Regulation of Investigatory Powers Bill

3.6 p.m.

 

 

Lord Bassam of Brighton: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.--(Lord Bassam of Brighton.)

On Question, Motion agreed to.

House in Committee accordingly.

19 Jun 2000 : Column 12

[THE CHAIRMAN OF COMMITTEES in the Chair.]

Clause 12 [Maintenance of interception capability]:

 

The Earl of Northesk moved Amendment No. 48A:


The noble Earl said: In moving the amendment, I speak also to Amendments Nos. 48B and 49A. My purpose is straightforward. Many of the powers granted to the Secretary of State in the Bill are significant. I accept that the existing drafting is a standard formulation but I see no reason why it should not expressly reflect that, in the most important areas where these powers are to rely on a matter of judgment, such judgments should be objective--that is, a matter of fact--rather than subjective--that is, constrained by the discretion of the Secretary of State. Hence my suggested change of wording.

At least in part, I have the well-being of the office of the Secretary of State in mind. While accepting that any Home Secretary should always be responsible for his actions, instances where the decision-making process in the Home Office has been subject to an allegation of political taint have perhaps been on the increase in recent years. This is regrettable. The job is difficult enough without having to run that gauntlet. I cannot help feeling that it is important to minimise this with respect to the interception regime.

I am particularly concerned about this matter in the context of Clause 12. If, as I believe they should, the Government accept the proposition of my noble friends on the Opposition Front Bench that there should be a technical approvals board to advise the Secretary of State, it defies logic that its advice should not be one of the principal determining factors in the shaping of the obligations to be imposed by orders under this clause. That being so, it should be possible to frame such orders on the basis of the factual evidence so adduced: that they should be drafted objectively rather than subjectively.

With respect to Amendments Nos. 48B and 49A I am conscious that I run the risk of being accused of over-egging the pudding. Having spent so many happy hours with the Financial Services and Markets Bill, I am only too well aware that the attractions of the "reasonable" test on the face of legislation are seductive--perhaps overly so. No doubt that consideration will form part of the Minister's defence.

None the less, I believe that the issues with which Clause 12 is concerned are of major significance and would benefit from the additional constraint that I propose. While we shall no doubt return to the matter in more detail with Amendments Nos. 55 and 57, it is enough at this stage to say that the Bill will impose huge burdens both in terms of regulation and of cost on e-commerce, thereby undermining the Government's aim of making the UK the best place in the world to do e-business. Surely, it is not too much to ask that these burdens should be reasonable. I beg to move.

Lord Cope of Berkeley: I believe that Amendment No. 48A would be more powerful than my noble friend

19 Jun 2000 : Column 13

suggests. Removing the words "it appears to him" and substituting the objective test places any court before which such an issue appears in a stronger position. Instead of the Home Secretary and his representatives having only to suggest that "it appears" to the Secretary of State, they would have to justify the case objectively. That puts more muscle behind the provision, and desirably so. As we shall no doubt discuss in a few minutes, the potential burden being placed on industry is extremely heavy.

Amendments Nos. 48B and 49A appear eminently reasonable--and that is the word they seek to insert. While my noble friend moved them in a modest way, they are important in reassuring those in the industry and others outside about what is happening as regards the legislation.

Amendment No. 50A stands in the names of noble Lords on the Liberal Democrat Benches. I do not want to pre-empt what they may say, but I believe that its object is to bring the interception of communications commissioner into the decision-making process. It is a way of ensuring that the commissioner can do this part of his job, and it is important that he should. If the Secretary of State alone, on the basis of what appears to him to be best, makes the arrangements, the commissioner may have difficulty fulfilling his responsibilities. None of us wants that.

 

Lord McNally: The noble Lord, Lord Cope, elegantly expressed the purpose of our amendment. We are not sure what the complete powers of the commissioner should be, but it is our plea that he should be given the technology and equipment to do his job properly.

At the start of our proceedings, perhaps I may take note of two press comments which might provide encouragement for the long hours ahead. I am afraid that we have not impressed Mr John Norton of the Observer, who believes that our work is sometime a cross between Gilbert and Sullivan and Kafka. All I can say to Mr Norton is that he is not alone in that belief. However, encouragement is to be found is Saturday's Guardian. According to an NOP poll, computer geeks are now considered the coolest kids in the class. Therefore, as we set off on another marathon sitting, I hope that some of that aura of computer geeks will rub off on some of us involved in the Bill.

3.15 p.m.

 

 

Lord Bassam of Brighton: Famously, I am not yet a computer geek. However, I am trying and practising and my son is giving me good advice.

Amendments Nos. 48A, 48B and 49A have the effect of introducing reasonability requirements as additional factors or replacements to existing terminology in subsections (1), (2) and (3). Clause 12(1), as drafted, imposes a duty on the Secretary of State to ensure that any obligations placed on communications service providers (CSPs) to maintain an intercept capability are reasonable. In our view, the three amendments do not take the requirement any further.

19 Jun 2000 : Column 14

The Government have no interest in imposing unreasonable requirements on CSPs. Initially, it is properly for the Secretary of State, after the consultation process, to come to a decision on what is a reasonable intercept capability.

Looking at the amendments, we take the view that there is not much between us. The Bill provides that the reasonableness is a matter for the Secretary of State's judgment. The amendment appears to try to make that into a form of objective test. But the concept of reasonableness implies a matter of judgment. Because it is the Secretary of State who must make the order and give the notices, it is inevitable and proper that he must decide what is reasonable in a particular set of circumstances. I suspect that that would be the case even under the noble Earl's amendment. As I said, I do not believe that there is a great deal between us. Of course, the "reasonable" requirement in Clause 12(1) is judicially reviewable and therefore the Secretary of State's judgment can be challenged as to whether it is reasonable in the circumstances.

Amendment No. 50A aims to respond to concerns that some people have expressed relating to the practical difficulty for the interception commissioner in carrying out his duties in the face of what we would all agree are considerable technical complexities relating to interception systems. The commissioner's role in that regard is clearly important and any difficulties he encountered in checking the use made of the system would be of tremendous concern to us all.

It would therefore seem sensible to include in the Bill provision for notices to specify or describe a requirement along the lines of the amendment. I trust that noble Lords will be patient with us while we consider how best to word it. We take the point made in the amendment and I can give an assurance and a commitment today that we shall give the issue careful consideration and return to it at Report stage.

I hope that in view of my comments and the commitment I have given, the noble Earl will consider withdrawing the amendment so that we can better consider Amendment No. 50A in particular.

 

The Earl of Northesk: I thank the Minister for that reply. I take the point made by my noble friend Lord Cope. At the back of my mind was the thought that the courts, and thereby the general public and e-commerce, should have more clout in this area. The Government have consistently said that the Bill is about striking the right balance between the needs of law enforcement and the rights of the citizen. To my mind, the amendments are a modest attempt in that direction.

I cannot speak for the Liberal Democrat Front Bench, but I am not wholly convinced by the Minister's response to my amendments. If, as he says, there is little between us, that implies some empathy with my purpose. I have no wish to bring the matter back at a later stage and therefore would like to seek the opinion of the Committee.

 

Lord Harris of Greenwich: I believe that that is most unreasonable. As the noble Earl will be aware, we are

19 Jun 2000 : Column 15

seriously disturbed about a number of aspects of the Bill. However, the noble Lord indicated that the Government are prepared to consider the issue between now and Report. I do not believe that at this stage it is sensible to seek to divide the Committee on such a matter.

 

The Earl of Northesk: My reason for wanting to divide the Committee is that, although the Minister was very charitable with the Liberal Democrat Front Bench amendment, I felt that he was less than charitable with my own. I have no wish to pursue this matter at a later stage in our proceedings and, therefore, I still wish to seek the opinion of the Committee.

3.20 p.m.

 

On Question, Whether the said amendment (No. 48A) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 121.

Division No. 1

CONTENTS

Aberdare, L.
Anelay of St Johns, B.
Astor of Hever, L.
Astor, V.
Attlee, E.
Beaumont of Whitley, L.
Blackwell, L.
Brabazon of Tara, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Carnegy of Lour, B.
Coe, L.
Cope of Berkeley, L.
Cox, B.
Dean of Harptree, L.
Dixon-Smith, L.
Elles, B.
Elliott of Morpeth, L.
Fookes, B.
Glentoran, L.
Goschen, V.
Hanham, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Howe, E.
Howell of Guildford, L.
Jenkin of Roding, L.
Jopling, L.
Lawson of Blaby, L.
Lucas, L. [Teller]
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Masham of Ilton, B.
Miller of Hendon, B.
Mowbray and Stourton, L.
Naseby, L.
Northesk, E. [Teller]
O'Cathain, B.
Oppenheim-Barnes, B.
Peel, E.
Perry of Southwark, B.
Peyton of Yeovil, L.
Rees, L.
Rees-Mogg, L.
Renton, L.
Roberts of Conwy, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Swinfen, L.
Trumpington, B.
Vivian, L.
Young, B.

NOT-CONTENTS

Acton, L.
Addington, L.
Ahmed, L.
Alli, L.
Amos, B.
Ampthill, L.
Andrews, B.
Archer of Sandwell, L.
Avebury, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Blease, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Bruce of Donington, L.
Burlison, L.
Carter, L. [Teller]
Christopher, L.
Clarke of Hampstead, L.
Cledwyn of Penrhos, L.
Clement-Jones, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Cohen of Pimlico, B.
Darcy de Knayth, B.
David, B.
Davies of Coity, L.
Desai, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Evans of Temple Guiting, L.
Ezra, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fitt, L.
Gavron, L.
Gibson of Market Rasen, B.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Grenfell, L.
Hardy of Wath, L.
Harris of Greenwich, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton-Foster, B.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jeger, B.
Jenkins of Putney, L.
Judd, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Levy, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Lovell-Davis, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
Mackenzie of Framwellgate, L.
McNally, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Morris of Castle Morris, L.
Nicol, B.
Palmer, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Peston, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prashar, B.
Ramsay of Cartvale, B.
Redesdale, L.
Rendell of Babergh, B.
Richard, L.
Rodgers of Quarry Bank, L.
Roper, L.
Scotland of Asthal, B.
Serota, B.
Sewel, L.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thornton, B.
Tomlinson, L.
Tordoff, L.
Turner of Camden, B.
Warner, L.
Warwick of Undercliffe, B.
Weatherill, L.
Whitaker, B.
Wigoder, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Young of Old Scone, B.

 

Resolved in the negative, and amendment disagreed to accordingly.

19 Jun 2000 : Column 16

[Amendment No. 48B not moved.]

3.30 p.m.

 

 

Lord Cope of Berkeley moved Amendment No. 49:


    Page 14, line 13, after ("State") insert ("and the Technical Approvals Board").

The noble Lord said: These amendments address one of the most important issues in this very controversial Bill: the huge potential burden to be placed on industry, commerce and finance.

The burden does not just fall on Internet service providers and those in the middle of dealing with such services, but rebounds on every company that uses the Internet for business, which means every significant company in our economy. This is not just a technical

19 Jun 2000 : Column 17

point that concerns only a few clever companies; it concerns everybody. The Bill provides that every service company providing Internet services can be made to install a so-called black box so that all the Internet traffic that it is responsible for can be monitored.

The Home Secretary and others who support the Government keep telling us not to worry because such fears are over the top. They tell us that nobody thinks that all Internet service providers should be covered by the provisions. On the contrary, they think that the Bill will be very selective and that far fewer people will be affected than is being made out. They say that there is a lot of scaremongering going on, but in the Bill the Home Office asks Parliament for an all-embracing power to get at every e-mail that passes through this country.

The Home Office goes on to say that the United Kingdom is ahead of practically every other nation and that we are tightening up more strongly and more quickly than others, as if that were something to boast about. It is very important to look at the issue in the international context, because there is nothing more international than the Internet. It is worldwide and instantaneous and enables people to move their businesses and take their transactions and communications elsewhere very easily.

It is important that every country does its best to find a way of catching criminals who use the Internet--both those who use it in a specific, electronic way, with what one might call new types of e-crime, and those who use it for crimes that we are perfectly used to. The Internet is capable not only of making business more efficient, but of making crime more efficient. It is important to address the problem and move forward alongside other nations, but we should not make our companies--not just our e-companies but all our companies--uneconomic and uncompetitive.

The central problem is the indiscriminate nature of the power. It is a bit like a problem that someone once suggested to me involving strawberries. A government inspector might come along to a farm and say "There are grubs in some of your strawberries, but don't worry because we have found a spray that opens up the strawberries and allows us to see where the grubs are, so we propose to spray all your fields of strawberries". Of course, that will ruin the whole crop if they are not careful, and it is no good saying "Ah, but there is a fence round the field and we are not going to let other people in to look at your strawberries". If people think that all the Internet is going to be opened up, they will not do business in this country. Plenty of evidence has emerged in the past few weeks of people already making such plans in connection with the Bill.

There is also some doubt about how it will be technically possible to have a reasonable interception capability for communications over the Internet. I am a humble user of the Internet, e-mails and the web, not a technical expert, but I have talked--electronically and more conventionally--with those who know a lot more about the subject than I do. It is clear that the technical difficulties are very large. However, it is also

19 Jun 2000 : Column 18

clear that today's technical difficulties are not the same as those that will be around in 12 months, two years or five years.

We have seen in the past few years that technology changes very rapidly. We all know of the huge changes that have taken place, and they are speeding up rather than slowing down. That means that the technical capability to intercept communications reasonably, as we would all wish, will have to change rapidly in a short time. In those circumstances, the balance that the Home Office keeps talking about can best be kept by closely involving the Internet community--those who are on the receiving end of the controls--together with what I can loosely call the security community, which includes the police, the security agencies, Customs and Excise and others who need the interception capability.

The Bill refers to consultation. Various bodies have met to look into how the interception is to be achieved. That is fine--indeed, it is desirable--but it does not go far enough. We are dealing with a serious issue: the need to find a balance between the efficiency and competitiveness of all our industry, commerce and finance, the reasonable protection of citizens and the ability to fight crime. Parliament should consider establishing a statutory board to continue looking at these matters. The board should not just be a one-off but should continue to work as technology changes to achieve the desirable end of fighting crime without the undesirable consequences of stopping business or interfering with privacy.

The immediate proposal in this set of amendments is for a technical approvals board. I am not particularly fussed about the name nor, indeed, about the other details of the board. It is the principle behind it which I am anxious to press this afternoon.

The particular proposal which is in Amendment No. 54, in the form of a new clause, is that there shall be six members appointed by the Secretary of State as representative of persons likely to be subject to and affected by the technical obligations of the Act. So, the board will comprise not only those persons who are subject to these obligations--the Internet service providers--but also those affected by them--the companies which use the Internet. Six members of that character should be appointed to the board and six members appointed by the Secretary of State who, as the amendment provides, are representative of persons specified in Clause 6; that is, the police, security services, Customs and so on. The amendment provides also that the interception of communications commissioner, or someone appointed by him, should preside over the board which should have the power to commission such expert advice as it deems necessary. That is important too.

That is the board as it is set out in the new clause. But, as I say, I am not absolutely sold on every detail. It is important that there should be a statutory body of that kind which can bring together on a continuing basis in the future those difficult considerations which need to be brought together.

19 Jun 2000 : Column 19

Once the initial order under which the Secretary of State would issue notices to individual Internet service providers has been made, the technical approvals board would, under Amendment No. 53, report to the Secretary of State its conclusions as to whether the obligations imposed in the suggested order will achieve their proper purpose; are proportionate to that purpose; and will achieve that purpose also without compromising the security of communications not covered by an interception warrant.

That last point is important because one of the difficulties, as I hope my analogy with the strawberries indicated, is that quite apart from the communications of criminals or suspected criminals, which are to be targeted by all this, many innocent communications will also be opened up. That is not so with telephone tapping, for the most part. Under the present law, a warrant can be issued by the Home Secretary and the telephone of an individual suspected criminal can be tapped and his outgoing and ingoing communications can be listened to in accordance with the warrant and for the purpose for which that is necessary.

However, that is not the position with the Internet. All sorts of other communications are likely to be exposed too. Their security is of the first importance. That is why that provision is suggested in Amendment No. 53.

As I said, we can argue further about the details of this matter. But it is important that a statutory body should exist which is in a position to make recommendations to the Secretary of State. Ultimately, the amendments still leave the responsibility with the Secretary of State; for the Secretary of State to lay an order before Parliament; and for Parliament to approve it. But better regulations and orders would be put before Parliament and before the Secretary of State if the amendments were accepted and such a board were established.

The amendment does not solve the whole problem. It does not get away from the technical difficulties. But it attempts to set up a means by which the technical difficulties can be measured by the experts who must operate the system against the desirable aims of the police and other security authorities. I beg to move.

3.45 p.m.

 

 

The Chairman of Committees : As Amendment No. 53 is also being spoken to, I should point out to the Committee that there is a mistake in that amendment as printed. In line 3, "subsection (1)" should read "subsection (7)".

Lord McNally: Just in case those on the Conservative Benches have another rush of blood to the head, if a Division is called, we shall support the Government. But before those on the Government Benches become too ecstatic, I should say also that if the Government's reply to this debate is not suitably constructive, we shall consider pressing this matter very firmly indeed on Report.

19 Jun 2000 : Column 20

The noble Lord, Lord Cope, has put his finger on the central dilemma that we have in dealing with this Bill. As I believe I said on Second Reading, it is quite clearly a pantomime horse of a Bill. It is a regulatory Bill dealing with old post and telecommunications legislation and it is a regulatory Bill to deal with the new world of e-commerce. The e-commerce part of the Bill is extremely difficult for Parliament to deal with.

Mr John Norton thinks that we are "boobies" dealing with this matter. Again, at the beginning of our proceedings, I said that it might have been better had we resolved into a Standing Committee which could take evidence from the experts. It is very clear that many of the matters which we are discussing and the powers for which the Government are asking need "future-proofing" so that we do not pass legislation which is almost immediately out of date because of changes in technology.

I must say, too, that I am rather worried about the Home Office assuming regulatory powers over business in that way. Again, one's suspicion is that it was too hot for the DTI to handle and the good old Home Office, fulfilling its Lord Mayor's Show role, comes along to sweep up this matter.

Certainly, the Home Secretary has become extremely tetchy with business. Not only has he fired off letters to the Financial Times, but there have been extensive and detailed briefings about how much industry is over-egging the pudding and exaggerating the costs and burdens. If the Home Secretary has friends in the e-commerce industry who are genuinely expert on the implications of the Bill and who agree with him that the costs and burdens are reasonable, those friends had better speak up fairly quickly because the array of informed business opinion against the Home Secretary is considerable. This House should seriously take account of that.

Also, the noble Lord, Lord Bassam, and Ministers in the other place have promised that they are in listening mode. Again, my advice to them, before we reach Report, is to get alongside the industry--those in the industry have a number of reputable umbrella bodies to which they can talk--and to get the industry to say what are reasonable burdens, because then the criticisms of these Benches in relation to cost will melt away.

However, I do not think it is enough for the noble Lord, Lord Bach, simply to look irritated from a sedentary position when every informed source in e-commerce says that the burdens are too much and that they will have long-term damaging effects on our hope of becoming a world centre for e-commerce. That is a serious charge which the Government must treat seriously and answer if they are not to find that this House lacks confidence in this legislation.

The suggestion of a technical approvals board has considerable merit. For the same reasons, I am extremely worried about the Home Office taking on judgments without proper and expert help, not least because, as was mentioned by the noble Lord, Lord Cope, we are trying to deal with a rapidly changing,

19 Jun 2000 : Column 21

highly technical industry. The technical approvals board is a reasonable and practicable suggestion for "future proofing" the legislation.

Today, we on these Benches, are in listening mode. However, we hope that the Ministers and the Home Office take seriously our belief that in this matter there is a case to answer.

 

Viscount Goschen: I support the amendments moved and spoken to by my noble friend Lord Cope. There seems to be little difference of view among all parties who have contributed to this and previous debates in this Chamber and, indeed, among independent commentators and figures from industry about support for the objectives of the Bill.

We all want to prevent crime on the Internet and ensure that the Government have at their disposal the maximum tools reasonable to combat the sort of hideous crimes that we have seen and heard about taking place on the Internet. I do not believe it is possible to do that efficiently without the support of the industry. However, it is clear that high levels of concern are being voiced from all quarters within the industry.

Industry knows more about e-commerce than do the Government, and will continue to do so. As has been stated, the technology is moving extremely fast; faster than the time it will take for the Home Office to consider all the implications. I would also suggest that the competitive balance within this new industry is changing extremely rapidly. National borders present one of the interesting challenges faced by the Internet. Clearly, this is an international industry and an international solution needs to be found.

The amendments tabled by my noble friend do not claim to solve the problem. However, they go some way towards allowing industry a statutory position to contribute to the debate and to ensure that those who seek to regulate the industry do not take precipitate action, or at least advise against that. In the final analysis, the decisions will be with the Government.

I believe that industry genuinely wants to help. It does not want to be associated with a pariah sector known to be a haven for crime. Industry will be in the best position to ensure that government regulations can be made as effective as possible. Clearly, the Bill poses a very real threat to the competitiveness of the e-commerce industry of the United Kingdom. I support the objectives of the Bill. However, mechanisms must be found to ensure that the concerns of industry are minimised, its support garnered and the regulatory regime made as robust as possible. I strongly believe that the amendment will contribute to that.

 

Lord Desai: I did not speak at Second Reading, so I beg indulgence to speak in Committee. This group of amendments is crucial to the whole nature of the Bill.

My main concern is about the civil libertarian aspects of a blanket licence to intercept. I have been following the debate in the newspapers. I should like positive assurance that just as telephone tapping is used carefully and only under strict conditions,

19 Jun 2000 : Column 22

interception powers will be so used. It is alarming that employers can get away with reading their employees' e-mail. We are living in a country in which everyone can be hacked into by everyone else. If the Government were also to enter into that game, in possession of enormous powers, I would worry about the civil liberty aspects of the Bill.

Whatever the fate of this group of amendments, I see that the technical approvals board will include industry representatives and security representatives but no citizens representatives. I refer to ordinary users such as myself--people who are not Internet service providers but who are worried that their communications will be exposed. That is the first point on which I should like to lay down a marker.

Secondly, there is the much more contentious problem of whether or not such provision will mean an enormous cost to e-business. I have not read the report published by my colleagues at the London School of Economics. However, I have read the newspaper summary and heard the reply given by my right honourable friend the Secretary of State. I am not satisfied with either. As the noble Lord, Lord McNally suggested, we need expert judgment on whether the LSE report is valid. If it is not valid, it is no good just saying, "It is flawed". That sort of Oxbridge talk will not do. We need to know where it is flawed, point by point. We need alternative estimates of cost, subject to examination by an impartial evaluator, perhaps from abroad, who can tell us whether we are correct. That is important.

I am not such a great admirer of self-regulation as I used to be. We have seen the many mistakes made in the financial sector. I do not believe that e-business should be self-regulatory in this respect. However, if costs are to be imposed for such regulation, which is important for crime prevention, they should be independently assessed.

Finally, I refer to technical progress. I believe that things will change rapidly. In one sense, that cheers me up immensely. It means that if governments are behind the times, any legislation will soon be obsolete and I will have more civil liberties protected. However, unless we build in a provision to take care of technical progress, we will be back here in two years' time with another Bill of this kind. I hope we can prevent that.

 

Lord Swinfen: Many years ago, when the Data Protection Bill passed through this Chamber, it was handled by the Home Office. At that time it became apparent that the Home Office did not know how computers were being used or that they could talk to each other internationally. I wonder whether the Home Office today know as much about computers, their use and what they can do, as the professionals mentioned in Amendment No. 54. I refer to those who are technically-up-to-date and aware of new initiatives which are likely to come onstream in the near future. That is not the task of the Home Office. It is not a commercial organisation. If the Government do not like Amendment No. 54, I strongly advise them to table a similar amendment at a later stage.

19 Jun 2000 : Column 23

Civil liberties have also been mentioned. I am concerned about medical confidentiality. I should declare an interest. I run a trust which sets up international tele-medical links using e-mail to help people who need expert medical advice in far flung corners of the world. Knowing that their medical details can be intercepted, seen and examined will not please a number of those individuals.

4 p.m.

 

 

The Earl of Northesk: I support the amendments of my noble friends. Few of us involved in the legislative process have time to keep pace with our mailbags, let alone keep up to speed with technological change. It has to be said that many of us, from senior members of the Cabinet down, are honest enough to confess that, although we are full of admiration for new technology, we do not really understand it, and are content to leave it to our children to, as it were, programme the video recorder. Under no circumstances should we underestimate the problems and difficulties that this poses.

Last week's report from the British Chambers of Commerce states:


As the noble Lord, Lord McNally, has pointed out, the gulf between that opinion and the Government's is huge. The important point is that if business and the ordinary citizen, even governments, are to have faith in e-solutions, the associated burdens, particularly in terms of costs and security, have to be seen to be both accurate and proportionate. To my mind, this gets to the heart of why a technical approvals board is so necessary. In every sense it would ensure the proportionality and functionally of e-solutions from an independent position of technical expertise. That has to make sense.

Having said that, I should now like to speak to my amendments in this group, Amendments Nos. 51A and 53A. With regard to Amendment No. 53A, in the event that the Government accept the wisdom of my noble friends' suggestion of a technical approvals board, it strikes me that their thoughts as to the practicality of obligations imposed by Clause 12 should, as a matter of course, inform the process; hence the amendment.

Regarding Amendment No. 51A, Clause 12(6)(c) refers to,


I assume that this refers to Clause 12(6)(a). Perhaps the Minister could confirm that assumption. It is not immediately apparent from that text whether that is the case. I simply ask whether the clarity of the drafting would be improved by having the paragraph referred to expressly specified rather than asking the reader to rely on his intuition. I hasten to add that I have no problem at all with the sense conveyed by paragraph (c); of course, the category of persons defined are appropriate consultees for the purpose.

19 Jun 2000 : Column 24

This leads me to the phrase "as he considers appropriate" in line 31. It will come as no surprise to the Minister that I have a more deep-seated objection here. It strikes me that this form of words sits uneasily with the intention expressed by,


As I read subsection (6), it imposes an obligation to consult. That is explicit in the use of "shall" rather than "may". All good and well. But the phrase "as he considers appropriate" could be taken to represent an unnecessary and unwelcome dilution of that obligation. Perhaps the Minister could offer some explanation for that.

