Lords Sitting of 13 July 2000

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Gloucester.

Legal Secretariat: Retirement Age
Lord Janner of Braunstone Lord Janner of Braunstone asked Her Majesty's Government:
Whether they will raise the compulsory retirement age of the legal secretary to the Law Officers and other senior officials in the Law Officers' Department from 60 to 65.
The Attorney-General (Lord Williams of Mostyn): My Lords, no. The legal secretary to the Law Officers and his staff ably assist both the Solicitor General and me. Almost all staff at the Legal Secretariat are on loan from either the Crown Prosecution Service or from other areas of the government legal services. They continue their careers with their home departments after a period of secondment.
Lord Janner of Braunstone: My Lords, does my noble and learned friend agree that it is an ageist anomaly to force senior officials out of his department at the age of three score years? Is my information correct that he is fast approaching that age and that all right thinking Members of this House hope that he will continue in his present office for many shining and mature years to come?
Lord Williams of Mostyn: My Lords, the age of the Law Officers is subject to the Freedom of Information Bill and therefore cannot be disclosed in any circumstance.
Lord Goodhart: My Lords, now that people are living considerably longer and that many people in their 60s and 70s enjoy improved health, should not people be encouraged to work longer and should not the Government set an example? Is there reason to believe that a significant number of officials in the Law Officers' Department or in any other government department will be incapable of doing their job by the time they are 65? Is it not a case in which the Government should take a lead?
Lord Williams of Mostyn: My Lords, I believe that when the noble Lord, Lord Goodhart, speaks of government servants working to more advanced years he has in mind the Lord Chancellor and myself. I am happy to tell your Lordships that we both intend to go on and on and on.
There is the opportunity for officials in the Law Officers' Department to stay on until age 63 if the head of department agrees, therefore there is a degree of
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flexibility. But as my noble friend Lady Scotland said on an earlier occasion, post-60 there are many opportunities.
Lord Mayhew of Twysden: My Lords, does not experience teach us that no one is indispensable, whatever views we may have about our own claims? Furthermore, is it not the case that the government legal service provides ladders of promotion which enable people to move up and across departmental boundaries? Would it not be a bad thing if a blockage were to be imposed, such as that proposed in the Question, on the Legal Secretariat to the Law Officers, who are responsible for the government legal service?
Lord Williams of Mostyn: My Lords, the noble and learned Lord is right. The quality of achievement and capacity in the government legal service is remarkable and remarkably unsung. I can give two illustrations. A former legal secretary, whom he knows well, Juliet Wheldon, has now been appointed the first woman Treasury solicitor, and the present legal secretary to the Law Officers has been promoted to be the senior legal officer in the Home Office. That amply demonstrates the value and validity of the points which the noble and learned Lord made.
Lord Lester of Herne Hill: My Lords, I declare an interest as someone who, unfortunately, is now 64. Would the noble and learned Lord agree that the legal secretary to the Law Officers should be judged on his or her individual merits regardless of age in the same way as he or she is judged regardless of colour, gender or ethnic origin? What is the justification for fixing such a low arbitrary age limit?
Lord Williams of Mostyn: My Lords, it may be regarded in some quarters as being low but it is not arbitrary. It is the common age across the whole Civil Service, subject to the extension. Increasingly in private industry, that is the kind of age at which people retire if they have not earlier demonstrated proved incompetence and been able to leave with a vast golden pay off.
Lord Inglewood: My Lords, perhaps I may declare an interest as someone approaching 50. If I may be allowed to speak of those of my generation, would not the noble and learned Lord the Attorney-General agree that it is important that there is not a blockage in the system by those of an older age getting in the way of appropriate and proper promotion for those of my generation?
Lord Williams of Mostyn: My Lords, I wish that the noble Lord had not fixed me with quite such a beady eye when he described me as a "blockage". However, I am sure that the noble Lord is rapidly approaching that time of life which would entitle him to paid government employment.
Lord Renton: My Lords, in considering this and further matters concerning age, will the noble and

