My Lords, Amendment 1 is an amendment of modest pretensions, but I think it significant and worthy of the attention of the House. What it does is address the use of the word “considers” in Clause 1(1) and proposes that that word be replaced by the word “believes”. To make sense of that, I hope that noble Lords will find it helpful if I say that this is a key clause because it gives the Secretary of State the power to issue retention notices to telecommunications operators. As we know, that class of people includes all great companies in the internet and web world. It allows the Secretary of State to issue a retention notice so that they in turn have to retain what are called “relevant communications data” according to that notice.
However—and this is the important point—the Secretary of State can do that only in certain circumstances: namely, according to the clause, that he or she,
“considers that the requirement is necessary and proportionate”.
My dissatisfaction with that formulation is simply that, in Sections 22, 28 and 29 of the Regulation of Investigatory Powers Act 2000, which bestow comparable powers on the officeholders there mentioned, precisely the same formulation contains the word “believes” rather than “considers”. In precisely comparable circumstances, where necessity and proportionality must be present, the officeholder concerned has to believe in that necessity and proportionality.
Some may think, “Well, what’s the difference?”—and, indeed, that is the key question. I think that there is a difference. I think that “believes” is a stronger requirement than “considers”. I looked at the Oxford English Dictionary definition of the two words. “Consider” is defined thus: “think carefully” about something—typically before making a decision. On the other hand, “believe” is defined as “accept the truth … of”—feel sure of the truth of whatever it is. That is what I thought before looking up the words in the dictionary, but I was surprised in discussions with the office of the parliamentary draftsmen to find that there is considerable doubt on their part that there is any difference in this context between “considers” and “believes”. If that be so, to agree my amendment will not change the purport of the Bill one iota—but if on the other hand I am right and there is a significant difference, it would be wise and proper of us to insert “believes” rather than “considers”.
Since Clause 1 refers expressly to Section 22 of RIPA 2000, I am bound to say that I think that a court—we have many noble and learned former judges here and I hope that they will add their opinion—would seek, given a difference of wording, to render a difference of meaning as between Section 22 of RIPA 2000 and what will be Section 1 of the Data Retention and Investigatory Powers Act. As a long-in-the-tooth lawyer, that is the way that I am working, which seems to me to be right and proper.
Why do I think that the amendment is worth while? I am at one with a huge number of our fellow citizens outside this place who are extremely unhappy about the whole of this Bill and the method and manner in which it has been brought forward. The fact that, this very day, we are going to complete all stages is an
indication of the radical nature of the procedures adopted to push this Bill through, as was the case in the Commons the day before yesterday.
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About eight of our leading libertarian NGOs and, indeed, the Law Society, are extremely unhappy about these proceedings and procedures. That is of course because the Bill and RIPA 2000 involve not only the security of the state and the citizens but the protection of liberties—or, rather, the lack of protection of ancient and normal liberties and freedoms. The power to look at the communications data that the Bill covers is extremely important and radical. It blasts a huge hole in the normal protections that we as citizens have vis-à-vis our communications. That was made clear in yesterday’s very good Second Reading debate, in which a number of your Lordships made the point that to pretend that communications data is insignificant compared with the content of the communication just is not the case. There is hugely important, personal, sensitive information to be gathered in terms of communications data.
That is what my amendment deals with. I hope, first, that it will have the approval of your Lordships, and, secondly, that my noble friend Lord Taylor of Holbeach may be inclined to accept that the amendment can do no harm and may, indeed, do some good. I beg to move.