ADMISSIBILITY AS EVIDENCE IN COURT OF AN INTERCEPTED COMMUNICATION

HL Deb 12 July 2000 vol 615 cc325-48

(" . Notwithstanding the provisions of sections 16, 17 and 18, nothing in this Chapter shall render admissible as evidence in court the contents of an intercepted communication in circumstances where the original communication would not itself have been admissible.").

The noble Lord said: My Lords, with this amendment we move to a very different matter—the question of legal privilege. The Bar Council of England and Wales, through its Law Reform Committee, has looked at the Bill. It has produced an expert memorandum which contains some interesting points. The Law Reform Committee is concerned about the question of legal professional privilege. Even those who are not lawyers support the proposition of legal professional privilege. Lawyers and their clients are in a special position. If a client is to be properly defended, there must be legal privilege. I am sure that I do not differ from the Government in saying that we would want to preserve that in the new circumstances provided by the Bill.

According to the advice I have from the memorandum, there seems to be an absence of protection for privilege. Clauses 16 and 17 do not address that issue. They appear to be derived from similar provisions in the Interception of Communications Act 1985. Even the Law Reform Committee of the Bar Council described them as, poorly drafted, and difficult to understand".

It suggests that they are probably aimed at preserving the secrecy of the fact that the interception of a communication has taken place. I support the idea that interception of communications—the way it has been done and the fact that it has been done—will often need to be preserved as a secret by the agencies indulging in it. However, Clause 17(1)(a) would appear to make the content of intercepted communications admissible in, proceedings for a relevant offence", notwithstanding the fact that the original communication was the subject of legal professional privilege. If that is so—I rely on the committee of the Bar Council for this opinion—the state could intercept communications even between a solicitor or a barrister and his client and then use the contents of those intercepted communications at the client's trial as evidence against him. There does not appear to be an express saving for legal professional privilege. That is described in the memorandum as "an alarming omission" as it goes not just to the issue of privacy but also to the right to a fair trial and Article 6 of the European Convention on Human Rights.

Information obtained by surreptitious means should not receive less protection than that which the original communication was entitled to. That is what led the committee of the Bar Council to suggest to me and to other noble Lords the insertion of the amendment into the Bill. I shall be interested to hear the Minister's response to this point. It was raised with me only recently. I nevertheless took the precaution of giving at least an indication to the Home Office of the seriousness of the matter, as it comes from an important source. I beg to move.

Lord Grabiner

My Lords, the noble Lord, Lord Cope, understates his talents. He says that he is not a lawyer. However, I have always viewed the noble Lord as something of a closet lawyer. His legal talents are certainly evident on almost every occasion that he stands at the Dispatch Box.

I do not think that the noble Lord said anything with which essentially I would disagree. The question is whether it is necessary to utilise this amendment in order to deal with the problem. The short point is, in essence, whether legal professional privilege would be implicit as a matter of common law. If the answer is that it would be, it would not be necessary to incorporate an express provision in the Bill to cover the problem. If, on the other hand, that is not the position, I would respectfully agree that it would be necessary to introduce an express clause to that effect.

I must confess that I have not undertaken that research. However, my expectation would be that the common law would step in and that legal professional privilege would be implicit. If such material was sought to be adduced at trial, it would be objected to on precisely that ground, would not be admissible and would be excluded, regardless of the fact that no express provision to deal with it was contained in the statute. However, I suspect that the point should be examined carefully. We must be satisfied that that is the position before reaching a final decision on whether the amendment would be appropriate.

Lord Phillips of Sudbury

My Lords, I concur with what has been said, save that this Bill is such a particular measure and has given rise—and will, I suspect, continue to give rise—to such widespread concern that it may be that, even if a common law entitlement to privilege does obtain, given some of the provisions, such as those contained in Clauses 51 and 52, it would be sensible to write it onto the face of the document.

This measure, perhaps more than most, will be examined closely by foreign firms and foreign lawyers who may not be fully acquainted with the extent and grasp of our common law. I agree with the noble Lord, Lord Grabiner, that this needs to be looked at carefully. However, when the Law Society, the Bar Council and the professional body for Scotland all sing the same tune, there may be something in it. Indeed, a whole series of later amendments address broadly the same point. It will be interesting to hear what the Government have to say by way of reassurance here.

Lord Bach

My Lords, in Committee we debated at some length the justification for Clause 16, which keeps intercepted material out of legal proceedings. The noble Lord's amendment appears to bolster the effect of Clause 16 by saying that no intercepted communication is rendered admissible if the original communication would not have been admissible. We agree with the sentiment, but the Government hold the view that this amendment is unnecessary.

First, nothing in Chapter I renders anything admissible in evidence. Except for Clauses 16 and 17, the Bill is not about evidence. Furthermore, Clauses 16 and 17 make interception inadmissible. Thus, anything that would otherwise be admissible remains admissible under the Bill—except intercept product and anything which would otherwise be inadmissible remains inadmissible under the Bill. For example, the Bill does not change the rules about hearsay, corroboration or similar fact evidence. However, I do not think that anyone is suggesting that that fact should be placed on the face of the Bill.

The Bill does not re-write the rules of evidence. If something is inadmissible at common law because it is legally privileged that remains the case for all parts of the Bill. There is a separate question as to whether legally privileged material should be considered at all under any part of the Bill. That is something which we intend to address in the statutory codes of practice. The preliminary drafts, which have been placed on the Home Office website, deal with the subject only tentatively. We welcome comments on what the codes should say.

Our starting point—I believe that this will attract the support of the House—is that proper communications between lawyer and client deserve proper protection from third parties, including the state. In normal circumstances it should be no part of the task of law enforcement to listen to lawyers' communications in order to find out about their clients. That principle must be balanced against other factors, such as the possibility of legal communications being listened to accidentally and that some lawyers may abuse their professional position. We want to get the balance right and to that end look forward to working with the Bar Council, the Law Society of Scotland and others.

It is true that in rare cases, as described particularly in Clause 17(1), intercept material may be adduced in evidence; in other words, it is treated like any other intelligence product. However, that fact does not override the protection given by common law to legally privileged material. If it did so it would require an express provision in the Bill and there is no such provision. The Government are grateful to the noble Lord, Lord Cope, and others who have spoken in this debate. We hope that this response is of comfort both to the noble Lord and to those who have been concerned to approach him with regard to this amendment.