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learned Lord bear in mind that people are now living longer, that they mature at different ages, and also that some people retain their full ability and their intelligence far beyond the age of 60?
Lord Williams of Mostyn: My Lords, having been present for the whole 28 days of the House of Lords reform debates, I am happy to agree with the noble Lord that people mature in different ways.
Baroness Greengross: My Lords, are we not approaching the time when age should be totally irrelevant, with competence and ability the only criteria by which people should be judged, so that competence testing rather than age limits should be imposed?
Lord Williams of Mostyn: My Lords, that is an interesting argument, to coin a phrase, but there must come a time when we must all put down the baton of civilisation and make way for others. As I said earlier, there are plenty of other things to do post-full-time employment.
Lord Wallace of Saltaire: My Lords, is the noble and learned Lord the Attorney-General aware of the framework directive which is about to come before the social affairs council of the European Union and which proposes to outlaw discrimination on a number of grounds, one of which is age?
Lord Williams of Mostyn: My Lords, I was aware of it and I am bound to say that not every emanation from Europe necessarily is perfect.

Schizophrenia
3.14 p.m.
Lord Williamson of Horton Lord Williamson of Horton asked Her Majesty's Government:
Whether National Health Service arrangements for the care and treatment of patients with schizophrenia are adequate.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, there have been unacceptable variations in the standards of care available to people with mental health problems, including those with schizophrenia. The Government are rectifying that by investing significant new resources, by introducing national standards and by bringing forward proposals to modernise the mental health legislative framework.
Lord Williamson of Horton: My Lords, I declare my interest as a patron of the National Schizophrenia Fellowship, and I thank the Minister for that encouraging Answer. However, will he join my crusade to reduce the number of cases where patients abandon their medication with serious consequences
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for hospital admissions and, of course, for cost? As it is well established by current surveys that one of the main reasons why patients abandon their medication is their aversion to side effects, does the Minister agree that it is important that the whole range of drugs, including those which may cause fewer side effects, should be available under the NHS and that drug rationing is a false economy?
Lord Hunt of Kings Heath: My Lords, I certainly agree that we must do everything that we can to encourage people who suffer from schizophrenia to take the drugs that they have been prescribed. I believe that some of the care programmes and assertive outreach programmes are well geared to encouraging users to do so.
I accept the noble Lord's point that many of the traditional drugs have adverse side effects, although even the new or atypical drugs which are better tolerated by many users also have a range of side effects. However, in relation to policy on the prescribing of such drugs, the National Institute for Clinical Excellence has been asked to manage the production of guidelines which, I believe, will help to ensure consistency of approach throughout the NHS.
Lord Jenkin of Roding: My Lords, is full use currently being made of the supervised treatment orders introduced in legislation a few years ago?
Lord Hunt of Kings Heath: My Lords, I believe that many problems have arisen in relation to patients who are not prepared to accept the treatments prescribed for them. That is why, in the Government's papers reviewing the current use of mental health legislation, the proposal has been put forward for compulsory treatment orders. We have received many comments on that proposal and are currently considering how to take the matter forward in relation to proposed new legislation.
Lord Morris of Manchester: My Lords, is my noble friend aware that many NHS mental health patients are now being sent from London up to 200 miles away to private hospitals, at a cost of more than £1,000 per patient a day, and that to take but one example, the South London and Maudsley NHS Trust in consequence is now facing an overspend of £1.5 million? Can anything be done to address this problem for the trusts affected?
Lord Hunt of Kings Heath: My Lords, my noble friend raises the very important issue of whether we have sufficient beds for this type of patient. I believe that trends in recent years undoubtedly have reduced the number of beds available. In 1987, 39,000 or so beds were available for adult patients. By 1997 that number had been reduced by 21,000. I recognise that a particularly acute problem exists in London. That is why 68 additional places were produced in 1999–2000, with a further 113 places being produced in the current financial year. I am, of course, happy to look into issues of particular financial difficulty which hospitals

