Letter from Rt Hon Theresa May MP, Home Secretary, to the Chair of the Committee, 26 April Communication Data

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1 Letter from Rt Hon Theresa May MP, Home Secretary, to the Chair of the Committee, 26 April 2012 Communication Data Thank you for your letter of 2 April regarding Home Office plans on electronic surveillance. As I indicated when I was before the Select Committee earlier this week, there has been a good deal of inaccurate speculation in the press recently about these issues. I want to assure you that the Government is not considering legislation which would enable GCHQ to monitor calls, texts, s and web use in real time. This would be neither acceptable nor feasible and is certainly not our intention. The Government is considering legislation to ensure communications data is available in future as it has been in the past and that the police and agencies can continue to get access to it. The communications data programme is run by the Home Office not by the GCHQ or the other security and intelligence agencies. Communications data is information about an electronic communication, not the communication itself. It can include the time, duration and dialling numbers of a phone call, and the location from which a mobile call is made, or the to and from addresses on an . Sometimes it includes the location of the originator of the communication. Communications data does not include the content of any phone call or . Communications data is used by the police and the security agencies in the investigation of nearly all serious crimes, including terrorism. It enables the police to build a picture of the activities and contacts of a person who is under investigation. Communications data is regularly used as evidence to support a prosecution in court. Comprehensive safeguards exist for access to communications data. It is primarily regulated by the Regulation of Investigatory Powers Act (RIPA), which places strict rules on when, and by whom, this data can be obtained. The interception of Communications Commissioner, Sir Paul Kennedy, provides independent oversight of the acquisition of communications data. He provides a published annual report to the Prime Minister. Communications technology and communication services are changing fast. Broadly, more communications are now taking place on the internet and fewer communications by phone. Communications data is harder to obtain: for some services it is not collected and stored by the service provider. We estimate that about 25% of requests for communications data by the police and agencies can no longer be met. This has a direct impact on the investigation of crime in this country and on our ability to prosecute criminals and terrorists. The Child Exploitation Online Protection Centre (CEOP) is for example already experiencing significant problems. In a recent case CEOP received 5,326 unique Internet Protocol (IP) addresses from the UK who had accessed child abuse material on a foreign website. Only 3,102 of the IP addresses could be submitted to Communication Service Providers (CSPs) to obtain subscriber details. However,

2 1,492 (48%) of those could not be resolved with the specific subscriber data, mostly due to data retention issues, i.e. the data was not available. As a result 9 out of 41 UK members of an international paedophile ring could not be traced. It is the first duty of Government to protect the public and the Government therefore intends to legislate to ensure that communications data continues to be accessible, primarily to law enforcement and the security services. We wish to maintain a capability not increase it. The Government set out its intent to legislate on this issue in the Strategic Defence and Security Review (SDSR) which was published in Details of this legislation will be presented to Parliament in due course. Rt Hon Theresa May MP Home Secretary April 2012

3 Letter from Rt Hon Theresa May MP, Home Secretary, to the Chair of the Committee, 15 May 2012 Evidence Session with the Home Affairs Select Committee on 24 th April Thank you for your letter of the 25 April following my Home Affairs Committee session the day before. You asked me a number of questions, I am writing here with information on Niru Ravindra, entry checks and the National Crime Agency. Immigration The case of Niru Ravindra involved an investigation by the UK Border Agency into suspected facilitation of illegal workers by the owner of an employment agency. We worked closely with the Crown Prosecution Service (CPS) throughout the investigation in order to bring those responsible to trial. However, when the case reached the courts it emerged that there were issues surrounding the evidence of the witnesses involved, some of whom had since been removed, others of whom remained in the UK. The Judge excluded the evidence of all witnesses and as a result the CPS did not proceed with the case. A full internal review is underway. It would be inappropriate to comment further until the full review has been completed. Entry checks The security of the border is the primary focus for Border Force. Reports in the media did not accurately reflect the events at Birmingham Airport on Thursday 29th March. Technical difficulties did mean that arriving passengers were held in the immigration hall while we were attempting to resolve the issue. While the majority of law abiding passengers waited patiently, approximately 25 individuals refused to listen to the instructions of Border Force staff and the police and began leaving the immigration hall without having the requisite checks. They were all EEA nationals. This number was significantly smaller than the 'hundreds' quoted in the Daily Mail article and all were retrospectively checked by Border Force officers with no adverse results. It was decided by the officers on duty that the activity of this minority could endanger the rest of the passengers and so alternative security measures were put in place for EEA passengers. These passengers had all of their details taken and the necessary checks were made. All non-eea passengers were required to wait until the technical difficulties were resolved. Ministers have been clear with the Border Force about the minimum level of checks that are required upon passengers at the Border. These have been clearly communicated to all staff by Brian Moore, the interim Director General of Border Force.