Lord Cope of Berkeley

My Lords, the noble Lord, Lord Grabiner, described me as a closet lawyer. I am not quite sure how to take it, but, coming as it does from such a distinguished lawyer, I regard it as an intended compliment. I tried to make clear in moving the amendment that in this particular instance I was merely a mouthpiece for lawyers and altogether a lower form of life, perhaps the noble Lord would believe, than even a closet lawyer.

I pay careful attention to the speeches of both the noble Lord, Lord Grabiner, and the Minister, in particular their observations on the common law. I have the highest, if distant, respect for the common law and never cease to be amazed by it. I am again amazed this evening that the common law can extend to a Bill dealing with such a modern subject as this. Perhaps one should not be surprised by that. The Minister also stated—I paraphrase his response—that nothing in the Bill said that such material would be admissible which, by a series of double negatives, meant that the common law applied.

The noble Lord also made the extremely helpful observation that a good deal of this matter would be addressed in the draft codes of practice and that the Bar Council and others could contribute to that discussion. I believe that that is the right way to carry forward the discussion. The Law Society of England and Wales and the Law Society of Scotland have also raised other questions about legal privilege but not, as far as I am concerned, the particular aspect of it dealt with in this clause. There is a way to discuss this further perhaps in more appropriate fora even than this. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

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

Lord Lucas moved Amendment No. 25: Page 23, line 29, after second ("is") insert ("expressly").

The noble Lord said: My Lords, this amendment just adds the word "expressly". It is really an excuse to draw from the Government some further information on the effects of Clause 21(3) and (4). I am not sure whether initially it would have been obvious to the Minister that that was the purpose of the amendment. I thought that Clause 21(3) was covering a situation where the police would consult BT's telephone directory reverse look-up facilities. But looking at the draft code, that appears to be wrong. At paragraph 9.4 it says that it will only come into effect when the, telecommunications operator is not capable [when] accessing the data by a notice would not be possible [and] when it would be likely to prejudice the investigation".

I have two sources of puzzlement in this confluence of the code and the Bill. First, I am extremely puzzled as to how an officer will be able to do anything which an ISP cannot. Are we breeding in secret a new breed of electronic policemen? How is it envisaged that such a thing will be possible?

The second aspect I am concerned with is that the confluence of Clauses 20 and 21 would be that if an officer was sent out to collect such-and-such communication data, it would seem to allow him to indulge in any conduct which he felt was reasonable in order to obtain it. He might go to "James Bond" lengths of breaking in and burgling or whatever might amuse him. But he would be exempt from prosecution. His actions would be made legal by the terms of Clause 20. I suspect that I am failing to understand how the code and the Bill work together on this particular aspect. I look to the Minister for enlightenment, but I shall be prepared to accept that it might arrive tomorrow. I beg to move.

Viscount Astor

My Lords, I was most intrigued by my noble friend's introduction of his amendment. As far as I was concerned, at least half of his speech was heavily encrypted. No doubt the Minister will be able to find the key, decrypt it and give an answer.

Lord Bassam of Brighton

My Lords, the amendment was so heavily encrypted that the Minister is entirely puzzled. We had looked very closely at the noble Lord's amendment and decided that the addition of the word "expressly" would have no impact or effect at all. Therefore, the attempt of the noble Lord, Lord Lucas, to probe the confluence of meanings in Clauses 20 and 21 had entirely escaped us.

The noble Lord was generous enough to say that perhaps we could provide him with an answer tomorrow. That is how I would like to leave it. On those terms, I ask him to withdraw his amendment. Perhaps in future he could be a little clearer as to what he wants to probe and where. We shall be more than happy to oblige.

Lord Lucas

My Lords, this noble Lord is always very happy to be clear about what he is after, but it generally takes a little more time than he had on this occasion. I apologise to the Minister and to his officials for having caused them to hunt around needlessly for an explanation which would have eluded them in any case. I shall pass to the officials my notes on this amendment and perhaps we can reach some agreement at another time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 26: Page 23, line 42, leave out ("address or other") and insert ("traffic").

The noble Lord said: My Lords, this amendment and the others grouped with it were originally part of the first set of amendments under the original grouping. I have spoken to them in what I said during that debate. I beg to move.

Lord Cope of Berkeley

My Lords, I agree with the Minister that the earlier debate on the definition of "traffic data" covers the point in the amendments. The wording is remarkably similar to the first few amendments we discussed today. By inserting the provisions in Chapter II, they do not have the same effect as in Chapter I. Indeed, in some senses it is the reverse effect. Nevertheless, it is a useful introduction into the Bill of the distinction between "traffic data" and "communications data" even though these amendments mix up the two. It is a useful change to the Bill which I and others appreciate.

Lord Lucas

My Lords, I did not ask the Minister a follow-up question on the extent to which the web will be caught as traffic data. I understood the noble Lord to say that the query will end at the apparatus which contains within it the information on the web page which is sought. The traffic data will contain the identity of a box. It may be quite small, stored in racks of similar boxes in the premises of an ISP. The communications data will contain the physical address of that box. One will be able to deduce the premises the box occupies. From a knowledge of the web, one may be able to deduce either that that website occupies that box exclusively for its own use, that it is part of a much larger website, or that it is a box which stores a number of similar websites. It can be difficult to specify what is in that box. We are talking about an individual box, not simply the premises of an ISP. I shall not know simply that the communications data have gone into, for example, Demon's headquarters; I shall know which box we have accessed.

With regard to my next amendment, it would help me if the Minister would tell me the level of detail regarding the identity of the end point of traffic data under the definition. Given the way ISPs operate, I am unable to satisfy myself as to how it will operate in practice.

Lord Bassam of Brighton

My Lords, perhaps I did not make it plain when we discussed the issue earlier. The tailpiece of the new definition puts beyond doubt, I think, that in relation to Internet communications, traffic data stop at the apparatus within which files or programmes are stored. To clarify the noble Lord's point, traffic data may identify a server but not a website or page.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 27: Page 24, line 11, leave out subsection (5).

