My Lords, I rise to support the noble and learned Lord, Lord Hope, in his amendment. Before doing so, I hope that it may be in order to say a word of appreciation to the Minister—on my behalf, but I dare say that I am speaking also on behalf of others who spoke in yesterday’s Second Reading debate—for obviously having worked late through the night with his officials. He produced a letter to my noble friend Lady Smith, a copy of which we all received this morning. I make that point because—given the circumstances of emergency legislation, which always, quite correctly, arouses scepticism, doubt and worry in people’s minds—it is particularly important that the Minister should give very careful answers to the many points raised in yesterday’s debate.
It would be wrong to say that the Minister has answered in this letter every question that was raised in the course of the debate. Indeed, he has not actually answered every question that was raised by the
Constitution Committee’s report. For example, the Constitution Committee pointed out that the Joint Committee had said in 2012 that there was some difficulty or doubt about non-British companies being prepared to continue to co-operate, not so much on the retention of data but on the provision of communications content. The Government might have been advised to address that criticism and could simply have said, “Maybe we got it wrong, in retrospect, and should have taken notice of the Joint Committee’s observation back in 2012, rather than ignoring it”. However, that is just one point. I think that the Government have made an exemplary effort in a very short space of time to deal seriously with the matters that were raised in yesterday’s debate. It would be quite wrong for nobody who asked critical questions yesterday to recognise that effort and to thank the Government for it.
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The House is very much in the debt of the noble and learned Lord, Lord Hope, who has done some useful homework and gone over the actual ECJ judgment, which is the cause of the drama that we have been discussing over the past 24 hours, to see how best we could change the wording and ensure that it is such as to bring to an absolute minimum the danger of another challenge from the ECJ. It is an extremely practical and helpful approach. I hope that the Government regard it in that light and will take advice from a distinguished jurist and accept the changes that he has very reasonably put forward.
I would just add to the arguments which the noble and learned Lord has used that I think it would be a matter of added assurance to the public if the words “strictly necessary” were put into this text. There is a difference between “necessary” and “strictly necessary”. Faced with the word “strictly”, any civil servant or Minister confronted with the issue of whether he or she ought to be issuing an instruction to a data communications company to provide data will have to give at least a few seconds’ additional pause to ask him or herself whether the “strictly” criterion really is being met. You cannot get much stricter than “strictly necessary”, and that means that the greatest degree of care, caution and reserve will be brought to bear on the decisions that are made in this matter.
No doubt there is a long jurisprudence—I am not a lawyer, so I am not familiar with it—relating to the difference in courts’ interpretation of “necessary” as against “strictly necessary” over the centuries. However, even without being a lawyer, anyone will be aware that he or she is treading on very sensitive ground in deciding that something is “strictly necessary”. He or she will need to be absolutely certain in his or her own mind that he or she has arguments sufficient to justify that decision were it ever to be questioned in a court of law.
Doing this is not only sensible from a practical point of view, making it less likely that there will be further legal uncertainty and further legal challenges; it is very sensible from the point of view of reassuring the public that the Government are genuinely not seeking powers that go beyond the “strictly necessary”, in the normal sense of that term.