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may be experiencing. I believe that the Maudsley Hospital to which my noble friend referred had an overspend of £700,000 last year which, in relation to its overall budget, is comparatively small. However, clearly the real answer is to ensure that we have enough beds.
Baroness Northover: My Lords, is the Minister satisfied that sufficient funds are being provided to local government for accommodation for psychiatric patients, including those with schizophrenia? How are the Government tackling the major shortage of community psychiatric nurses?
Lord Hunt of Kings Heath: My Lords, I fully recognise that local government has an important role to play in ensuring that there are sufficient facilities in the community to enable people suffering from mental illness to be appropriately supported. The purpose of the mental health grant is to help local authorities in their responsibilities in that respect. I am pleased to report that there has been an increase in the number of people in the workforce who provide direct care and support to people with mental health problems. For example, since 1998 the number of hospital consultants has increased from 2,360 to 2,710 and the number of community nurses increased from just under 9,500 to just over 10,000. I very much hope that we can continue to increase the numbers of staff in those areas.
Earl Howe: My Lords, is the Minister aware that in recent surveys, schizophrenic patients have expressed much greater satisfaction with the newer, atypical medicines than with the older ones? Does the National Institute for Clinical Excellence take into account the extent of patient satisfaction when determining the cost-effectiveness of a treatment?
Lord Hunt of Kings Heath: My Lords, it is not appropriate for me to describe how NICE will approach the work, as the noble Earl tempts me to do. At some stage in the process of NICE's considerations, the Government will have to take a view. If users find a particular set of drugs better to take than others and that increases the likelihood that they will take their medication, that must be taken into account when deciding which drugs are most appropriate to use. As the noble Lord, Lord Williamson, has already suggested, we have a real problem, in that many people suffering from schizophrenia are not following their medication regimes.
Baroness Pitkeathley: My Lords, does my noble friend agree that for schizophrenia, at least as much care is provided by patients' families as by the national health service or local authorities and that the support given to those families is therefore of great significance?
Lord Hunt of Kings Heath: My Lords, my understanding is that from estimates it is reckoned that about 125,000 people suffering from schizophrenia
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live with their family. That places a considerable burden on those family members as carers. We need to do all that we can to support them. The Government's strategy on carers will help, as will the Carers and Disabled Children Bill, which my noble friend is taking through the House, because, if passed, it will enable local authorities to give more support to carers.

US Nuclear Defence System Proposal
3.23 p.m.
Lord Wallace of Saltaire Lord Wallace of Saltaire asked Her Majesty's Government:
Whether they consider that upgrading early warning radar sites in the United Kingdom to support the proposed United States nuclear missile defence system would break the 19'72 Anti-Ballistic Missile Treaty.
Baroness Ramsay of Cartvale: My Lords, the United States recognises that changes to the terms of the ABM Treaty would be required to enable it to deploy the sort of national missile defence system currently envisaged without breaching that treaty. That is why it is seeking to negotiate such changes with Russia. The Foreign Office and the Ministry of Defence recently submitted a memorandum on the subject to the House of Commons Foreign Affairs Committee, which has now put it in the public domain via the Internet. I shall therefore now be able to place a copy in the Library of the House.
Lord Wallace of Saltaire: My Lords, I thank the Minister for that encouraging reply. Does she recognise that at the present stage of debate in the United States, where people are much less determined to go ahead than they were some months ago, the views of America's allies will carry great weight? Will she assure us that Her Majesty's Government intend making their views known about a system that will require British co-operation if it is to go into service as designed?
Baroness Ramsay of Cartvale: My Lords, I assure the noble Lord and the House that our views on NMD have been conveyed clearly to the United States in bilateral exchanges and in discussions in NATO on many occasions. The debate involves important security concerns on all sides. We believe that they need to be considered and addressed seriously. Russia has now acknowledged that there is a growing threat from the proliferation of weapons of mass destruction and long-range missiles and that that threat must be addressed. It is essential that the issue is taken forward on the basis of dialogue and negotiation. Public confrontation will hinder, not help, the search for an agreed way forward.
Lord Archer of Sandwell: My Lords, safety from nuclear missiles is indivisible. Either the whole world is safe or no one is safe. If Russia is goaded into