Lord Lucas: I, too, support my noble friends' amendments. Clauses 12 and 13, its companion, are one of the very few parts of the Bill where the Home Secretary's decisions and activities are subject to no form of provision whatsoever. That is entirely unjustified, because this is one part of the Bill where the Home Secretary clearly needs a good deal of supervision. There has been a considerable display by the Government, and the Home Office in particular, of a lack of understanding of how telecommunications, and indeed computer systems, work. Working from my own personal beef that the government in three years of asking are unable to answer my Written Questions by e-mail, and looking at today's news that they have managed to lose 150,000 criminal records because they have not kept electronic back-ups, to looking at the Bill and the lack of understanding that it displays in so many places of the way that a modern communication system works, it is quite clear that in this aspect the Home Office needs supervision.

Business is quite right to worry when it is faced with costs of a magnitude that it can imagine when it is looking at a Home Office that does not understand what it is doing, a Bill which does not specify what should be done and which leaves the Home Secretary unadvised and unsupervised, and when business knows the complexity and rate of change of the systems that it is having to supervise. There is no longer any concept of location when it comes to messages. Once a message has left the local loop, it can be anywhere, even if you know it is going to end up in an ISP. An ISP does not have a route through that you can tap into; it has thousands of routes through, any of which can be used. There are no single points that you can tap into in any useful sense of the word. Point-to-point encryption may be employed anyway, and is only a year or two away generally. So even the addresses in the message may be encrypted and you cannot read them. The co-operation of the industry to make anything like this work is essential. The industry is faced with an immense and unguessable burden; and to avoid it all it has to do is to move its operations elsewhere.

I run a small e-commerce business. I happen to use an ISP in the UK. I could equally well use an ISP in Holland or Finland as long as it provided a large enough communications pipe into the UK. If the UK is going to provide burdens and an extraordinary lack of security compared with other countries in the

19 Jun 2000 : Column 25

world--we shall come to this later--I am hardly likely to want to do my business in the UK. Certainly, multinational companies, which are known occasionally to sin, will not want the Government to know everything that they are doing, and will have a strong incentive not to place their core business with UK ISPs. This is an area where the industry has every right to ask for, and to expect, reassurance in the operation of the Bill, to know that the decisions that are being taken are being taken in co-operation with industry, and are being taken reasonably. Customers should also know what is being done to make sure that communications for which there is no warrant are safe, and that they are not going to turn up on someone's desk just because when looked at they happened to contain some interesting information.

 

Lord Phillips of Sudbury: I merely want to add the thought that the technical approvals board that is referred to in a number of these amendments, and which seems to us to be a good addition to the collection of protections under the Bill, might have on it a member of the civil liberties community, as well as, obviously, a plain majority of those with technical expertise. With technical matters in this field, I think that a civil libertarian component is apt. I put that thought to the Minister and the Committee for consideration.

 

Lord Bassam of Brighton: I have listened with great care to all that has been said in this important debate. The contributions made have been most helpful. The noble Lord, Lord McNally, was right to remind the Government that we need to continue to listen to, and to consult carefully, all the representative bodies that exist in the great "out there" on this particular subject. I refer to all the business and commercial interests. Other Members of the Committee reflected that point in their contribution. I think that it was the noble Viscount, Lord Goschen, who made the point that business enterprise actually understands, and is likely to understand, much more about these issues than government. That is very wise and sound advice. We have been listening very carefully, and even since our deliberations last week on the Bill, we have had further representations and have listened to more of the lobby who have been pressing us on this Bill and on this particular set of issues.

I think I can fairly make the point that there has been a lot of press criticism and it is only right that the Government should respond to those criticisms. The noble Lord, Lord McNally, said that we were overreacting to the criticism. But I feel that, between us, we have been able to generate a debate in public about this Bill. I am pleased that that is the case. When we put our arguments up against some of the allegations being made, we find that those allegations are disproportionate in their content.

I understand the argument that sometimes one has to shout to be heard and I suspect that at this stage that is exactly what both sides are trying to do. But we have been able to focus down on the key issues and give further thought to them. For what it is worth, I believe that that has been most constructive.

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I turn to the detail of the arguments. With regard to Amendment No. 49 and related Amendments Nos. 52 to 54 in relation to the technical approvals board, I entirely agree that any requirements placed upon industry by Part I of this Bill should be properly considered and reasonable. That is an extremely sensible first point. But the Bill already provides for that. Both through responses to the consultation exercise and in subsequent discussions, industry representatives have let us know that they favour continuing the close working relationships which they already have with the Government in this field, without the need for the involvement of any additional body.

Indeed, we are unaware which part of the industry is asking for a statutory body of the type described in the amendments. As yet no one has put that argument to us. Representatives of Internet service providers have made it clear that they would favour a non-statutory advisory group, much along the lines of the arrangements which we already have in place with telecommunications operators. They have been saying to us loud and clear that they want a set of voluntary arrangements of that sort. They have neither been asking for nor demanding a statutory technical advisory body.

I can say to the Committee that discussions are extremely well advanced on that topic with an existing group already identified as being potentially suitable. I am aware also that other groups have indicated their willingness to continue consultation on reasonable intercept capability--for instance, the Alliance for Electronic Business--and I welcome those offers. In response to the AEB's specific question on this topic, I can confirm that any order made under Clause 12 will only impose obligations based upon the best available options at reasonable cost. That formulation forms a significant part of our continued discussions.

In relation to Amendment No. 50, I cannot see how the introduction of a proportionality test would assist in judging the interception provision which a communication service provider may be required to set up. After all, the requirement will not be judged against any particular case. The purpose of the intercept capability is to ensure that the CSP is capable of intercepting communications when required. So the proportionality could only be judged against the general purposes for which interception may take place--for example, serious crime, national security and economic well-being--which would be the same in every case, effectively rendering the test meaningless. But there is the question of whether it is reasonable to expect a small ISP, for example, to set up an intercept capability when there is minimal chance of the capability ever being used. That duty is already placed upon the Secretary of State at Clause 12(1).

I turn to Amendment No. 51. We believe it is entirely right and proper that users of communication services--the general public--should have the opportunity to offer their opinion on the use of interception and the circumstances in which it may be deployed as suggested in two of the amendments before us. They have been given that opportunity

19 Jun 2000 : Column 27

during the public consultation exercise which took place last summer, and will have the opportunity again when the Government consult extensively, as we have promised, on the code of practice.

But Clause 12 is not about the principle of interception; it is about the practice and technical aspects of that process. It is difficult to see what the general public will be able to add to that. That is why we have restricted the requirement upon the Secretary of State to consult with those who will be able to make a meaningful contribution to the draft order. That is not to say that the process will be conducted in secrecy; far from it. The draft order will be placed on the Home Office website for all to see. But it is important to draw this fundamental distinction between whether or not interception should take place and the practical arrangements which come after that decision is made. I believe that users of communication services have already made their views clear on the former and that it will be up to those who understand the technicalities of the latter to contribute to the order-making process.

I am surprised at the amendment of the noble Earl, Lord Northesk, which seeks to remove subsection (6)(c) of Clause 12 from the Bill. We consider that we should consult with all appropriate parties. In that sense the wording is enabling rather than, as it were, a closing-down facility in the way in which the legislation is drafted. We therefore consider it to be entirely appropriate that an obligation should be placed upon the Secretary of State to consult with persons who have statutory functions in relation to communications service providers. We have in mind such bodies as Oftel and the Department of Trade and Industry. I should have thought that there would be reasonably common agreement on that point.

In his Amendment No. 53A, the noble Earl, Lord Northesk, wishes to include reference to the technical approvals board in subsection (8), and the fact of whether or not a person is capable of providing a reasonable intercept capability. I have already discussed at some length why the Government do not see the necessity of a technical approvals board set up in the way envisaged by the Opposition and we cannot accept that amendment.

Amendments Nos. 89 and 90 require all the requirements for data not already in existence to be first approved by a technical approvals board. It is important to explain that the effect of the framework which this chapter of the Bill establishes is to formalise in law the arrangements which have been in place for many years and which have been developed through the ACPO Telecommunications Group, which is a joint law enforcement communication service provider body. There are already in place service level agreements, contact points, designs of forms and so forth. They include agreements between parties as to what data is capable of being provided and the levels of sensitivity attached to specific techniques. So there is no question of a law enforcement body suddenly requiring whole new types of data to be collected without consultation and agreement. That point is

19 Jun 2000 : Column 28

dealt with in the Bill at Clause 21(7). That should be a reassurance to industry and was included very much at industry's request.

We need to consider also the times when future data is likely to be required; that is, during ongoing, often urgent operations--for example, to find out where a kidnapper is calling from. That type of requirement would relate to the data which the communication service provider is capable of providing but has not yet collected. To introduce another level of technical oversight in those circumstances will not assist; in fact, it may well get in the way. We are mindful of the unnecessary burden of additional bureaucracy that it might create, the time it would take to process and all the other existing aspects it may have to overcome. In those circumstances, we feel that the amendment is not necessary.

The noble Earl, Lord Northesk, asked a number of questions, to which I now have the answer. First, he asked whether subsection (6)(c) meant subsection (6)(a). The answer to that is obviously yes. The noble Earl also asked whether the Secretary of State could get away with consulting no one under Clause 12(6). The answer is, only if he concludes that it is not appropriate to consult anyone, which could be a wholly perverse conclusion in the light of the duty imposed by this subsection. Therefore, in practice, the answer is no. The Secretary of State will not get away with consulting no one. In those circumstances, we would expect him to do so--

4.15 p.m.

 

 

The Earl of Northesk: That was precisely my argument. What on earth is the point of having the words "as he considers appropriate" in the clause if they give him a "get-out" for something that he would never do?

Lord Bassam of Brighton: As I said, the wording is an attempt to try to introduce some flexibility. It is not a closing-down manoeuvre or an attempt to be unhelpful.

I believe I dealt quite fully with the points raised during the debate, as well as some of the issues. We understand the arguments that have been made. But the question upon which the Committee needs to focus is whether the industry wants it. The answer that we have received consistently on that question is, no. However, the industry does want a low-cost but flexible advisory body that is not statutorily based. That has been made very clear to us throughout our discussions. We are happy to continue with those discussions. We shall be happy to formulate the operations of the technical discussions, but industry does not think that it is essential, right or necessary for us to have a statutory technical advisory body. In view of that fact, I invite noble Lords who have tabled these specific amendments not to press them this afternoon. Clearly we can continue in our discussions with industry on such issues, but the latter has made its view crystal clear to us.

19 Jun 2000 : Column 29

 

Lord Phillips of Sudbury: Before the Minister sits down, perhaps I may assist both him and the Committee by asking the following question regarding his final point on discussions over an advisory committee. If the advisory committee comes into existence, can the noble Lord say whether those discussions will be confined to generalisations or whether they will extend to specific cases where the Secretary of State was contemplating making an order under Clause 12? If those discussions were to extend to particular cases--in many ways that would be the most helpful role that an advisory committee might lend to a Minister--I suggest that legal problems may well arise as regards having a non-statutory body in that role.

 

Lord Bassam of Brighton: It would be unusual for that role to include discussions on specific cases. I think it would be possible for some more generalised discussion to take place on the application of the Secretary of State's powers. However, as regards specifics, I should be very wary of that because of the point made by the noble Lord. I should certainly want to take further advice.

 

Lord Lucas: The Minister mentioned Clause 21(7), so perhaps he can clarify a matter in that respect. Can he say whether that clause rules in or rules out an instruction by the Secretary of State that an ISP shall design its system so that it is convenient for tapping; in other words, so that it pushes its outflow, say, through one convenient tapping point? Alternatively, would that be prevented by this clause? What level of interference with the ordinary structure and operation of an ISP is ruled out by the clause?

As I said before, there are very few clauses in the Bill under which the Secretary of State's actions are not subject to any form of supervision. I have in mind in particular the point raised in the last two lines of Amendment No. 53. We are looking at an interception capability here that is essentially "unauditable". Once an interception capability is in place, there is no way that anyone can know what it has been used for unless some very strict controls are put in place. It seems to me important that the Secretary of State's activities in this area should be closely controlled. They are certainly as dangerous to public liberty as any of his other activities specified elsewhere in the Bill. I do not see why these two clauses have been left out of the ambit, say, of the interception and communications commissioner.

 

Lord Bassam of Brighton: Perhaps I may deal, first, with the noble Lord's second point. I take note of what he said. I shall reflect upon why that is the case and find out the answer. I am sure the noble Lord will understand that that is not a question to which I can immediately respond. As regards the noble Lord's point on Clause 21(7), my understanding is that this provision rules out such interference. I trust that that will assist him. As I said, I shall certainly reflect on the noble Lord's second point.

 

Lord Cope of Berkeley : The Minister started by saying that the Government had been listening. If that is the case,

19 Jun 2000 : Column 30

the way that the volume of criticism of the Bill generally, including this provision, has been growing strongly in recent weeks seems to me to be remarkable. I pointed out to noble Lords only recently that interest in this Bill a few weeks ago was mainly, though not entirely, confined to the e-community; that is to say, those who felt themselves directly affected. However, a striking part of the events of recent weeks has been the way that that concern has stretched way outside the e-community to encompass a much larger section of industry, commerce and finance.

The next important comment that the Minister made was that the Internet service providers to whom he has been talking had been asking for voluntary arrangements rather than statutory arrangements along the lines suggested by this series of amendments. I do not doubt that the noble Lord correctly represented the discussions that have taken place. It is obvious that service providers and their organisations would in the first instance be looking for voluntary arrangements for a voluntary advisory board. However, I do not believe that they would necessarily be satisfied with that as time went on.

We all know what can happen with voluntary advisory boards; indeed, there are vast numbers of them in government advising the Government on all sorts of matters and many of them have very little authority. They are rather like people standing outside the windows of the Home Office shouting at the building: sometimes the windows are open and what they say appears to go in but sometimes it simply bounces back. In a matter of such importance--we all agree that this is of high importance--I do not have much confidence that voluntary arrangements of this kind would be satisfactory in the long run, given the speed of developments that applies to this sector. Therefore, a statutory board of the character suggested is much more desirable.

Amendment No. 50 is the "proportionality" amendment, if I may so describe it. The Minister seems to think that it would be impossible for the Home Office requirements under the clause to lead to black boxes being fitted. He finds it impossible to believe that such requirements could possibly be out of proportion to what they are intended to achieve. That is obviously wrong. The requirements for black boxes are quite capable of putting British ISPs out of business entirely, or almost entirely, by comparison with their foreign competitors. That would certainly be out of proportion. I do not suggest that that is what would happen, but the row would be enormous and the Government would have to back off at that stage. Therefore, it would be much better for them to do so now. It worries me that the Minister should think that there is nothing that the Home Office could do that would be out of proportion to this need.

There has been some discussion throughout the debate about adding representatives of the public to the board--a point made by the noble Lord, Lord Desai. I sympathise a little with the Government on that point. Clause 12 concerns technical aspects. The Home Office representatives on the board, and the Home Secretary in considering whatever the board

19 Jun 2000 : Column 31

says, will need to keep that in mind. I envisage the discussions being highly technical on methods to be used and what they would achieve. This is a technical clause, as the Minister said.

4.30 p.m.

 

 

Lord McNally: We on these Benches responded favourably to the suggestion of the noble Lord, Lord Desai. Members of the public and members of civil liberties groups have considerable technical knowledge. There is another dimension of concern, as it were. The use of this technical knowledge by some in private industry is causing concern. I refer to spying on employees and so on. It might be reassuring therefore to have an element of lay membership, as it were, on the body as well as government and industry.

 

Lord Cope of Berkeley: I accept that. Provided that such a process did not disturb the technical nature of the board's deliberations, I do not think that it detracts from the idea behind the amendments.

 

Lord Desai: When I hear that experts and government will come together to look after my interests I become slightly suspicious. I should like to have one lay representative, as it were, looking after my interests, no matter how technical the subject matter. That is exactly how these situations arise. Someone says, "This matter is too technical for citizens. They should not be involved." However, I want one such representative.

 

Lord Cope of Berkeley: As usual, the noble Lord is persuasive. We all react in the same way as regards experts controlling aspects of our lives. However, he also betrays his distrust of the Home Secretary who has the ultimate word on this matter.

 

Lord Lawson of Blaby: I am grateful to my noble friend for giving way. This whole matter confuses me considerably, not least the position of the Liberal Democrats who say that they totally support the introduction of this board and that is why they will vote against it!

At a later stage we shall discuss much more important elements of this worrying Bill. On the one hand there are people interested in civil liberties such as the noble Lord, Lord Desai, and, I should have thought, noble Lords on all sides of the Chamber. There is a real civil liberties problem inherent in the Bill. Then there is the business case which is concerned about business costs. There is also an intermediate case. The businesses with which I am associated are concerned not merely with costs but also with commercial confidentiality. That is another important dimension. Therefore there are these two quite separate camps with their own totally valid concerns. But there is a third concern that, as it were, bridges the two.

Lord Cope of Berkeley: I agree with my noble friend on that point. If I am asked to give my credit card

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number over the Internet to purchase something, that still slightly worries me. I do it because it is convenient. However, in doing so, one places immense trust in apparatus which one has little knowledge of. There is a link between the concerns of the civil liberties groups on the one hand and those of bankers, traders and commercial people on the other.

I cannot say that I am pleased with the Minister's response as he poured much cold water over, and resisted, the amendments. I believe that they are worth further consideration. We shall certainly give them further consideration even if the Government do not wish to do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 49A to 53A not moved.]

 

Lord Bach: I beg to move that the House be now resumed.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Regulation of Investigatory Powers Bill

5.50 p.m.

 

House again in Committee on Clause 12.

On Question, Whether Clause 12 shall stand part of the Bill.

 

Lord Cope of Berkeley: Before we listened to the two Statements, we had a considerable discussion about the issues in Clause 12. I believe them to be of first importance and central to the Bill. However, at this point I do not believe that there is much to be said in addition. Therefore, subject to the views of the Committee, I do not propose to debate clause stand part.

Clause 12 agreed to.

[Amendment No. 54 not moved.]

Clause 13 [Grants for interception costs]:

 

Lord Cope of Berkeley moved Amendment No. 55:


The noble Lord said: This is an extremely modest amendment which, I hope, elucidates an extremely important point. At the moment, Clause 13 provides that the Secretary of State may, if he thinks fit, make a contribution towards the costs to be incurred by Internet service providers, postal services, telecommunications services and so on. A good precedent exists for the Government to pay money in this respect and there is an expectation that they will do so. However, there are no details in the Bill of exactly what proportion of the costs it is proposed that the Government should pay.

I believe it to be little more than rumour but it is said that the Government propose to make no contribution to the capital cost but to cover some of the revenue cost of interceptions required by the police and other services. I believe that it would be helpful to the Committee if the Minister could explain that in greater detail. However, I also believe that it would be helpful--this is the point of the wording of the

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amendment--if the Bill stated that the Secretary of State "shall" make such payments; that is, that there is a guarantee in the Bill that at least some payment will be made.

There is no doubt that enormous expense is involved. That brings us back to the issue of driving the customers of Internet service providers overseas to use foreign providers. The Government estimated the cost to be some 20 million a year; on the other hand, the report prepared by two academics from the London School of Economics and University College, London, with the assistance of several colleagues, suggested a figure of 650 million over five years, rising quite steeply. The early years cost was well below the average over five years but rose to a very large sum--200 million or so a year--at the end of that period. That is an enormous sum to place on Internet service providers.

The issue rests on a number of assumptions: first, as to how many ISPs will be asked to carry out the duties imposed by Clause 12 to have a black box, and so on. The Home Office paper states that the number of ISPs to be covered is greatly exaggerated, as is, hence, the cost. However, in reporting to the British Chambers of Commerce the gentlemen from the LSE and University College could only look at the Bill and say what the potential cost might be. That is what we, as Members of Parliament, must do, too, in considering the cost.

The cost is extremely heavy. In my view, it is essentially a cost of policing. We do not ask householders to pay a direct contribution for the fact that a policeman passes their door (or not, as the case may be) at intervals. Of course, we pay the bill for the police as a whole mainly through our taxes, and the same is true of the other services. However, here it is proposed, in part at any rate, that those immediately concerned--the ISPs--should meet the cost. Of course, they are bound to pass it on to their customers and from that comes the danger of driving the business overseas. If that happens, the Bill will have failed.

In so far as individuals can go overseas, the Bill is likely to be ineffective. Knowing of the existence of the Bill, the sophisticated criminal is in any case likely to use an overseas Internet service provider so as to avoid the issue of costs. However, there is a severe danger, to put it no more strongly, that sophisticated criminals--those who run big rackets and who are well advised--will be missed entirely by the Bill even though a heavy cost will be imposed.

As a result of the report to the British Chambers of Commerce, two particular figures have been bandied about: one of 650 million and one of 35 billion. The latter is the best estimate that the authors of the report could make of the economic cost to the nation of driving business overseas. As the report makes clear, the figure is based on a whole series of assumptions, all of which are open to challenge, and the Home Office duly has challenged them. Neither the Home Office nor outsiders are in a position to know the absolute facts. The figures are estimates and no one will go to the stake on the precision of those estimates.

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Nevertheless, the fact that an estimate of such a huge figure can be made demonstrates the importance of the Bill.

So far as concerns the amendment, we are talking primarily of the figure of 650 million. Again, that figure depends on assumptions. Obviously the Home Office has depended on other assumptions in arriving at a figure of 20 million. Either way, there is no doubt that it is a large sum with the potential to do great damage to our electronic commerce and, hence, to our commerce and finance generally. I beg to move

Lord Lucas: My Lords, I shall speak to Amendment No. 57. Why should not the Government pay for the interception equipment? They will get the benefit of it, and through them we will all get the benefit of it, so why should not we pay for it? Why should the ISPs pay for it? There seems to be no reason why the unquantified burden of this possibly very expensive interception equipment should fall on ISPs. I propose that it should fall on the Government instead. After all, they are specifying what the equipment should be, so logically they should take responsibility for the cost.

There is no reason for anyone in this country to use an ISP in this country. All that we need is some form of communication leading to wherever in the world the ISP may be that is fast and broad enough to take the data rates that we want. If we impose significant costs on our ISPs beyond those that have to be borne in other countries, the business will move overseas. It is not a high margin business. It is a very competitive business and there is no reason for it to stay in this country if companies have to face higher costs and, as a result of this and other aspects of the Bill, offer lower security.

In a part of the Bill where such provision is not adequate, the amendment would also be a useful constraint on the ambitions of the Government. If they have to pay for the equipment--which, given the pace of technological change, will be out of date in a couple of years--they may think twice before they go overboard on interception capability. Under the Bill, the Home Secretary's activities do not have to be visible to anyone else. My amendment would at least provide some measure of rationality and reasonableness to ensure that what he is up to stays within bounds.

6 p.m.

 

 

Viscount Goschen: I share the concerns expressed by both my noble friends who have spoken to their amendments. It is clear to all of us that there is the potential for a major burden to be imposed on industry, although there is considerable dispute about the cost of that burden on a snapshot basis if the Bill were enacted now. The Government have come up with a relatively low figure, in the tens of millions of pounds, and industry has produced a figure in the region of 650 million. It is right that the Government should come under pressure to explain how they arrived at their figure and on what basis they disagree with the higher figures put forward by industry.

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However, that is relevant only up to a point. As my noble friend, Lord Lucas, said, as time goes on, new technologies will require new monitoring equipment. We do not know what that equipment will be or what it will cost. It is right for the Government to be put under pressure to avoid spending industry's money willy-nilly. They should at least recognise that if they impose a major burden on industry, there should be a direct link with the Government.

The Bill is very loosely worded. To say that the Secretary of State should make such payments as he considers


is virtually meaningless. If a court was challenged on the subject, it would have to put itself into the mind of the Secretary of State, and it is difficult to challenge what the Secretary of State considers to be appropriate. Surely that phrase borders on the meaningless.

The Bill gives very wide powers and has the potential to impose very high costs. I should be grateful if the Minister could answer the direct point put by my noble friend Lord Lucas and tell us whether the Government accept that the ISP business can easily be transferred overseas. Does the Minister accept that if substantial costs were placed on the industry, it could simply move overseas? Or does he have a back-up argument--I hope that the information reaches him shortly--and a magic solution to prevent that? It is very hard to keep this increasingly international business within national boundaries. Citizens of the United Kingdom will be able to access international services beyond the reach of the Minister. The Government might not like the situation, but it exists and they should be cautious about putting high costs on industry that could divert this valuable business overseas.

 

Baroness Thornton: My Lords, I have listened to many contributions during this Committee stage. I am struck by a recurrent theme in the opposition contributions. They keep saying that they do not want any change and they do not think that the industry should bear any responsibility for the change.

 

Viscount Goschen: My noble friends can defend themselves, but I have never heard anyone from the Opposition say anything of the sort. There is a widespread consensus that something needs to be done. The Bill has the right intentions, but the devil is in the detail. We cannot ignore that. We are facing the possibility of creating legislation that will not work.

 

Baroness Thornton: I thank the noble Viscount for that, but I should like to develop my argument. The Opposition agree that something should be done, but not this. Those in the Internet industry say the same. I am concerned about the creation of a safe environment in the industry. Those who speak on behalf of the industry in this House are not telling the companies that they have a civic responsibility. They must take these issues seriously rather than simply

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acknowledging the need for change but asking for a different sort of change. The industry must say what it wants. If the industry took its civic responsibility seriously, it would be applying itself to solutions instead of always saying that any proposals were not what was required.

I am reminded of arguments we have heard about safe food. We expect those who supply our food to provide safe food. It is reasonable to expect those who supply us with our Internet services to take some responsibility for providing a safe industry. The Government are clearly recognising their responsibility and making a contribution. I wish that I could hear a recognition from the industry that it has a responsibility to give us a safe Internet.

 

Lord Phillips of Sudbury: My Lords, maybe I can give some minor solace to the noble Baroness. She is unfair to the Conservatives. There is a spirit of acceptance of the measure and we are acting as a revising House, trying to improve it.

There may be a via media between the absolutism of the amendment in the name of the noble Lord, Lord Lucas, which would put the full cost of the operation of equipment on the Government, and the position adopted by the Home Office Minister in the House of Commons, Mr. Clarke, on 6th March, when he mentioned a government contribution of 20 million. There is bound to be some special pleading from the industry, but from what we have heard 20 million does not seem like a reasonable compromise for the costs incurred by companies in undertaking the duties thrust on them by the Secretary of State.