4 National Crime Agency The NCA will have a wider remit than SOCA and a deeper reach across law enforcement. And it will be delivered within the budget of its precursor organisations. Driven by intelligence it will do this through more effective prioritisation and smarter use of assets; its own and those of others. The Serious and Organised Crime Agency (SOCA) (which includes the Child Exploitation Online Protection Centre), will form the largest component of the NCA's budget and has a Home Office delegated budget of 425m in 2012/13 (including both resource and capital). This includes 10m resource funding for the 5 National Police Improvement Agency (NPIA) functions that transferred on the 1st April In 2014/15, the first full financial year of operation, we expect that the NCA's baseline budget will be in the region of 403m. It is too early to say what the final budget for the NCA will be as there are likely to be additional functions that will transfer into the Agency and other supplementary funding streams which the NCA (like SOCA) is likely to access. I will write again responding to the Committee's other questions in due course. Rt Hon Theresa May MP Home Secretary May 2012

5 Letter from Rt Hon Theresa May MP, Home Secretary, to the Chair of the Committee, 20 June 2012 Oral Evidence Session with the Home Affairs Select Committee on 24th April When I appeared before the Home Affairs Select Committee on 24 April I agreed to provide further information on a number of issues of interest to the Committee. You also wrote to me with further requests, part of which I responded to in a letter on 15 May, the rest which I include here. Abu Qatada To supply the Committee with examples of the letters received on other cases that support our views on the deadline. I am attaching 12 examples of such correspondence with this letter. To write on whether the European Court has ever accepted applications for a referral to the Grand Chamber outside its deadlines. As I said in response to the question from Nicola Blackwood, I believe there was one case of the Grand Chamber accepting a late referral. I can now confirm that there was a Slovenian case, Kovačić and Others v Slovenia, that was heard by the Grand Chamber in July In this case one of the applicants submitted a request for referral outside the three month time-limit, and the other applicants jointly requested a referral within it. You may have seen that the ECtHR has now amended its practice document on the Grand Chamber Panel. It now states that:...it is to be noted that the Panel has constantly held that the period of three months within which referral may be requested starts to run from the day which follows the day of the delivery of the Chamber judgment, irrespective of whether the party concerned may have learned about it at a later stage. It expires three calendar months later and is not interrupted by bank holidays or periods of judicial recess. Thus, for example, for a Chamber judgment delivered on 10 January, the time-limit set forth in Article 43 1 of the Convention expires at midnight on 10 April (central european time). This represents a change in the way the guidance specifies the date from which the three month window for a referral application commences. The practice document at the time of the Qatada decision stated that...it is to be noted that the period of three months within which referral may be requested starts to run on the date of the delivery of the judgment, irrespective of whether the party concerned may have

6 learned about it at a later stage. It expires three calendar months later and is not interrupted by bank holidays or periods of judicial recess. One can see that the new guidance therefore appears to push the three month referral period back by one day. To write on the written assurances the UK has received from the Jordanian Government as regards the treatment of Abu Qatada on his return to Jordan In addition, you have asked me to publish the new information and assurances that we have gained from the Jordanians regarding the trial Abu Qatada will receive when he is returned to Jordan. The key elements of the Home Office s case were set out in a letter to Qatada s lawyers that were discussed at the SIAC hearing on 17 April. The points made in that letter are: (i) The Jordanian Government, in the course of the discussions with UK Ministers and officials, has made clear its renewed commitment to ensure that Qatada receives a fair trial on return, and its considerable concern for their country s reputation following the adverse comments made by the ECtHR; (ii) The fact that when deported Qatada would not be detained by the GID but would be detained in a normal civilian Reform and Rehabilitation Centre; (iii) The fact that Qatada would be provided with a lawyer and be able to make a fresh statement himself to the Public Prosecutor; (iv) The fact that any evidence obtained by torture would now also fall foul of the express prohibition on the use of evidence from torture found in the new Article 8 of the Jordanian Constitution that came into effect in October 2011; (v) The fact that all the co-defendants, including those whose evidence was allegedly obtained by torture, have now been pardoned or released in relation to these offences and are compellable to give new evidence in Qatada s retrial; (vi) The fact that the Jordanian Government has clearly indicated its intention that at the very least, a majority of the panel of three judges who would hear Qatada s retrial would be civilians; (vii) That the retrial itself will be a public and open hearing which can be attended by Non-Governmental Organisations, the media and any other interested observers. Memoranda of understanding

