In the interests of the economic well-being of the United Kingdom

The phrase "in the interests of the economic well-being of the United Kingdom" appears in several pieces of UK legislation and proposed legislation, such as:

European Convention on Human Rights

The wording (without further definition) is taken from Article 8 of the European Convention on Human Rights - Right to respect for private and family life.

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Interpretation in UK law

During the committee stage for the Regulation of Investigatory Powers Bill a probing amendment by Richard Allan MP was made to elicit the purpose of the phrase.[1]

David Maclean MP [2]:

Therefore, I proceeded to column 157, in which the then Foreign Secretary, Douglas Hurd, said:

There is the provision for action—the tasking of our intelligence agencies—in the interests of the economic well-being of the United Kingdom. Those who have followed these matters know that that is a well-worn provision. It is in existing legislation, and is provided for in the European Convention on Human Rights. It sometimes causes puzzlement as to what it can mean.
Examples of where it might be useful are where there is instability in a part of the world where substantial British economic interests were at stake, or where there was a crisis or a huge difficulty about the continued supply of a commodity on which our economy depended.
The House will notice that the Bill restricts the activities of the SIS and GCHQ for safeguarding the economic well-being of the country to the acts or intentions of persons outside the United Kingdom. The agencies may not and do not get involved in domestic economic, commercial or financial affairs.[3]

That quote is helpful. I want the Minister to reassure me that what Douglas Hurd said still stands and that he set out the scale of what is covered by economic well-being.

The examples that Douglas Hurd gave are clear. One is coded speak for oil—

the continued supply of a commodity on which our economy depended.

Well, that used to be oil; some economists now argue that oil is not so important. However, I am sure the Minister will agree that those are major considerations. I know that he cannot and will not speculate on BMW, but it would be interesting to discuss whether the definition would cover the decision of the board of BMW to dump Rover—which was known to everyone but the Government—[Interruption.] Well, perhaps one Government agency was doing its duty and knew about it but failed to pass on the information to the Foreign Secretary. It would be interesting to speculate on whether that decision falls within the high threshold of activity described by the former Foreign Secretary.

The SIS will be investigating the big stuff that threatens the economic well-being of the United Kingdom. However, it is not correct to use the term "threatens". In 1985, the then Home Secretary said:

As in the case of serious crime or national security, the Secretary of State has to consider that interception is not just desirable. Secondly, interception has to be protective. It must be concerned with safeguarding the country's economic well-being, not with promoting it.[4]

That is an important distinction. We want confirmation that the Minister stands by that, and that that is his and the present Home Secretary's understanding. The former Home Secretary continued:

That means it relates to threats to that well-being.
Thirdly, it is the economic well-being of the United Kingdom which is at issue. By definition, the matter must be one of national significance and cannot be of a trivial kind which is peripheral to that well-being. It is a crucial part of our foreign policy to protect the country against adverse developments overseas.

Again, that confirms what the former Foreign Secretary said on Second Reading of the Intelligence Services Bill in 1994.

Those quotations satisfy me of what the previous Government and the then Home Secretary and Foreign Secretary understood of their duty to safeguard the economic well-being of the United Kingdom. I hope and believe that that has not changed one iota. I do not think that the present Foreign Secretary or Home Secretary have a different understanding. Indeed, I hope that they apply the same criteria. Will the Minister assure the Committee that the Bill will not widen the remit or increase the power of the Security Service or the Secret Intelligence Service, either inadvertently or deliberately, or lower the threshold of safeguarding the economic well-being of the United Kingdom?

The explanatory notes contain a lovely little phrase that suggests that the provisions could apply to "safeguarding" tax revenue. One of the organisations listed in clause 6 as being allowed to apply for a warrant is Her Majesty's Customs and Excise. It does a valiant job in safeguarding tax revenue, as many of those who have been put out of business by it will testify. That was an uncharitable comment, but it has happened on a few occasions in my constituency. However, the Revenue may argue that its action was justified.

Data Protection Directive

The scope of "economic well-being" is limited to national security impact in Article 3(2) of Directive 95/46[5] (Data Protection Directive) makes mention that the directive does not apply

in the course of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union and in any case to processing operations concerning public security, defence, State security (including the economic well-being of the State when the processing operation relates to State security matters) and the activities of the State in areas of criminal law

During the Data Retention and Investigatory Powers Bill debate, Intelligence and Security Committee chair Malcolm Rifkind MP stated[6]

The right hon. Gentleman may be unaware that there has been a European directive since the late 1990s that links economic well-being to national security issues. It has been implemented in the United Kingdom through a code of practice, which is unsatisfactory, and it is that code of practice that will now appear as primary legislation.

Clarification in Data Retention and Investigatory Powers Bill

The draft Data Retention and Investigatory Powers Bill published in July 2014 clarifies the extent of the interpretation in RIPA by changing the purpose, when issuing warrants to "for the purpose of safeguarding the economic well-being of the United Kingdom in circumstances appearing to the Secretary of State to be relevant to the interests of national security", and when obtaining communications data to "in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security".

Former Home and Foreign Secretary Jack Straw MP, during the debate[7] said:

"There is one area in which this Bill will, indeed, change the law. Clause 3 will change the basis for obtaining a warrant for intercept on grounds of economic well-being. At the moment, in RIPA, economic well-being is the sole criterion without condition. In future, it will be subject to the interests of national security."
Perhaps indicating a broader interpretation than expected has been in use.

(If the reports[8] of GCHQ intercepting the communications of foreign politicians during the 2009 G20 summit are accurate, then potentially these actions came under a broad interpretation of this wording.)

References

  1. Regulation of Investigatory Powers Bill standing committee: Clause 5, 2000-03-21
  2. Regulation of Investigatory Powers Bill standing committee: Clause 5, 2000-03-21
  3. Intelligence Services Bill, Douglas Hurd, 1994-02-22
  4. Interception of Communications Bill debate, Leon Brittain, 1985-03-12
  5. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data
  6. Hansard, 2014-07-15
  7. Hansard, 2014-07-15
  8. GCHQ intercepted foreign politicians' communications at G20 summits, Guardian, 2013-05-17]