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abandoning her arms control programme, it will make America a more dangerous place in which to live, not a safer one.
Baroness Ramsay of Cartvale: My Lords, it is in nobody's interests nor is it anyone's intention to goad Russia into anything of the sort. That is why the Americans are engaged in ongoing negotiations with the Russians, with our full support and encouragement, to try to find a way forward.
Lord Howell of Guildford: My Lords, does the Minister accept that, despite the failure of the booster rocket in the test at the weekend, if these exoatmospheric killer vehicles can be made to work, they will help to reinforce world safety by reducing people's readiness to resort to nuclear weapons? Will she reassure us that the British Government take a rather more positive view of the issue than, for example, the French Government? As the decision has to be made in two weeks in Washington on whether the programme will go ahead under the current President and as British participation is necessary for that decision, because of the high-resolution radar at Fylingdales and the infra-red tracking facility at Menwith Hill, will she reassure us that the British Government are also ready to take the necessary decision in the next few weeks? Will she ensure that we are fully informed when the Government take that decision?
Baroness Ramsay of Cartvale: My Lords, I assure the noble Lord that the House will be fully informed if any such decisions are taken. However, I caution against believing the reports, which I have also read, that decisions are about to be taken in the next week or two. I think that our information is accurate. Our understanding is that no decision on NMD will be taken in the United States until towards the end of this year. Many noble Lords will have seen the article in last Sunday's Observer stating that a decision would be taken at a meeting on Tuesday. That is not the case. There are many meetings taking place, as one would expect. The United States' decision on whether to proceed with NMD deployment will be taken by the President alone. I repeat that we do not expect any decision from him until later this year at the earliest.
Baroness Williams of Crosby: My Lords—
Lord Carver: My Lords—
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I think that we probably have time for two more questions. I believe that the House is inviting a contribution from the Cross Benches.
Lord Carver: My Lords, after the failure of the second trial the other day, will the Government try to persuade the United States Government to abandon this irrelevant project and switch their efforts to
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theatre missile defence, which would not be in breach of the ABM treaty and would be much more relevant to the needs of NATO?
Baroness Ramsay of Cartvale: My Lords, no doubt the outcome of the latest test will have a bearing on the United States' assessment as regards the decision to be made on the technological feasibility of proceeding to deploy an NMD system at this point. But plainly, as the noble and gallant Lord will understand better than most, one cannot judge the feasibility of such a complex system on the basis of one test. Many more tests have always been planned before any NMD system becomes operational.
Judgments on the technical progress of the programme are for the United States to make. In the meantime, as I said, we continue to discuss the wider issues raised by missile defence with the US Administration, both bilaterally and in NATO.
Baroness Williams of Crosby: My Lords, may we take it from what the Minister said that she will now encourage much wider public debate, which has not so far taken place to any great extent in this country, especially given our very powerful negotiating position here? Does she agree that there is a real danger that the opening up of a much more extensive system of disarmament, with the full support of both Russia and China, depends largely on how this issue is handled over the next few months?
Baroness Ramsay of Cartvale: My Lords, yes. I can only repeat some of my earlier remarks. We are using every diplomatic means to make known our views to our allies and to those who are not always necessarily our allies on this issue. It is of vital importance to the whole world that we find a proper way forward.

Buy British Policy: Restrictions
3.30 p.m.
Baroness Knight of Collingtree Baroness Knight of Collingtree asked Her Majesty's Government:
What international or European law prevents British public authorities from operating a buy British policy in respect of building projects.
Lord McIntosh of Haringey: My Lords, the international and European law which prevents British public authorities from operating a buy British policy in respect of building projects includes the nondiscrimination and free movement provisions of the EC Treaty, the EC Public Works, Services and Supplies Directives, the WTO Government Procurement Agreement, the European Economic Area Agreement with ex-EFTA countries and various Europe agreements with central and eastern European countries.
Baroness Knight of Collingtree: My Lords, does the Minister agree that cheapest is not always best and

