Retention of Communications Data (Further Extension of Initial Period)Order 2005

rose to move, That the draft order laid before the House on 3 November be approved [8th Report from the Joint Committee]. The noble Lord said: My Lords, this order is made under Sections 105(3) and 105(5) of the Anti-terrorism, Crime and Security Act 2001—a measure made in response to a new threat from terrorism witnessed on 11 September 2001. Four years later, as we know, that threat was realised here in the streets of London on 7 July. The purpose of the order is to extend, for a further two years, the initial period within which the Secretary of State may, by order, authorise the giving of directions to require communications service providers to retain communications data. The initial period has been extended by Parliament once previously, in December 2003, but that extended period will end on 13 December this year. I want to explain why the Government believe that an order for a further extension is necessary. Communications data—that is, data about communications and how they are made, but not what was said or written—remains a vital investigative tool. It provides evidence of associations between individuals and events in time and place. It also provides evidence of innocence. Without data of this sort being available, one of the suspects for the attempted terror attack on London on 21 July may well have evaded arrest in Rome. It is also likely that the ability of the police and the Security Service to painstakingly investigate the associations between those involved in all of the July attacks, and with those who may have directed or financed their activity, would be limited. Many individuals convicted of the most serious offences with evidence communications data might escape detection and prosecution. Yet, the availability of such data is not guaranteed. The effectiveness with which the police can investigate offences can depend upon which communications service provider a suspect, victim or witness has used. Service providers are required to erase data or make it anonymous once a communication is completed, unless the provider needs to retain it for a business purpose. Once the provider has no need of keeping that data it is destroyed, within days—or, sometimes, minutes—of the communication taking place. One consequence of a vibrant and competitive communications sector is a trend to reduce costs, and to retain less data or even stop retaining it at all. Two years ago, as well as extending that initial period, Parliament approved a voluntary code of practice under Section 103 of the 2001 Act. This enabled service providers to voluntarily and lawfully undertake to retain data in line with the code which they might otherwise have been forced to erase or anonymise. With the Act also providing for government funding, providers can choose to retain data that they might otherwise decide not to spend their money on keeping. That investment on behalf of the public can be justified if it secures the preservation of vital evidence of terrorist planning. At this point I would like to pay tribute to the communications service providers and their staff who have tirelessly assisted the Security Service and the police, particularly since the July bombings. They supported those investigations by responding to requirements placed upon them to make data available for lawful disclosure. The important contribution that they are making can already be seen in those trials where communications data has been vital in securing convictions—particularly in murders, threats to kill and kidnaps, where there is no doubt about the necessity and proportionality of investigating communications material. I also pay tribute to the co-operation of those service providers, big and small, that as part of their corporate social responsibility have engaged in constructive dialogue with the Government about retaining data in line with the voluntary code as their business models change and as technology changes. Those providers have considered which data they retain for a business purpose that they could retain for longer, if they choose to do so. They have considered appropriate technical solutions for increasing their storage capabilities and for the consequential retrieval and disclosure of data. They have identified the costs of those solutions for which they look to government to contribute, in line with the provisions of the Act. Although this process can be quickly summarised, it does not happen quickly. It remains a technically complex issue. With complex communications networks involved it can take months for a provider to work out how it might extend the retention of its data and ensure that data can be searched and specific data identified readily. When the initial period was previously extended the Government believed, without the benefit of practical experience acquired over two years of technical discussions with industry, that it would be possible to determine the effectiveness of the voluntary code of practice within three months. What we were able to determine in that time was willingness on the part of providers to volunteer or to consider doing so. The Government have now concluded agreements with providers to support the implementation of technical solutions initiatives that will help to ensure that data is retained and not lost. Other solutions and agreements are in various stages of preparation and negotiation. At the same time, the Government are in discussion with service providers that have indicated they are prepared to retain data for longer, but only if required to do so. Equally, there are providers that have undertaken to retain data voluntarily, or will be doing so, but want that agreement to be made subject to a future direction, once their technical solution is fully in place. They will be content to be directed to do what they already have undertaken to do and to derive additional legal certainty from complying with a legal obligation to retain data rather than a voluntary undertaking. If the possibility of giving directions is lost, there are significant providers that will disengage from dialogue with the Government, or whose willingness to find and develop technical solutions will be lost. The opportunity of preserving and enhancing the contribution that communications data makes to the investigation of terrorism and serious crimes will be lost with it. The voluntary code has provided an important building block upon which the foundations of a practical, viable and lawful scheme for the retention of communications data is being constructed. The full value of the investment of consideration and time that service providers have given, and are continuing to give, will be realised by cementing that good will with directions. The primary responsibility for any democratic state is to provide for the security and safety of its citizens from the threats posed by terrorism. It is right that in doing so the Government strike the right balance between the public interest and business interests, and between the need to retain data for the public good to tackle terrorism and serious crime, and the need to destroy data out of honest respect for individuals’ privacy. Having said all those things and rehearsed those issues, I beg to move. Moved, That the draft order laid before the House on 3 November be approved [8th Report from the Joint Committee].—(Lord Bassam of Brighton.)