 

Lord Bassam of Brighton: The figure of 20 million that the noble Lord has quoted is based on the Bill's regulatory impact assessment. It is not a sum that the Government have committed. Having looked at the facts and how the legislation will be interpreted and worked out, that is our estimate of the cost of the regulatory burden to be imposed.

 

Lord Phillips of Sudbury: I am grateful to the Minister for that information. Nevertheless, that seems to be a conservative amount. I was going on to say that in the USA, under the Communications (Assistance for Law Enforcement) Act--an even more unwieldy title than that of this Bill--the government provide 500 million dollars.

Perhaps I may add in defence of the amendments being put forward here that that is not on all-fours with the health and safety situation governing food supplies, for example, where, plainly, the supply of hygienic food and safety equipment is something to which the consumer is entitled. In this circumstance, the state is asking an industry, which happens to be in a milieu where fraud, crime and terrorism uses its own instruments of proper commercial activity, to bear some of the costs of the state protecting us--drawing it into the policing system. In broad terms, that seems to me a proper situation in which industry

19 Jun 2000 : Column 57

can ask the state to come some way towards meeting the costs which it must incur because of the requirements of the Bill.

 

Baroness Thornton: Does the noble Lord accept that it is in the industry's best interests to create a safe environment?

 

Lord Phillips of Sudbury: Of course I do, but I think it is rather tough to say that it is in the interests of the industry to stop terrorism. The industry has no more interest in stopping terrorism than lawyers or fishmongers. That applies to paedophilia too. As I said, it happens to be a milieu in which those wickednesses traverse their own systems. I believe that there is a difference as regards the analogy which the noble Baroness drew.

On these Benches, we are entirely supportive of Amendment No. 55 and I regret to say that we are dubious about the absolutism of Amendment No. 57.

 

Lord Desai: I want to make one small comment about the drafting of the amendment. It says that the Secretary of State,


    "may, if he thinks fit",

     

make such payments, and so on. If I remember correctly, in the Scotland Bill, the entire Barnett formula is dealt with under a weak expression like that. That is the way draftsmen deal with such matters. The amount of money may be 5 or 5 million. But there is a precedent and I am sure that my recollection is correct.

On an earlier amendment, the noble Lord, Lord Cope, said that we do not know how many ISPs must accept that black box. It seems to me that every ISP must have a box. That can be the only answer. Otherwise, as soon as it became known that an ISP did not have a black box, every criminal would divert to that ISP. So quite clearly, there will have to be a black box on every ISP which is a national provider. Of course, that still leaves international providers out of the loop, but I do not believe that there is any choice in that regard.

6.15 p.m.

 

 

Lord Blackwell: I support the spirit of the amendments proposed by my noble friends. As this is the first time that I have intervened on this Bill, I should declare an interest in a number of companies which have interests in this area.

Does the Minister accept that the costs referred to are unlikely to be one-time costs incurred at the moment at which the order is imposed? Because of the ongoing nature of technology development, ISPs, telephone companies and others are likely to incur costs every time they update or develop their systems or introduce a new transmission technology or new encryption technology. Therefore, the costs which companies may face will stretch out as a stream going into the future. In fact, because of the complexity of such matters, those costs are likely to increase.

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Recognising those additional dimensions, the Government need to find some way of ensuring that those costs do not become penal on the industry.

Lord Bassam of Brighton: I am grateful to all those who have contributed to the debate because--I pick up the point made by the noble Viscount, Lord Goschen--it is right that the Government should come under pressure on this to make sure that their arguments and figures stack up and that they should come under some scrutiny.

Perhaps I may try to pick up the points which have arisen as a by-product of the discussion. We are conscious of the fact that there are very real questions relating to costs which may be incurred in providing interception capabilities. We are extremely conscious also of how those costs may be apportioned between government and industry.

As I understand it, Amendment No. 55 suggests that the Secretary of State "shall" make payments to communication service providers rather than that he "may" do that. The intention behind the amendment is to require the Secretary of State to meet costs incurred both in effecting individual warrants and in maintaining a reasonable intercept capability under Clause 12. I would argue that, as drafted, it does not quite achieve that because it leaves a considerable amount of discretion for the Secretary of State. But the intention is clear and we must respect the intention.

Members of the Committee will wish to note that the Government introduced an amendment in another place, which was accepted, setting out their continuing commitment to the payment of marshalled costs. Those marshalled costs are incurred by the communications service providers in respect of processing each individual interception warrant--the ongoing costs. Those include the costs of staff and overheads and cover the cost of transporting the intercept product from an agreed hand-over point, normally within the CSP's own network to the intercepting agency. All those costs are currently, and will continue to be, met by the Government.

I do not accept that it is necessary at this stage to go any further than the commitment which we have already given. On that basis, I hope that the amendment will be withdrawn. But our commitment is clear. We introduced that amendment in the other place. We understand the issues involved. The costs will cover other matters, such as staff and overheads and the costs of transporting the intercept product. So we have gone quite a long way already in that regard.

I turn to the amendment in the name of the noble Lord, Lord Lucas. It was described by the noble Lord, Lord Phillips, as "absolutist", and I believe that that is a fair description. The amendment refers to how the costs of maintaining a reasonable intercept capability shall be apportioned between government and industry. The noble Lord, Lord Lucas, wants to see a categorical statement on the face of the Bill stating how those costs will be apportioned between government and industry. That is an unusual and novel approach which the Government cannot accept.

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Clause 13 bears close reading. As it currently stands, it permits payments to be made by the Secretary of State and it imposes a duty to contribute to marshalled costs in some cases. Exactly what those payments should be will be decided after we have gone through the consultation process with industry, to which I have referred on many occasions. To assist that consultation process, we commissioned a report known as the Smith report. No doubt many Members of the Committee will have heard of it and read it. That report has been produced by independent consultants to look at the whole business of cost allocation in some detail. In a sense, it is part of the debate about how high those costs may be--whether 600 million, according to one tranche of argument, or 20 million in another. As I stated earlier, that consultation exercise will lead to secondary legislation by means of an order to be laid before Parliament.

I can offer some assurance to Members of the Committee that the allocation of costs will be addressed very clearly in that order. We shall make sure that there is more than adequate time, proper time, to take a detailed look at the issue. But I am happy also to tell the Committee that we shall take that opportunity to confirm again that the Government will contribute to costs and that we shall not impose any unreasonable burden on industry. Exactly how much we will contribute will have to be debated in detail--the devil is in the detail in this instance--when, after lengthy consultation, we introduce secondary legislation. We shall have the opportunity to talk to industry in the build-up of time to that secondary legislation. We shall consult in detail on the way in which it will work and will bring forward secondary legislation. We shall have the opportunity to give it further scrutiny in this Chamber and Members of the Committee will be able to go over it again. There will be ample opportunity for people to get to the root of the costs. Legislation does not necessarily make it easier and facilitate detailed consideration.

It is worth stressing that we are not setting out on a grand scheme that has not before been undertaken. For many years now, telecommunication companies have been required to maintain an intercept capability and have had to share the costs of so doing with the Government. I believe that it is also the case that many ISPs have begun to share the costs with Government in the current situation. This is not something new that we are demanding of business or the industry. It has not suddenly been dreamt up; it is already in existence.

At this stage of the development of the legislation I understand that there is some nervousness. I understand the concerns of industry in that regard. However, we believe that they are not well founded. Many Members of the Committee referred to the fact that there has been considerable debate about the degree of cost. We think that it is about right in the regulatory impact assessment undertaken by the Cabinet Office. Even the CBI described the figures in the BCC report as alarmist. I have no doubt that the CBI is well informed in its approach. If one looks at the history of the PTOs, they have been meeting

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capability costs for the past 15 years or more, providing interceptor capability at their own cost. No PTO has gone out of business as a result. We take the view that we have struck a reasonable balance and that businesses have always managed to meet a reasonable solution.

The noble Lord, Lord Blackwell, asked a question, the answer to which is along the lines that we will be looking to future costs but will start from designing in from the outset cost minimisation. That is the whole approach that will inform our strategy in this regard.

In summary, we think we have the balance about right. We believe that the consultation and secondary legislation process will flush out cost. We think that we can meet the reasonable costs on the face of the Bill. Clause 13(3) provides flexibility for the Secretary of State to address the costs issue and make a contribution. We need to get that balance right. We have no intention of pushing unreasonable costs on to the industry. We do not want to frighten it abroad. At this stage, we have no evidence that people will be frightened off from setting up and maintaining their businesses in the United Kingdom; far from it. We think that it will add extra confidence to the industry.

For those who have been critical of us, saying that we are forging ahead without other jurisdictions taking an interest, that simply is not true. My attention has been drawn to the fact that the standards we wish to adopt have been adopted by a number of member states of the European Union in the council resolution of January 1995. Those standards have been subsequently adopted by the governments of Canada, Australia and New Zealand. As the noble Viscount, Lord Goschen, aptly and ably expressed, we are working in an international field. However, we are not working on our own. We are all moving in the same general direction. It is against that background that the legislation we are setting up has to be seen.

I trust that in view of the comments I have made this evening, those Members of the Committee who have moved the amendments will feel able to withdraw them.

 

Lord Phillips of Sudbury: Before the Minister sits down, can he tell us whether the Government are accepting the recommendation of the Smith report that they should pay for the design and software development of the black boxes which will be crucial to this information gathering?

 

Lord Bassam of Brighton: In general terms we have accepted the findings of the Smith report. That level of detail is a matter which we shall consider throughout the process of bringing together the consultations and framing the secondary legislation. That is how we see things working out. In general, we accept the Smith report. It has provided us with useful background and will inform the way in which we proceed.

I need to correct a remark I made earlier to Members of the Committee. I might have suggested--I do not think I said it directly--that we might already be meeting some of the ISP intercept costs. That is not

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currently the case because it is not covered by the Interception of Communications Act. We do not currently cover those interception capability costs. However, that is an area which we are keeping carefully under review.

 

Viscount Goschen: Perhaps I may briefly pick up one point. The Minister said that he felt they had the balance about right. However, he gave the Committee precious little information about where that balance lies, and spoke in generalities. There are vast discrepancies between the figures talked about by the Minister on the one hand--I accept his caveat about the regulatory impact statement; as I understood it, he then went on to support that as being a good and sensible base case--and, on the other, the sort of figures talked about by the industry. For the Minister to suggest that the balance is about right and then give the Committee almost no information about where the Government thought that balance lies is asking it to make a large leap of faith.

On another point, I specifically asked the Minister whether he believed it would be possible for much of this business to be transferred overseas. I did not ask whether he had had any indication that that was happening, because the Bill has yet to be enacted. I asked whether it would be feasible for consumers here to use ISPs based overseas and therefore evade the impact. That, surely, is an important point to inform today's debate.

Finally, perhaps I may pick up a point made by the noble Baroness, Lady Thornton. I apologise for intervening in her remarks. As far as I am aware, no one in this Chamber is speaking on behalf of the Internet industry. I certainly am not. Noble Lords speak from their own personal perspective. They might well have listened to arguments put forward by industry or parties such as the Minister. It is our duty to weigh those up. However, it is not the case that noble Lords, certainly myself and, I believe, my noble friends, are speaking in any way on behalf of the industry.

Lord Lucas: The noble Lord, Lord Phillips, made a good point and criticised me, as indeed, did the Minister, for being absolutist in the amendment. It was tabled in that form, as much as anything else, to draw out from the Government what their position was. In that it has not succeeded.

I share the criticism of the Government of my noble friend Lord Goschen. Even in describing the process which they will adopt, they have not given a hint of what will be their opening position in the discussions which, rightly, they will have with the industry on the meaning of the word "appropriate". I understand that the Government do not want to have something set down in stone on the face of the Bill. These discussions are always ones in which the particular has to be looked at and a fair amount of detail has to be gone into. There are good arguments, such as those put forward by the noble Baroness, Lady Thornton, and others, that the industry should perhaps bear some of the cost. However, in being asked to pass this wording

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in the Bill, the Government are not prepared to say what will be their opening position in the negotiations. Does "appropriate" mean about half, or about nothing?

6.30 p.m.

 

 

Lord Bassam of Brighton: The noble Viscount, Lord Goschen, suggested that business may be transferred overseas. I apologise for not accepting that possibility; I do accept it. But there is no evidence as yet that that is likely to be the case. There is a deficiency in the approach adopted, not only in the debate this evening, but also in the public debate, which goes back to the comment made by the CBI. If the industry adopts an alarmist position at this stage in order to force more costs to be covered by the Government, it could be self-defeating and in neither the industry's, the Government's nor indeed the public's best interests. So, although I accept the possibility, I do not accept that that should end up being the case. We believe that we shall get the balance right. We shall have the detailed consultation to take into consideration.

The noble Lord, Lord Lucas, said that we are not providing the detail in addressing this aspect. However, we issued a point-by-point refutation on the whole cost issue. The allegation was that we would impose black boxes. But that is only one suggestion. It has not been decided. The likelihood is that we shall not expect all ISPs, for instance, to carry an intercept capability. So the burden of costs envisaged by many of the detractors with regard to this part of the legislation does not exist to the extent suggested in certain alarmist quarters.

 

Lord Lucas: Does the Minister mean that some ISPs will bear the cost burden and draw the short straw and others will not?

 

Lord Bassam of Brighton: It is not a question of drawing a short straw. As I understand it, there are 400 ISPs in the UK at the moment. The cost assessment built up in opposition to the Government's position assumes that all 400 will be obliged to possess an e-mail active intercept capability. We do not necessarily accept that that is the case; it may be far from the case. It may be that only the largest ISPs will bear part of the burden of cost.

We have to look at the detail. We have to consult the industry in order to get the balance of costs right. Trying to establish that in legislation would be unique. I am sure that the noble Lord, Lord Lucas, accepts that point. I accept that he is trying to flush us out on where we feel the balance is; but the matter is best left to the detailed consultation which all Members of the Committee have said that we should conduct and carry out. We are committed to that process.

 

Lord Lucas: If there are to be detailed consultations with the industry, and therefore almost with the public, why not share with us the opening position? It cannot possibly damage the Government to tell us what they intend to tell hundreds of other people, if not now then very shortly. Will not the Minister reflect

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that fresh in all our minds is the Government's oft-avowed accuracy in assessing the cost of building the new Scottish Parliament building? We must all recognise that estimates often bear little resemblance to the final outcome.

 

Lord Cope of Berkeley: I view this as a most unsatisfactory debate, particularly from the parliamentary point of view. Parliament is being devalued. We are being asked to accept a lot of highly generalised assurances from the Minister. I noted three: "We will not be unreasonable"; "Fears are not well founded"; "We have good intentions". They are all honeyed words but mean very little. The more the Minister said, the more it became clear that either the proposals are not being shared with us or, as I suspect, they are as yet unformed and loose. That is why there is this huge potential disparity in the cost which Parliament is being asked to take at face value.

Perhaps I may respond to the noble Baroness, Lady Thornton. She said that she did not feel that e-businesses were bearing their share of responsibility and that we were arguing only on behalf of such businesses. But it is not only e-businesses which are involved; it is the whole of business. After all, the chambers of commerce, the CBI and the Institute of Directors are complaining, and The Times, the Financial Times, the Observer and the Guardian, all say in different ways that these proposals, desirable as they are--we all believe it to be desirable to use this method to catch criminals--are insufficiently developed and still contain snags. Yet we are asked in this clause to support a blank cheque.

On the question of the number of Internet providers, the noble Lord, Lord Desai, said that he thought that the provision would include all ISPs. But that is what is worrying; it will not. There is nothing in the Bill about this. The general assumption was exactly the same as the noble Lord's; that is, that the provision would include all ISPs, at least over a period. The chambers of commerce report worked on the assumption that the interception regime would involve 20 large ISPs and 100 small ones--that is pretty well most of the industry. But the Home Office said that that is a gross over-estimate, perhaps by as much as a factor of 10. That is to say, only one-tenth of the ISPs will be subjected to this regime; presumably, that is one-tenth of the large businesses and one-tenth of the small ones. I find that surprising. But it shows how difficult it is to get at the cost and to know exactly what is proposed.

My noble friend Lord Lucas said that if this 20 million--the Government's estimate--is going to be imposed on only one-tenth of ISPs, it will cause grave difficulties. The others will be at a competitive disadvantage because they have not been approached.

 

Lord Bassam of Brighton: Perhaps the noble Lord, Lord Cope, will give way on this point. At the moment we do not require all public telecommunications operators to possess an intercept capability. If the noble Lord is saying that it is unreasonable to expect

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only a small proportion of ISPs to bear the cost, he must be saying also that it is unreasonable that only a small proportion of PTOs currently bear the cost. The two situations are broadly comparable. The noble Lord should reflect on that point, otherwise he misunderstands the way in which these things are intended to operate.

 

Lord Cope of Berkeley: I shall certainly reflect on it and ask others to do the same. After all, the vast majority of telephone traffic goes through very few hands. That may explain some of the figures given by the Minister in that respect.

The noble Lord, Lord Phillips of Sudbury, asked a simple question in this regard. No detail was given and no approach was made in principle to answer his question. "It will all be considered before we reach secondary legislation", said the Minister. Of course, there will be a further opportunity to discuss it at that stage, when the stable door has more or less shut. But we all know the difficulties of secondary legislation.

I shall not press this amendment tonight. It merely sought to probe what the Government intend. We have found out practically nothing in that regard. I am sure, therefore, that we shall return to this matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 56 had been withdrawn from the Marshalled List.]

[Amendment No. 57 not moved.]

On Question, Whether Clause 13 shall stand part of the Bill?

 

Viscount Astor: The debate on the two previous amendments was very disappointing from our point of view; indeed, we received no proper answers--answers that this House deserves--from the Government. I should like to use this debate for the purpose of asking the Minister a question. If I receive the answer that I expect, I shall then put forward a suggestion for him to consider.

It is perfectly obvious now that we do not know how many ISPs will need to have a box and what the cost will be. The Minister has said that that may not apply to all of them, but that is rather like saying that there will be intercepts only in London and the South East, not elsewhere in England. The system really does not work like that for ISPs; they are all intermingled. I do not see how anyone can know the answer. As the noble Lord, Lord Desai, suggested, they will probably all have to have one at some point or another.

We have heard nothing about what the costs will be and have received very little information. It is not just a matter of the burden of such costs for industry; unless we get this right, the situation will drive business overseas. As a simple example, let us look at the betting industry in this country. At present, the Treasury imposes what the industry considers to be a high tax on betting turnover. In almost an instant, the industry has managed to transfer a large part of its business via data communication lines to Gibraltar,

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Malta, the Caribbean and various other points across the globe. Such places are completely outside our law and thus no revenue is collected by the Treasury.

If the same analogy were to apply to this case, instead of being able to have the intercepts and thereby stop the pornography available through such services, as the noble Baroness would wish, we should not be able to do anything at all because it would all be based offshore. Therefore, the Government would have shot themselves in the foot because the legislation would not work--

Baroness Thornton: I do not wish to stop pornography. I wish to make sure that the Internet is safe for children. Those who wish to indulge in watching pornography, or whatever, would be able to do so, but I should like to be sure that children--and others we do not wish to have access to such services--are safe.

 

Viscount Astor: I entirely accept what the noble Baroness said. But if it is to be safe for children, it must be regulated. It will not be regulated if we drive it overseas.

Clause 13(1) says that the Secretary of State,


Thereafter, subsection (1)(b) refers to the word "appropriate". We have heard that the Minister cannot tell us what is appropriate because he does not really know. It might amount to a contribution. But will there be a limit on the cost, of, say, the net revenue of a company? What happens if there is a major disagreement between the Government, the Home Office and the industry on what is, and what is not, appropriate? Is there any form of right to arbitration or an appeals system within the Bill relating to this clause?

If we are to rely on this consultation and, indeed, on secondary legislation, it seems to me that the industry may, in effect, have to agree to a blank cheque. I suspect that there is no right of appeal beyond, I suppose, judicial review--governments are fond of saying, "Well, you can always go to judicial review"--but, in reality, we all know that such a process is so expensive, lengthy and time consuming that it often never happens. I am sure that the noble Lord, Lord Phillips, as a lawyer, will back me up on that point. Moreover, judicial review rarely works. People do not have the time or the money to make it work.

If I am right in thinking that there is no form of mechanism that the Government and the industry are going to negotiate, what would be fair for both sides? Will the Government consider some form of mechanism being added to the Bill which will then give some assurance to the industry that it will be treated fairly?

6.45 p.m.

 

 

Lord Phillips of Sudbury: I have one comment to add. We agree with Conservative noble Lords about the unsatisfactory nature of the Government's reply to the amendments within the grouping under Clause 13.

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Is it fair? No, I shall rephrase that: it is fair. Can the Minister tell us in time for an amendment to be tabled and, if necessary, divided upon, just what the Government's broad strategic proposals are vis-a-vis the sharing of costs under this Bill? That seems to me to be entirely proper and right. Will the noble Lord please give a commitment to do so?

 

Lord Lucas: I entirely support what the noble Lord, Lord Phillips, has just said. The Government have said that they will disclose this information to the industry, so they must disclose it to Parliament. If they are going to open negotiations with the industry and discuss draft secondary legislation, that must involve revealing their position as regards what they believe they will do when faced with the question of who should bear the capital costs.

I have one question to ask and two points to make. Will the Minister let us know before Report the current capital costs of telecommunications interception? The noble Lord made much of the fact that these costs are currently borne by the industry, but how much are they? As far as concerns suggestions about what to do with this clause, as I said previously, it does not fall under anyone's supervision. Might it provide a way forward if we brought the Secretary of State under the supervision of the interception and communications commissioner as regards his reasonableness? Alternatively, if we changed the word "appropriate" to "fair", would the noble Lord consider that to be fair?

 

Viscount Goschen: I suggest that the mood of the Committee on the matter is very clear in terms of agreement with the noble Lord, Lord Phillips, and the extremely simple and straightforward proposition that he put to the Minister. The Minister must be in a position to come to this Chamber and give, as the noble Lord, Lord Phillips, put it, his overall strategic view on the matter. We are not talking about cutting this down into fine detail; we are talking about how the Government would handle the matter. Without that information, how can noble Lords do anything but fear the worst? Indeed, the noble Lord may even find himself facing an amendment that attracts a good deal of support in the Chamber. That situation could be avoided if the noble Lord were to agree to come forward with more information.

 

Lord Desai: I do not wish to tackle the problem of the cost and who pays it; indeed, that does not really concern me very much. But I should like clarification on one point. As an economist, I imagine that some ISPs are fitted with intercepting machinery. It would pay any criminal to find out those concerned and then go to other ISPs. So, behaviourally, it would seem to me that you cannot have some people with intercepting equipment and not others. That would actually defeat the purpose of the legislation which is to find out where criminals are sending their messages across. They may currently go to the 10 largest, but, as soon as they are intercepted, the 90 smallest will suddenly become large. That is the logic of the

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situation. I am worried about that more from the point of view of meeting the purpose of the Bill, rather than on the question of how much it will cost.

I have one further technical point to make. Marginal costs have been mentioned. It will very much depend on whether or not the marginal costs include the depreciation of capital equipment. The fast obsoletion of equipment and not the cost of it may go into those marginal costs. If something becomes obsolete in two years, you could easily write off 50 per cent as a marginal cost. Marginal cost is a very tricky concept, as are many others in economics. When my noble friend enters into negotiations, I hope that he will play a cool game.

 

Lord Bassam of Brighton: In speaking to Clause 13 stand part, I shall attempt to address the points that have been reasonably and fairly made from all parts of the Chamber. I begin with the issue raised by the noble Viscount, Lord Astor, as to whether there is some form of independent arbitration under the Bill. The noble Viscount is right to suppose that no appeal mechanism is available. However, it is important to point out that there is the possibility of a Secretary of State's decision being judicially reviewed. It is also fair to point out that the Secretary of State can enforce that decision only through the courts. So the Secretary of State has to weigh up such issues most carefully. However, I do not think that that will happen. I repeat that we shall be reasonable and proportionate in considering how costs are apportioned.

I have read Clause 13 and subsection (3) of that clause. I can understand that the Committee does not like the term "appropriate". However, it is a flexible term and has been included for that purpose.

 

Lord Phillips of Sudbury: I am grateful to the noble Lord for giving way. He provokes my legal instincts. It is rare to hear a Minister of the Crown encouraging the Opposition to beat a hasty retreat to the High Court for a judicial review. I am also astonished that the Minister should hold out any hope of anyone obtaining a remedy in the High Court under Clause 13 of the Bill. The wording is so woolly that I do not think even a shepherd on the hillside would give a remedy. Clause 13(1) states:


    "The Secretary of State may, if he thinks fit, make such payments . . . as [he] considers . . . an appropriate contribution".

That provision is so heavily weighted in favour of the Minister's virtually uncontrolled discretion that I would not advise any client to pay me money to go anywhere near the High Court for a judicial review, whether it was a question of tuppence ha'penny or 200 million.

 

Lord Bassam of Brighton: I am disappointed in the noble Lord's lack of confidence and faith in the judicial process.

 

Lord Cope of Berkeley: It is a question of his faith in the Bill, not in the judicial process.

 

Lord Bassam of Brighton: That may well be part of it but it seemed to me that the noble Lord rather

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doubted that any court would give fair consideration to the case brought before it. Knowing the strength of our judicial system, I cannot believe that that would be the case.

 

Viscount Goschen: I am not a lawyer. I am as far from being a lawyer as it is humanly possible to be. I have listened to the discussion with great interest. However, the Minister must accept that we in this building are making the law which the courts will then interpret. I do not think that he can put the blame onto the courts for the badly worded Bill and say that the courts are no good if you cannot get the right judgment out of them. We have the opportunity in this Chamber at this and subsequent stages of the Bill to rewrite the provisions to make the wording less woolly and to enable the judicial process so beloved of the noble Lord, Lord Phillips, to work properly.

 

Lord Bassam of Brighton: I live with a lawyer and she always argues that these questions can be subjected to the important test of reasonableness. I intended to be a little more helpful. I ask the Committee to bear with me. I shall be unhelpful initially but I shall be helpful later.

I believe that the noble Lord, Lord Lucas, encouraged me to reveal the capital costs of telephone interceptions that are currently met by PTOs. On consideration I cannot tell him that for two reasons. First, it would compromise the commercial confidentiality of those who are involved. Secondly, from a security point of view, it would become obvious who does not have that capability. Those two points bear careful consideration and thought.

