Baroness Neville-Jones sits in the Shadow Cabinet as Shadow Security Minister and is National Security Adviser to the Leader of the Opposition. She is a former chairman of the Joint Intelligence Committee.
Tomorrow the House of Lords will consider a Home Office statutory instrument (SI) on data retention – the Data Retention (EC Directive) Regulations 2009. This may seem like a technical little measure and the Government would like us to believe this. In fact, this SI, which transposes EU legislation into UK law, will substantially extend the range of information on our personal communications that service providers must collect and make available to government agencies on demand.
Currently service providers are required by the state to retain mobile and land line telephone records. The SI will require them to retain records about the source, destination, date, time, duration and type of our online communications. That is to say, our use of the internet through computers including all our email traffic.
In the Queen’s speech, the Government said that it would introduce a Communications Data Bill in this session which would include the transposition of EU law into UK law. This would have given the opportunity for full scrutiny of important issues affecting security, the powers of the state and the privacy of the citizen. They have not so far brought forward the Bill and it is not clear that they will do in this session. Or ever.
Recently the Home Secretary said in a speech that primary legislation might be required, which gives rise to the suspicion that the Government may think it possible to proceed with the Intercept Modernisation Programme without coming to Parliament for primary legislation. It is against this background that the Government have brought forward the SI separately, which minimises the chance for proper discussion.
The Government says this extension is necessary because information about communications is vital to the fight against terrorism and organised crime. As Shadow Security Minister I know that communications data plays a central role. The Government have a right to make the case and be listened to carefully. But what they are not entitled to do is to sneak powers into law without giving a proper chance for scrutiny – SIs do not go through a full legislative procedure – nor bring about a situation in which the already abusively wide powers of the Regulation of Investigation Powers Act 2000 (RIPA) are extended still further.
RIPA was introduced on the grounds of national security but now has immense scope. It authorises public bodies to have access to data not just for the purposes of preventing and detecting crime but also in relation to such vaguely defined matters as ‘economic well-being’…, ‘protecting public health’… and ‘tax collection’. Moreover, it’s not just the security and intelligence services and the police which have powers under the Act but all 474 local councils in England, every NHS trust and fire service, 139 prisons, the Environment Agency and even Royal Mail. Among others.
It is this intrusive right of investigation put in the hands of quite middle-ranking public officials that has led to the pernicious misuse of the power of the state against ordinary citizens for trivial things – to see whether children at a village shop have the right paperwork to deliver papers, whether a nursery is selling pot plants unlawfully, to check on your dustbins, to stop dog fouling, and to check if children are going to the right local school. After lots of pressure – not least from our party – the Government finally admitted last December that RIPA went too far. The Home Secretary announced that the Act that had led, in her words, to the ‘dustbin stasi’, would be cut back.
So before introducing the SI with its further increment of power for the state, one might have expected the Government to keep its promise about cutting back the abusive power of the legislation to which it is linked. But not a bit of it. The Explanatory Memorandum attached to the SI tells us that ‘no changes to the safeguards set out in that Act [RIPA] are planned’ which it smoothly goes on to say ‘provide a rigorous check against disproportionate interferences with individuals’ right to respect of their privacy’. Unbelievable, I hear you saying. So much for promises only three months old.
The Conservative Party is opposed to a Statutory Instrument introducing sensitive new powers in a way that short circuits Parliamentary scrutiny and which is tied to an outrageously intrusive law which stands in urgent need of curtailment. Moreover, we do not know – because there is no guidance with the SI – how its provisions sit with what we have heard about the Government’s ideas on how the data should be stored – in particular whether a large centralised Government controlled data base will come into being. It looks as if we are being asked to take a lot on that precious commodity called trust.
As it is not possible just to vote down the SI in the Lords, I have tabled a motion calling on the Government to withdraw this instrument and bring forward primary legislation on the retention of communications data that will enable detailed – and rigorous – Parliamentary scrutiny to take place.