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 28: Page 24, line 22, at end insert— ("(6A) In this section "traffic data", in relation to any communication, means—

1. (a) any data identifying, or purporting to identify, any person, apparatus or location to or from which the communication is or may be transmitted,
2. (b) any data identifying or selecting, or purporting to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,
3. (c) any data comprising signals for the actuation of apparatus used for the purposes of a telecommunication system for effecting (in whole or in part) the transmission of any communication, and
4. (d) any data identifying the data or other data as data comprised in or attached to a particular communication,

but that expression includes data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication to the extent only that the file or program is identified by reference to the apparatus in which it is stored.").

The noble Lord said: My Lords, I beg to move.

[Amendment No. 29, as an amendment to Amendment No. 28, not moved.]

On Question, Amendment No. 28 agreed to.

Lord Lucas moved Amendment No. 30: Page 24, line 22, at end insert— ("6A) Where the communications data in whole or in part comprises data as defined in section 20(4)(a) or (b), the designated person shall first obtain a certificate from—

1. (a) any judge of the Crown Court or the High Court of Justiciary;
2. (b) any sheriff;
3. (c) any justice of the peace;
4. (d) any resident magistrate in Northern Ireland; or
5. (e) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace,

stating that access to the communications data is necessary and proportionate having regard to the sworn statement of the designated person as to the circumstances of the matter. (6B) If the designated person reasonably believes that the special circumstances of the case are such that obtaining a certificate under subsection (6A) would cause an unacceptable delay to the issuing of a notice or authorisation under this section, the designated person may issue such notice or authorisation without obtaining a certificate but must then make a prompt report to the Interception of Communications Commissioner as to the circumstances of the matter.").

The noble Lord said: My Lords, the amendment provides us with an opportunity to discuss the level of authorisation which should be appropriate for traffic data. We are trying to understand what the new definition implies as regards the knowledge which can be gleaned from communications data. In earlier debates, we agreed that location is included and that with modern and future mobile telephone systems it will he possible to track an individual who is carrying a mobile telephone in real time to an accuracy of about 10 metres from one's position in the UK.

We have improved the limit as regards a person's wanderings on the web, but tracking down to an individual's box gives someone a good deal of information. These days, a box might contain only 20 or 30 gigabytes of hard disk. That can easily be used in a reasonably complicated website. People at the low end, such as me, share servers, but the next step up, which comes quickly, is to co-locate. You put your own server in an ISP's premises, which will usually involve the box being identifiable. It will be possible to know that someone has visited a site and, given that a site is virtually homogeneous, it will be possible to know what someone has done. You will not be able to track a person inside the shop but you will be able to tell which shops in the street he has entered.

That level of data about someone's life requires a reasonable level of protection. The amendment does not deal with the ordinary data, the reverse directory or the mass volume of requests for communications data which involve identifying the owner of a telephone number, or a website or an individual. It deals with a smaller number of requests for detailed information about a person. Given the increasing ability to identify what a person is up to from the data which will be available under this heading, we should look at a level of authorisation that goes beyond that of the average police superintendent because we shall have a multiplicity of agencies which can look at communications data. Given that we are not dealing with a high volume of cases, I have suggested that the standard recipe of a magistrate's warrant should be required.

I am happy to listen to any suggestions put forward by other noble Lords or the Government. My basic point is that we should apply a higher test to such data than is applied to someone's telephone number. The data are wider and more private and personal than the data to which we are used to giving our average policeman access. We ought to take care of the citizens' liberty. I beg to move.

Lord Phillips of Sudbury

My Lords, I want to identify myself with what has been said by the noble Lord, Lord Lucas. Unless the Government have a clear response to the issues, there is much to justify the amendment.

Viscount Astor

My Lords, I associate myself with the comments of the noble Lord, Lord Phillips. My noble friend's amendment raises an important issue and I look forward to hearing the Government's response.

Lord Bassam of Brighton

My Lords, I believe that we have been round this matter once already. Although I understand the issue of sensitivity, I cannot agree that the level of judicial authorisation should be as the noble Lord suggests. I know that that is the intention behind the amendment.

Perhaps I should repeat the arguments that have been made here and that were made also in another place. I believe that the matter comes down to sheer practicalities. Although I entirely accept the noble Lord's analysis of the capability of the new technology, I do not believe that he fully appreciates how great a problem it would lead to if we were to follow the course of action that he suggests. The sheer number of applications for communications data would make it wholly impractical.

The intention behind the amendment is clear and I accept the point about it being a more intrusive form of communications data. I trust that the clarification on offer will be reasonably reassuring.

Earlier in the debate I explained that during the first three months of the year 96.8 per cent of all communications data requests by Her Majesty's Customs and Excise had been for subscriber details—the most basic level of check—and 2.9 per cent of the remainder had been for itemised billing inquiries—

Lord Lucas

My Lords, I apologise to the noble Lord but it seems that he has missed a point in this amendment, which is that it does not cover that data. It covers only the remaining data. The proposed authorisation relates only to data which are not subscriber data. That is why it says that it relates only to (a) and (b) and not (a), (b) and (c).

9.45 p.m.

Lord Bassam of Brighton

My Lords, I am grateful to the noble Lord for the further clarification. However, as I understand the drafting of the amendment, it would have that far wider impact. I take what the noble Lord says at face value but I consider that it would lead to a chaotic situation. I do not believe that he appreciates the effect of his amendment.

Perhaps I may complete the point that I was making. I referred to the fact that 2.9 per cent of the remainder had been for itemised billing inquiries and the remaining 0.3 per cent 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. That is what I put on the record when we last discussed this issue. It is the 0.3 per cent of requests for other, more intrusive, types of communications data which I want to address.

Already under the non-statutory arrangements agreed between the law enforcement, security and intelligence agencies and the telecommunications industry access to "more intrusive types of communications data" must be authorised at a more senior level within the agency, whereas "intrusive communications data" must be authorised at assistant chief constable level. I believe that that is the right approach and that it should be reflected in statute, both in the order made by the Secretary of State under Clause 24(3) and in the code of practice. Different levels of authority are not shown in the preliminary draft of the code because defining the different levels of communications data in a future-proof manner will require further work, including input from the industry.

I believe that that should provide sufficient comfort to the noble Lord. On that basis, I invite him to withdraw his amendment. I am, as ever, open to further representations. If he wishes to pursue the matter further between Report and Third Reading, he can do so and I shall be more than happy to look again at what he said.