Lord Lucas: Is it not astonishing that the Government can forecast, as exactly as they have, the cost of a system which is as yet unknown and undescribed and yet be totally unable to say what the cost is of a system which is in place and working?

 

Lord Bassam of Brighton: I did not say that we were incapable of finding out and saying how much that cost might be. However, I said that I thought that we would be ill advised to reveal that. I believe that the PTOs would not wish us to reveal information which is commercially sensitive. That is the point I am trying to drive home. I am sure that the noble Lord will understand that. The noble Lord asked whether we would reconsider the use of the term "appropriate" in the clause. He suggested that we might like to consider using the term "fair". I am happy to give that matter reasonable, fair and appropriate consideration. I am trying to be helpful.

I believe that the noble Lord, Lord Phillips, asked about consultation on the whole issue. We shall need to consider the noble Lord's observations. I shall give careful consideration to his important comments. We shall continue to consult. I believe that that consultation will make a difference. I take seriously the suggestion he made.

 

Lord Phillips of Sudbury: I am terribly sorry to interrupt again. However, I asked that before the final

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stage of the Bill the Minister should tell us what the broad strategic parameters are. It is not a question of consultation but of decision by the Government.

 

Lord Bassam of Brighton: I understand entirely. That is the point I am trying to make. The noble Lord has made a suggestion. I am quite happy to give that fair consideration. If there is merit in it, we shall perhaps outline our strategy in more detail in that regard. We have tried to do that throughout the consultation and we shall continue to do so. I am happy to renew that commitment.

 

Viscount Astor: The Minister initiated the debate on the clause insofar as the Government could not answer the rather simple question of the noble Lord, Lord Phillips, regarding which recommendations they accept from the Smith report and which they do not accept. That has left the Committee grasping at straws. I hope that the Minister appreciates why we became so concerned over this issue.

There is a slight feeling of deja vu because the Minister reached the point in his brief headed, "If pressed". I seem to remember that at that point the brief always refers to judicial review. However, we all know that judicial review is incredibly expensive and takes a long time. It is not always effective. Often it is not effective because the judge is not deciding whether someone has a fair case to put to judicial review; he considers the legislation and decides whether the Secretary of State has interpreted it fairly. We argue that the correct provisions should be included in the Bill from the beginning. I am afraid that the argument of judicial review does not gain much favour in this Chamber, even though it contains many distinguished noble and learned Lords. What is important is what is in the Bill.

The Minister then reached that point in his brief headed, "If very seriously pressed". I am delighted that he made some concession in being willing to consider in a fair and appropriate way whether the term "appropriate" is preferable to the term "fair". However, the Minister should recognise that Members on all sides of the Committee are unhappy with Clause 13 as it stands. Unless the Government are able to clarify their thinking and clarify the meaning of the terms "fair" and "appropriate" and say which term should be used, some mechanism will have to be included in the Bill to ensure that everyone is treated fairly in future. I hope that the Minister will consider these issues seriously--I am sure he will--between now and the next stage of the Bill.

Clause 13 agreed to.

Clause 14 [General safeguards]:

[Amendment No. 57A not moved.]

 

Lord Cope of Berkeley moved Amendment No. 58:


The noble Lord said: We come to a different subject; namely, the importance of confidentiality. Earlier, I pointed out to the Committee that an awful lot of

19 Jun 2000 : Column 70

information, intercepted information and communications data will reach the hands of the authorities. Some of that information will be covered by warrants, but much of it will not. Much of it will be of a highly confidential nature. Amendment No. 58 attempts to put an overall duty on the Secretary of State to make sure that information is kept secure. I do not need to emphasise the importance of this. We have already discussed it in other contexts.

Amendment No. 59 also stands in my name. It inserts the words "and only if" in line 39 on page 15. In subsections (2) and (3), which are the teeth of this clause, certain requirements are set down. If they are fulfilled, then confidentiality is reckoned to have been sufficiently carried out. What the Bill does not say is that if these fairly basic requirements are not fulfilled, there is a failure of confidentiality. By inserting the words "and only if" in Amendments Nos. 59 and 61, I hope to strengthen the safeguards in subsection (2)(a), (b), (c) and (d), and later in subsection (3), and say that if they are not carried out it is clear that confidentiality has not been respected. There are various other amendments, all on a similar theme, mostly moved by other noble Lords. I beg to move.

7 p.m.

 

 

The Earl of Northesk: Amendments Nos. 61A and 61B are in this group and it may be convenient to the Committee if I take this opportunity to speak to them now.

I want to focus on the way in which the Internet operates. As has been made abundantly plain in our debates on the Bill thus far, it is a packet-switching system. I do not need to dwell on a detailed explanation of that. As my noble friend Lord Cope has explained, the consequence will be that a fair amount of communications data could be intercepted which will not be relevant for the purposes for which the authority to intercept was granted. That is the first point.

Irrespective of whether intercepted communications data is legitimate, the Bill is explicit that where there are no longer any grounds for retaining it as necessary for the authorised purposes, it should be destroyed. I am content with that. However, the difficulty is that, in either case, it is stated that only the copy should be destroyed. There is no mention of the original from which any copies may have been made.

I am, of course, conscious of subsection (7), where "copy" is defined for the purpose of the clause, but I am not convinced that this fully meets the point. The Minister will note that in the amendment I have retained paragraph 4(e) as a qualification on destruction of any intercepted communications data. I can see that there may be a statutory justification for this, although I await with interest the Minster's response to Amendment No. 62A on that point.

With regard to Amendment No. 61B, I am sure that the Committee will be aware of quite how difficult it is to destroy a file that is stored on a computer's hard disk. Even though one can delete it from within a software programme, the way in which it is stored on

19 Jun 2000 : Column 71

the hard disk via partition, clusters, and so on, means that it continues to be freely accessible to those with the skill and expertise to dig it out. To an extent, it is on this basis that forensic hacking is such a powerful aid to the forces of law enforcement. As a result, and particularly in the context of communications data, the Bill should be explicit in offering adequate protection to the law-abiding citizen that data which has been inadvertently or erroneously intercepted or, as it were, data which is past its sell-by date, really has been properly destroyed.

 

Lord Phillips of Sudbury: I speak to Amendments Nos. 59A and 62A standing in my name. It is common ground that Clause 14 is an absolutely crucial and central clause. It provides the general safeguards according to which the whole of the regime must be undertaken.

Amendment No. 59A deals with what seems to us to be a lacuna in the arrangements set out in Clause 14. Although there is a reference to the destruction of intercepted material and related communication, there does not seem to be any reference to the storage of the confidential information gathered under this Bill. Amendment No. 59A addresses the issue that proper storage must be one of the requirements under subsection (2), susceptible therefore of the overview of the interceptions of communications commissioner. We believe that that is quite essential.

Amendment No. 62A is in the nature of a probing amendment. It seeks to ascertain from the Government what proposals they intend to put in place to keep confidential information in public records. We are anxious to know, as I am sure the full House is, whether full copies of warrants will be retained, together with their schedules and certificates, when and if they will be destroyed, how much detail will be recorded about the volume and nature of the material intercepted, and indeed the consequences of such interception.

One has to bear in mind that the volume of information which will come within the purview of this Bill is rising exponentially. The debate in the other place referred to the fact that daily there are over 100 million e-mail messages now traversing the wires, although I cannot even say that now. Those are huge numbers and growing. We are, therefore, anxious to know whether the Government have thought sufficiently carefully about how this rising tide of confidential information, which will be particularly intercepted under the sort of trawling certificates allowed by Clause 8 of the Bill, will be confidentially logged and secured.

Finally, Amendment No. 62A is designed to draw from the Government what plans they have vis-a-vis the historic archive of all this information--an archive which will allow those who have proper access to it the ability to analyse and appraise policy in order to refine the way in which this information is dealt with in the future.

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Lord Lucas: Amendment No. 60 is in this group. It is a probing amendment to discover what the Government have to say on the subject.

 

Lord Bach: Before dealing with the amendments I first make the general point, already made in passing by the noble Lord, Lord Phillips of Sudbury, that the safeguards provided for material in Clauses 14 and 15 are extremely important. Not only are they extremely important, but I would argue that they are very tightly drawn indeed. I would go so far as to say--and this is a dangerous assumption--that it is unlikely that anyone would find elsewhere on the statute book such stringent requirements for data acquired by the state. This is not meant to be some sort of boast. The protection of intercept material requires no less than the highest protection available. But I hope that it will be acknowledged by the Committee that these are very stringent tests. It may address some of the rather over-the-top, hysterical suggestions that have been made about this Bill in the past few weeks--not, I hasten to add, in this Committee. I make those preliminary comments so that my subsequent comments on the amendments are put into a clear context.

I start with Amendment No. 58, which alters the current drafting so that the Secretary of State must make arrangements to ensure that intercepted material and communications data is kept confidential. We cannot see what this amendment adds to the provisions that we have already made to safeguard the uses to which this material may be put. We already state that the number of persons to whom the data can be disclosed, the extent to which the data can be disclosed or made available, the extent to which any data can be copied, and the number of copies which can be made are all limited to the minimum that is necessary for the authorised purposes set out in subsection (4). I would say much the same to the noble Lord, Lord Lucas, who has tabled Amendment No. 60--he spoke to it in a remarkably brief and welcome way--with the same intention; that is, to place strict limitations on the uses to which information obtained by means of a warrant can be put. We consider that the safeguards we have put in place should be sufficient to meet the real concerns of noble Lords. The Bill states that any intercepted material or data are destroyed as soon as there are no longer grounds for retaining them for any of the authorised purposes.

These provisions clearly place the limitations the noble Lord requires on the uses to which intercepted material or communications data can be put, and we emphasise that those limitations are subject to the authorised purposes.

Turning to Amendment No. 59A, we understand the intention behind it and we concur with that intention. However, we believe that the intention of the noble Lord, Lord Phillips of Sudbury, is met already by the requirements listed in the existing subsection. First, the number of persons to whom any of the material or data are disclosed or otherwise made available must be limited to the minimum necessary. This means, for example, that material is withheld even from fully-vetted staff in the interception agencies

19 Jun 2000 : Column 73

where they have no need to know. The noble Lord made a comment about storage; we believe that the extent to which material is made available is implicit in Clause 14(2)(b) and that the Secretary of State's arrangements will guarantee safe storage.

Secondly, the extent to which any of the material or data are disclosed or otherwise made available must be limited to the minimum necessary. This involves the highest levels of physical, technical and personnel security. Intercept material is among the most sensitive categories of classified material and is handled accordingly. The code of practice on interception, a draft of which will be available shortly, will contain further details of the safeguards to be applied, including specific mention of technical security.

Amendments Nos. 59 and 61 add the term "and only if" to our use of the word "if" in subsections (2) and (3) of Clause 14. With great respect, we do not see the necessity for these amendments. Subsection (1) of Clause 14 states that the requirements in subsection (2) must be satisfied; and subsection (2) specifies precisely what are those requirements. Only when each of the requirements of subsection (2) are met is the Secretary of State's duty in relation to this discharged.

Subsections (3) and (4) are different. Subsection (3) essentially provides that intercepted material must be destroyed when no longer necessary for any of the authorised purposes. Subsection (4) describes the authorised purposes, but then the extra "and only if", which is to be found in that subsection at line 9, makes it clear that there are no other authorised purposes.

As regards Amendment No. 61A, subsection (3) of Clause 14 reproduces the essence of Section 6(3) of the current Interception of Communications Act, a section which we believe has worked well over the years. The subsection requires that all copies are destroyed as soon as it is no longer necessary to retain them. This includes the initial recording or transcript made of the material or data--to which I believe the words "the original" in the noble Earl's amendment refers. Any recording of any kind produces only a copy.

So far as concerns postal interception, the postal item clearly constitutes the original material. No intercepted postal items are retained by any intercepting agency. Copies may be made but the original is put back into the postal system as quickly as possible. An interception warrant does not constitute an authority to retain or destroy a postal item.

 

The Earl of Northesk: Before the Minister leaves that point, can he explain how communications data will be treated, which is the point at issue?

 

Lord Bach: I think I have dealt with that in the reply I have given to the noble Earl.

We believe that Amendment No. 61B, which seeks to qualify the requirement that intercept material be destroyed with the additional requirement that it be destroyed in an appropriate way, would make little difference in practice. All intercept material currently intercepted under the 1985 Act is covered by Section 6

19 Jun 2000 : Column 74

of that Act, which requires that each copy made is destroyed as soon as its retention is no longer necessary under Section 2(2). In practice that requirement--which is replicated almost word for word by subsection (3) of the Bill before us--is taken very seriously by the intercepting agencies. Material is destroyed in such a way as to ensure that there is no question of any further access to it.

The question of destruction is one in which the Interception Commissioner--now Lord Justice Thomas--has always taken a keen interest. If the committee will forgive me, I shall quote a part of the first report of the noble and learned Lord, Lord Lloyd, where he refers to the practice of Her Majesty's Customs and Excise at the time when he was the Interception Commissioner. The report stated:


that is, the Customs officer--


    "makes a note of the gist of the conversation, together with the time. If it is very important, he may make a verbatim note and check his note against the tape. The tape is made available by BT. He will also listen to tapes of communications intercepted during the preceding night, or at any time when his desk has been empty. The tapes are always returned to BT, usually within 24 hours, and are erased at once. The officer who has listened to the conversation communicates by direct telephone line with the officer in charge of the operation, who makes such use of the intelligence as he needs. No note or copy of the intercepted conversation comes into existence, other than the original record made by the listening officer. That record is destroyed, by shredding, within a year".

I have quoted that example at some length to illustrate the care to which the intercepting agencies go to ensure that the spirit as well as the letter of the law is observed. Commissioners have continued to express themselves satisfied with the safeguards arrangements in successive reports.

Amendment No. 62A seeks to prohibit the retention of any copies of intercepted material or communications data despite a requirement in either of the Public Records Acts that they be retained. Section 3 of the Public Records Act 1958 provides a power to select any records in government departments for permanent preservation. Although in practice the proportion selected is very small, some official records of interception and other forms of intrusive surveillance are, by their nature, clear potential candidates for selection and eventual public access. It is for this reason that, for example, Sections 2 and 4 and Schedule 4 to the Intelligence Services Act 1994 provide for the retention of material where the Public Records Act requires it.

I wish to make a further three short points on this issue. First, the PRO specifically asked for this provision to be included; secondly, it is in line with the Government's approach to the repeal of statutory bars on disclosure currently being carried forward by the Freedom of Information Bill; and, thirdly, I want to emphasise that this provision does not provide a loophole for intercepting agencies to have permanent access to material. Any copies retained for public record purposes are stored under the strict conditions agreed between intercepting agencies and the Lord Chancellor's Department. These conditions are designed to ensure that the agencies do not have access to them in the normal course of duty.

19 Jun 2000 : Column 75

Turning finally to the question of the noble Earl, Lord Northesk, in regard to how communications data will be dealt with and whether there are any arrangements for it under the Bill, communications data obtained under Chapter II of Part I are not covered by Clause 14. The phrase used in Clause 14(1)(a) refers to,


Communications data as such are not dealt with in this clause.

But the retention of those data, which is evidential--we shall debate this important matter in due course--unlike intercept material, is governed by the codes of practice under the Criminal Procedure and Investigations Act 1996 and, more generally, by the Data Protection Act 1998, which the noble Earl knows well. I hope that this provides a rather fuller answer for the noble Lord.

I have taken some time in responding to this series of amendments. The Government realise that Clauses 14 and 15 are important because they deal with the safeguards that the public wants to see for the unusual steps that are required here. Members of the Committee have not denied that such steps are necessary in order to secure the safety of the state and to ensure protection against serious crime. Safeguards form a very important part of this package. Having listened to my explanations, I hope that the noble Lord will consider withdrawing his amendment.

Lord Cope of Berkeley: Before I withdraw my amendment, the Minister said that the code of practice would be available shortly. Does that mean that it will be available before we reach the Report stage? I think that it is important to establish whether we shall be able to see the code before the next stage of the Bill.

 

Lord Bach: So far as I understand, the answer to the noble Lord's question is yes.

 

Lord Cope of Berkeley: The noble Lord's slightly lengthy response to these amendments has been helpful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 

The Earl of Northesk moved Amendment No. 58A:


The noble Earl said: I beg to move Amendment No. 58A and to speak at the same time to Amendment No. 60A.

The Minister will recall that I raised this matter in the debate on Second Reading, when he was kind enough to allude to my somewhat dubious knowledge of the Data Protection Act. The Government are adamant in their insistence that it is not their intention that the interception regime should interfere with a citizen's established human rights. Equally, it is maintained that there is nothing on the face of the Bill that would comprise such

19 Jun 2000 : Column 76

interference. But the Bill could be interpreted to mean that, notwithstanding the various exemptions, the uses to which communications data, together with the scope of their definition, are in breach of the data protection principles. In particular, it is my view--albeit that I am not a lawyer--that it could fall foul of the principle that:


    "Personal data shall be held only for one or more specified and lawful purposes",

and shall not be further processed,


Furthermore,


    "Personal data shall be adequate, relevant and not excessive in relation to that purpose or purposes",

for which they are processed. In so far as these may be in breach of the data protection principles, this is a ludicrous position that will undermine public trust in the regime.

In my view, it is not unreasonable that the Bill should state that the interception regime should be expressly and fully compliant with the data protection principles as set out in Schedule 1 to that Act. Perhaps the Minister will argue that that is already set down in statute and therefore the imposition of such a requirement is unnecessary. This Bill is already bound by the requirement to comply with that Act. However, I do not necessarily share that view. Its terms are such as to bring such compliance into question. Aside from that, since the implementation of the Data Protection Act, a number of abuses of the data protection regime have been identified and prosecuted.

That being so, and given the complexity of the whole area, it is my belief that there should be no ambivalence here. If we are to strike the right balance between the needs of the interception regime and the rights of ordinary law-abiding citizens to privacy and freedom of expression, it is essential that they can trust absolutely that those rights are adequately protected; that is to say, that they can rely on a presumption that the data protection principles will apply. I beg to move.

 

Lord Bach: Perhaps I may deal with the amendment fairly briefly.

 

Lord Phillips of Sudbury: I apologise to the noble Lord. I do not think that either Amendments Nos. 59A or 62A were referred to during the previous response.

 

Lord Bach: We have not yet reached them on the groupings list.

 

Lord Phillips of Sudbury: Is the noble Lord dealing with new amendments?

 

Lord Bach: I am dealing with the amendments as they appear in their groups and then in numerical order. Amendment No. 58A has been moved by the noble Earl, Lord Northesk, and it is to that amendment that I shall now respond. The noble Lord will be able to move Amendments Nos. 59A and 62 in a short while.

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Perhaps I may return to Amendments Nos. 58A and 60A. The amendments seek to restrict the extent to which the intercepted material and communications data may be shared between government agencies. We believe that the law enforcement, security and intelligence agencies are already subject to restrictions on the degree to which they may share data either under the provisions of the Data Protection Act or under the statutory restrictions placed by the Security Service Act 1989 and the Intelligence Services Act 1994.

From October of this year--Members of the Committee will appreciate that this point is not unimportant--they will also have additional restrictions imposed by the Human Rights Act. They will then need also to consider questions of necessity and proportionality before interfering with a person's privacy. I hope that that explanation meets with the approval of the noble Earl.

 

The Earl of Northesk: I thank the Minister for that reply. As I said when I spoke to the amendment, my main purpose in moving it was to reduce any ambivalence. I shall read carefully what the Minister has said, but I am sure that he has satisfied me in that purpose. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 not moved.]

 

Lord Phillips of Sudbury: I should like to make one or two remarks on the helpful explanation given by the Minister as to why the Government will not accept this amendment.

 

Lord Bach: I hope the noble Lord will forgive me for intervening. The rules of the Committee state that the noble Lord must first move Amendment No. 59A and then withdraw it, unless he seeks to take it to a vote. I say this only by way of helpful advice. If I am wrong about procedure here, I shall be happy to be corrected.

 

Lord Phillips of Sudbury moved Amendment No. 59A.



("( ) appropriate technical security arrangements which ensure that the risk of unauthorised disclosure,").

The noble Lord said: In this 92-page Bill, I think it would be fair to say that the four key functions of the measure are, first, how to acquire confidential information; secondly, how to use it; thirdly, how to store and safeguard it; and, fourthly, how to destroy it. Given that, I feel that it is not satisfactory for the Government to declare that the issue of storage and the safeguarding of confidential information under the Bill can be dealt with by way of an implication in Clause 14(2)(b).

Aside from that, Clause 14(2)(b) does not cover circumstances where material is stolen. It refers only to,


19 Jun 2000 : Column 78

 

I believe that the Minister will agree that one is not dealing with a disclosure or the act of making available confidential data by the Secretary of State or the Government when it is stolen, purloined or otherwise misused.

As I have said, it seems wholly disproportionate that such a crucial element of the Bill should be left to an implication that I do not in fact believe can be carried by this subsection. Perhaps the Minister could look again at this exchange.

I accept that Amendment No. 59A may be placed a little clumsily in the groupings order. It could be dealt with more naturally as an adjunct to subsection (3) of Clause 14. I beg to move.

 

Lord Bach: I shall of course read the report of this exchange and look at the matter again. In the meantime, I invite the noble Lord to withdraw his amendment.

 

Lord Phillips of Sudbury: I shall be happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 60 to 61B not moved.]

 

Lord Bach moved Amendment No. 61C:


    Page 16, line 15, leave out ("Chapter") and insert ("Part").

The noble Lord said: I hope that we can deal briefly with this amendment. The noble Lord, Lord Cope, will, I hope, be pleased to hear that we have considerable sympathy with the intention of his Amendment No. 62, which includes retaining communications data as well as intercept material as one of the authorised purposes if it is necessary for the carrying out of the functions of the interception commissioner or tribunal. For the sake of consistency with the rest of the Bill, we should prefer to use the phrase, "this Part", as will be the case with our amendment, rather than "Chapter" and "Chapter II" which appear in the noble Lord's amendment; hence the Government have tabled this amendment, with thanks to the noble Lord, Lord Cope. I beg to move.

 

Lord Cope of Berkeley: As has become clear, the two amendments have an identical purpose and the Government's is better drafted. I support it.

On Question, amendment agreed to.

[Amendments Nos. 62 and 62A not moved.]

7.30 p.m.

 

 

Lord Phillips of Sudbury moved Amendment No. 63:


    Page 17, line 9, at end insert--


("( ) The Secretary of State shall as soon as possible after the interception notify the person or persons whose communications were intercepted of the dates and duration of that interception unless the Secretary of State is satisfied that it is in the public interest not to do so; and the Secretary of State shall have a duty to review regularly any decision of his not to so notify, and to notify as soon as it is no longer in the public interest not to do so.").

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The noble Lord said: The purpose of this amendment is, I hope, relatively plain from the wording. It seeks to ensure that those who are subject to interception are notified of the fact, subject to the public interest right of the Secretary of State to refuse to do so, which is expressed in generous terms; namely, that the Secretary of State is satisfied that it is in the public interest not to do so.

We accept that the notion that notification of intercepts should be given to the subject of such an intercept is rather alarming. It may well be thought--this, indeed, may be the case--that a considerable amount of extra work will be involved on the part of the agencies and individuals concerned. None the less, we submit that the amendment is well worth consideration by the Government, despite the bureaucratic consequences, despite the fact that the police are anxious about this idea, and despite the fact that since the Birkett report of 1957, which followed the Marinnan case, the present regime has apparently worked reasonably well without this right of notification.

Our feeling is that we are in a new age. This is not the age of the good Lord Birkett; it is a very different one. It is an age when freedom of information and transparency are two of the most powerful concepts. They meet a general public need to feel that the increasingly powerful organs of the state are working as they should work and in the interest of the citizen.

It is common ground that the Bill gives tremendous powers and discretions to the state and the agencies covered by it. As we have said many times, great potential evils can be met only by great potential powers; but so too, those powers must be counter-balanced by commensurate protections. In our view, there is no more forceful protection to ensure the smooth, effective and lawful workings of this panoply of powers than the requirement in this amendment; namely, that of notification.

Unless there is notification, it is extremely hard to see how the citizen will be able to assess whether what is done covertly in his or her name is properly done. It will be difficult, too, for the intercept commissioner to do his or her job effectively. I beg to move.

Viscount Astor: The amendment causes us some concern on this side of the House. If you are to intercept someone, albeit for valid reasons--some of those reasons may be right, some may be wrong, but the intention behind them will be valid--you really do not want the person to know that you are doing it. Therefore, even with the safeguard suggested by the noble Lord, Lord Phillips, the amendment does not seem to make any sense. It would be a cumbersome duty to place on the Secretary of State without adding any real defence for the innocent and it would possibly allow those with criminal intent to discover that they were being intercepted.

19 Jun 2000 : Column 80

 

Lord Bach: We understand the intention behind the amendment. However, we believe that the provisions in the Bill already provide a robust system and package of safeguards for the privacy of the individual. A number of reasons lead me to say that we shall have to resist the amendment if it is pressed.

The first and obvious reason is that the individual does have recourse to the tribunal. Were he to make an application to the tribunal and were the tribunal to find that the provisions of the Act had not been followed correctly, he would be informed of the tribunal findings by virtue of Clause 60(4) and rules made under Clause 61(2)(i). Not only that, but the tribunal will have the power to provide a variety of remedies as set out in Clause 59(6).

 

Lord Phillips of Sudbury: How will anyone know, in order to make an application to the tribunal, if there is no notification?

 

Lord Bach: If the noble Lord will be patient with me for a moment, I shall come to that. These include an order quashing or cancelling any warrant or authorisation and an order requiring the destruction of any records for information in relation to that person. These remedies are on top of the power to make an award of compensation or other order as the tribunal thinks fit. So there is undoubtedly an avenue for the individual to seek redress; and the avenue will be made much more simple and more accessible under the provisions of the Bill. So, from the point of view of reassuring the public at large, and Parliament in particular, on the use of the powers in question, we believe that the existing regime has a good story to tell. These contraventions are already published in reports laid before Parliament by the Prime Minister.

This narrows down the area addressed by this amendment to those individuals who are unaware that they have been the subject of interception. So they are not in a position to make a complaint to the tribunal. The first point I would make is that a person can make a complaint even if he or she does not know about but merely suspects interception--and, unless it is frivolous, it will be investigated. This is a significant development and an improvement in this Bill and explicitly recognises the judgment of the ECHR in the case of Lambert v. France.