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that it is not unreasonable to bear in mind public opinion? Would it not be possible, when considering very special and important works on British landmarks, such as this Palace of Westminster, to invite tenders only from British firms, which is not the same as inviting tenders worldwide and then only selecting any British tender? Or would that not be politically correct?
Lord McIntosh of Haringey: My Lords, I do not know whether it is politically correct but it is against our international agreements and against international law. I assume that the noble Baroness, Lady Knight, is referring to Portcullis House. This would not be a topical Question if she were not. She will know that Portcullis House has been the subject of legal proceedings on which an interim judgment has been given against the House of Commons authorities and on which a possible appeal is now pending. So it would be quite inappropriate for me to comment on any detail of that particular contract.
But in more general terms, in 1997, the last year for which full figures are available, contracts totalling £2.3 billion were awarded in the UK subject to those international agreements, of which all but £11 million were awarded to UK contractors.
Lord Lea of Crondall: My Lords, does my noble friend agree that that principle applies to the Reichstag just as much as it does to the Palace of Westminster? To follow up a point made by my noble friend, this agreement pre-dates our membership of the EC. I was a member of the EFTA Consultative Committee from 1969 to 1973 and I remember that this provision was in the Stockholm Treaty, to which we adhered, which set up EFTA. So that goes back a long way and it is two-way traffic.
Lord McIntosh of Haringey: My Lords, my noble friend is right in both respects. All of the agreements go back a very long way. The European Community agreements go back to 1973, when we joined the common market. The WTO Government Procurement Agreement dates back some 20 years, although it has become more extensive than it was when it originally came into being. Although it is extremely difficult to obtain statistics as regards the net balance of advantage to British contractors because so many contracts go to international consortia, the suspicion must be that it is very considerably to our advantage.
Lord Hylton: My Lords, I declare a financial interest in forestry in this country. Will the Minister consider whether the recent strength of the pound against the euro, combined with a probability that certain eastern countries have been exporting timber to us at less than the cost of production and restocking, might constitute a special case for the use of British timber in British building projects?
Lord McIntosh of Haringey: My Lords, I am not entirely clear that that follows from the Question that
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I was asked, which was about building contracts. If the noble Lord, Lord Hylton, is accusing anybody of dumping timber in this country, there is a quite separate series of international agreements to deal with that issue.
Baroness Gardner of Parkes: My Lords, is it correct when invitations to tender are extended for any building, whether it be public or private, that there is no obligation to accept the lowest tender? Is it possible to accept one particular tender because, for example, there is a preferred design?
Lord McIntosh of Haringey: My Lords, yes, there is no obligation to accept the lowest tender. However, in certain circumstances—and this may be the case as regards the contract to which the noble Baroness, Lady Knight, referred—it must be shown that equal favour is being shown to contractors from any country; in other words, that national discrimination is not being exercised.
Lord Bruce of Donington: My Lords, does my noble friend agree that the enforcement of the European and international laws to which the noble Lord referred is distinctly patchy? Some very drastic revisions must be made to those laws, on the assumption that they are to be obeyed, if the irregularities in connection with the European Parliament buildings in Strasbourg and Brussels are to be brought within the realms of the ordinary legal understanding of fairness and justice, as understood in this country?
Lord McIntosh of Haringey: My Lords, I do not have evidence on which I could disagree or agree with my noble friend about what he describes as patchy enforcement of those international laws. If there is a claim in relation to any particular project, it is open to contractors to seek to take legal action against the public authority and it is open to the European Commission to take action on an international basis.

Business
Lord Carter: My Lords, after Amendment No. 56 on the Regulation of Investigatory Powers Bill, my noble friend the Leader of the House will, with the leave of the House, repeat a Statement which is being made in another place on the Annual Report.

Her Majesty The Queen Mother
3.38 p.m.
Baroness Jay of Paddington: My Lords, I beg to move the first Motion standing in my name on the Order Paper. It is a privilege to move the Motion on this unique occasion. I am sure that I shall not be

