---

Civil Liberties: Electronic Surveillance

My Lords, Members on these Benches pay tribute to the noble and gallant Lord, Lord Craig of Radley, for introducing this debate, for the benefit of his considerable experience in talking about the balance that has to be struck between national security and civil liberties, and for his excellent introduction. I am glad that we are able to have a second bite at the cherry since unfortunately I missed the debate initiated by the noble Earl, Lord Northesk, because I had to be elsewhere. It was excellent, but there is plenty of room for a continuation of the debate in general. Further, I am particularly glad to note that the noble Lord, Lord West of Spithead, is to answer our debate today because many of the questions that have been raised are for the Home Office, while of course the debate of the noble Earl, Lord Northesk, was answered by the Ministry of Justice. Within a month, we shall have heard from both government departments on these issues, which is important. A number of the themes considered in the debate held shortly before Easter have been repeated today. Noble Lords have commented on the sheer quantity of data being kept, and indeed the noble Earl, Lord Northesk, cited an interesting figure when talking about the national identity register. He pointed out that there would be 960 billion data fields just for that one database. The scale is almost unimaginable. The heart of the first debate was the balance between the Government’s responsibility to reap the benefits of technological improvements along with the ability to keep data for beneficial reasons, and the need to safeguard the right of British citizens to privacy. Quite rightly it has again been a theme of our debate today. The noble and gallant Lord, Lord Craig of Radley, spoke of balance, and all speakers have agreed that at the moment the Government are failing to maintain that balance. Indeed, on two occasions recently the European Union has had to step in and call into question the inability to do so. I am grateful to the noble and learned Lord, Lord Woolf, for his terrific speech on the issues surrounding DNA retention because I had intended to speak on that, but following his excellent explanation of the issues I shall not. The Government have made a commitment to review the rules on data retention in the forthcoming forensics White Paper, but qualified it by saying that they would examine the ways in which the retention of samples and fingerprints should take into account the age, risk and nature of the offences involved. My problem is that if a person is innocent, it is hard to imagine risk factors that would actually justify their personal information as if they were guilty. If the person already has a criminal record, it is likely that they will already be on the system, and other risk factors to do with social and economic demographics are far too hazy to justify turning an individual into a suspect. The conclusion is that there really does need to be a wide public debate about a national DNA database, which is something that the Government have avoided so far. However, the contribution of the noble and learned Lord, Lord Woolf, certainly points us in that direction, and surely a wide and open debate would be welcomed. The contribution of the noble and learned Lord, Lord Steyn, on the national identity register was equally riveting, and he will not be surprised to learn that Members on these Benches agree with every word he said. Again, he has saved me considerable time because he set out very clearly many of the points that it is so important to make when debating these issues. I agree absolutely with his comment that it is particularly regrettable that the Government have chosen basically to soften up public opinion by rolling out the register on people such as foreign nationals who do not have the vote and are therefore unlikely to object. The noble Earl, Lord Erroll, again made an interesting speech. I appreciate his comments on the dangers of the use of face recognition; he is right to be concerned. The other day, I raised briefly with the Minister the practice of the police filming people. I was filmed in Brighton on a protest outside the council offices and, when I asked why, I was told that it was in case I committed a criminal activity. That film was retained and, of course, it is now there for face recognition in the future. It was not taken with my permission and I objected; nevertheless, it is there now. That is another area of activity that we have to question very strongly. In the debate before Easter, the noble Baroness, Lady Neville-Jones, put her finger on a couple of points to do with the scale of the databases. She said that the point is not always about the scale but about having separate disaggregated databases rather than centralised databases. She is absolutely right. I would like to comment on two closely related issues: the weak regulation of private sector data collection and storage, and the increasingly porous boundaries between data storage systems and between public and private data. In the earlier debate, the Minister, Lord Bach, commented that the legislative framework for data protection and privacy is the Data Protection Act and the Human Rights Act, but of course we need to add in the Regulation of Investigatory Powers Act. Since that debate on 14 April, the European Commission has launched infringement proceedings against this country for the way in which the Government are implementing the EU directive