It is worth pausing to note the significant improvement in this Bill. Under the 1985 legislation, the tribunal could consider a complaint from me only if my telephone was the subject of an interception warrant. Under this Bill, the tribunal will also consider a complaint from me if I have telephoned someone whose phone is the subject of a warrant. We believe that this is a significant extra protection for civil liberty which should not go unremarked, particularly in the light of some of the comments made in the past few weeks.

For those whose phones have been intercepted and who are unaware of it, where the procedures were not applied properly the interception commissioner will report these instances to the Prime Minister and will discuss them in his published report. These are the

19 Jun 2000 : Column 81

reasons why we do not believe that the amendment is required. There is a further reason why, even if we were convinced of the need, we should not want to accept it--it is not a million miles away from what the noble Viscount, Lord Astor, said a few minutes ago.

The nature of investigations is such that we can simply not be sure that there is any time, even significantly after the event, at which it will be safe to inform people that they have been the subject of surveillance. We appreciate that the amendment has a proviso and makes an exception where it is not in the public interest to do so. But when will that time come?

We are particularly concerned to minimise the opportunity for educating criminals and terrorists as to the capability of law enforcement and security agencies. If we begin routinely, or even exceptionally, informing subjects of interception after a period of time, undoubtedly we shall systematically add to the public knowledge of the modes and methods of communication that it is possible to intercept. The same argument lies behind Clause 16, to which delights we must turn after the debate on the Unstarred Question. We must protect the extremely valuable intelligence that arises from interception. We have all heard the results in terms of drugs seized. We must be very cautious about any proposal that risks undermining the effectiveness of this tool. We believe that this amendment runs that risk, and we invite the noble Lord to consider his response.

 

Lord Phillips of Sudbury: I am grateful for the Minister's reply. I inform Members of the Committee, if they are not already aware of it, that, as I understand it, in both Germany and the United States there is a notification procedure akin to this proposal. I am also informed that, as to the utility of the tribunal, under the Interception of Communications Act 1985 about 600 complaints have been made. Of that number only eight were investigated because in only those cases was a warrant in force and thus was it possible for the tribunal to act. I do not accept the Minister's argument that the provisions relating to the tribunal adequately address the evil that this amendment seeks to eradicate. Rather than talk in terms of "evil" and "eradication", the powerful effect of this Bill will be enhanced by a provision of this kind. However, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14, as amended, agreed to.

 

Baroness Farrington of Ribbleton: I beg to move that the House be resumed. In moving this Motion I suggest that the Committee stage on the Bill begin again not before 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

19 Jun 2000 : Column 82

Regulation of Investigatory Powers Bill

House again in Committee.

Clause 15 [Extra safeguards in the case of certificated warrants]:

 

Lord Phillips of Sudbury moved Amendment No. 63A:


    Page 17, line 17, at end insert (", and

     


( ) is identifiable as an external communication").

The noble Lord said: On this occasion, my leader, the noble Lord, Lord McNally, has wisely disappeared into the bushes leaving me to attempt to explain what is intended by the innocent-looking Amendment No. 63A. I say "attempt" because I make no claim of being master of my brief or of the ramifications of this extraordinarily complicated measure.

Like many noble Lords, I am extremely grateful for the help given by the Foundation for Information and Policy Research in general and in particular on this clause. Mr Caspar Bowden deserves special mention in despatches. However, at this moment I am bound to say that I wonder whether the messenger is up to the task of delivering the purport. The purport is important.

It will help me and, I believe, Members of the Committee if I explain the background to Amendment No. 63A. As I understand it, the Bill provides a series of checks and balances for the citizen and companies against attempts by the state to extract information from them according to the particular needs set out in the Bill.

Perhaps we can consider initially the fact that Clause 8(3) of the Bill allows the first breach of what might be called a basic principle of this measure; namely, that access to confidential information is only allowed on a specific basis where the person or premises are named. That is a fair and basic protection against lazy or malign attempts to get at more than the particular information sought.

Clause 8(3), however, allows a breach of that general principle insofar as the Secretary of State can certificate a warrant which will then mean that it will be puissant in respect of external communications on a trawl basis, or, as some Members of the Committee might prefer, a 12-bore basis rather than a 303, a general rather than a specific intervention into stores of confidential information.

The next exception--a higher level of exception--is the double certification allowed under the provisions of Clause 15(3)(a). That allows not only the trawl of external communications permitted by a certificated warrant under Clause 8(3), but also a trawl of internal communications. It is plain that that goes as far as one

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might in intervening in the affairs of citizens because the underlying thesis of the Bill is that the powers of intervention should only be available with regard to external communications and not internal communications.

I need to add that a confusion, certainly in the minds of those of us on these Benches and it may persist in the minds of many others, is thrown into this already complicated mix by the provisions of Clause 5(6)(a) of the Bill, which allows an interception warrant to be taken to include,


As far as we can tell--it will be important for the Minister to clarify this--the provisions of Clause 5(6)(a) allow an interception warrant to be targeted at internal communications as well as external. Clause 8(4) is the only place in the Bill which refers to external and/or internal. So at this stage perhaps I should say that part of the purpose of the amendment is to attempt to draw out from the Government what the combined provisions of this Bill allow and provide for.

One of the main points is to know whether the combined provisions of Clauses 5, 8 and 15 will allow a mixed pool of random internal and external data to be trawled by those who claim to have the necessary warrants or double warrants. Perhaps I can enlarge on that. The meaning of the word "external" is not clear. Again, we will be grateful if the Minister can indicate clearly whether a communication such as an e-mail sent inside the UK to a recipient who is also inside the UK--Birmingham to Manchester--is considered to be an internal warrant despite the fact that the constituent datagrams (or packages of information) may have travelled by way of Honolulu or New York. That is an important question because it is extremely common, I am told, for many domestic Internet communications to be relayed via whichever countries may be concerned because of the connectivity of the Internet, which is a function of commercial alliances as well as the technical infrastructure.

A packet-switched network such as the Internet breaks up its communications into small datagrams--we have had cause to deal with this before--which are autonomously and automatically routed to their destination through an unpredictable sequence of switches. The Bill appears to carry into its body the certificated warrant mechanism of the Interception of Communications Act 1985 to a large degree and, as I say, appears ostensibly, subject to the certification and double certification, to be limited to interception and invasion of external communications.

It is important to appreciate that with any of the collection mechanisms envisaged by the Smith report, which the Minister referred to before the break, for obtaining intercepts directly from Internet service providers (ISPs), it would be very difficult and perhaps impossible to pre-filter or differentiate external from internal communications. Since that distinction is one of the fundamentals of this measure, it is an important point.

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That concern is compounded by the fact that, under the Bill, interception warrants are addressed to the agency and not to the telephone company as under the IOC. Furthermore, it is not so far clear whether it is legally necessary to serve a warrant on the Internet service provider if the interception can be achieved entirely covertly. That refers to the wonderful black box which is under remote control. It may be helpful to see one; seeing is believing.

The extra safeguards, which are added by Clause 15 to Clause 14, are intended to ensure that this extraordinarily powerful technique of what is called "super-computer trawling" through communications is not used to circumvent the necessity of an ordinary targeted warrant for persons who are within the British Isles. The idea of the safeguard is that the material cannot be accessed unless it has first been identified by a computer match as falling within the matters described in the certificate.

The situation is complicated--I am sorry that this is a somewhat lengthy introduction to this amendment, but I hope it will be helpful for the amendments with which it is grouped--by the present practice of issuing overlapping warrants. The 1985 IOC Act does not permit key word trawling--that is to say, putting in a word like "Semtex" or "Hezbollah"--through communications acquired under a certificated warrant, which is supposed to be limited to external communications with some exceptions such as anti-terrorist purposes.

The first report of the Interception of Communications Commissioner, the noble and learned Lord, Lord Lloyd, who happily is in his place, published in 1987, stated that,


Moreover, even if that overlapping warrant is issued, it is not clear how that would make lawful the practice of searching through the raw material for references to, for example, an address in the United Kingdom other than for counter-terrorism. A normal (non-certificated) warrant allows for the interception of all material pertaining to an address, but it does not make lawful trawling indiscriminately through material in ways that are prohibited. Ostensibly, therefore, the new Clause 15(3) certificate should only grant access to external material. That is mentioned in Clause 8(4). But are overlapping warrants under the IOC to be used to gain access to a trawl of the full range of both external and internal material under current practice?

We have to wonder, given the likely collection mechanism of black boxes stationed at Internet service providers, and given, too, the difficulties of distinguishing external Internet communications from internal, whether the intention here is for the new Clause 15 override certificate to authorise trawling through a mixed pool of raw internal and external

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communications derived from these packet-stream captures at the ISPs. The danger is that that procedure could in practice become a routine way of performing mass surveillance--the trawling of contents indiscriminately--on the full spectrum of domestic Internet communications.

I conclude by posing some specific questions, and this may be more helpful than my preamble. The first is: what is the purpose of Clause 15(3)? What is its extent and scope? Secondly, how does it interlock with Clause 8(3)? Thirdly, how do each of those, and when taken together, interlock with Clause 5(6)? Fourthly, are the informal overlapping warrant arrangements to continue?

Will it be lawful to trawl through a mixed pool of internal and external communications collected under a certificated warrant--Clause 8(3)? Would the existence of an overlapping warrant allow the lawful examination of internal communications thrown up by such a trawl? Finally, would it be lawful--and is it intended--to serve certificated warrants on internet service providers?

I hope, therefore, that the purpose of this amendment is relatively clear. It is to ensure that material intercepted under a Clause 8(3) certificated warrant, which is supposed to be limited to external communications with some leeway under Clause 5(6) permitting the unavoidable collection of extraneous material, is filtered so that the material that is looked at, read, or listened to is actually limited to external communications. I apologise again for the length of my speech in moving this amendment. I have done my level best as regards its complexity. I must now leave the Minister to respond as best he can. I beg to move.

9 p.m.

 

 

The Earl of Northesk: Amendment No. 67A, which is tabled in my name, forms part of this grouping. I am almost embarrassed to mention it following the contribution that the noble Lord, Lord Phillips, has just made. I shall be brief. This is merely a drafting amendment. I cannot see that the word "also" in this context adds anything to the sense of subsection (4). Therefore, it seems sensible to delete it.

Lord Cope of Berkeley: I believe that the noble Lord, Lord Phillips, did an excellent job in trying to unravel the complexity of this clause. Like the noble Lord, I greatly benefited from the advice of Mr Caspar Bowden and the FIPR in trying to understand it. I do not want to add to what the noble Lord said, except to say a few words on the question of packet switching, which is relevant to what is an internal and an external communication and the difficulties involved. This became clear to me when I realised that a lot of Internet messages, particularly the longer ones, are not the equivalent of a message written on a piece of paper and sent in an envelope; they are much more like a message written on a blank jig-saw puzzle, which is then broken up into many pieces and sent through different envelopes.

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One when bears in mind the fact that there are literally 100 million jig-saw puzzles circulating in different packets, each with a piece or two in one envelope and the other pieces spread around other envelopes, one begins to understand the complexities involved. Some of the pieces of the jig-saw when going, say, from Manchester to Birmingham--or perhaps the other way round--may well go overseas and come back again, while others may not. In order to look at a single message, you have to collect an enormous number of jig-saw pieces and do most of the jig-saws before you get a whole one. That is the nub of the difficulty that we are discussing here.

It seems to be the Government's intention--and, indeed, everyone else's--that external communications should be treated differently from internal communications, and should be easily accessed by the equivalent of certificated warrants. But, given that background, it becomes extremely difficult to decide what is internal and what is external. It would be most helpful if the Minister could explain to us, as asked, how the Government see the difference between internal and external in these circumstances. Perhaps he can also tell us exactly what the limits of a certificated warrant will be under these new circumstances as opposed to the earlier ones in which we are interested.

I refer briefly to the amendments tabled in my name which all refer to the same general point. Amendments Nos. 64 and 66 are an attempt to probe the meaning of the word "referable". With a little imagination, you can see that something may be referred to more or less anything else. Although "association" is not necessarily a better word for what is meant, I should like to know what is meant by the word "referable" and whether anyone thinks that "association" is better.

Amendment No. 65 deals with the procedure for the override certificate to be issued. Again, this is a probing amendment. Can the Minister say how the commissioner will know whether override certificates are in force? Will he be notified on every occasion? There is a danger that people inside the United Kingdom with internal traffic could be subjected to trawling in the way outlined by the noble Lord, Lord Phillips. Subsections (4) and (5), which are the targets of Amendment No. 67, create temporary exceptional procedures that allow for changed circumstances and inexact information. There is a good deal of inexact information at any given point in these matters. Again, this is an attempt to draw out an explanation of the circumstances.

We should also like to know whether the incidental effect of these two subsections is to constitute a mechanism by which the normal controls, which we are led to believe from other parts of the Bill will be applied, could be circumvented. It is all incredibly complicated. I, for one, do not stand here in an attempt to suggest that the words proposed are infinitely better than those in the Bill. We are probing here for reasons and are trying to ensure that the controls and the

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safeguards that we all want to see--indeed, we do not differ on this--will remain adequate, given the extreme complexity of what we are trying to achieve.

 

Lord Hylton: I should like to say a few words about the distinction that has been drawn between external and internal communications. It seems to me that "internal" does not necessarily have to mean domestic to the United Kingdom. It could, for example, mean internal to the affairs of a large multinational company which might have offices throughout the globe. I hope that that suggestion will be borne in mind by the Government when they reply.

 

Lord Bassam of Brighton: The debate has focused on definitions. In essence, these are a series of useful probing amendments. If I do not cover all the points that have been raised, I undertake to write to noble Lords to explain further the Government's thinking. However, I believe that I shall be able to respond to many of the points that have been raised during the debate on these important amendments.

I shall discuss first Amendment No. 63A and the matter of identifying an external communication. It is worth pointing out that the concept is defined in Clause 19, which states,


It is precisely that point that subsection (2) of Clause 15 seeks to reflect when it stipulates that interception is permitted only where its purpose is to identify material which was not sent by, or intended for, an individual known to be in the British Islands and is not selected by reference to such an individual. To the extent that material does not fall within this subsection, it must not be read, looked at or listened to.

Two exceptions to this rule are given in the clause. First, subsection (4)(a) provides a defence where a person treats the communication as external in the reasonable belief that an individual is outside the British Islands and that the material has not been selected for the purpose of identifying material containing communications sent by, or intended for, him. Secondly, subsection (5) provides that under a written authorisation from a senior official, communications referable to an individual who has entered the British Islands, or concerning whose whereabouts the person carrying out the interception was mistaken, may also be intercepted under the authority of a warrant in relation to which there is a Clause 8(3) certificate until the end of the first working day after the day on which such a situation became apparent.

I turn to Amendments Nos. 64 and 66. The noble Lord, Lord Cope, said that these were probing amendments. They substitute the phrase "associated with" for the current phrase used in the Bill "referable to". The noble Lord may consider that his phraseology is more restrictive. However, I believe it is the opposite. We consider that the term "referable" limits far more than "associated with". We make reference to factors "that are referable" to a specific individual. But factors that are "associated with" an individual can just as

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easily be associated with many other individuals or things. I doubt that the noble Lord is any more of a linguist than I, but I hope that he will accept my assurance over the terminology we have used and will withdraw Amendments Nos. 64 and 66.

The effect of accepting Amendment No. 65 would be to remove the whole of subsection (3) of this clause. Subsection (3) allows for limited exceptions to be made to the restrictions set out in subsection (2). For example, the Secretary of State may have certified that it is necessary to target a particular communication for one of the authorised purposes (national security, serious crime or economic well-being).

I believe that the noble Lord is concerned that the communications of a UK citizen can be read by means of an 8(3) warrant rather than an 8(1) warrant. But subsection (3) clearly states that if this is to be the case the Secretary of State must certify the 8(3) warrant. This means that, just as with all 8(1) warrants, he personally must authorise the interception of a communication for one of the authorised purposes (national security, serious crime and the economic well-being of the UK). The Secretary of State will also have the same considerations in mind when doing so.

Subsections (4) and (5) allow for two further exceptions to the restrictions as set out in subsection (2). This is where the person to whom the warrant is addressed believes on reasonable grounds that the material examined is not referable to an individual in the British Isles, and also if there has been a change of circumstances, such as a person entering the British Islands, in which case a senior official may authorise the continued selection of that person's communications for a brief period. By means of Amendment No. 67 the noble Lord wishes to see these provisions removed completely from the Bill.

I understand the noble Lord's concerns but I believe that they are misplaced. Successive IOCA commissioners have declared themselves satisfied that 8(3) warrants are used in accordance with both the letter and the spirit of the law. It can happen that an individual's communications are being selected for examination while he is abroad, for one of the purposes set out in Clauses 5(3)(a) to (c). For example, the individual may be involved in terrorism. If he unexpectedly comes to the UK, it will be vital to maintain continuity of interception. It is not practically possible for a Secretary of State to consider the case and issue an overlapping warrant at once. The power in Clause 15(5) provides the necessary cover, strictly limited to a single working day.

I can assure the noble Lord that there is a real and genuine oversight of the external warranting regime. The interception commissioner is charged with overseeing the issue of all warrants and certificates and the arrangements that are put in place to meet the requirements of Clauses 14 and 15.

Successive IOCA commissioners have visited intercepting agencies and examined their procedures in detail. They have also expressed their satisfaction

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with them. For example, in 1987 the noble Lord, Lord Lloyd, who is in his place this evening, specifically said about external warrants,


    "from enquiries I have made I am satisfied that the greatest pains are taken to ensure that interception of communications does not go beyond what is necessary in order to intercept communications covered by the warrants".

I add that he went on to say that all the certificates satisfied the relevant criteria, with one arguable exception which was at once put right.

With regard to Amendment No. 67A, the noble Earl, Lord Northesk, advised your Lordships' House that he was trying to help us by tidying up the drafting of subsection (4)--we are always grateful to the noble Earl for his help--which is in line with subsection (3). While, of course, I am always open to helpful suggestions from noble Lords opposite, I believe that in this case the wording is probably best left as it stands for the sake of clarity.

Subsection (2) sets out the conditions. Subsection (3) states that there are additional factors which may bring a case within subsection (2). Subsection (4) states that there are further additional factors which may have the same effect. The fact is that subsection (4) is further to subsection (3), which requires the addition of the word "also". Otherwise, the words risk implying that the tests in both subsections (3) and (4) must be applied in combination.

The noble Lord, Lord Phillips, made two specific points which to my mind were questions. At one stage he asked if a warrant could be treated as external merely because it was routed outside the British Islands. I have read the definition of "external communication". Clause 19 defines an external communication as one,


That does not mean that a communication sent and received inside the British Islands may be deemed to be external simply because it takes an international route. It must be sent or received at a point outside the British Islands. I hope that that clarifies that issue, which seemed to be of particular concern.

The noble Lord, Lord Phillips, also asked whether a black box could be used covertly. The imposition of a intercept capability on a service provider does not mean that a black box can be used covertly by the intercepting agency. If the provider's capability is to be used for an interception, this will always be achieved by the individual warrant being served on the provider. I hope that that clarifies the other point that the noble Lord raised.

Having heard this somewhat lengthy explanation, I trust that the noble Lords whose amendments make up this group will feel that they need not press those amendments.

Lord Lucas: As a point of interest, listening to the Minister's explanation, why not just phrase a Clause

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8(1) warrant to include, in the terms of Clause 72, everybody in the world, in which case we would not need Clause 8(3)?

 

Lord Bassam of Brighton: I suspect that the answer to that is that it would probably be a rather wide way of achieving the objective. My suspicion is that there would probably be considerable objections to the breadth of that.

 

Lord Lucas: From whom?

 

Lord Phillips of Sudbury: I am grateful to the Minister for his reply. He has very kindly offered to provide a written response to the questions that I raised. I entirely accept that that is an appropriate way of dealing with it and I very much look forward to receiving those replies, which will, of course, be shared with other members of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 64 to 67A not moved.]

On Question, Whether Clause 15 shall stand part of the Bill?

 

Lord Lucas: I thought this matter was to be debated. Hence my slowness in rising to my feet. I should point out again that this clause is not subject to any oversight. There are no provisions for oversight of the Secretary of State's actions under Clause 15 by any of the commissioners involved in the Bill. I should very much like to know why.

 

Lord Cope of Berkeley: My noble friend asks a shrewd question. I thought from the way that the Minister was speaking that there had been a certain amount of oversight of these matters in the past--in fact, it was clear that there has been. It seems highly desirable that, as in other parts of the Bill, this matter should be subject to oversight in the future. We have already discovered how complicated and difficult is this matter; oversight is essential.

 

Lord Bassam of Brighton: I congratulate the noble Lord, Lord Lucas, on raising a point that we should fairly consider. I shall take it away, reflect on it and come back to it on Report. I shall perhaps take the opportunity before then to write to the noble Lord with some further thoughts.

Clause 15 agreed to.

Clause 16 [Exclusion of matters from legal proceedings]:

 

The Earl of Northesk moved Amendment No. 67B:


    Page 18, line 45, at end insert--

     


("( ) For the purposes of this section, section 2(3) applies.").

The noble Earl said: Whether or not intentional, a persistent theme of the Bill is that, at its most charitable, there is a difference of interpretation between its critics and the Government on how wide its scope is. This ranges from issues such as the definition

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of communications data to, as we have seen today, the vast sums of money involved in terms of regulatory compliance with its provisions.

In the context of Clause 16, this gives rise to a number of problems. In particular, I return to the packet-switching nature of the Internet. In the event that the communications data of a law-abiding individual were to be inadvertently or erroneously intercepted as a function of a legitimate but too widely executed intercept, it is unreasonable to suppose that that individual should be denied any form of legal redress. I may have misread the Bill entirely but, to my mind, it is not simply a matter of whether the intercepted data could be inappropriately used; the mere fact that one's data have been the subject of the interception regime is sufficient unto itself to cause significant harm. The potential here for damage to reputation is enormous and, in the vast majority of cases, the individual would be left with the unenviable difficulty of having to prove a negative--namely, that, despite the existence of the intercept, he had done nothing wrong. Much the same point applies to businesses involved in e-commerce.

Accordingly, I should be grateful if the Minister could explain how the Government perceive that the Bill is structured to address this problem. I beg to move.

 

Lord Bach: Amendment No. 67B seeks to ensure that for the purposes of Clause 16 references to an "intercepted communication" do not include references to any communication which has been broadcast for general reception. However, we believe that the wording of Clause 2(3) already achieves this. It states that its application extends across the whole Bill when it begins with the words, "References in this Act".

Although the phrase "intercepted communication" has a free-standing meaning in Clause 16(4), I am advised that all the matters listed in Clause 16(2) refer back, directly or indirectly, to the phrase "interception of a communication" in Clause 2. Hence the phrase "intercepted communication" does not include references to the interception of any communication broadcast for general reception, and the noble Earl's intention is achieved.

 

The Earl of Northesk: I am grateful to the Minister for that reply; I shall of course study it. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

 

On Question, Whether Clause 16 shall stand part of the Bill?

 

Lord Lloyd of Berwick: I should like to apologise for having missed the debate on Second Reading. I wished to give a warm welcome to the Bill in general terms. It brings together for the first time all the various provisions relating to interception of communications, intrusive surveillance and so forth, currently spread

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over three separate Acts. The only point of detail I wish to make is on Clause 16. As my views on Clause 16 are very well known to the Home Office--I explained them at great length in chapter 7 of my report on terrorism--nothing that I shall say will take the Minister by surprise.

Clause 16 replaces the old and--I think I can call it--notorious Section 9 of the Interception of Communications Act 1985. It was notorious because the drafting was so oblique that it took three, perhaps even four, decisions of the House of Lords before the meaning was made clear. Clause 16, which replaces Section 9, is in comparison relatively clear, although it needs to be read several times before its meaning springs to the eye. The purpose is exactly the same in both cases; namely, to prohibit the disclosure of the contents of an interception in proceedings in a court of law. That means that the intercept can be used to catch the criminal, but the intercept cannot be used to convict the criminal.

I confess that I have never understood the logic of that--and I have been involved in matters concerning the interception of communications for, I am sorry to say, 15 or more years. Perhaps I may take a case where the police or the Security Service are hot on the trail of a terrorist gang or international conspiracy for the importation of a hard drug such as heroin. The authorities will apply for a warrant under the old Section 9 for the interception of one or more telephone lines. Under the new Bill, the warrant will specify the person whose communications are to be intercepted rather than the telephone line. That is a great improvement upon the old Act. I am afraid to say that under the old legislation, for one reason or another the authorities quite often got the wrong line. It is hoped that, under this procedure, they will at least get the correct name. As I said, that is definitely an improvement.

Having secured their warrant, let us say that the interception proves successful. The officer overhears a conversation in which a proposed importation of drugs is discussed and those who are to take part in it are named. If we suppose that the importation cannot be prevented, in due course it takes place but, happily, the importers are arrested. They are then put up for trial.

Obviously, the tape recording used in the interception would be highly relevant and cogent evidence to convict those who had been arrested. In law, all relevant evidence is prima facie admissible evidence. Given that, why should the tape recording of such a telephone conversation, which would secure the conviction of the drug importers, not be used in court? It simply does not make sense.

Unlike the noble Viscount who was in the Chamber earlier, I cannot pretend to be--as he put it--as far from being a lawyer as any human being could possibly be. But I hope that does not deprive me of having at least a measure of common sense. I cannot see the sense in allowing that evidence to be used to catch criminals and then saying, "Oh no, we can catch them, but we cannot use the evidence to convict them".

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I think I can anticipate the Minister's reply. Before I come to that, perhaps I may make two brief points. The first is that evidence of telephone communications of that kind is admissible in court in every country in the world as I am aware. The countries I visited during my inquiry into terrorism--France, Germany, the United States and Canada--regard such evidence as indispensable. They were astonished to hear that we do not use it in this country.

Secondly, let us suppose that, instead of applying for a telephone intercept under Part I of the Bill, the police decide to go for an authorisation under Part II to enable them to place some intrusive device, a bug, in some convenient spot, perhaps even in the very telephone from which the telephone conversation is made. Let us suppose that, as a result, there is a tape-recording of the same conversation as might have been recorded by the telephone intercept. The tape-recording obtained by means of a bug is admissible in evidence. At once that poses the question: why should the tape-recording be admissible when it is obtained by means of a bug and not admissible when it has been obtained by a telephone intercept? It simply does not make sense.