7 To provide the Committee with the list of five countries with which we have DWA arrangements, and to say how many of the 15 cases mentioned in the Home Secretary s earlier statement relate to each country. The UK has DWA arrangements with: Algeria, Ethiopia, Jordan, Lebanon and Morocco. Other than Abu Qatada, there are 15 other DWA cases that are being pursued through the courts. These relate to: 10 Algerian nationals; 2 Ethiopian nationals; 1 Jordanian national; 1 Moroccan national; and a national of another country with which the DWA arrangement is still being agreed. These numbers may of course change over time as further cases are pursued or cases reach a conclusion. Communications Capability Development Programme Draft legislation and pre-legislative scrutiny As you will be aware, on Thursday 14 June we published a draft Bill, which is intended to maintain the ability of the law enforcement and intelligence agencies to access vital communications data under strict safeguards. Scrutiny will be conducted by a Joint Committee of Both Houses who have currently appointed an end-date of 30 November and a parallel inquiry by the Intelligence and Security Committee. Acquisition of communications data Public Authorities obtain communications data under strict safeguards from a range of providers. We cannot comment on obligations which have been or may be placed on specific providers. To disclose precisely what data is available from specific communications services could reveal operationally or commercially sensitive details. Definition of communications data The definition of communications data is set out in the Draft Bill. In summary, it includes: Subscriber Information information that private sector communications service providers (CSPs) hold about people to whom they provide a service e.g. names, addresses, telephone numbers. Use Information information about the use a person makes of a service e.g. itemised telephone call records, records of connection to internet services, timing and duration of service usage.

8 Traffic Data information about a communication and the equipment used in transmitting it e.g. information about the location of mobile phones, routing information such as IP address allocation. Cost of the proposals and reimbursement of costs The estimated economic programme costs were published with the Draft Bill. The communications industry is already reimbursed by government for costs incurred in the provision of communications data. This includes the costs of processing requests to supply data, under strict safeguards, to relevant public authorities. Regulatory and Investigatory Powers Act (RIPA) safeguards Only those public authorities approved by Parliament can access communications data. Requests for data need to be approved by senior officials or officers in the applying agency. Necessity and proportionality are the key criteria. Local authorities will now need to get the approval of a magistrate under new provisions in the Protection of Freedoms Act. Public Authorities that can obtain communications data Please find enclosed a copy of the RIPA Consolidating Order (Communications Data) 2010, which sets out all authorities currently entitled to acquire communications data, and the rank at which they may currently authorise access to communications data. 1 The new Bill will replace the communications data provisions of RIPA. Only the police, Serious and Organised Crime Agency/National Crime Agency, Her Majesty s Customs and Revenue and the intelligence agencies will be granted access to communications data through this bill. Other public bodies who currently have access to communications data will only continue to do so following debate and approval by Parliament and if that access is considered vital to protecting the public or investigating crime. Details of consultation with industry bodies about proposals We have engaged with sections of industry through Ministerial and official level meetings and working groups, and kept service providers informed as thinking has developed. Many industry contacts recognise the need for us to obtain this data and support the principals of the Bill. Coalition commitment 1 and

9 At present, for business reasons, communications providers store some of the data to which we may need access. There are good reasons for government to require both the collection and storage of communications data. It is vital to law enforcement when dealing with organised crime gangs, paedophile rings and terrorist groups and is critical to everyday policing. A maximum time limit of 12 months will be placed on storage, consistent with the Data Retention Directive. The Government set out its intention to legislate on this issue in the Strategic Defence and Security Review (SDSR) which was published in The SDSR made clear that we would legislate as soon as parliamentary time allowed, ensuring that the use of communications data is compatible with the Government's approach to civil liberties. Winsor Report We continue to value the finest police service in the world and we will continue to ensure that officers are rewarded for doing an exceptional job: Current police officers will continue to earn more than other emergency services. Police officers (constables and sergeants) will continue to be able to earn overtime, which is not available to prison officers or the armed forces, who also cannot strike. Police officers will continue to retire earlier than most in the public sector. Police pensions will continue to be amongst the best available. Police Police officers cannot strike - and that is not going to change. The public has a rightful expectation that the service will continue to discharge its duty to protect the public and keep the peace. Officers are not unique in facing restrictions on industrial rights prison officers and soldiers cannot strike. Rt Hon Theresa May MP Home Secretary June 2012

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