we have no clue to which bit of Clause 1 we should do it Our recommendation was that that clause should be split up, with a specific sub-clause to give the House of Commons and us in this House a chance to vote yes or no on whether we want IP addresses or web logs. I took the view that if we did it that way then on balance, with a bit of grumbling in both Houses, the Government would probably have got web logs and IP addresses in that Bill, because Parliament would have been deciding. My committee did not want to pass some general obscure Clause 1, pat ourselves on the back that we had balanced freedom and responsibility and given the security services the powers they needed, to find a few months later a policeman or someone from the Security Service popping up and saying, "Aha, what you did not realise is that we have this additional power hidden in here" That was what caused people to call the provision the snoopers’ charter. We were very fortunate in that the Home Office took on board most of our recommendations. I was privileged, and I believe my noble friend—well, I call him my noble friend—Lord Armstrong of Ilminster was also privileged to see some of the revisions that the Home Office made. I would say that it took on board 95% of what the Joint Committee recommended. If that measure had then gone on to become law—it hit political problems in the coalition—no one could rightly call it the snoopers’ charter In paragraph 292 of our report we said: "Whether clause 1 should allow notices that require CSPs to retain web logs up to the first ‘/’ is a key issue. The Bill should be so drafted as to enable Parliament to address and determine this fundamental question which is at the heart of this legislation" I believe that the revised Bill the Home Office were working on would have given us that opportunity. We do not have that opportunity today and it is damaging to go forward with these proposed new clauses—