That that is intended to be the position is clear from the fact that in Part II of the Bill there is nothing that corresponds to Clause 16 in Part I. Again, I ask the question: why should the evidence be admissible in the one case but not in the other? It cannot have anything to do with the Human Rights Act--in case that is the suggestion. There is no difference from a human rights point of view whether the bug is placed in the terrorist's room or whether the terrorist has his telephone conversation intercepted. Indeed, if I were a terrorist, I should be more concerned at the thought of the police or the Security Service intruding in my home than I should be if they listened to my telephone conversations. I hope that, in due course, the Minister will be able to explain why there is this difference between Part I and Part II of the Bill.

There is a more general point that I should mention which leads to absurdities in practice. A case has recently been before the courts involving a conspiracy to import cocaine from Holland. There are two alleged conspirators, to whom I must refer as "A" and "B". A is a Dutch national, and he has already been convicted in Holland--in accordance with Dutch law, on the strength of an intercepted telephone conversation between A and B. For some of the telephone conversations, A was in Holland and B was in the United Kingdom, but some of the telephone conversations took place when A and B were both in the United Kingdom. Use of the taped evidence became possible only because the Dutch interception system enabled them to intercept A's mobile phone in England which he used to have a conversation with his fellow conspirator here. That comes quite near the point as to the difference between external and internal communications to which the noble Lord, Lord Phillips, referred a moment or two ago.

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The question has now arisen in England whether those same tapes should be admissible in criminal proceedings brought against B. The judge before whom this matter came said that if the tapes were not put before the jury it would,


Those were his very strong words. He held that the tapes should be admitted in the circumstances despite any argument against it based on the Human Rights Act or Section 9 of the old Act.

That decision was upheld in the Court of Appeal and very recently in your Lordships' House. Perhaps I may read the short Question which the Law Lords were asked to answer:


The Law Lords have said that it is admissible and will give their reasons later.

The position now is that if a telephone conversation takes place in England, evidence of that telephone conversation will be admissible in court if the interception takes place in Holland but not if the interception takes place in England. I suggest that that is not only absurd but unjust. Justice is as much concerned with the conviction of criminals as with the protection of human rights.

I now come to the reasons that the Minister will give. He will say that the police and Customs services have always been opposed to the repeal of Section 9. I shall be very surprised if the noble Lord says that the Security Service is opposed to the repeal, because I know for a fact that it is not. The reason given by the police for wanting to continue with Section 9 is their fear that if criminals realise for the first time that their conversations may be tape-recorded, they will cease to use the telephone for hatching their plans. I regard that objection as utterly unrealistic.

Terrorists and international drug dealers are not simple souls who have never heard of telephone tapping; they are hardened, sophisticated, professional criminals who know every bit as much about telephone tapping as anybody in this Committee--probably a great deal more. I suggest that the notion that they will give up using the telephone to hatch their schemes because evidence of what they say in a telephone conversation will be admitted in a court of law is fanciful. They must communicate with each other in some way. As I said in my report, they cannot communicate by pigeon post and have no alternative but to use the telephone. They will continue to use the telephone. If the police believe otherwise, they are, with all respect, wrong.

We have here a valuable source of evidence to convict criminals. It is especially valuable for convicting terrorist offenders because in cases involving terrorist crime it is very difficult to get any other evidence which can be adduced in court, for reasons with which we are all familiar. We know who

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the terrorists are, but we exclude the only evidence which has any chance of getting them convicted; and we are the only country in the world to do so.

I know that there are other difficulties to which the Minister may refer. There is said to be a difficulty in relation to the disclosure of what is called unused material. But with good will and a measure of ingenuity I do not doubt that those difficulties could be overcome.

I do not expect the Government at this stage to agree with a point that I have been putting forward fairly consistently, I hope, for many years. I oppose the Question that this clause stand part of the Bill because people should know that so long as Clause 16 remains on the statute book we shall be fighting organised crime with one arm tied behind our backs. It is the terrorists and the international drug dealers who will have the loudest laugh.

Lord Cope of Berkeley: I am not a lawyer but I do not think that the noble and learned Lord can have any idea how nice it was to hear him say that he had to read a clause of this character several times before the meaning became clear. We ordinary mortals know exactly what he meant.

As we all know, the noble and learned Lord has been a judge for a good many years but he has clearly retained his skill as an advocate. I found his argument compelling. When I was involved in Northern Ireland, or when later I had responsibility for Customs and Excise, I do not recall this question being raised in this form or so clearly. However, perhaps I was exposed only to the other side of the case--talking to policemen, customs officers and those who look after them. Today we have heard an extremely powerful argument against Clause 16.

Ever since I was involved in Northern Ireland, one of the most frustrating aspects is the argument constantly put forward by people who say, "We know who the terrorists are but we cannot convict them". There is a series of different reasons for that but this clause may also be part of the reason. Anything which enables us to mitigate the problem of knowing who the terrorists are but being unable to convict them would be a great help. There is a serious case to answer. I look forward to the Minister's response.

9.45 p.m.

 

 

Lord Bach: I thank the noble and learned Lord, Lord Lloyd of Berwick, for his warm welcome to the Bill. His support for the general principles behind the Bill and the way in which it is drafted, with the rather stark exception of Clause 16, is of considerable comfort to the Government. His support is very much welcomed. I also concede that the arguments he puts forward in relation to whether an intercept product should be admissible as evidence--if I may do so without undue flattery--are extremely well argued and persuasive.

It is an issue with which, as the noble and learned Lord says, he has lived for many years, as has the Home Office. The basic question is this. Should an

19 Jun 2000 : Column 111

intercept product be admissible as evidence in court? As the noble and learned Lord said, this type of evidence is not admissible at present because of the Interception of Communications Act 1985. As the noble and learned Lord knows, the question has been addressed many times in recent years. His own distinguished report into anti-terrorism legislation recommended a relaxation of the existing prohibition on the use of this material in evidence. In part as a result of that recommendation, and in part as a result of the genuinely difficult issues which are involved here, my right honourable friend the Home Secretary held a seminar last year at which the future of this existing section of the Interception of Communications Act was the sole item on the agenda. A range of views was expressed and I am told that the balance came down in favour of retaining the existing provision, but I am not quite sure what that phrase means. However, I can say with more clarity that that was the case as regards those who commented on the White Paper, which resulted in the Bill, last summer.

Subject to certain exceptions set out in Clause 17, this clause excludes evidence, questioning or assertion in legal proceedings likely to reveal the existence or absence of a warrant. Clauses 16 and 17 cover more ground than does the original position and are in response to some of the questions that have arisen over the years as to the applicability of Section 9 in certain cases.

What are the arguments against the noble and learned Lord's proposition? Why not use the product of interception warrants evidentially? First, the current prohibition on the use of evidence has worked well since the Act came into force. The existing regime has stood the test of time and offers valuable protection to privacy, which an evidential regime would not.

Secondly--perhaps this is the main argument--in a fast-moving communications industry, it is vital that the existing capability is protected. Exposure of interception capabilities would or might educate criminals and terrorists who might then use greater counter-inception measures than they presently do. We believe that it is vital that the existing capability is protected and that the exposure of interception capabilities, which would result, as night follows day, from a repeal of the prohibition, would educate criminals and terrorists. They would certainly use greater counter-interception measures than they presently do and the value of interception as an investigative tool--it is a valuable investigative tool, particularly against the most serious criminals and terrorists--would be seriously damaged.

For those reasons, we are not convinced that a change to an evidential regime would involve a rise in criminal convictions in any more than the short term. Criminals and terrorists would become "wise" to it. The Government have considered the subject many times and have carried out a number of specific studies, including most recently research into the experience of seven other countries in operating an evidential regime. We are the first to admit that the

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issue is finely balanced. The decision to retain a version of Section 9 is supported by the majority of respondents--which is hardly a convincing argument in itself--to the consultation paper. It has helped us decide that we are right in believing that the prohibition should be maintained.

We do not believe that we are in danger by taking this attitude as regards Article l6 of the ECHR. No successful challenge has ever been launched and the prohibition was endorsed by the Strasbourg Court in its judgment on 16th February this year in the case of Jasper v. United Kingdom. We do not believe that the change would involve a rise in the number of criminal convictions in the long term.

The arguments for the repeal were made most persuasively tonight by the noble and learned Lord. I shall try to deal with one or two of the issues that he raised. So far as concerns the argument for educating criminals, of course everyone knows that telephones can be intercepted, but they do not always know the exact capability, how quickly interception warrants can be sought, which networks are capable of interception and so on. We attempt to keep a step ahead by not revealing that capability.

The noble and learned Lord drew the contrast between evidence from a bug and that from a phone tap. It is arguable that different considerations exist. Phone taps rely on third parties--Post Office staff, for example--and use more sophisticated techniques. Bugs are employed and placed by law enforcement security agencies, and their capacity is relatively well known, unlike some of the details of interception capability. However, it would be an abuse of the Part II powers, referred to by the noble and learned Lord, to plant a bug on a telephone simply in order to avoid the non-evidential rule in Part I. That is already made clear in the code of practice under the Police Act 1997.

I repeat that this issue is finely balanced and of considerable importance. The case could not be put better than it was by the noble and learned Lord. For our part, we are persuaded that our course is the better one. In spite of the disadvantages which clearly lie in not allowing interception evidence to be given, we believe that strong arguments exist on the other side.

I turn to the matter of other European countries. The noble and learned Lord made the point that other countries allow intercept evidence. In fact, he believes that that is the case in every other country, and I am certainly not in a position to argue with him. We do not believe that a direct comparison is possible. In countries which allow intercept material to be used, the interception warrant is generally ordered by the investigating judge. In this country, obviously criminal investigations are not supervised by judges but by law enforcement agencies. We are concerned that it would be difficult, if not impossible, to devise a system that would ensure equality of arms between prosecution and defence which is both practicable and affordable. We believe that the present system does that; in other words, neither the prosecution in the vast majority of cases nor the defence knows of the existence of the interception that may have taken place.

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I have attempted to explain fairly briefly why we believe that the course that no doubt successive governments have taken on this particular issue is the right one with which to continue. However, it would be ridiculous for me to say that this is not still a live issue and one to which we shall return at various times.

 

Lord Lucas: Perhaps I may ask the Minister a few questions. First, can he clarify what is the position when an intercepted communication provides evidence for the defence? Let us suppose that someone was facing a murder charge and a communication had been intercepted which gave strong evidence that the murder had been committed by someone else. Under those circumstances, would the communication be admissible or inadmissible?

Secondly, I turn to the matter of overseas territories. I believe that we should pay close attention when every other country comes to a different decision from that taken by the UK. That should make us pause and examine closely the arguments that we are adducing, particularly when we are talking about an essentially international matter; that is, the length to which substantial criminals go to protect their communications. These days, with mobile phones that work in any country and people travelling internationally, particularly in the drugs trade, it would be extraordinary for criminals suddenly to become more relaxed when they enter the UK. If they carry out business all over Europe and, indeed, throughout most of the world, they will take a set of precautions which protect them in 99 per cent of the world. It is ridiculous to assume that they will suddenly become more relaxed when they get into the UK. Can the Minister adduce any evidence that in foreign jurisdictions the interception of communications has become more difficult, that we do better than others or that when others have passed laws allowing the interception of such communications, the value of it has gone down? I do not believe that any such evidence exists.

The Minister has mentioned the balance of responses to consultation many times. Are those responses available to us? Are they in the Library or available for inspection somewhere else? The noble and learned Lord, Lord Lloyd of Berwick, has made a powerful argument. We should give the Government time to answer his points in more detail, perhaps by letter, but, on the supposition that the Government are not going to move before Report, we should give the other place an opportunity to take a decision on this.

Lord Bach: I shall not attempt to answer the majority of the questions put by the noble Lord, Lord Lucas, but I shall say something about the innocent man charged with murder. We shall come to debate Clause 17 in a moment. It is clear that the prosecutor, in his capacity as a minister of justice in any criminal trial, should, in the circumstances outlined by the noble Lord, be told by the police or the prosecuting authorities of the existence of an intercept if it clearly showed that the accused could not be guilty of the crime with which he was charged. Under the system

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that has worked until now, it would then be the duty of the prosecutor to make sure that the defendant was no longer put at risk of being convicted of a murder that he did not commit. To deal with the problem that the noble Lord mentions, even under this strict system, prosecutors, and in some circumstances judges, are told of the existence of intercepts.

The noble Lord asked whether such evidence would be admissible for the defence. Of course it would not. On the face of it, it would not be admissible for either side to use, but in those circumstances, it would be the professional duty of the prosecutor to make sure that the case did not proceed. That system arises from the case of R v. Preston. It is crucial that the material is examined to ensure that the case is prosecuted fairly.

 

Lord Nolan: It is not so much an interest as a fact that I have until recently held the position first occupied by my noble and learned friend Lord Lloyd as commissioner under the 1985 Act. I am still retained in an advisory capacity until the end of July, while my successor, Lord Justice Thomas, gets himself run in, so to speak.

One of the many merits of the Bill is that Clause 14(4)(d) makes the position of the prosecutor statutorily clear. Regardless of the general prohibition on the disclosure of intercept material, he should and will be told of anything favourable to the defence. He must then make sure that the defendant is not in any way prejudiced, but on the contrary benefits from intercept material in his favour. I am happy to confirm and applaud that.

10 p.m.

 

 

Lord Cope of Berkeley: I do not feel any necessity to change my opinion that there is a very strong case to answer here. The noble Lord, Lord Bach, said that the issue is finely balanced. That is to put it mildly.

The noble Lord made a point about the exposure of interception methods and the necessity to protect them. I understand that very well. But I cannot see the difference that he tried to draw between a bug in a room and a telephone tap in that respect. It seems to me that the capacity to tap a phone is, from the criminal's point of view, extremely easy to understand. Something said into a telephone can be recorded and listened to by the police or whoever it is who is chasing him.

On the other hand, bugs have become exceptionally complicated. Their technical capacity is constantly being refined. We hear about that from time to time. The capacity argument relates to bugs rather than the telephone, the tapping of which is extremely simple. So that argument does not work.

I understand that criminals now tend to use pre-paid mobile telephones instead of fixed lines. That is a technical advance from their point of view because such telephones are slightly more difficult to tap. But it does not seem to me that it would make them any more inclined to think that, from their point of view, the telephone was a safer instrument than it was before.

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I was also extremely interested in the case which the noble and learned Lord, Lord Lloyd, mentioned about A and B--the Dutchman and the United Kingdom subject. I should like to know whether the seminar to which the noble Lord, Lord Bach, referred was conducted before or after the result of that case from the Appellate Committee of the House of Lords became known, because that is extremely relevant.

 

Lord Lloyd of Berwick: I can answer that question because I was at that seminar. I expressed much the same view that I have expressed this evening. The decision of the House of Lords was given literally last week or a fortnight ago.

 

Lord Cope of Berkeley: In that case, the seminar's conclusions need to be looked at again. After all, the British police and authorities will be extremely tempted to gain the co-operation of the Dutch police in intercepting mobile calls here. If it can be done that way and then it is possible to use that in evidence, that would be extremely valuable and a novel technique to be used.

But then there is the question of the balance between the prosecution and defence and the clear illustration which my noble friend Lord Lucas advanced; that is, the person charged with murder about whom a telephone intercept revealed that he had a perfect alibi, was innocent or somebody else did it. The defence put up to that was that the prosecution should be told of the intercept if the accused was quite clearly innocent. Then the charge would be withdrawn.

 

Lord Bach: The noble and learned Lord, Lord Nolan, answered that point and dealt with it clearly. He referred the Committee back to a clause to which I should have referred; namely, Clause 14(4)(d). That states that,


    "it is necessary to ensure that a person conducting a criminal prosecution has the information he needs to determine what is required of him by his duty to secure the fairness of the prosecution".

That paragraph is the answer to the query of the noble Lord, Lord Lucas. In other words, if the prosecutor is doing his duty, then, under the present system, there is no danger of the massive injustice in the example given by the noble Lord, Lord Lucas, being done.

 

Lord Cope of Berkeley: I looked at Clause 14(4)(d), especially when the noble and learned Lord, Lord Nolan, drew our attention to it. The clause states that it is for the prosecuting barrister to decide the matter. It seems to me that in some cases no doubt the interception will, to use the phrase used by the Minister in his earlier reply, make quite clear that the individual was innocent. That is fair enough. The prosecution is then withdrawn.

Let us suppose, however, that it does not make it quite clear but makes it a possibility. Is it then for the prosecuting barrister to decide how the matter lies? Apparently it is. It is not for the court, the jury or

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anybody else to decide. It is for the prosecution to decide whether or not the case should be withdrawn as a result. As far as I can see, the defence does not get a look in. The defence is not allowed to suggest that the case is withdrawn. The prosecution has to behave as a jury and make the decision. That does not seem to be satisfactory, either. I believe there is still a case to answer as regards Clause 16 stands part.

 

Lord Lloyd of Berwick: I thank the Minister for his full reply. I thank the noble Lords, Lord Cope and Lord Lucas, for the concern which they have shown about this clause.

The Minister says that the clause has worked well in the past. However, I am left with the thought that there may have been many convictions over the past however many years which could have been obtained if Clause 9 had not been part of the 1985 Act. I much look forward to the code of practice which, as I understood the Minister, will say that where a telephone intercept warrant can be obtained it will be bad practice to use a bug. It will be interesting to know how that will work in practice.

 

Lord Cope of Berkeley: It seems that the Minister is not going to respond to the point I made about the prosecution or the defence making the case.

 

Lord Lloyd of Berwick: I hope that he does.

 

Lord Cope of Berkeley: If he does not, I wonder whether the noble and learned Lord will guide us on the matter?

 

Lord Lloyd of Berwick: No, I would much sooner the Minister did.

 

Lord Bach: I would much sooner the noble and learned Lord did! The principle is clear. That is why, under our system, the prosecutor has the dual role of prosecuting the case and of being a kind of minister of justice. His job is to ensure that the prosecution is carried out fairly. The expression used in Clause 14 is "fairness". It is not an absolute certainty, for example, that the accused is not guilty. If, in the interests of fairness, it is important to get over the fact that there may be evidence that suggests the accused is guilty, it would be his duty as a prosecutor to ensure that that was known.

Indeed, the prosecutor would have the right to refer the matter to the trial judge under Clause 17(6), to which we are coming. Intercepts are a unique invention and it is important that the way in which they work is not too widely known. That is why, in cases of this kind, the prosecutor would be the person who should be told that there was an intercept, that such intercept made it clear that the accused might or might not be guilty, and that it was in the interests of fairness that that information is passed on. The question of the prosecutor being the minister of justice arises in many other instances where the prosecution has other information, unused material, which is not necessarily available to the defence. Sometimes that is

19 Jun 2000 : Column 117

for good reason, but it is still his duty to ensure that the accused faces a fair trial. The prosecutor cannot just be equated on all terms with a defence advocate. There is a difference in job.

 

Lord Lucas: It still seems to be an odd corner of the world. If the evidence just "tends" to show that a person may be innocent, the prosecutor is told. That is fine. But there is no provision under Clause 17(6) for the prosecutor to tell the judge. He can disclose it to the judge only if the judge orders it. How the judge knows about it is beyond me. But even if the judge finds out, he cannot tell the defence; and if the defence knew, they could not adduce it in evidence. So how on earth does one get this information before the jury to help the members of the jury to make up their mind?

Lord Bach: The prosecutor does not bring it before the jury; he drops the case. It is considered neither wise nor sensible for the evidence of intercept to be more widely known than necessary, for obvious reasons which have been discussed during the course of this Committee. The prosecutor drops the case.

 

Lord Lloyd of Berwick: I entirely support what the Minister says. It has happened, I am afraid, quite frequently that cases have been stopped simply because the prosecution decides that it cannot fairly go on without disclosing the intercept, which it cannot do.

 

Lord Lucas: That reinforces the number of convictions that have not been obtained because of this strange quirk of the 1985 Act.

 

Lord Cope of Berkeley: But even if Clause 16 were dropped completely and even if it vanished from this Bill, it would still be open to the prosecution, the police, the Customs or whichever other element of authority was involved, not to proceed because they did not want to disclose certain evidence and the way it was obtained; they wanted to preserve their methods. That is done in cases where the evidence is perfectly admissible, but it is decided not to advance it for perfectly proper reasons, which I entirely support. Taking Clause 16 out of the Bill will not mean that the authorities automatically have to go on with the case in spite of other public interest considerations which they need to protect. I believe that they could even then drop the case.

Clause 16 agreed to.

Clause 17 [Exceptions to section 16]:

 

Lord McNally moved Amendment No. 68:


    Page 19, line 2, at end insert--

     


("( ) any proceedings for a criminal offence subject to the provisions of the Criminal Procedure and Investigations Act 1996;").

The noble Lord said: It is becoming almost customary in this Committee to start speeches by either declaring that one is a lawyer or saying that one is not. I am not a lawyer. I do not know whether that is a badge of honour or a stain on my escutcheon; but it is a fact. I note also with some trepidation that the

19 Jun 2000 : Column 118

noble Lord, Lord Mackay of Ardbrecknish, has joined us. It may be recalled that in the last Committee he arrived at this time, feisty and full of vim.

I am not a lawyer, but I listened carefully to the last debate. We have made the point on a number of occasions that this Bill has been relatively friendless. I noticed that both the noble and learned Lords, Lord Lloyd and Lord Nolan, felt that the Bill had many merits. When such sources find merit, we are bound to take notice. So we move on with the still declared attempt of trying to improve this Bill.

I shall be brief. The two amendments take the point that Clause 17 lists the exceptions to Clause 16. They are merely probing amendments to understand why the Government set out those exceptions. In the briefing that we received from Justice, it was interesting to note that it believes that,


That is an interesting opinion from an interesting source.

I have one further point to make which partly overlaps from the other debate. We discussed earlier the possibility of making this legislation "future proof", as much as we can. I understand that digital signature technology will allow the authorship or provenance of an electronic communication to be verified with a degree of assurance comparable to a hand-written signature. So it is possible that intercepts of digital information of this kind may carry a weight which was not the case under older technologies.

Clauses 16 and 17 are opposite sides of the same penny. It was clear from the previous debate that this is something we shall have to consider most carefully. It is yet another reason why this Committee stage is so important. In some ways, the Government have been pressed to go further than they were inclined to do in toughening up the measure to go after the evil-doers. My amendments would clarify and justify the exceptions made under Clause 16. I beg to move.

 

Lord Bach: I am grateful to the noble Lord, Lord McNally, for pointing out that we have received support from two noble and learned Lords for the Bill. However, the noble Lord is too shy. He is a supporter of the Bill; indeed, he made that very clear in his Second Reading speech. I should hate him to forget that in the excitement of the media publicity that we have seen over the past few days. I could even read out the paragraph of his speech that ended with the words:


    "That is our basic welcome for the Bill".--[Official Report, 25/5/00; col. 890.]

The noble Lord was quite right.

I shall deal, first, with the two Liberal Democrat amendments, if I may so call them. Amendment No. 68 would effectively wreck Clauses 16 and 17 and enable intercept material to be adduced in evidence in almost all criminal prosecutions. So the debate on that is the one that we had on Clause 16 stand part a short

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while ago. Amendment No. 70 would remove the provisions allowing a judge in certain circumstances to be told about the material gathered by interception.

However, there are also two government amendments in this group; namely, Amendments Nos. 69 and 227. These deal with some of the exceptions to the prohibition in Clause 16 and enable the intercept material to be considered by the court in cases before the Proscribed Organisations Appeal Commission, the Special Immigration Appeals Commission and in any proceedings arising out of proceedings before those commissions. In order to ensure in these special circumstances that the commission is able in each case to consider any intercept material that may be relevant, the rules governing the procedure have been devised in such a way as to ensure that sensitive material is protected.

Paragraphs (a) and (b) of government Amendment No. 69 reflect that aim and ensure that intercept material is not disclosed to the appellant himself, or to anyone who represents him. However, there is provision for a special advocate to represent the interests of the appellant in any parts of a hearing from which he is excluded. The procedure for the Special Immigration Appeals Commission is set out in the Special Immigration Appeals Commission (Procedure) Rules of 1998. The Proscribed Organisations Appeal Commission is provided for under the Terrorism Bill, which is currently before Parliament. The government amendments deal with that issue.

Amendment No. 70, in the name of the noble Lord, Lord McNally, covers two areas. I shall deal first with the proposed deletion of subsection (5) of Clause 17. This subsection states that if a person has been convicted of an interception related offence, the interception which led to the conviction falls outside the statutory prohibition on disclosure. If a person had committed an unlawful interception, had been tried and convicted, Clause 17(5) makes it possible for the conviction to be disclosed subsequently as a previous conviction--subject, of course, to the normal rules on previous convictions being disclosed--and for a person to bring civil proceedings in the ordinary courts based on the interception.

The second part of Amendment No. 70 would delete the provisions relating to disclosure of intercept product to a judge. The Interception of Communications Act was silent on the point and this has led to the law being interpreted in a variety of ways. The case of Preston introduced the duty upon the prosecutor to satisfy himself that there is nothing in any surviving intercept material which would either assist the defence case or undermine the prosecution case. That duty remains under this Bill, and these provisions are not designed to make the judge have to review the prosecutor's decision.

However, there are exceptional circumstances in which the judge will need to know the fact that interception took place in order to make sure that the trial proceeds fairly. For example, the evidence before the court might lead the defence and the jury to take a particular view of a certain fact. That view might, in

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the light of intercepted material, be misleading and wrong. These provisions allow the judge to see intercept material to the extent necessary to guard against that kind of mistake.

Where something arises from the intercept material that the judge believes essential in the interests of justice to introduce into the proceedings, subsection (8) allows him to order that an admission is made. This does not undermine the prohibition on disclosing intercept material. The admission is limited by subsection (9) which makes this quite clear. Such an admission would not show the existence of intercept material; the information could have come from another source of intelligence, such as an informant. However, it might be essential in the interests of justice. We argue that the subsections which Amendment No. 70 seeks to delete constitute an additional safeguard to a defendant in a case such as I have mentioned. I therefore ask the noble Lord to consider withdrawing the amendment.