Lord Lucas

My Lords, of course, likewise, I shall read carefully what the Minister has said. However. I believe that his figures have made my case for me. He says that 0.3 per cent of approximately 19,000 interceptions by Customs and Excise in a six-month period would fall under the heading of my amendment. If my calculation is correct. 60 of them—10 per month—would require a magistrate's warrant. That seems to me to be entirely reasonable.

Lord Bassam of Brighton

My Lords, does the noble Lord not accept that we have already established a sufficient level of seniority for that most intrusive form of interception to be authorised?

Lord Lucas

My Lords, I shall consider that before Third Reading. The Minister has made his case and I plead for time to consider it. We are arguing not about whether some data should have higher-level authorisation but about what that higher level should be. If I feel that I have a further case to make to the Minister, I shall do so before or on Third Reading, but for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 31: Page 24, line 23, leave out ("References in this section to") and insert ("In this section—

1. (a) references, in relation to traffic data comprising signals for the actuation of apparatus, to a telecommunication system by means of which a communication is being or may be transmitted include references to any telecommunication system in which that apparatus is comprised; and
2. (b) references to traffic").

On Question, amendment agreed to.

Lord Bach moved Amendment No. 32: Page 24, line 25, at end insert— ("and in this section "data", in relation to a postal item, means anything written on the outside of the item. (7A) The Secretary of State may by order modify the provisions of subsections (4)(a), (6A) and (7). (7B) The Secretary of State shall not make an order under subsection (7A) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

The noble Lord said: My Lords, I beg to move.

[Amendment No. 33, as an amendment to Amendment No. 32, not moved.]

On Question, Amendment No. 32 agreed to.

Clause 21 [Obtaining and disclosing communications data]:

Viscount Astor moved Amendment No. 33A: Page 24, line 44, leave out paragraph (h).

The noble Viscount said: My Lords, this is a probing amendment. Clause 21(2) specifies grounds such as the interests of national security, economic well-being, public safety, the prevention of crime and public health. Paragraph (h), down at the bottom, effectively says, "Anything that we have left out we can add in by order of the Secretary of State".

I realise that the Secretary of State would have to come to Parliament to gain approval for such an order, but he could make one on almost any basis. I should like an explanation of what possible basis there could be. The power is wider than it should be and I question the need for paragraph (h). Why do the Government think that it is necessary? I beg to move.

Lord Bach

My Lords, the amendment requires a short debate, similar to one that we had in Committee on the purposes for which surveillance can be used under Part II. It rehearses comments from the 18th report of the Committee on Delegated Powers and Deregulation. As we explained in Committee, the comments in the 18th report have to be read in conjunction with the Committee's 21st report, which says: In its comments on the powers in Clauses 21(2)(h), 27(3)(g) and 5(3) the Committee invited the House to consider whether those Clauses should he amended to limit the apparently wide powers to correspond with the use that Ministers intended to make of them and added that, in any event, all the powers should be subject to affirmative procedure. The Government accept the latter recommendation but reject the first on the ground that the Human Rights Act 1998 effectively limits the powers. The Minister will be obliged to make a statement that an order is, in his view, compliant with that Act. The Committee sees affirmative procedure as giving appropriate Parliamentary control and does not wish to continue to press for amendments to the Clauses". I repeat those final words: and does not wish to continue to press for amendments to the Clauses". The Government tabled amendments in Committee to institute the affirmative procedure for such orders. We were grateful that the Committee did not press for further amendment to the clauses. As we said in Committee, the powers in the Bill will be limited by the Human Rights Act 1998 as a matter of law, 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 in the Bill that the convention rights must circumscribe any use of the orders would add nothing to the situation in law.

We can then go on to consider the legitimate purposes for which Article 8 of the European Convention on Human Rights permits interference with the rights protected by that article. There are only two which in some form we have not included in the Bill. Those are, first, for the protection of morals", and secondly, for the rights and freedoms of others". We could now, or at some future date, simply add those purposes to the list in Clause 21. But we should not want to do that. They are both too wide-ranging in their purposes. And in their raw form, they are both vague and unclear. Citizens affected by those powers should be entitled to expect more detail on the reasons for which their rights are being interfered with; for example, we might, in the future, want a power to be exercisable by a regulator for the purpose of protecting the rights of pensioners or consumers. If so, it would be better to say that rather than to use the catch-all phrase, to protect the rights of others". So any extension of the powers should be more specific, if possible.

Your Lordships will notice that that is the approach that we have adopted for some of the purposes already listed in the Bill. They do not follow exactly the wording of the convention rights. They are tailored to be as narrow as possible within the convention rights and to meet the requirements of the investigating agencies in the modern age.

We believe that it may be possible to add purposes in the future which are narrower than those left open to us; that is, "for the protection of morals" or "for the rights and freedoms of others". If we can conceive of narrower purposes in the future, we should be allowed to add them because they speak for a better approach than one that is too broad.

These are important issues and they are inextricably linked with the implementation of the Human Rights Act. As a matter of law, it will not be possible for any Secretary of State to make an order that is incompatible with the convention. That is what the Human Rights Act guarantees and that is one of the great benefits of the Human Rights Act which was passed at the instigation of this Government a few years ago. In the light of this situation, the danger perceived in this order-making power simply does not exist. I am grateful to the noble Viscount for raising this probing amendment but I now ask him to withdraw it.

Viscount Astor

My Lords, I am grateful to the Minister for his reply. The Delegated Powers and Deregulation Committee looked at this matter which is subject to the affirmative procedure. The committee looked at it from a powers point of view. I was asking the noble Lord to explain the Government's thinking as to why they might need that power. I have been given an explanation. The noble Lord explained that it will be limited by Article 8 and so on and why the Government need the power. That is extremely helpful and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Lord Bassam of Brighton moved Amendment: No. 34: Page 25, line 41, leave out from ("authorisation") to end of line 43.

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 35. As the Bill stands, both authorisations and notices to access communications data may, subject to the other requirements placed by Clause 22, take such form and be granted in such a manner as the authorising officer thinks fit.

Government Amendment No. 34 would remove that subsection relating to authorisations to access communications data, which we now believe is unnecessary. Although it would have provided extra flexibility to authorising officers, we believe it is better to provide central guidance, including standard forms where possible, in the code of practice. That will also be beneficial from an oversight point of view.