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challenged if I say that Her Majesty Queen Elizabeth the Queen Mother is held in unique affection and esteem by the whole nation.
Noble Lords: Hear, hear!
Baroness Jay of Paddington: My Lords, her forthcoming 100th birthday is the occasion for much celebration and it prompts us all to think back over the many remarkable events which have punctuated her long and interesting life.
When Lady Elizabeth Bowes-Lyon agreed to marry the Duke of York, she could not have guessed that she would one day become the Queen. There will be noble Lords here this afternoon who remember the turbulent time when the Duke of York succeeded to the throne as George VI. Many more will remember the support and confidence Queen Elizabeth gave her husband, particularly in the perilous days of war which were to follow.
We have all seen images of the young Queen and her husband visiting bomb-damaged sites in London during the Blitz. Radiating hope and cheerfulness, she set about the task of lifting spirits, and strengthening the nation's resolve. Countless hearts were won by her unflagging sympathy, the warmth of her character, and the kindness of her smile. In the years that have followed, her smile has become her trademark. Her late Private Secretary, Sir Martin Gilliat, always recalled that when he came each morning to discuss her programme for the day Her Majesty's infectious enthusiasm for every event raised his morale in the face of what was often an extremely heavy schedule of public engagements. That enthusiasm and attentive personal interest is always mentioned by anyone who has met the Queen Mother in any circumstance.
So many people have experienced Her Majesty's personal warmth in so many circumstances because her range of personal interests is very wide and her Royal duties, even in recent years, very extensive. My right honourable friend the Prime Minister reminded another place earlier this week that Her Majesty gives support to some 350 organisations as patron or president—charities, voluntary bodies and other organisations in a vast tapestry of public service.
I remember her vivacious involvement in the work of the National Association of Leagues of Hospital and Community Friends when I was its national chairman. Recently the present chairman, the noble Baroness, Lady Miller of Hendon, was received by Her Majesty at Clarence House at a happy occasion to mark the Hospital Friends' 200th birthday.
The Queen Mother's concerns spread right across society, sometimes, perhaps, into unexpected quarters. My father, the noble Lord, Lord Callaghan, for example, recalls her constant enquiries over many years about the coal mining industry and the wellbeing of mining communities, communities where she always appreciated hearing the opinions of the miners themselves, given to her straightforwardly in unvarnished direct terms, something for which of course Her Majesty herself has been renowned.
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The personal focus of Her Majesty's life has been her family. As a wife, a mother, a grandmother, and a great grandmother, she has strengthened and guided the Royal Family through the changing world of the past century, with her wise counsel and strong sense of public duty. In all her years of public life, that sense of public duty has never faltered for a moment. We remember Queen Elizabeth's presence at so many public events. We remember her representing this country abroad, and receiving particularly warm affection and good wishes in the numerous countries of the Commonwealth. Just this week, we remember her at the service of thanksgiving in St Paul's Cathedral, where her indomitable spirit was so clearly visible.
We now look forward to further celebrations. There will be parades, parties, and tributes as the nation joins together with the Royal Family to mark this unique anniversary. I know that all of your Lordships will wish to join together to thank Her Majesty for a lifetime of service, and to wish her much joy and happiness and a very happy 100th birthday on 4th August.
Moved, That an humble Address be presented to Her Majesty The Queen as follows—
Most Gracious Sovereign, We, Your Majesty's most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to assure Your Majesty that this House looks forward eagerly to the 100th Birthday of Her Majesty Queen Elizabeth The Queen Mother, an occasion which the entire nation will wish to celebrate:
To convey to Your Majesty the admiration and the deep sense of affection that is felt for Her Majesty Queen Elizabeth The Queen Mother, both by this House and by the British people and the Commonwealth, to whose service she has devoted so much of her life:
To express the hope that Her Majesty Queen Elizabeth The Queen Mother may long continue to enjoy good health and happiness.—(Baroness Jay of Paddington.)
Noble Lords: Hear, hear!
Lord Strathclyde: My Lords, it is an immense privilege for me to have the honour to associate myself fully, on behalf of the Opposition Benches, with the tribute that the Leader of the House has paid to Her Majesty Queen Elizabeth the Queen Mother, and to support the Motion that a message should be sent from your Lordships' House conveying our warmest congratulations to Her Majesty on the occasion of her forthcoming 100th birthday.
Quite rightly, the Motion speaks of the admiration and deep affection in which Her Majesty is held, not only in this House, but across the four parts of this Kingdom and throughout the Commonwealth. No one who had the privilege, as I did, of being present at both the Guildhall two weeks ago and in St Paul's Cathedral on Tuesday of this week, could doubt the immense respect and devotion this quite remarkable and truly gracious lady inspires.

