I have received numerous emails and tweets about this particular Bill and am aware of how strongly many of my constituents feel about this situation.
The Liberal Democrats and I take this issue very seriously. Part of the reason why there has been a delay since the April ruling is because the Liberal Democrats wanted to ensure that this legislation included the necessary extra safeguards to protect the privacy of our citizens, and because the decision in April was so complex, we wanted to make sure to get it right.
I will accept that one day for debate in the House of Commons and two days in the House of Lords is rushed; however it is legislation that is maintaining existing legislation. There is also a sunset clause, which I will discuss further below and there are also extra protections for individuals.
I understand many are pressing for a sunset clause of six months’ time; however if it was six months, with a summer and conference recess of roughly three months, we would be back in the same time table as we were with April. For that reason, I do not accept that a 6 month sunset clause would be practical. This sunset clause being in 2016 allows the next Government and political parties the opportunity to fully decide what new legislation or policies are necessary to deal with the retention of data. I am certain that both the Tories and Labour will want to extend it further. This is very unlikely to be the position that the Liberal Democrats will take. We need to have full debates and see everyone come to a decision about what we think is necessary. This will hopefully ensure that the next government gets it right and does not infringe on people’s freedoms.
Contrary to what some critics have claimed, the bill contains no new powers. One national newspaper claimed that because there is an £84 million cost attached to the legislation that this must mean that the legislation extends the scope the existing legislation. This was either a deliberate attempt to mislead people or a misunderstanding of the cost. There are no additional costs attached to the legislation. I am sure that most people are aware of this; however it really is worth reiterating. This Bill is about retaining existing powers by clarifying the definition, not creating new ones and it is for these reasons I voted for the Bill.
In order to make sure everyone has fullest response, I would like to set out all the issues raised and provide answers to all questions to make it as clear as possible for everyone.
Why do we need a Bill?
There are two reasons for introducing this Bill. First, in April this year the European Court of Justice overturned the EU Data Retention Directive, which will mean that internet and phone companies will soon start deleting data that the police need in order to investigate serious crimes. The reason was that the Directive lacked safeguards – it allowed Member States to compel phone and internet companies to store data, but said nothing about how that data should be accessed or for what purposes. As a result of this ruling, where the court ruling is relevant to the UK situation, we are making changes to change our system.
Secondly, communications service providers themselves have asked government to clarify the legal framework that allows our agencies to find out what terrorists and serious criminals are saying to each other (“lawful intercept”). These are companies which are based abroad, and want to continue to cooperate with the warrants that we serve on them, but have now said that they will stop cooperating in the next few weeks if we don’t make it clear that as foreign companies they are legally obliged to help.
This Bill is not the “Snooper’s Charter”. Liberal Democrats care passionately about civil liberties, privacy and the need to limit abusive state surveillance. We have resisted and continue to resist anything that might be or give rise to a “Snooper’s Charter”.
As part of this package, the Liberal Democrats have negotiated a significant package of concessions and safeguards. These include:
o The afore-mentioned sunset clause that will see the Bill lapse at the end of 2016.
o Asking the Independent Reviewer of Terrorism Legislation, David Anderson, to carry out a review of our communications data and intercept laws.
o Starting in the next Parliament, all three party leaders will commit to a full parliamentary review of RIPA, leading to proposals for an updated and reformed approach in 2016.
o To sort out the issue of conflicting legal jurisdictions regarding the application of the law to foreign service providers, a senior former diplomat will be appointed to lead negotiations with the American Government and the internet companies to put these complex jurisdictional issues on a more stable footing through an international agreement.
o We will establish for the first time a Privacy and Civil Liberties Oversight Board, based on the American Model, to ensure that civil liberties are properly considered in the formulation of Government policy ion counter-terrorism.
o We will radically cut the number of public bodies who have the right to approach phone and internet companies for your data. Councils, for example, will now need to justify their requests first to a central body and then a magistrate, and will not be able to approach phone and internet companies directly.
o We will also, for the first time, publish regular transparency reports listing new details about exactly how many warrants are issued, by whom, and for what purposes. The public will know more about how and why surveillance powers are administered on their behalf than ever before.
Q1: Why do we need emergency legislation?