Amendment No. 35, tabled by the noble Lord, Lord Cope, would have precisely the same effect in relation to notices served upon holders of communications data, and for that reason I am happy to accept it. Although a specimen notice does not appear in the preliminary draft of the code which we have published, we have made it clear that following consultation regarding the precise form of the notice, a specimen will be included in the draft which goes out for public consultation.

I believe that the noble Viscount and I are as one. Our amendment will be helpful and effective and the amendment tabled by the noble Viscount adds to it. We are happy to accept his amendment. I beg to move.

Viscount Astor

My Lords, I am always delighted to be as one with the Minister. I am extremely pleased that he considers that Amendment No. 35 adds to his amendment. This is an important issue. In paragraph (f) we were concerned that there were wide powers that were not subject to the scrutiny that existed on the previous amendment that we discussed.

On Question, amendment agreed to.

10 p.m.

Viscount Astor moved Amendment No. 35: Page 26, line 8, leave out paragraph (f).

On Question, amendment agreed to.

Clause 24 [Interpretation of Chapter II]:

Lord Grabiner moved Amendment No. 35A: Page 27, line 25, at end insert— ("( ) the Commissioners of Inland Revenue;").

The noble Lord said: My Lords, before explaining the purpose of this amendment, I apologise to the noble Lords, Lord McNally and Lord Phillips of Sudbury, for not having discussed it with them in advance. Yesterday I briefly mentioned it to the noble Lord, Lord Cope of Berkeley. It has only just come to my attention that it may be appropriate to use this Bill to deal with this point rather than for it to be dealt with through the exemption procedure under the data protection legislation or in the Finance Bill, or by way of delegated legislation under paragraph (f) of Clause 22(2). So there are other ways in which the matter could be dealt with.

The purpose of the amendment is to give effect to one of the recommendations that I made in my report on the informal economy to my right honourable friend the Chancellor of the Exchequer in March this year. The amendment would provide a primary statutory authorisation that would enable the Inland Revenue to conduct reverse searches of telephone number databases; in other words, the Inland Revenue would be able to obtain the name and address of a person holding a certain telephone number.

I should say something about the background. Currently the Inland Revenue has wide powers to access information from outside government, for example, details of payments (names, addresses and amounts) made by a business for the supply of services; names and addresses held on statutory registers, for example, vehicle registration details from the DVLA; and full particulars of interest credited to bank or building society accounts in the United Kingdom.

If Inland Revenue investigators were entitled to reverse search in the way that I have described, they would be able to follow up advertisements for goods and services that give contact telephone numbers but not personal details. We are all familiar with advertisements in local newsagents, local newspapers and, unfortunately, advertisements in telephone kiosks. It would be possible for the Inland Revenue to check whether the subscriber was registered for tax or perhaps claiming statutory benefits. It would be a quick and effective method of targeting investigations.

For noble Lords who know about such matters, it will come as no surprise to hear that telephone directory databases can already be purchased on the Internet and stored on CD-ROM in a format that can be searched and reverse searched using a standard desktop computer. That practice has raised some concern about data protection; that is, that reverse searching is interpreted as not constituting "fair" processing under data protection law on the footing that the personal information, absent specific informed consent, was not supplied for that purpose in the first place.

There are obviously circumstances where that concern must give way to an overriding public interest, which may be, for example, to contain fraud or to protect the public purse. Accordingly, the data protection legislation contains public interest exemptions; for example, the Data Protection Act 1998, Section 29. As a result, the emergency services are able to carry out reverse searches on all numbers which have been used to dial 1999. It is also the case that Customs and Excise investigators have been making reverse searches of the telephone directory for many years, and all requests for a search are channelled through a single point of contact at the Customs and Excise National Co-ordination Unit.

It seems to me that it would be a desirable and valuable extension to the existing investigatory powers of the Inland Revenue to have the benefit of Amendment No. 35A. I believe that it is in the public interest that the Revenue should not be hamstrung in its endeavours to protect the public purse. In accordance with the procedures which have been adopted under the existing data protection legislation, it would be desirable to have suitable guidelines in the form of a code of practice. I beg to move.

Lord Cope of Berkeley

My Lords, the noble Lord, Lord Grabiner, is obviously particularly experienced in these matters because of the report he prepared, to which he referred, on the so-called "informal" economy—an odd way to describe the phenomenon, but we will not go into that at the moment. In particular, he made a clear case for the Revenue to be able to undertake reverse searches of telephone data.

But I am not sure that that is the effect of Amendment No. 35A. I am now becoming hesitant because the rules of Report stage mean that I am supposed to speak before the Minister, who will be much more authoritative than I on this matter and it is possible that, closet lawyer though I may be, I have misread the Bill. Amendment No. 35A seems to give the Inland Revenue access to all communications data and not just traffic data. I am not quite sure where reverse searches of the telephone directory fall, whether under traffic data or communications data. Now that we are rewriting the Bill to distinguish between those two, it becomes important.

One other aspect of this issue caught my eye; that is, the contrast between the Commissioners of Customs and Excise and the Commissioners of Inland Revenue. To those of us who have been involved in conventional types of business, Customs and Excise is seen mainly in terms of VAT and it may seem odd that the department which collects VAT, excise duty and so forth, is to be given these powers and, according to the Bill, the Inland Revenue is not. I fancy that, as much as anything, the reason is historic. Customs and Excise is a considerably older department and that is why Customs and Excise provisions appear first in finance Bills. Also it has a long history as an anti-smuggling agency, which at one time was an extremely rough business, and still can be. It was an armed service. Most of the older Customs Houses have a glass case somewhere with the odd musket or two and cutlass in it. The Inland Revenue never had powers of that character whereas Customs and Excise traditionally had.

The situation is partly historic but partly also has to do with the fact that those working for Customs and Excise spend a great deal of their time engaged in international matters—anti-smuggling matters—of a very important nature, which include drugs and all things relating to excise duty, and so on. Given that it is in part historical, it also partly reflects the international nature of many of the operations of the Customs and Excise by comparison with those of the Inland Revenue. However, when one considers the VAT/income tax comparison, it is still odd that the two departments should be treated differently. I am not sure that I can logically justify such treatment in those terms.

