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Data Retention (EC Directive) Regulations 2009

My Lords, I support the amendment. The noble Baroness, Lady Neville-Jones, has asked all the right questions that needed to be asked. Before the Minister is tempted to say, "If we do not implement or transpose the directive now, we will face infraction proceedings", I should remind the House where it came from. The directive was pushed through by the UK under the then Home Secretary, Charles Clarke. Its scope was regarded at the time as far too wide, with insufficient safeguards. My colleagues in the European Parliament voted against it in 2005 but, sadly, they were not supported. The Home Office imagined the directive and has now, I must tell the Minister, brought it back in an unbelievably unsatisfactory form. Many questions about it were raised even before his jaw-dropping statement. I think I heard him say that access will not be as described in last Monday’s debate in the Commons on this very statutory instrument. I should be most surprised if that is what he said, and he will correct me if it is not. If the substance of last Monday’s debate or the Government’s interpretation of it has changed, the other place would be justified in having another look at the matter. There are fundamental questions here and the noble Earl, Lord Northesk, has raised one of the most critical: whether the Government’s interpretation of RIPA is sufficient. As the House will recall, when I asked the Minister whether British Telecom’s illegal trials of Phorm to intercept web traffic to trial targeted advertising were within the law, he said it was not possible to say—neither the Home Office nor BERR could come to a decision on it and it would have to be tested in the courts. That is just one case. We cannot move ahead on this sort of statutory instrument when it is still so unclear whether RIPA is fit for purpose in the interception of web traffic to this extent. The other difficulty is that although the Minister said that content is not looked at, the Explanatory Notes give several examples of interception being used when the content is prayed in aid. A film clip is mentioned in one case. That clearly is content. The Minister has reassured us that data on Facebook, Bebo, MySpace and similar sites will not be retained, but that seems to fly in the face of what was said by the Minister’s honourable friend, Mr Coaker, when he addressed the point in Committee in the other place. A large number of issues need to be answered in a far more satisfactory way. We agree with the noble Baroness, Lady Neville-Jones, that the force of primary legislation is needed to clear this up. That is not surprising given that RIPA was conceived before data-mining technology had become anything like as sophisticated as it is now. What needs to be delved into far more deeply in both Houses is whether the measure is fit for purpose. If it is, are those responsible for regulating it—the Home Office, Ofcom and so on—doing so sufficiently, and is the misuse of it adequately understood? The Minister said that we are talking only about retention. We on these Benches understand the importance of retaining these data, for all the reasons that he gave, including tackling serious crime and terrorism. However, unless the public at large can be entirely confident that retention is one thing and that access is another, and unless they can be entirely confident about the exact definition of "data", which is becoming less clear with each contribution this evening, then I think that Members of both Houses would be completely correct in having very serious doubts.