There are two problems that need to be fixed urgently, and which therefore need fast-tracked legislation. If we don’t pass legislation before the summer recess, some companies will start deleting large amounts of stored data, and others will stop providing help with interception warrants. This will lead over the next few weeks to a very serious reduction in the ability of the police and intelligence to protect the public.
Q2: Does the Bill create new powers?
No. It simply confirms the position that we have had for a long time, and ensures that we don’t lose powers over the coming weeks.
Q3: Does the Bill allow the extension of powers by the back door?
No. Some people have suggested that the Bill gives the Home Secretary the ability to take further powers that go beyond what is on the face of the legislation by statutory instrument. This is not the case. The scope of the data retention powers is strictly limited to the types of data that were listed in the Data Retention Directive and the 2009 regulations – i.e. existing practice. The regulations that set out the detail of the data retention notices have been published alongside the Bill.
Q4: Could the Bill be used to re-introduce elements of the ‘Snooper’s Charter’?
No. The data retention provisions are identical to the scheme that has existed since 2009. None of the new categories of data that would have been collected under the Draft Communications Data Bill are included in the scope of this Bill. Clauses 4 and 5 (lawful intercept) similarly reflect what already happens: they do not allow the police or intelligence agencies to do anything they cannot already do.
Q5: Are you extending data collection powers to companies around the world?
RIPA has always applied to telecommunications services offered or provided to the public in the UK irrespective of where the company is based. That was made clear during the passage of the legislation. But in the absence of explicit extraterritoriality, some overseas companies have challenged whether it applies equally to them. The Bill is intended to put that beyond doubt.
Q6: The European Court of Justice found that the Data Retention Directive was incompatible with human rights. Why are you simply overruling them?
We’re not. The ECJ ruling struck down the European directive, not our own legislation. The UK implements the directive in part using a pre-existing framework of checks and balances under the Regulation of Investigatory Powers Act (RIPA). While that Act has rightly come in for criticism in some regards, not least by the Lib Dems, the basic framework for accessing data that it sets out IS compliant with ECHR. Where the court ruling is relevant to the UK situation, we are making a number of changes to respond to the ECJ judgement. These changes are set out in the regulations that accompany the Bill.
Q7: Is the Bill compatible with ECHR?
Yes, the Bill responds to the issues raised by the European Court, and a statement of compatibility with the ECHR will appear on the face of the Bill.
Q8: What is your response to the concerns raised about legal jurisdiction?
We recognise that there are genuine issues around conflicting legal jurisdictions, and the position of companies with conflicting legal requirements is covered in clause 4(4) of the Bill. We are also appointing a senior diplomat to lead discussions with the US government and the companies to find a long-term, international solution to the question of how data stored in one jurisdiction can be shared with law enforcement and intelligence agencies in another jurisdiction. Such data exchange should only take place where it is necessary and proportionate for the investigation of a serious crime.
Q9: Why are you extending the definition of ‘communications service provider’?
The Bill does not extend it – in order to make clear that this includes the kinds of service that people are increasingly using to communicate.
Q10: Why is there a sunset clause?
There is a clear need to act quickly to deal with the particular challenges that we are currently facing, and to avoid a damaging loss of capability. But we recognise that there are serious questions around our existing surveillance laws and whether they are fit for the internet age. Liberal Democrats have been arguing for a full public debate about the need for reform for some time. The current Bill has opened the door to that debate, and to a comprehensive overhaul of the legislation ahead of the expiry of the sunset clause in December 2016.
Q11: Why does the sunset clause only expire at the end of 2016? Could it be brought forward?
This will allow Parliament to draw on the outcomes of the various reviews that are in progress (the RUSI panel, the ISC, and David Anderson’s work).
Q12: Could the sunset clause be extended by statutory instrument, allowing the Bill to have permanent effect?
No. The Bill will cease to have effect on 31 Dec 2016. It is an absolute termination provision. There is no possibility of extension by Order or any other route.
Q13: How does the reform package relate to the RUSI review?
Nick Clegg set out his thoughts on this question in his speech to RUSI in March 2014, where he announced the creation of an independent panel of experts from intelligence, technology, legal and civil liberties backgrounds to examine the case for reform. The panel holds its first meeting this week. The panel will report after the General Election and its findings will feed into the parliamentary review of RIPA which will be established shortly after the election, leading in turn to proposals for new legislation in 2016.