I spoke earlier about the difference of treatment as regards external and internal communications, which has continued into this Bill. That is perhaps another example of treating our own citizens within the country more softly, as it were, than those who are doing international business and who are, hence, potential smugglers, so to speak. Customs and Excise is not called the "Outward Revenue" or the "Overseas Revenue", but, in a sense, that would be the true contrast to the Inland Revenue. It would also express the historic role of the service, though not its current role.

Lord Phillips of Sudbury

My Lords, we should like to identify ourselves with the amendment. It is perhaps strange that the Commissioners for Inland Revenue were not placed within the definition of "relevant public authority" from the outset. As the noble Lord, Lord Grabiner, said, it is ludicrous for the Inland Revenue to be hamstrung in the proper collection of taxes at a time when there are already signs that tax is falling not so much on the well off as on the law abiding. Therefore, we are wholly supportive of this measure.

Lord Bassam of Brighton

My Lords, I am grateful to my noble friend for raising this matter. Like other Members of this House, I am familiar with his report on the black economy and with the great respect in which that report is held. From what I understand and from the eloquent way in which my noble friend set out the considerations this evening, there seems to be a strong case for the inclusion of the Inland Revenue among those public authorities which are able to access communications data.

For my part, I appreciate that this amendment would enable the Inland Revenue to track down those businesses that advertise a telephone number alone and have not told the Inland Revenue that they are liable to pay tax. This Government are encouraging people working in the informal economy to put their affairs in order. That encouragement needs to be balanced by powers which enable those who remain in the informal economy to be detected and brought to account. As such, that appears to me to be a sensible and proportionate suggestion.

I am entirely convinced by what my noble friend has said. I was most interested in the discursive and informative comments made by the noble Lord, Lord Cope, and welcome the positive reaction from noble Lords opposite that this would be a useful addition to the statute book. Therefore, I can say that the Government are more than happy to accept this amendment.

Lord Cope of Berkeley

My Lords, before the Minister sits down, could he respond to the point that I made about whether this provision would only give the Inland Revenue the possibility to make the reverse telephone number enquiries to which the noble Lord, Lord Grabiner, referred? Alternatively, will it go further than that in covering all communications data?

Lord Bassam of Brighton

My Lords, I believe that I shall have to indulge in the familiar Home Office correspondence with the noble Lord on that point. However, I shall do so as swiftly as possible.

Lord Grabiner

My Lords, I believe that a reply may be forthcoming.

10.15 p.m.

Lord Bassam of Brighton

My Lords, I struggle to read the writing that is in front of me. We agree that the Inland Revenue should be limited in the communications data that it can obtain. The Secretary of State will make an order under Clause 24(3) limiting the data that can be obtained by the Inland Revenue. I think that that answers the noble Lord's point.

Lord Cope of Berkeley

My Lords, I believe that it probably does. However, I shall study it carefully and no doubt the noble Lord will write to me if necessary.

Lord Grabiner

My Lords, I am grateful for the comments of all those who have participated in this short debate and for the approach adopted by my noble friend the Minister.

On Question, amendment agreed to.

Lord Cope of Berkeley moved Amendment No. 36: Page 27, line 27, leave out paragraph (f).

The noble Lord said: My Lords, this amendment seeks to remove the possibility of the Secretary of State adding other public authorities to the relevant list. We have just added one. Clause 24(1)(f) implies that further public authorities may be added to the list. What other public authorities do the Government have it in mind to add to the list? The present list is, admittedly, fairly limited and comprises the police, the National Criminal Intelligence Service, the National Crime Squad, Customs and Excise, and the intelligence services. The Inland Revenue has now been added to the list.

However, Clause 21 contains all kinds of measures which are not undertaken by the distinguished public authorities that I have mentioned. For example, Clause 21 mentions "protecting public health" and, preventing death or injury or any damage to a person's physical or mental health".

None of the public authorities that I have just mentioned is known to take care of those matters, although they have their own valid responsibilities. Clause 21 also mentions, assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department".

An enormous number of government departments other than Customs and Excise and the Inland Revenue collect charges, taxes or duties of one kind or another. Every local authority collects local taxes of one kind or another and imposes local charges of every character. Therefore the potential for adding to the list of public authorities is enormous. The least that we can do is to inquire what the Government propose to do with this power, if it is granted to them by Parliament under the Bill. Is this a power that we should grant to the Government? I beg to move.

Lord Lucas

My Lords, I entirely support my noble friend's amendment which points out the dissonance between the clause we are discussing and Clause 21. There are so many purposes in Clause 21 for which communications data can be obtained that there clearly have to be more authorities in the Government's mind now that they intend to add to the list in Clause 24(1)(f). Before we reach Third Reading we should be given a list of them.

Lord Bassam of Brighton

My Lords, this is altogether a more difficult issue than the question discussed earlier of whether we can add to the purposes for which communications data can be accessed. This issue addresses whether we can add to the list of public authorities which can access communications data.

I am aware of the views of noble Lords opposite who think that the power should be removed, and, of course, I have read the 21st report of the Delegated Powers and Deregulation Committee. But the simple fact is that we are entering uncharted territory as we approach the implementation of the Human Rights Act. One of the prime purposes of this Bill is to enact an ECHR compliant regime for the use of the six investigatory powers which are covered by the Bill.

As I have previously explained, the power of accessing communications data in Chapter II of Part I effectively replaces for the agencies named in Clause 24 the voluntary arrangements under the Data Protection Act 1998. There are significant constraints on the use that the public authorities named can make of the power. This is deliberate; it is necessary in order to ensure ECHR compliance. We have also instituted for the first time proper oversight and redress arrangements for the accessing of communications data.

We are proud of the regime for communications data in the Bill. It is better than the voluntary arrangements currently operated under the Data Protection Act. The Bill brings strict controls, judicial oversight and recourse to the tribunal. We want to be sure that the regime is capable of applying to other agencies with important investigative or regulatory functions. Those agencies might use their own statutory powers as at present; or they might use voluntary arrangements; or they might not access communications data at all. The amendment, however, would prevent those other agencies from coming within the ECHR-compliant system in the Bill. That would be a curious result.

The noble Lord asks why we cannot list now all the bodies which need to access communications data. We have done so in Clause 24, where we have listed the key law enforcement and intelligence agencies which we know will need these powers. But we are not sure that the list is or can be complete. I shall try to explain why.