 

Lord McNally: On the broader general point that the Minister made, it is the intention of these Benches to give broad support to the Bill, as we have proved in the Lobbies. However, as we have progressed through the Bill, we have noticed some key points that need careful study. I fully accept the constructive way in which the Minister is progressing through the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 69:


    Page 19, line 8, at end insert ("or any proceedings arising out of proceedings before that Commission; or

     


(f) any proceedings before the Proscribed Organisations Appeal Commission or any proceedings arising out of proceedings before that Commission.
( ) Subsection (1) shall not, by virtue of paragraph (e) or (f), authorise the disclosure of anything--
(a) in the case of any proceedings falling within paragraph (e), to--
(i) the appellant to the Special Immigration Appeals Commission; or
(ii) any person who for the purposes of any proceedings so falling (but otherwise than by virtue of an appointment under section 6 of the Special Immigration Appeals Commission Act 1997) represents that appellant;
or
(b) in the case of proceedings falling within paragraph (f), to--
(i) the applicant to the Proscribed Organisations Appeal Commission;
(ii) the organisation concerned (if different);
(iii) any person designated under paragraph 6 of Schedule 3 to the Terrorism Act 2000 to conduct proceedings so falling on behalf of that organisation; or
(iv) any person who for the purposes of any proceedings so falling (but otherwise than by virtue of an appointment under paragraph 7 of that Schedule) represents that applicant or that organisation.")

On Question, amendment agreed to.

[Amendment No. 70 not moved.]

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Clause 17, as amended, agreed to.

Clause 18 [Offence for unauthorised disclosures]:

 

Lord McNally moved Amendment No. 71:


    Page 21, line 15, leave out ("another") and insert ("any person").

     

The noble Lord said: In moving Amendment No. 71 I wish to speak also to the amendments with which it is grouped. The amendments deal with a particular kind of whistle blower. The person required to keep a secret under this Bill will almost certainly be a law enforcement officer, a telecommunications operator or some such person within the system, as it were. The measure seeks to provide a defence for disclosure of malpractice. Making the disclosure of information a criminal offence is rare and justifiable only in particular circumstances.

It is accepted that the revelation of information about telephone taps could have a damaging result and therefore be justified in general. The essential nature of covert telephone tapping is secrecy. Unfortunately, secrecy can all too easily be a cloak for malpractice and abuse. The amendment is therefore intended to ensure that those within the system who are conscious that the system itself is being used for malpractice and abuse can be protected. It is a probing amendment. I beg to move.

 

Lord Bassam of Brighton: I shall address Amendments Nos. 71, 72 and 73, which are grouped together. It would at first appear that the intention of the amendments is unclear. Having heard what the noble Lord has said, however, I now understand that they are probing amendments which seek to clarify the wording of subsection (4) and to put beyond doubt that the requirement imposed by the subsection to keep things secret from certain people should apply only with regard to those people. In our view, the current wording of the Bill already achieves this, by authorising disclosure in subsection (9) to other people.

As I understand the noble Lord's intention, Amendment No. 73 would effectively insert a "whistleblower's provision", enabling a person who believed that it would be in the public interest to disclose information in a way which Clause 18 would otherwise prevent.

Clause 18 exists to ensure that the interception regime in this country continues to produce high quality information and that the public interest is not harmed by the unwarranted disclosure of extremely sensitive information. A defence is provided in subsection (9) to ensure that individuals served with a warrant can, where it is authorised by the terms of the warrant, consult within their organisation about how best to comply with it, and that any person who is concerned about the legality of a warrant, or anything done in connection with it, at least shall have a route through which to air their concern. We are confident that the subsection (9) defence meets both of these aims.

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As my right honourable friend the Home Secretary plainly stated in another place, the Government very much welcome the fact that the interception commissioner is someone of high judicial standing. Previous commissioners' reports clearly demonstrate the professional thoroughness and seriousness with which commissioners have approached their task. I have no reason to doubt that they would listen to the concerns of staff in the agencies, or elsewhere, with equal seriousness. Subsection (9) not only allows disclosures to be made to the commissioner, but also for them to be authorised by him. In drafting this provision, we had specifically in mind the need for the staff of that commissioner to be able to go to the police with information about alleged malpractice.

With regard to Amendments Nos. 71 and 72, I am advised that Clause 18 permits all those who have a "need to know" to have access to the information that they require. Experts in the computer industry have professed themselves happy with the defence that subsection (9) provides in this case.

With regard to Amendment No. 73, I hope that the Committee will be reassured by the provision that the subsection makes for disclosures to be made to and by the interception commissioner.

I hope that the noble Lord, having listened to those points, will feel able to withdraw his amendment.

 

Lord McNally: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 72 and 73 not moved.]

Clause 18 agreed to.

Clause 19 agreed to.

Clause 20 [Lawful acquisition and disclosure of communications data]:

[Amendment No. 74 not moved.]

10.30 p.m.

 

 

Lord Cope of Berkeley moved Amendment No. 74A:


    Page 22, line 38, at beginning insert--

     


("Subject to subsection (2A),").

The noble Lord said: Amendment No. 75A refers to subsection (2A), which is the nub of this matter. With this clause we have moved on to the issue of "communications data". We shall come to the question of exactly what the phrase means--it is not clear at the moment--but that will be the subject of a future debate.

The question that the amendments are intended to raise arises from the existence of the so-called "black boxes". The question is whether black boxes could in future be programmed so as to obtain communications data directly for the police, the security services, or whoever, without the knowledge of the Internet service provider. At the moment, the Government have not said whether it is their intention that it should be possible that communications data

19 Jun 2000 : Column 123

can be obtained in this way. They have not clarified--and, so far as I can see, the Bill does not clarify--whether it would be unlawful for that to happen.

However, the Home Secretary said that the Government Technical Assistance Centre would not be used to access communications data. That was stated in a letter to the Financial Times a few days ago as a part of his counter-attack against the pressure that there has been on the Bill as a whole. That makes us think that amendments like these are necessary to make it unlawful to obtain communications data except by proper means--and that is all that the amendments seek to do. I hope that they fulfil the desire that the Home Secretary expressed in his letter to the Financial Times. I beg to move.

 

Lord Bassam of Brighton: In responding to Amendment No. 74A, I shall speak also to Amendments Nos. 74B and 75A.

As I understand them, the effect of Amendment Nos. 74A and 75A would be to make the Bill the only way in which communications data may be obtained. Amendment No. 74B seeks to restrict the purposes for which conduct authorised by an authorisation or notice under this Bill would be lawful.

It is perhaps appropriate that I should take some time and go through issues relating to communications data. The first question we should consider is what are "communications data". In simple terms, they are data associated with the processes of delivering a communication from A to B, but the expression does not include any of the content of the communication itself. In the telecoms world, the phrase "communications data" covers such things as subscriber details, itemised billing on the internet site and addressing information. But, where a person's visit to a website becomes a transaction with that website, this information is far more analogous to a telephone conversation and is therefore "content of communications".

But why does anyone need to access these data? Communications data provide lifestyle information, which is a vital starting point in any investigation. They can provide a lot of information which could be gathered otherwise only by physical surveillance--although I would argue that being followed around by a surveillance team is probably a good deal more intrusive than a person examining my telephone bill or my Internet activities. So, while I fully accept that accessing communications data is clearly an intrusive activity which should be properly regulated, it is important to remember that we are not talking about the content of the communications.

The difference between accessing communications data and interception can be equated to the difference between directed surveillance and intrusive surveillance. Although communications data have been accessed for many years under a variety of statutes, this is the first time that the Government have sought to place these arrangements on a clear and specific statutory basis.

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The effect of this part of the Bill will be to provide far greater accountability, oversight and safeguards--something we all wish to see--for accessing this type of data than has previously been the case. Furthermore, it will be done in a manner that will work in an operational context.

For the most part, communications data are currently provided for under the Data Protection Act 1998. Although these are voluntary arrangements and the holder of the data is under no statutory duty to provide them, in practice they invariably do so. But although it is the requesting agency--for instance, the police--which is in possession of the facts of the case, any liability for improper supply rests with the data holder. No statutory levels for authorisation are in place, nor is there any statutory consideration of necessity and proportionality. Furthermore, no effective oversight of the process is provided. The existing framework works as well as it does only because of the work that has been put into codes of practice and the development of good working practices by the communications industry and the law enforcement agencies--although I should stress that none of these arrangements has any statutory basis either.

It is beyond doubt that personal data is a growth business. Much of our debate has covered that obvious point. It is possible to buy off-the-shelf databases which provide all kinds of personal information, including communications data. Personal information is available to any member of the general public who chooses to buy such a product. No doubt noble Lords often receive--as I do--personalised but unrequested mail offering everything from loans to double glazing to new visa cards. These companies hold personal data on us all for the purpose of selling to us. The Bill seeks to provide a statutory means by which those charged with investigating people who circumvent the law may access this valuable source of information.

The number of requests made currently for communications data is far greater than the number for interception warrants, but that is not altogether surprising. A great deal more petty crime than serious crime is committed in this country; far more police officers are employed in the investigation of relatively petty crime than of serious crime. It is because communications data are so useful that so many requests are made each year. I am sure the noble Lords will wish to be reassured that this information is being used proportionately and where necessary.

I can advise the Committee that during the first three months of this year, 96.8 per cent of all the communications data requested by HM Customs & Excise has been for subscriber details, which is the most basic level of check. Some 2.9 per cent of the remainder has been for itemised billing inquiries; the remaining 0.3 per cent has been for other services, none of which is more intrusive than those carried out by a surveillance team. That equates to a total of 18,940 requests, which is clearly far more than could easily be accommodated by judicial authorisation. It is important to record that point.

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We must ask ourselves whether all these requests are necessary. This is a matter which the Bill will address by requiring that no authorising officer shall authorise a notice unless obtaining the communications data is both necessary and proportionate. At present the Data Protection Act safeguards are essentially rather lax; they have been tightened only by means of voluntary co-operation between the telecommunications industry and the law enforcement agencies. But currently there is no independent oversight, which is perhaps a weakness in the structure. The Bill places oversight of the use of this power under the remit of the interception commissioner. We plan that an audit team from the commissioner's office will undertake periodic inspections of each body to ensure that the power is being used responsibly. The team will inspect records, checking the details to ensure the necessity and proportionality of what is required.

I have explained that the information which can be obtained through communications data is certainly no more intrusive, and is indeed generally less intrusive, than directed surveillance; that is, surveillance in a public place which gives information about lifestyle, contacts and movements. This is normal, day-to-day policing activity and is authorised within the police force at an appropriate and senior level. We currently consider that the rank of superintendent is the right level for this type of authorisation. We also think that that is the appropriate level for accessing communications data. From the point of view of assessing levels of intrusion, we believe that internal authorisation is right.

We must also consider the numbers of notices that are likely to be served under these provisions. They are far higher than the number of interception warrants, because communications data is used for far more purposes than interception of communications or other highly intrusive techniques. Judicial authorisation for this would not only be inappropriate; it would also place unacceptable strains on the court service.

I now turn to Amendments Nos. 74A and 75A and to the more precise detail. While it is right that the Bill will provide a much better statutory framework for accessing communications data than the arrangements that currently exist, there are circumstances in which access to material may not be possible under the Bill, yet the person requiring the data may have a quite legitimate claim. For instance, communications data is sometimes required by defendants in criminal proceedings when they feel that it would assist their case. They obtain the data under a judicially authorised production order. That is the route that international requests normally follow. So while the vast majority of communications data will be supplied under these arrangements, there will be some exceptions for which the Bill does not cater.

There will also be cases where communications data, like any other document or piece of information, can be obtained compulsorily by bodies with their own compulsory powers. However, it may reassure the noble Lord to know that, since the arrangements under the Data Protection Act are voluntary, holders

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of communications data will be quite within their rights to refuse to supply under the Data Protection Act and to insist that the strict controls imposed by the Bill are, instead, adhered to. They would, of course, still be obliged to supply communications data in response to a judicially authorised production order.

We touched earlier on the phrasing that Amendment No. 74B would seek to remove. But through the act of accessing communications data, the person accessing it may be committing other offences or torts, in particular under the Human Rights Act. The words "for all purposes" ensure that he has a defence.

I apologise for the length of that explanation, but it may be for the benefit of the Committee. I trust that, having heard my remarks, the noble Lord will consider withdrawing his amendment.

Lord Cope of Berkeley: That was an extremely interesting introduction to the question of communications data, which will obviously take up the next few minutes in terms of definitions, etc.

I am afraid that my attention may have lapsed. I did not hear whether the Minister said that, in future, data would be obtainable without the knowledge of the ISP. The purpose of Amendments Nos. 74A and 75A is to try to make it unlawful to obtain data without the ISP knowing. Will the black boxes be able to obtain such communications data without the knowledge of the ISP? We shall come to the other points raised by the Minister in due course.

 

Lord Bassam of Brighton: I think I have an answer to the question. It is not intended that a service provider's intercept capability will be used covertly by intercepting agencies. That is true for communications data, as for communications themselves. The intercept capability will only be called upon by requests in particular cases. I hope that answers the point raised by the noble Lord.

 

Lord Cope of Berkeley: It certainly answers the point with regard to the Government's intention in the matter, but it does not quite answer the point as to whether it would be lawful under the wording in the Bill. I shall not press the point at this time. I beg leave to withdraw the amendment.

[Amendments Nos. 74B to 75A not moved.]

10.45 p.m.

 

 

Lord Lucas moved Amendment No. 76:


    Page 23, line 8, leave out subsection (4).

     

The noble Lord said: This amendment is intended purely to give the Committee an opportunity to debate the meaning of "communications data". I listened with interest to the observations of the Minister in relation to the previous group of amendments. I believe that he did himself an injustice. The term "communications data" is wider than the noble Lord implied--certainly wider than anything to which we are accustomed in relation to telephone tapping. One's telephone bill provides information about the numbers called and at

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what times. That provides a fairly limited range of information. As soon as one uses a mobile phone one is communicating information about where one is at a particular time. Outgoing messages contain information as to where one is located. If one is in a city that can be fairly precise information. One begins to be able to follow a person's movements.

Presumably, communications data also comprise the kind of information that may pass between an ATM and its home computer and similar messages that give information as to when and where one's financial transactions have taken place. If one dials up one's answering machine the code to activate it will be part of one's communications data. We shall come to Amendment No. 83, but we agreed an amendment on those lines on the previous occasion. Therefore, one obtains access to data which robs someone's answering machine of the messages on it. That is an early example of the cracking of a code, but that is clearly communications data.

If one uses any remote communications system to turn on or off the burglar alarm, or to turn the heating up or down, in one's home, that is comprised within "communications data" under Amendment No. 83. Any other similar system that one uses to communicate with mechanisms, the codes that one uses to get them to do things and the effect that those codes have will become available to those who look at communications data.

The matter goes further than that when one considers the Internet. This matter was probably in the original Bill, but Amendment No. 83 and its cousin make clear that the identity of every single web page that is visited is known. It is as if under the heading "communications data" the Government are able to know about every shop that I have visited and every page of every book, magazine or article I have read. If I make a request to a search engine, in most formats that counts as communication data because it is a signal to actuate the search engine.

The noble Lord, Lord Bassam, implied that if I searched for and found an airlines booking agent, all of that would be open but that the buying of the ticket would not be. But part of the system that sells me the ticket, particularly if it is a dynamic one, is a series of web pages whose identity may well indicate the destination and time of flight. There is a lot of information in web page headers and dynamic systems, all of which comes under the heading "communications data". As we move to WAP phones and similar uses of mobile communications, all the information that one sends out, whether it be to make a restaurant booking or whatever, will be communications data. One uses WAP protocols in that way.

We present here a very complete picture of someone's life, particularly if he lives on the Internet or with mobile communications, which is a completely different scale of intrusion and knowledge from that which is comprehended by a general look at a person's telephone bill or knowledge about those to whom he posts letters. We must be clear that that is what the

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Government intend. There will be other opportunities as we go through this clause--Clause 20 stand part may provide at least one--to look at what protection should be provided having defined the situation.

Do the Government agree with my definition of "communications data"? Do they agree that it is a great deal more comprehensive than any previous provision? If so, we can proceed to further discussions on a common basis of understanding. I beg to move.

 

The Deputy Chairman of Committees (Lord Skelmersdale): If this amendment is agreed to, I cannot call Amendments Nos. 77 to 83 inclusive.

 

Lord Cope of Berkeley: It is difficult to discuss this amendment without also debating Amendment No. 77A and the others associated with it. If other noble Lords do not object, that might be one way to proceed. There seems a certain amount of agreement on that. Those amendments affect the detail.

My noble friend asked whether the Government agree with his definition of "communications data". It is difficult to envisage how the answer can be anything other than "yes". Amendment No. 77A draws attention to the words "or other data" at line 9. That makes clear that it is not just the address about which we are talking. It is other data "comprised in or attached to" a communication. That already widens the issue. So do the words "or attached to", the subject of Amendment No. 77B. All those words extend the definition of "communications data" away from pure identification.

The identification of a telephone--the number--is a fairly simple affair. But "communications data" on the Internet widen the issue a great deal, in particular, in relation to visits to websites, and so on. It becomes much more the lifestyle affair described by my noble friend Lord Lucas. We believe that it may be necessary to have greater controls over the extent of this intrusion than at present.

The analogy with telephones is not accurate. That aspect is only the beginning. This situation is more like going into someone's home. In talking about a magistrate's warrant, I stray on to a later amendment. But a magistrate's warrant is required for the police to enter someone's house. It is proper that from time to time they should obtain such a warrant, and indeed necessary from the point of view of catching criminals, and so on. No one says that such communications data, even widely drawn, should not be intercepted from time to time by the police and security services, but we need to understand how intrusive that is. We need to consider the safeguards in the light of how wide we draw the definition of "communications data".

 

The Earl of Northesk: The Committee seems now to be drawn into debate on Amendment No. 77A. Perhaps I may ask the Minister a simple question and make a few points.

If the intention is that the interception regime should have access to the same kind of information as at present by way of telephone logs and so on, would

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not that be facilitated by the phraseology "any address comprised in", and so on? The addition of "or other data" is unnecessary. On the other hand, if the intention is to widen the scope of data which can be intercepted--I can see no other reason for the inclusion of the phrase--it represents a considerable, potentially unwarranted, extension of interception powers. The Minister has categorically stated that that is not the purpose of the Bill. He said:


    "As I have said on a number of occasions, the Bill is designed to update legislation, primarily the Interception of Communications Act, in the light of new technology and legal and market developments, not to extend the powers, which would I think be harmful to the Bill".--[Official Report, 12/6/00; col. 1418.]

In passing, I simply say how much I agree with the sentiment of the noble Lord.

 

Viscount Goschen: I echo the sentiments expressed by my noble friends. As our communication technology evolves and we move further into the Internet age, the width of the definition of "communications data" becomes increasingly important.

The amendment tabled by my noble friend Lord Northesk, which removes the phrase "or other data", highlights how broad the exemption for communications data is as defined in subsection (4)(a). Does the Minister believe that, say, a password to an Internet site would be classed as being data attached to a communication, or whether it is a communication itself? Similarly, would a Word file attached to an e-mail be part of the communication? Every time the noble Lord uses his e-mail he sees the word "Attach" with a paperclip next to it. If I attach a letter as part of an e-mail, is that part of the communication? If I press the "Reply" button on my e-mail software and return an e-mail, is that attachment part of the communication?

We are entering new territory and I suggest that many elephant traps exist. It is important that we do not allow a greater back door than Parliament intends.

Lord McNally: I have two conflicting briefing notes and therefore I am again grateful to the noble Lord, Lord Lucas, for helping me through the maze. I received the first briefing from the Home Office. I do not know whether it came by accident or design, but it is in "pop paper" format.


    "Conspiracy theorists must not be allowed to get away with the ridiculous notion that law enforcement would or even could monitor all emails",

     

says John Abbott, Director General of the National Criminal Intelligence Service. It then makes it clear that the Bill treats interception of content and the provision of communications data quite separately, stating:


    "This is a crucial point, and one which is frequently overlooked".

I shall not trouble the Committee by going through all of it, but it has the tone of shrill indignation, "What, us guv?", which has been the hallmark of the Home Office's defence.

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Yet the Foundation for Information Policy Research in its briefing echoes what was said by the noble Lord, Lord Lucas, stating:

In many ways, that is another crunch part of the Bill and the Minister must read the comments which have appeared in national newspapers expressing concern. As the Bill is partly that pantomime horse to which I have referred--an old post and telecommunications Bill consolidation tacked onto an e-commerce Bill--we are in danger of allowing certain permissiveness without realising the speed and scope of the technology with which we are dealing.

For that reason, and because of the huffing and puffing by the Home Office in saying that that is not its intention, the Committee wants to tie it down and ask it to be more specific. I believe that the code of conduct which we were promised is an element in that wish. The sooner we see it, the better. I also believe that the Committee would be wrong to allow certain definitions to slip through without more clarification and detail regarding their implications.

11 p.m.

Lord Lucas: We seem to have been drawn into the next group, in which I am tributary to another amendment. Therefore, I had better take my comments a little further in asking what we should do with regard to this matter. In general, the Government have adduced some reasonably good reasons for wanting to extend the availability of communications data in the sense that they now define them in the Bill.

My argument is twofold. First, we should look carefully at that extension to see whether it is entirely justified. Amendment No. 83A, as complemented by Amendment No. 83, is an attempt to roll back slightly on the effects of the original drafting. Because Amendment No. 83 has been sold to us as a means of dealing with dial-through fraud, Amendment No. 83A states that communications data do not include the trail of someone's wandering through the world wide web. The question underlying that is: have we got it wrong? Are the Government saying that those are communications data, they wish them to be so, and they will stick at that? In that case, I believe that we need to consider a rather stronger regime of safeguards, closer to the warrant regime, for what is becoming closer to the kind of data obtainable under that regime than those which we are used to seeing under the old, looser, communications data regime.

I turn to another aspect which perhaps harks back to the discussion we had on the cousin to Amendment No. 83. At that time, I asked how great was the problem of dial-through fraud. We have been sold this amendment on the basis that dial-through fraud is a real problem. I asked for statistics in relation to the

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number of cases which occur each year and I believe that this is a good opportunity for the Government to provide that information.

Lord Bassam of Brighton: This has been a valuable, probing discussion. I am not sure that I can necessarily answer the questions raised by noble Lords. However, I believe that we may be able to go some way to helping with the difficulties that have been raised. I was intrigued by the questions as to what constitutes communications data. I understand the difficulty with that issue and I believe that the Government should try to improve the quality of the definition as it currently stands.

In our earlier discussion, I tried to outline how we saw communications data. However, I shall reflect further on the matter. We see the communications data definition as having three essential elements: first, it addresses information--that is, who a person is communicating with; secondly, it deals with usage of information--how long calls last, the time that the call was made, and so on; and, thirdly, it deals with any other information that may be held about a customer by a communication service provider. I believe that those are the three essential elements.

If we were to agree Amendment No. 76, all those elements would be removed. However, I know that that is not the noble Lord's intention. But we are insistent--a feeling which I believe is shared by us all--that we need to have an effective definition. Without it, we would probably be in breach of the European Convention on Human Rights. That convention demands clear legal limits on what kind of data can be obtained in this way. For that reason, we think that it is better to provide a definition of "communications data".

We have given a lot of thought to the issues raised by Amendments Nos. 76, 77A, 77B and 83B. It is becoming clear that the current definition is not adequate. We accept the points that have been made on that. It goes without saying that the current definition is raising severe concerns in the Internet world, because it could be interpreted far more widely than the Government intend. We are working on the issue with the help of the industry, for which we are very grateful. We think that we can come up with a solution.

We are taking representations into account. We have received more since the debate last week. Because of that and the perceived inadequacy of the definition, I should like to put it on the record that the Government's case is that "communications data" cover in what manner and by which method a person communicates with another person or machine, but do not cover what they do or say once the connection is established. That is an important element. It is necessary for communications data to be defined in such a way as to allow dial-through fraud properly to be investigated.

I do not have a new definition of "communications data" to offer today, but I hope that the Committee will understand that formulating a new definition is no

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simple task. I can reassure the Committee that my officials are in active dialogue with industry. I hope that we can table an improved amendment shortly.

I hope that, in view of those assurances, noble Lords will feel able to withdraw all their amendments, as we have effectively regrouped them in this debate. I am more than happy to try to bring back a more acceptable definition. We hope that the consultation that we have had with industry will improve the quality of that definition.

 

Lord Cope of Berkeley: That sounds most helpful. We shall have to wait and see how further consideration of the matter goes on.

It was not clear from what the Minister said whether websites that people consult and follow through--click streams, as they are sometimes known--are intended to be included in the new definition. We shall have to wait for Report stage to find out.

I, too, received the Home Office briefing to which the noble Lord, Lord McNally, referred, under the cover of a letter from the Home Secretary. It has obviously been widely distributed in an attempt to fend off some of the criticisms. It says firmly and in rather large type, so that we do not miss it:


That is a useful comment. As it comes from a Home Office document sent to me by the Home Secretary, we do not even need to get the Minister to repeat it, because I have placed it on the record.

 

Lord McNally: I suppose that we should be grateful that the Home Secretary is not writing his denials in green ink along the margins of his letters.

 

Lord Lucas: I am grateful for that enormously helpful reply from the Minister. I shall, of course, read what he said very carefully in Hansard, but my understanding is that we are back to what we all thought that "communications data" comprised. He expressed it clearly and if that is to be written into legislation, I am more than delighted.

I see that in the modern environment, where so much information is carried over the telephone--particularly, numbers that are punched into a handset--drawing a line at the fact that I have phoned such and such a company and then ignoring the further digits that I use to work my way through its internal telephone system, which I understand is where the line will now be drawn, makes it difficult to frame the wording necessary to deal with dial-through fraud.

I return to my earlier suggestion, still unsupported by evidence because only the Government have the evidence, that perhaps that fraud is at a level at which it may be conveniently dealt with through the warrant system. If there is not much of it, that would surely be the sensible way to deal with it. Otherwise there is the automated PBX problem and the problem of people's activation of answering machines and other devices in the home, all of which look exactly like someone using

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dial-through fraud. But they happen to be using the subsequent digits for different purposes. I leave that problem for the Minister in the confident belief that he will be able to solve it.

I am delighted to hear that the fact that I have dialled into, for example, Demon will be there but what I have done subsequently on the web will not. That is great progress. I look forward to receiving sight of the Minister's amendment sensibly before Report. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 77 to 81 not moved.]

The Chairman of Committees (Lord Boston of Faversham): I must point out to the Committee that if Amendment No. 81 is agreed to, I cannot call Amendment No. 82.

 

Lord Lucas moved Amendment No. 81:


    Page 23, line 20, leave out paragraph (c).

     

The noble Lord said: I sincerely hope that this amendment will not be agreed to. Its purpose is merely to elicit further detail from the Government as to what information they see as falling within this clause.