on privacy and electronic communications. The public controversy has centred on the technology company Phorm and the secret trials of its systems by BT in 2006. The noble Lord, Lord Soley, spoke about private use for private profit. That is exactly what we are dealing with here, where a private company intends to intercept, through new technology, people’s web traffic for private profit. Providing that is within the regulatory scheme, there would be nothing wrong with it. But the regulatory scheme has been unable to cope with whether or not it is legal and, as the EU proceedings show, the real issue is that the UK Government have been willing to leave open a grey area of uncertainty about the legality of Phorm’s technologies. I have asked the Minister numerous questions about this and I am sure that he is fully prepared for my questions today. BT was never brought to book for conducting the secret trials and, in answers to Parliamentary Questions, Her Majesty’s Government have called the legal opinion published online by a Home Office official "informal advice". The letters from the EU Telecoms Commissioner, Viviane Reding, led the Commission to conclude that there were structural problems in the way in which the UK had implemented the EU rules ensuring confidentiality of communications. The problem is that the responsibility for these issues has been passed between the Home Office, the Information Commissioner’s Office, the police and others. I am sure that the Minister will remember responding to me by saying that this matter would have to be settled in court. The infringement proceedings assert that, in line with the data protection directive, consent for interception must be freely given, specific and informed. UK law, on the other hand, has allowed that interception is lawful when the interceptor has reasonable grounds for believing that consent has been given. The EU Commission is also concerned that the UK does not have an independent national supervisory authority dealing with such interceptions. As the clock is ticking on the two months given by the Commission for a response, will the Minister now commit to a review of the consent provisions under RIPA, and will he commit to establishing responsibility for private sector communications interception and storage, under the aegis of either an existing body such as the ICO or a new independent authority? Answers to Parliamentary Questions confirm that the Government are considering utilising deep-packet inspection as part of the interception modernisation programme, which was confirmed to me in Written Answer HL2760. The use of DPI has been one of the main objections in the Phorm saga because of its potential to uncover personal information by reading the data part of internet traffic, rather than just the header. I do not believe that it is consistent with RIPA, but the Government have not made clear whether or not it is. Will the Minister explain what uses DPI is being considered for as part of the interception modernisation programme? Will he confirm that one of the reasons why the Home Office has been unwilling to clarify its position on Phorm-like systems is because it is interested in using the technology itself, perhaps in the "black boxes" being considered as part of the communications database? Before the Minister suggests to me that this is just a conspiracy theory on my part, this morning I received the answers to freedom of information requests to the Home Office from Mr Phil Main that confirm that the department e-mailed Phorm’s legal representative on 23 January 2008, offering the company the draft paper for its comments on exactly how targeted online advertising would comply with provisions under RIPA. I find it extraordinary—shocking, even—that the Home Office, when drawing up what was legal under RIPA, would consult the very company that may or may not be acting legally. That is beyond any question of "poacher turned gamekeeper", and I would be grateful for the Minister’s comments. On the crossover between the public and private sectors, there have been revelations in the news over the past few days that the Department for Business, Enterprise and Regulatory Reform gave E.ON secret police information regarding the peaceful protest at Kingsnorth. It is one thing for the police to gather intelligence about a demonstration, but it is quite another for the Government to be able to access that information and then leak it to a private company. That sort of informal data sharing should be governed by clear and transparent rules in the same way as sharing between databases, especially at the crossover between public and private bodies. Not only should data be kept for very clear purposes, but we must remember that the way in which it is shared can be dangerous. Fortunately, we in this House will not be faced with the appalling provisions that were originally in the Coroners and Justice Bill because they were withdrawn in the House of Commons in the face of united opposition to them. Very wide data-sharing powers were proposed, and I am glad that the Government realised that they would never get them through this House. I am glad that the noble Lord, Lord West, is answering these points today. On Tuesday, when I asked him my Question about protest, I had not realised that it was his birthday so I had no opportunity to put on the record my wishes to him about a happy birthday. I am able to do so only belatedly, but now the date of 21 April will be burnt into my memory and I shall never forget again.