First, a concrete example: we had an interesting discussion on the case for the Inland Revenue to be added to the list. The case for the Inland Revenue, eloquently put by the noble Lord, Lord Grabiner, has arisen out of a learned and detailed consideration of the issues affecting the informal economy and the need to enforce it. I suggest that this is a good example of how very cogent reasons can be put forward for a public authority to be added to the list and which, perhaps with some justification, we would wish to accept.

But there are other regulators in the corporate and financial fields which may also be candidates for inclusion. Again, the position is not yet clear. This is not only because we are still finding out which techniques are used by which agency—although, as your Lordships know, there is some truth in that; it is one of the very instructive consequences of the Human Rights Act—but also because regulatory techniques change as patterns of business behaviour change. Communications data may well become more important to some agencies. If that happens, we do not believe that primary legislation should be the only means of responding.

Finally, there may be bodies which do not yet know that what they are doing interferes with Article 8 rights and needs to be regulated. We hope that convention awareness is fairly good across the public sector, but we cannot be 100 per cent certain. There may be bodies which do not yet know that they are likely to be "public authorities" for the purpose of the Human Rights Act.

For these reasons, we maintain that there is a strong argument for retaining the order-making power in Clause 24 and elsewhere in the Bill. Orders must be approved by each House, giving Parliament an opportunity to scrutinise any authorities that are added to the list. I ask noble Lords to reflect carefully on that matter. I would never disagree with the Committee lightly; I had intended to speak with Members of the Committee, but that has not been possible. After reflection, I ask noble Lords opposite to withdraw their amendment.

We require flexibility and, if this amendment were to be agreed to, effectively we would need Acts of Parliament to add new agencies. While that might be desirable in terms of the level of scrutiny, it would be unduly inflexible and add an unnecessary burden to the legislative programme. This could perhaps be much better dealt with through order making, where there will be an opportunity to scrutinise any further authorities which need to be added to the list. With that, I trust that noble Lords opposite will feel able to withdraw their amendment.

Lord Cope of Berkeley

My Lords, that was an astonishing response in several respects. Regarding the Home Office's careful concern for the legislative programme, given that we are awash with Bills from the Home Office at the moment—we have lists of Bills that are stuck somewhere in the parliamentary process—and given that we have another Bill to deal with in the next couple of weeks that the Home Office has just thought of, its tender concern for the legislative programme is touching.

There were other extraordinary features of the noble Lord's response. This problem will clearly be extended, mostly it seemed from what the Minister said, to public departments which do not realise that they fall under the relevant sections of the Human Rights Act. Considering all the publicity there has been about the Human Rights Act— there have even been training sessions for lawyers on the Human Rights Act—there are still public departments which do not realise that within a few weeks they will come under its provisions. The Secretary of State will have to rush through orders to try to bring them in line. The reply was extraordinary because within a couple of clauses we have another quite different definition of "relevant public authorities" which is incorporated by Clause 29 and Schedule 1. It is an enormously long list. It includes all kinds of interesting bodies, including the Royal Pharmaceutical Society, which we discussed at an earlier stage of our deliberations, the Food Standards Agency and other such bodies. They are given powers for directed surveillance, covert human intelligence sources and so on, but so far they are not to be allowed to look at the reverse telephone directory. Perhaps they will be allowed to look at it in the future. But, given the Minister's reply, why on earth Schedule 1 was not allowed to cover this clause I find difficult to imagine.

It is not that we wish to deny the reverse telephone directory to public authorities that need it although, as I said earlier, I am still a little doubtful as to the exact amount of data to which a public authority in the list would be allowed to have access. However, in the light of the Minister's reply, startled as I am by it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Conduct to which Part II applies]:

Lord Bach moved Amendment No. 37: Page 28, line 21, leave out ("either") and insert— ("( ) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and").

The noble Lord said: My Lords, on behalf of my noble friend Lord Bassam, in moving Amendment No. 37 I should like to speak also to Amendment No. 38. We now come to Part II of the Bill. The Government are indebted to the noble Lord, Lord Lucas, for bringing to our attention an unintended consequence of the Bill's current provisions relating to intrusive surveillance. As drafted, a police officer using the residential premises of a third party as an observation post in order to carry out covert surveillance of a target outside those premises would be caught, as the noble Lord, Lord Lucas, argued in Committee, by the definition of intrusive surveillance in Clause 25(3). That was not intended. The police and other public authorities will often use the residential premises of a public-minded citizen as an observation post to follow the activities of a suspected criminal. That will not always be in connection with serious crime. The police may wish to know, for example, who is calling at the home of a suspected drug peddler. Such operations happen all the time and we never intended them to come within the classification of intrusive surveillance.

These amendments remove that type of activity from the classification. Thus, intrusive surveillance is limited to the residential premises or private vehicle of the subject of the surveillance or to other premises or vehicle where the information obtained from a device is of the same quality and detail as might be expected to be obtained from a device actually on the premises or in the vehicle. I beg to move.

10.30 p.m.

Lord Lucas

My Lords, it is always a pleasure to find out that one has something right. It does not often happen on the Opposition Benches, but it has happened not only on the Opposition Benches today but also on the Government Benches, which is even rarer, as I remember from my years as a Back-Bencher when we were in government. I am delighted by the amendments. They are much better drafted than the ones I tabled. I am very pleased to see them in the Bill.

On Question, amendment agreed to.

Lord Bach moved Amendment No. 38: Page 28, line 22, leave out from ("individual") to end of line 26 and insert ("on the premises or in the vehicle or is carried out by means of a surveillance device").

The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 39: Page 28, line 41, leave out ("the same") and insert ("similar").

The noble Lord said: My Lords, this amendment relates to a discussion we had on an amendment in Committee which was not greeted with approbation in the reply that I received from the Minister. I have tried with the amendment to move the argument on a little. I understand where the Minister is coming from in talking about the kind of devices he wishes to consider as providing intrusive surveillance of what is going on inside a property. I merely wish to make the point that I made, among others, in Committee, that the use of the words "the same" rules those out on the pure ground of the physics of these matters. It can never be the "same". The use of an optical system is bound to introduce distortion and loss of quality. If one is using a laser-based listening device, one has a sheet of glass. That will seriously degrade reception. However good the laser, the glass gets in the way. That will seriously degrade the quality of data and the quality of listening.