As far as I understand it, this is name and address information. But of course, by this time, dear old British Telecom has a great deal more information about me, about my usage patterns, my credit worthiness, my payment history and all sorts of matters which may provide quite a reasonable picture of what a decent citizen I have been and over what periods of my life, for example, I have suffered financial difficulty and become a bad payer and during which periods of my life I have paid telephone bills on receipt. That information goes beyond the intention of communications data as expressed by the Minister. I hope that when we see the revised definition, such information will be out. I beg to move.

 

Lord Bassam of Brighton: We have covered this matter already in our earlier discussions. The noble Lord has made a fair point. If the communications data did not fit into the first two categories, then it should not be made available at all. After all, information about the use will cover itemised billing and information relating to the provision of communication services covering subscriber checks and so on.

It is important to remember that those who break the law actively take measures to avoid detection; for example, where they are not required to leave subscriber details for a telephone or an Internet account, they will not do so. Where they can pay cash, they will do so rather than leaving payment details. So sometimes it comes down to any data which the communications service provider holds relating to that account being the vital piece of information which identifies the user of that particular service.

The provisions of the Bill would allow, where it was considered necessary and for one of the designated purposes, interception of a telephone to take place where the subscriber's real identity was unknown. Yet

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if this amendment were passed, it would restrict the ability of the law enforcement, security and intelligence agencies to find out who owned it. I am sure that that is not the noble Lord's intention.

I hope and believe that in clarifying the definition of "communications data" we can precisely address the noble Lord's concerns in seeking to strike out the third limb of the definition as it currently stands.

 

Lord Lucas: I am content to await developments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.15 p.m.

 

 

Lord McNally moved Amendment No. 82:


    Page 23, line 21, after ("service") insert ("and which serves to identify those persons").

     

The noble Lord said: Amendment No. 82 is a probing amendment which is covered within the context of the new definition. I beg to move.

 

Lord Bassam of Brighton: I confess that I am somewhat at a loss with this amendment.

 

Lord McNally: Perhaps it would be better to wait until we see the Minister's "comeback" on this. After that full and adequate reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 

The Earl of Northesk moved Amendment No. 82A:


    Page 23, line 22, at end insert--

     


("but shall not be taken to mean any information or data that cannot be logically associated with information falling within paragraphs (a), (b) and (c)").

The noble Earl said: Once again, the amendment is no doubt covered in terms of the recasting of the definition of "communications data". None the less, it would be helpful if the Minister could explain to the Committee how he believes the concept of logical association should be interpreted, even if it no longer appears in the Bill. More specifically, perhaps he could tell us whether the concept will be carried forward into the redraft of the definition. I simply ask those two questions for clarification. I beg to move.

 

Lord Bassam of Brighton: Perhaps I may refer the noble Earl to our earlier discussions and seek to clarify the points he raised when we come back with a renewed definition. I am sorry that I cannot be more helpful but that is probably the best way to proceed at this stage.

 

The Earl of Northesk : I am grateful for that and happy with it. No doubt we shall return to this at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Bassam of Brighton moved Amendment No. 83:


    Page 23, line 22, at end insert--

     


("( ) In subsection (4)(a) the reference to data comprised in or attached to a communication for the purposes of a telecommunication system by means of which it is being or may be transmitted includes a reference to any communication or part of a communication consisting of signals for the actuation of apparatus comprised in a telecommunication system by which they will be or may be received.").

On Question, amendment agreed to.

[Amendments Nos. 83A and 83B not moved.]

Clause 20, as amended, agreed to.

Clause 21 [Obtaining and disclosing communications data]:

 

Lord Cope of Berkeley moved Amendment No. 84:


    Page 23, line 32, leave out ("designated for the purposes of this Chapter") and insert ("specified in section 6(2)").

     

The noble Lord said: This amendment, too, has a slightly provisional quality in the light of what was said by the noble Lord on the rewriting of Clause 21. The amendment seeks to alter or at least probe the designated people who will be allowed to authorise the access to communications data. The Bill refers to,


Subsections (1) and (2) of Clause 24 explain who those people are; that is, officials of the police force, and so on. However, under Clause 24(2) the ranks concerned have to be prescribed by the Secretary of State by order. At present we are not clear on the question of rank.

The amendment suggests that we should draw on Clause 6(2), which we discussed earlier, which sets out those who can apply for interception warrants. Essentially, those are the director-general of the security service and the top man in each case. If there are the sort of changes in communications data at which the Minister was hinting, it may be right to come down from what is prescribed in Clause 6(2). It is all rather provisional at present until we are sure what comprise "communications data". Clearly, this could be extremely important lifestyle information and suitable seniority needs to be attached to it. However, precisely what that should be will depend on what "communications data" comprise. I beg to move.

 

Lord Bassam of Brighton: In addressing Amendment No. 84 I shall speak also to Amendments Nos. 98, 98A, 99 and 208.

Amendment No. 84 would restrict the agencies which may require communications data to just the intercepting agencies. Amendment No. 98 is a government amendment which will remove unnecessary wording from the Bill. It has no other effect. Amendment No. 98A is a government amendment which will make any order made under Clause 24(1)(f)--that is, public authorities--which may access communications data subject to the affirmative resolution procedure.

Amendment No. 84 would restrict the agencies which could apply for communications data. The main effect would be to channel the requests from all the

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police forces in England and Wales through NCIS. The reason why NCIS handles all the interception warrants on behalf of the England and Wales police forces is simply because each force makes only a small amount of use of interception and because recording centres are hugely expensive and require specialist staff (technical and linguists) to operate them.

Communications data is a completely different means of gathering intelligence. First, its use if far more widespread. While its use still needs to be carefully controlled, it is a tool which is used every day by each police force, meaning that every police force has a unit set up to process requests. The standards to which each of those units operates is laid down at a national level, backed up by a national training course.

The communications industry also has an input to that through the ACPO Telecoms group. The group holds regular meetings and has agreed a detailed framework of voluntary co-operation, which includes the standards which each party can expect of the other. Each police force has a single point of contact from where all requests for communications data must come, and the system has the confidence of the communications industry.

To pass all police communication data requirements through NCIS would create an extra level of bureaucracy, with NCIS being unable to add much value to any process since it would have no knowledge of each of the requests. It would also slow down urgent applications just because they would have to pass through another layer. And it would undermine all the work which has been done up until now by the ACPO Telecoms group.

The framework introduced in this Bill reinforces all the useful work which has already taken place and places it on a firm statutory footing. It removes the liability which suppliers of communications data had under the Data Protection Act and places it on the agency requiring the data instead. It provides a clear independent oversight mechanism which never existed previously. And people will be able to complain to the regulation of investigatory powers tribunal if they believe that their communications data has been accessed improperly. For those reasons the Bill will improve current arrangements.

As I explained earlier, Amendment No. 98 is a technical amendment designed to remove unnecessary wording. Section 8 of the Customs and Excise Management Act 1979 clearly explains the meaning of the term, "Commissioners of Customs and Excise", and there is no need to add the words, "and their department", as persons within the department are already covered by that section.

Amendment No. 98A will have the same effect as that tabled by the noble Lord, Lord Cope, to make subject to the affirmative resolution procedure any order which would add to the list of persons who may access communications data under the Bill. I trust that those explanations help. I am grateful to the noble Lord, Lord Cope, for his assistance in helping us frame a better form of wording to achieve the objective we set out. As I indicated earlier, the level at which these

19 Jun 2000 : Column 137

decisions are taken depends on the definition. However, the noble Lord has made a good point in suggesting that this particular amendment is rather too restrictive. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Lord Cope of Berkeley moved Amendment No. 85:


    Page 23, line 40, leave out paragraph (c).

     

The noble Lord said: We move on here from the people who can access communications data, or give permission to do so, to the purposes for which that can be done. Paragraph (c) in subsection (2) is directed towards,


    "the economic well-being of the United Kingdom".

There was a certain lack of precision as to precisely what that means when we discussed the matter earlier under Part I/Chapter I of the Bill.

Amendment No. 86 is also in this group. Its purpose is to restrict the provision in subsection (2)(f), which extends the collection of communications data to the purpose not only of,


This provision is extremely wide in term of collecting taxes, contributions or charges. The Government can use the power to collect their bills. Anyone who owes money to the Government under some charge or other could find his telephone communications data or his Internet communications data being tapped for that purpose. As I say, that is extremely wide and there is a catch-all at the end of subsection (2) in paragraph (h), to which Amendment No. 87 refers, which allows the Secretary of State to extend this purpose to absolutely any other purpose.

I am glad to say that that provision will at least be covered by an affirmative resolution in the future. I am grateful to the Minister for agreeing that an affirmative resolution is appropriate in such cases. The general point here is that these are extremely wide purposes, especially the catch-all provision at the end of the subsection. I beg to move.

 

Lord Bassam of Brighton: The amendments that are grouped together here relate to the recommendations of the Committee on Delegated Powers and Deregulation. What we have attempted to achieve here in the government amendments is the usual acknowledgement of the points made and to change the approach that we considered earlier to be right and proper.

One of the recommendations of the committee was that we should tighten up the arrangements for adding to the grounds on which the various investigative powers can be used. We have given this very careful consideration. As I indicated on Second Reading, we accept the weight of the argument. Therefore, I have tabled these amendments that ensure that, in respect of each of the powers at issue, any which are additional to the purposes for which those powers can be used will be subject to the affirmative resolution procedure.

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I have written to the noble Lord, Lord Alexander, in response to the preliminary letter from his committee. Noble Lords now have the benefit of the full report, which I may take some time to consider along with the 21st report, received at the end of last week. In my letter to the noble Lord, I explained briefly why we had not initially proposed the affirmative procedure in respect of this secondary legislation. The reasons that I outlined directly affect our initial response to the second part of the committee's recommendation. The committee recommended not only that these orders should be subject to the affirmative resolution procedure but also that the Bill should explicitly recognise that none of the orders could include purposes that would go beyond those permitted in the convention on human rights. We have now considered this, but we genuinely do not believe it to be necessary.

The powers in this Bill will be limited by the Human Rights Act as a matter of law, and not simply as a practical limitation. The Secretary of State may make no order that is incompatible with the convention. It is our considered view that to state on the face of the Bill that the convention rights must circumscribe any use of these orders will add nothing to the situation at law. This is an important point. It will be relevant to all legislation in the days after the implementation of the Human Rights Act. Whether we choose to place the requirements of the Human Rights Act on the face of the Bill may set a precedent for future similar legislation.

The 21st report of the committee released last week does not press for further restriction in respect of the purposes that can be added for the use of these powers. For those reasons I suggest that we should resist the opposition amendments. However, I am grateful to the committee for the important work it has done and for the way in which the noble Lord, Lord Cope, raised the issue. I invite the noble Lord to withdraw the amendment.

11.30 p.m.

 

 

Lord Cope of Berkeley: As I indicated, when we see the new definition it may be necessary to return to the matter. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 86 and 87 not moved.]

 

Lord McNally moved Amendment No. 88:


    Page 24, line 8, leave out subsection (3).

     

The noble Lord said: This is simply a probing amendment to discover what circumstances are envisaged for authorising certain conduct. We are a little concerned that the measure is close to self-authorisation. I beg to move.

 

Lord Bassam of Brighton: This is a useful probing amendment. As I understand it, the amendment would remove the ability of the agencies named in Clause 24 to authorise their own staff to collect communications data.

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I think I have already explained the scale and type of information which is obtained through access to communications data. We do not believe that it is any more intrusive, and perhaps even generally less intrusive, than directed surveillance, which might involve teams trailing someone. This surveillance gives up information about people's lifestyles, their contacts and their movements. This is normal, day-to-day policing activity. As I think I have said before, it is authorised within police forces at an appropriate senior level. We consider that superintendent, or equivalent for other investigating bodies, is the right level to authorise directed surveillance. We think that this is also an appropriate level in terms of accessing communications data. From an intrusion point of view, we think that we have the internal authorisation about right.

The interception commissioner, with his audit team, will oversee the operation of this system and, of course, will report annually to the Prime Minister. I am sure that that will greatly reassure the Committee. As I understand the position, this authorisation regime, coupled with the oversight described, is far tighter than under the current Data Protection Act. While recognising the legitimate desire further to tighten the regime, the noble Lord should recognise the provision as a considerable move in the right direction and one that takes account of practical considerations as much as anything else in authorising requests for communications data. I trust that with those comments and assurances the noble Lord will feel able to withdraw the amendment.

 

Lord McNally: As the Minister brought the Prime Minister into the matter I have no hesitation in withdrawing the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 

Lord Cope of Berkeley moved Amendment No. 88A:


    Page 24, line 11, at end insert--

     


("( ) The designated person has the appropriate permission if, and only if, written permission for the giving of the notice has been granted by a magistrate.").

The noble Lord said: This may not be an elegantly drafted amendment but I hope that its purpose is clear. It depends--as does the whole of this part of the Bill--on the definition of "communications data". If one assumes that that definition is the wide definition that it appeared to be until a few minutes ago, I believe that it is necessary to ensure that there are proper controls over access to communications data. It seemed to me that there was a similarity between accessing communications data and going into someone's house, as I briefly mentioned earlier. We know that a search warrant requires an application to a magistrate. This measure does not rule out search warrants. They are extremely important; they play a valuable part in the work of police forces; and they are frequently quite properly granted by magistrates. These warrants would no doubt be granted on a similar basis.

19 Jun 2000 : Column 140

The question is whether this oversight is required. Until we know the definition, one can only give a provisional answer to that. But it seemed to me worth considering and at least putting down a marker, to which we can return should the definition not prove to be quite as it has so far been explained to us. I beg to move.

 

Lord Bassam of Brighton: The amendment is essentially unnecessary, not least because we have had some useful debate about the definition of "communications data" and it now seems to be accepted that we shall table an amendment which everyone hopes will be helpful. I certainly hope that it will be. If I were to read out my speaking note on this amendment, we would probably begin to get a little bored, because it repeats the argument that I used in the earlier discussion.

However, there is one important point that needs to be made. If we accept these amendments, we shall effectively be relying upon judicial authorisation, which would be a rather clumsy and perhaps even a slightly blunt implement to use. It would place an unacceptable strain on the court service and would perhaps make it more bureaucratic and less user friendly for the investigating agencies. In such instances it would be far more preferable to use somebody of a senior rank in the police service. As I earlier argued, we believe that the rank of superintendent is about the right level.

I very much encourage the noble Lord to withdraw his amendment. We are now discovering some common territory between us. The useful discussion that we had earlier should enable him to withdraw this amendment, although I quite take the point that he has put down a marker for future debate, if he and other Members of the Committee are not happy with the eventual definition

Lord Cope of Berkeley: The question whether or not this is more bureaucratic depends to some degree on how many magistrates there are compared to the number of senior police officers and how difficult it would be to gain access to one or the other. In any case, as the noble Lord has indicated and indeed as I indicated, it is all rather provisional upon the important revision of the definition of "communications data". I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 88B to 90 not moved.]

 

Lord McNally moved Amendment No. 90A:


    Page 24, line 25, at end insert--

     


("( ) It shall be the duty of the designated person, as soon as reasonably practicable after granting an authorisation or giving a notice under this section, to notify the Interception of Communications Commissioner appointed under Part IV of this Act of the grant of the authorisation or the giving of the notice.").

The noble Lord said: The intention of this amendment is to place on the 28 separate bodies that are currently empowered under this Bill to carry out surveillance activity and collect data the onus to

19 Jun 2000 : Column 141

deliver to the interception commissioner details of their activity, the rationale being that the interception commissioner can do his job only if he gets information promptly. It is with that intention that we propose this amendment. I beg to move.

 

Lord Bassam of Brighton: As I understand it, this amendment reflects concern about the latitude which agencies have under this chapter in accessing very large quantities of data and sharing that among themselves. It would require the law enforcement and security intelligence agencies to inform the interception commissioner within a reasonable period every time an authorisation or notice for accessing communication data was signed.

When considering the amendment, it is important to bear in mind the sheer volume of requests which currently occur under the Data Protection Act. As I stated earlier, in respect of only Customs and Excise, in the first quarter of this year there were nearly 19,000 requests for communications data, the overwhelming majority of which were for subscriber details. If Customs were to send a copy of all of those notices through to the interception commissioner he would be receiving more than 200 per day, far more than could possibly be individually scrutinised to any great effect without a large number of staff working on them--and, of course, those figures relate to only one investigating agency.

I hope that for that reason, and in view of the weight of paper that would be delivered on the interception commissioner, the noble Lord will perhaps consider it wise to withdraw the amendment. It would create great difficulties for the interception commissioner and the agencies involved. For those reasons it is an unnecessary and, in this context, unhelpful amendment.

 

Lord McNally: I am not sure whether or not the volume of interceptions and other work requests that the Minister revealed reassures me. It seems rather rum that we are talking about technologies which can, on the one hand, deal with millions of transactions in a matter of seconds, and then, on the other hand, we are told that this would cause problems in terms of clogging up the work of the interception commissioner.

I understand the Minister's argument. I should like to withdraw the amendment and take further advice on the matter. I do not like the idea that commissioners will be overloaded with information. The commissioners are there as a reassurance that the various agencies are behaving themselves, and there is an onus on them to provide information. I shall study what the Minister said and take further advice. I may return to this matter but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 90B not moved.]

19 Jun 2000 : Column 142

 

Lord Bassam of Brighton moved Amendment No. 91:


    Page 24, line 35, at end insert--

     


("(9) The Secretary of State shall not make an order under subsection (2)(h) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

On Question, amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 [Form and duration of authorisations and notices]:

 

Lord Cope of Berkeley moved Amendment No. 92:


    Page 24, line 37, leave out from first ("writing") to end of line 38.

The noble Lord said: Amendment No. 92 is an old-fashioned amendment which seeks to ensure that an authorisation under Clause 21(3) should be given in writing and not in a manner which produces a record of its having been granted. Amendment No. 94 has a similar effect on a notice requiring communications data to be disclosed.

I am not quite sure of the difference between something that is in writing and something which produces a record of its having been granted. If that record appears on a printer it obviously is in writing; otherwise, presumably, it is simply an electronic record of its having been granted. That does not seem very satisfactory.

I am entirely at one with my noble friend Lord Lucas in seeking to have Parliamentary Answers, for example, provided on the e-mail, but that would not rule out their appearing in Hansard as well. The same kind of considerations apply here. I hope that I shall not seem too old-fashioned in moving the amendment. I beg to move.

11.45 p.m.

 

 

The Deputy Chairman of Committees: If this amendment is agreed to, I shall not be able to call Amendment No. 93.

 

Viscount Goschen: At this late hour I should like to make an even more old-fashioned, unsuitable and esoteric point. Why have brackets been used rather than commas around the word "writing"?

 

Lord Lucas: I should like to make a slightly different esoteric point. Surely we are seeking the production of a record here? That is the crucial element. An authorisation should be recorded so that later it can be audited, as the Minister pointed out. If I scribble an authorisation enabling someone to do something on a piece of tissue paper and that person then proceeds to eat it, a record will not have been produced. It is not the manner in which the authorisation is granted which is the point at issue. The authorisation could be verbal, electronic or written. What is important is to ensure that a record of the authorisation is produced and kept. We should amend the sense of the paragraph to that effect.

 

Lord Bach: Amendments Nos. 92 and 94 would require that all notices are given in writing, which

19 Jun 2000 : Column 143

would stop electronic authorisations from being given. However, there are huge advantages to be gained from using electronic authorisations: convenience, ease of storage and speed of delivery, to name only a few. For those charged with oversight of this regime, electronic records can be searched far more speedily than can large numbers of paper records. No problem will be encountered in using electronic signatures to verify who authorised a particular notice.

Amendments Nos. 93 and 95 have not been spoken to. I do not know whether the noble Lord, Lord McNally, intends to do so.

 

Lord McNally: I had understood that because my Amendment No. 93 is consequential, I would not be able to move it if Amendment No. 92 is agreed to. However, I shall be happy speak to the amendment.

It is not surprising to see the Conservative Party clinging to the technology of the 19th century while the Liberal Democrats embrace the technologies of the 21st. As I mentioned before, if the technology exists which can verify electronic records and thus allow them to be rendered tamper proof, it makes sense to allow for electronic means--along the lines which the Minister has argued so persuasively.

 

Lord Bach: The noble Lord's amendments would allow notices to be given in writing or by electronic means since the Bill already requires that authorisations or notices must be given in a manner which produces a record of their having been granted. We cannot think of any other way presently available by which notices or authorisations could be produced.

If noble Lords will forgive the phrase, the Bill is designed to be "future proof". We do not know whether new means of producing authorisations or notices may be invented over the next few years. I hope that noble Lords will not invite me to reflect on what those new methods might be. Provided that any new method produces a record, we can see no reason why it should not be used.

I think it is shameful that noble Lords opposite have been described as being old-fashioned or living in a past century. I believe that the point made by the noble Viscount, Lord Goschen, about the use of brackets is unanswerable. I shall certainly consider further that important point.

 

Lord Lucas: I should like to return briefly to the points I raised. What we are asking for here is that a record is made. However, the phrasing used in Clause 22(1)(a) means that it does not require, if the authorisation is granted in writing, that a record is made.

As I said a moment ago, I could write down the authorisation on rice paper only to have it eaten or lost in a file. No requirement is in place to produce a record if the authorisation is granted in writing. Furthermore, it is not clear that the record produced under Clause 22(1)(a) encompasses the information set out in paragraphs (b) to (e). In other words, such a record

19 Jun 2000 : Column 144

could merely state, "On this day I granted an authorisation to so-and-so", without any further information. That would be a record of the authorisation having been granted, but it would not contain further specification. I should at least like to know the Government's intentions so that I can be sure that the clause as drafted achieves those intentions.

Lord Bach: As I understand it, an authorisation under Section 21(3) must cover paragraphs (a), (b), (c), (d) and (e). That is the reason why the provision is drafted in this way.

 

Lord Lucas: I agree that that applies to the authorisation, but what is in the record?

 

Lord Bach: Obviously, the fact that an authorisation is written ensures that a record is made. What is done with the record is properly a matter for the code of practice. I think that is the best I can do on this point at this hour of night. In those circumstances, perhaps the noble Lord, Lord Cope, will withdraw his not too old-fashioned amendment.

 

Lord Cope of Berkeley: I thought that it had proved rather old-fashioned. The noble Lord, Lord McNally, attempted to make a cheap party-political point in the course of the debate.

 

Lord McNally: If I stay here until 10 minutes to midnight, I reserve the right to make cheap political points!

 

Lord Cope of Berkeley: I am not trying to take away that right; I merely comment on the fact that the noble Lord chooses to take up our time at this hour of night making such a point. It was perfectly obvious that the most modern person among us was the holder of the most ancient peerage. I refer to the noble Lord, Lord Lucas, whose peerage goes back much further than that of any of the rest of us, and who has taught us all a lesson in modernity. The great advantage of the amendment has been that it has enabled my noble friend to reveal some seeming flaws in the drafting of Clause 22(1) and (2). That having been usefully achieved, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 93 to 95C not moved.]

 

Lord Lucas moved Amendment No. 96:


    Page 25, line 19, at beginning insert ("and such persons may not, without authorisation under this or another enactment, disclose such data to any other person;").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 97. Both amendments are examples of matters that would concern me under the old definition of communications data. That is certainly true of Amendment No. 96. Amendment No. 97 may have a wider application--certainly not in current practice, but if the definition of communications data with which we are left is such as to encourage any form of

19 Jun 2000 : Column 145

trawling for associations, for the way in which communications data link with each other to provide a pattern of association. Under those circumstances Amendment No. 97 would be an appropriate safeguard to have in the Bill. However, I am content to wait and see what form the definition will take before deciding whether the amendment is still required. I beg to move.

 

Lord Bassam of Brighton: The amendment would restrict the onward disclosure of communications data from one investigating agency to another. That would be the effect of the amendment as I understand it.

 

Lord Lucas: I was speaking to Amendment No. 97 as well. I am waving Amendment No. 96 goodbye. Given the noble Lord's earlier remarks, it is probably not appropriate. I merely put down a marker that that is the way I was thinking under the old definition. Amendment No. 97 depends on the new definition . If trawling for association data--in other words, asking for a wide spread of communications data so that one can begin to pick up associations--is to be allowed, or regarded as appropriate, that kind of activity should require an additional safeguard. This amendment suggests an additional safeguard.

 

Lord Bassam of Brighton: I am grateful to the noble Lord. The hour is late, and I have been up for far too many hours. In general, the noble Lord is right to wait for the definition. Looking at Amendment No. 97, we believe that there are important prohibitions already in the Bill against the kinds of fishing expeditions which the noble Lord fears. For instance, data cannot be required unless the authorising officer considers that the data are both necessary (as in Clause 21(2)) and proportionate (as in Clause 21(5)). He or she knows that the decision will be subject to review by the commission and, if the data are used evidentially, by the courts.

There is also the practical difficulty that in respect of virtually all communications data it will be impossible for the authorising officer to state honestly that the data required are in respect of only one person. In the case of the lowest level of intrusion, a subscriber check--which accounts for 96.8 per cent of customs inquiries--the investigating agency has only the phone

19 Jun 2000 : Column 146

number or e-mail address. It does not know how many people may use the telephone or e-mail. A similar principle applies to itemised billing, which is far more intrusive. If I was being investigated and the itemised billing for my home telephone was required by notice, that data would relate to more than one person since many other people apart from me make calls on that telephone.

One ends up in a situation where every single communication data notice must be authorised by a commissioner. I am sure the noble Lord readily accepts that that would be unworkable for the reasons that have been given. I hope that the noble Lord will withdraw his amendment and await the return of definition, as it were.

 

Lord Lucas: I stand educated. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 97 not moved.]

Clause 22 agreed to.

Clause 23 [Arrangements for payments]:

[Amendments Nos. 97A and 97B not moved.]

Clause 23 agreed to.

Clause 24 [Interpretation of Chapter II]:

 

Lord Bassam of Brighton moved Amendments Nos. 98 and 98A:


    Page 26, line 29, leave out ("and their department").


    Page 27, line 3, at end insert--


("(5) The Secretary of State shall not make an order under this section that adds any person to the list of persons who are for the time being relevant public authorities for the purposes of this Chapter unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

On Question, amendments agreed to.

[Amendment No. 99 not moved.]

Clause 24, as amended, agreed to.

 

Lord Bach: My Lords, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.