Regulation of Investigatory Powers (Communications Data) (Additional Functions and Amendment) Order 2006

I am grateful to the Minister for introducing the orders. She has adequately explained that they regulate the conduct of directed surveillance and the acquisition of communications data by the public authorities listed in them. We see from the Explanatory Notes that both orders add, amend or remove authorities from the list of those entitled to exercise such powers. I am grateful to her for setting out the two purposes for which these powers are sought. I also thank members of the Merits of Statutory Instruments Committee for their 37th report, which draws the orders to the special attention of the House on the ground that, as the Home Office has previously stated that it did not intend to add any more purposes to the list in Section 22(2) of RIPA, they,"““give rise to issues of public policy likely to be of interest to the House””—" a subtle statement, the significance of which I am sure is not lost on your Lordships. The problem that we need to address today is not whether the additional powers sought in the communications data order are excessive—I agree with the committee that they are not—but why the Government once again promise one thing and do another. Not only do the orders suggest that the Government did not get it right when they insisted in 2003 on the RIPA orders, otherwise known as part of the snoopers’ charter, in the face of opposition in your Lordships’ House and the Joint Committee on Human Rights, but they allow the very ““function creep”” that the Government promised to protect us against. Then again, this Government have a record of function creep in all their data information collection projects, so unfortunately it is not a surprise. Indeed, it was one of our fears about the recent Identity Cards Bill. In the 2003 consultation document, the Government list in paragraph 2 of chapter 3, ““Balancing privacy with protection of the public””, the purposes for which the public authorities can justify an intrusion on someone’s privacy, so long as such an intrusion satisfies the principle of necessity and proportionality derived from the European Convention on Human Rights. The two additional proposals for data collection are arguably an extension of this list, despite the Government’s comment in paragraph 3 that,"““the Government does not intend to add any further purposes to the list””." They repeated assurances to this effect in the 2003 debate. Commendable though the reasoning behind these additions might be, is there not a greater principle of trust at stake? How can this House be expected to take any assurances at face value when we have examples that show that they may count for naught a few years down the line? Moreover, the Explanatory Notes state that the Government are soon to consult on a draft code of practice for the very practice that we are being asked to extend outside the Government’s supposedly tight remit. We are once again being asked to put the cart before the horse. My noble friend Lord Northesk made this criticism in 2003, and we are still making it three years later. It is an increasingly worrying trend that, in the name of flexibility but more likely in the rush to get things through, we are continually being asked to approve what has been termed ““enabling legislation”” because the consultation and details have not yet been worked out. Once again, it is a question of trust, not only of this Government but of future Governments. Perhaps the Minister can explain why a department which the current Secretary of State described as unfit for purpose deems it appropriate to drive this and other legislation through in such a manner. I would appreciate it if she could also update us on the implementation of Part III of RIPA. On the second order, it is interesting that the Government argued that it was necessary and proportionate for all the bodies listed in 2003 to have these powers, but are now removing some of the very officials they sought to approve. The Explanatory Notes state that they have no requirement to use these powers. I would like to know two things. First, why were they included in the first place? Secondly, as the Government refused to repeal other data collection powers prior to RIPA when they passed the commencement order in 2003, will these officials simply revert to using the measures which the Government previously admitted do not fall within the regulation of RIPA to meet human rights requirements? I was also interested to see that the order adds the Gangmasters Licensing Authority as a public body to Schedule 1. Why is an authority which relates to the provision of labour across the agricultural sector included, while the Department for Work and Pensions remains outside the regime, thereby undermining the whole premise on which this Home Office policy is based? Will the Minister say why this authority should be included when the DWP is not? My final point relates to the treatment of communication data in relation to overseas bodies. This links in with increased data requests in the current climate of terrorism and to the proposed extension of police powers in the Police and Justice Bill currently before the House. We on these Benches have highlighted before the disparity between the ability to retain data for one purpose under anti-terrorism legislation and the ability to access that data under RIPA for other purposes. How many requests have our mutual legal assistance partners in the EU, or indeed the US, made? What steps have been taken to address the concerns by the Foundation for Information Policy Research that minimal standards of evidence and authentication required for such transfers could create dangers for many people in the United Kingdom and breach Article 8 of ECHR? The principle of trust is of great concern. In 2003 Members on our Benches had deep misgivings about the wisdom of the original orders following strong criticisms of the original Act and implementation of Part I by the Information Commissioner, outside organisations and, not least, the Joint Committee on Human Rights. We questioned whether flawed law should be entrenched. The disparities highlighted by the debate today surrounding the orders heighten these concerns.