However good the laser system, on the basic laws of physics it will never be "the same". It absolutely cannot be. It is no good the Minister hoping that law writing can go against the laws of physics. It cannot. Therefore, no such device will ever be intrusive surveillance if anyone chooses to push it to a court case. It is not "the same". That is why I propose in the amendment that we should have the word "similar", which would allow the physics to be accommodated in the law. One can say that a laser device provides a "similar" level of performance as one could achieve with a microphone in a room, but it definitely does not, and never will, provide the "same" level of performance. I beg to move.

Lord Phillips of Sudbury

My Lords, in Committee I spoke on this amendment in the same terms as the noble Lord, Lord Lucas. The logic seems to be as irresistible today as it did then. I cannot see why the amendment is not acceptable. I hope that it is.

Lord Cope of Berkeley

My Lords, I, too, hope that the amendment is acceptable, although it occurred to me this morning when I was considering the issue that even "similar" may not be the correct word. What we mean is "as good as". The "same" means that it is neither better nor worse; "similar" means that it is not much better or not much worse; what we really mean is that it should be "as good as".

Lord Bach

My Lords, this amendment would bring a greater range of surveillance activity within the definition of "intrusive surveillance". We do not want to do that. In Committee an amendment was tabled around subsection (5) of this clause. The noble Lord, Lord Lucas, was somewhat sceptical that a device outside residential premises or a private vehicle could ever produce material of the same quality as if it were located in those premises. I know that that doubt is behind the amendment.

I begin by saying that we are assured that it is indeed possible to obtain material of the same quality and detail by remote means. Furthermore, given the rapid progress being made in all fields of technology, we consider this provision to be a wise piece of "future-proofing". It is therefore the Government's view that the test of the "same quality and detail" is the right one.

It may be, for example, that some interference may result when one obtains audio material remotely, but the same may also be true when a device is present in the premises and the product from that device is transmitted back to those listening. However, the detail and quality—what can actually be heard—is the same.

It might seem that this amendment is simply a matter of semantics. However, the noble Lord's amendment would also have the effect, as I said at the beginning of my remarks, of bringing a greater range of surveillance activity within the definition of intrusive surveillance.

The Bill as it stands includes within the definition of intrusive surveillance those operations or investigations where the police or others use highly sophisticated equipment to obtain details of a conversation inside either a person's home or his private vehicle without installing a device on those premises. To extend the definition of intrusive surveillance to surveillance which produces material of a similar quality to that which could be obtained from a device actually present on the premises would not, in our view, be sensible.

This broader definition would risk catching activities which are much less intrusive, such as watching and photographing activity seen through the window of a house, which is properly defined now as directed surveillance. Indeed, perhaps I may quote the noble Lord's own words when we discussed this in Committee. He said that, merely watching something from outside", does not fall, within the ordinary definition of 'intrusive"'.—[Official Report. 28/6/00; col. 927.] I ask the noble Lord to reconsider this and to withdraw his amendment.

Lord Lucas

My Lords, of course I shall withdraw the amendment, but I still argue the point that, according to the laws of physics, such surveillance never can be absolutely and exactly the "same". Imagine a microphone installed on a premises. The sensitivity of that microphone to a conversation will depend on a finely designed audio pick-up which will then be sent to a form of digital transmission which will, as I am sure the noble Lord knows, transmit back perfectly the information received. Error codes will be included so that any mistakes which occur in transmission can be traced and corrected. Thus, with a good quality, modern digital microphone, it is possible to achieve perfect transmission at a considerable distance from a premises.

However, when using a laser device, the well-designed and sensitive microphone is replaced by a three-millimetre sheet of plate glass manufactured by Pilkington to no high specification. It will contain within it all kinds of harmonics and vibrations. It must produce a lower level of reception because the level of hearing will be so much worse than that from a microphone placed inside a premises. Even though perfect transmission might be achieved from the glass back to the electronic reception, the fact of the sheet of glass standing in the way will inevitably degrade the transmission. If the requirement is that it should be the "same", then everything should be ruled out. There is no device in existence which operates outside that could not be bettered by a device placed inside a premises or a car. That is an absolute and 100 per cent unbreakable law of physics. It cannot be otherwise.

However, I understand the noble Lord's difficulties with the word "similar". It will allow into the definition of intrusive surveillance all kinds of activities which he would not wish to see included. However, I hold to my basic premise; namely, that the wording used by the Government keeps everything out. The Government have said that they do not want that either. I hope that those on both sides of the argument will give the matter further consideration before Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 [Persons entitled to grant authorisations under ss. 27 and 28]:

Lord Bach moved Amendment No. 40: Page 33, line 12, leave out ("The Secretary of State may by order") and insert ("An order under this section may").

The noble Lord said: My Lords, on behalf of my noble friend I should like to move Amendment No. 40 and speak at the same time to Amendments Nos. 41, 42, 43 and 94. These amendments look substantial on the Marshalled List, but their purpose is simple. They seek to achieve four things. They will add the Food Standards Agency and the Intervention Board to the list of bodies whose surveillance activities can be regulated by an order made by the devolved administration. The new clause deals with the situation in Northern Ireland and will enable the devolved administration in Northern Ireland to make orders governing surveillance by bodies in the transferred, devolved field.

First, the amendments add the Food Standards Agency and the Intervention Board to the list of bodies. Secondly, they ensure that the same is true for new bodies which are added to the schedule by the Secretary of State. As long as those bodies are not within sole Westminster competence, it is right that the devolved administration should have the ability to regulate them. Thirdly, the amendments change the order-making authority from "First Minister and Deputy First Minister acting jointly" to "Office of the First Minister and Deputy First Minister". That refinement is made at the suggestion of the devolved administration. Lastly, the amendments split Clause 29 into two clauses, simply because the Northern Ireland material in Clause 29 has become substantial enough to merit a new clause. I beg to move.

Lord Cope of Berkeley

My Lords, some would not regard 12th July as a suitable day on which to make these changes in relation to Northern Ireland. However, I do not object to them.

On Question, amendment agreed to.

Lord Bach moved Amendments Nos. 41 to 43: Page 33, line 18, at end insert— ("(5A) Without prejudice to section (Orders under s. 29 for Northern Ireland), the power to make an order under this section shall be exercisable by the Secretary of State."). Page 33, line 25, leave out subsections (7) to (13). After Clause 29, insert the following new clause—