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The Motion before us speaks of some 64 years of service. It is indeed 64 years since Her Majesty and her late husband the King were thrust so unexpectedly to the head of the nation's affairs. But of course she had become a focus of affection even before that as Duchess of York. The measure of her service and her unswerving sense of duty runs back over 75 years.
Is it not extraordinary to think that when Her Majesty first sat alongside the Throne at the State Opening of Parliament, she did so as Empress of India? Stalin's purges raged in a now vanished Soviet Union and Stanley Baldwin stood at the Bar of the House as Prime Minister. It was truly another world. Her Majesty has lived through a maelstrom of change. Yet across all those years she herself has never changed. She has remained a pillar of stability, good humour, a joy to all those millions whose lives she has touched and graced with her sparkle and charm. She has known testing times, but she has never wavered. She shared without hesitation the grief and the danger of the poorest during the blitz. She devoted herself tirelessly and unstintingly to public duty—an unfashionable concept to some, but one that this House has always honoured and recognised above all else.
It is not for me to recite Her Majesty's achievements or her litany of service. They are written in the hearts of the British people and in the annals of countless charities, voluntary bodies and service organisations across the land. They and we give her the most heartfelt thanks. So it is with the very greatest pleasure that I support wholeheartedly the two Motions that stand before the House.
Lord Rodgers of Quarry Bank: My Lords, on behalf of these Benches it is my duty and pleasure to support the Motion standing in the name of the noble Baroness the Leader of the House.
Many hundreds of men and women, from all walks of life, will reach 100 years of age this year. They will have served their communities and country well, often with distinction and from modest beginnings. And we remember them. But the Queen Mother has a special place in the life of the nation, particularly, as the Leader of the House said, in the difficult circumstance of the accession to the Throne of her husband, King George VI, as well as in wartime. It is wholly appropriate that we should mark her forthcoming birthday in this way, recognising the warm affection in which she is so widely held.
Lord Craig of Radley: My Lords, it is a great privilege for me to speak to this Motion. All Cross-Bench Peers would wish to be associated with the warmth and sincerity of the loyal message, and to add their heartfelt congratulations to Her Majesty Queen Elizabeth.
Ten years ago it was my duty as Chief of the Defence Staff, and a great privilege, to be standing on the royal dais at Her Majesty's side as she received the tributes on Horse Guards Parade to mark her 90th birthday. She enjoyed every minute of it for it was a grand occasion, devised by that master of grand occasions, Major Michael Parker.
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As the many military and civilian groups paraded before Her Majesty, she kept asking me details about them. I could manage the military questions, but the range of Her Majesty's interests and patronage knows no bounds. I was soon not always able to help as we watched over 50 civilian groups go past to honour her. They ranged from members of the Poultry Club and the Dachshund Club, together with their animals, to the august Honourable Society of the Middle Temple and Fellows of the Royal Society.
Following three cheers for Her Majesty we completed the evening by everyone singing,
"Will ye no come back again?
Better lo'ed ye canna be,
Will ye no come back again?".
It was very moving. This summer that wish has been granted. Her Majesty is back. Indeed, she has never left the public eye, undertaking many engagements and bringing pleasure and grace to every occasion. How right, in his speech in your Lordships' Chamber on the humble Address to mark Her Majesty's ninetieth birthday, was the late Lord Runcie who said that Her Majesty had consistently chosen a life of service rather than one of retirement.
Next week an even more wonderful tribute, devised once again by Major Parker, and numerous other events, have been arranged to celebrate the birthday of a very special and much loved lady. This afternoon, Cross-Bench Peers join all sides of your Lordships' House in expressing their profound admiration and affection for Her Majesty the Queen Mother. She has served her country and the Commonwealth quite simply majestically.
The Archbishop of Canterbury: My Lords, from these Benches I convey the warm support of the Lords Spiritual for this Motion, to which, of course, I add my own heartfelt congratulations. I was privileged to take part in the thanksgiving service in St Paul's Cathedral on Tuesday when we celebrated all that Her Majesty The Queen Mother has meant, and continues to mean, to so many people around the world, in the Commonwealth and to us all in this House. It was an occasion of great joy which I am sure will be echoed in the days ahead.
Many tributes have already been paid here and elsewhere and many more will rightly follow as we approach the date of Her Majesty's hundredth birthday next month. The sheer number and variety of these tributes affirm her worth and how deeply the Queen Mother's marvellous example of service and duty has resonated with generations of admirers and well-wishers. We appreciate the way in which she has borne the burdens of public service with charm and dignity and admire her unfailing commitment and love of life. It is a love that has been returned with love.
I hope that noble Lords will permit me to touch, as they would expect, on one aspect of this rich pattern of service, her faith in almighty God. Her dedicated and wholly unpretentious devotion to the truths of the Christian gospel has been a rich source of strength. It has helped to sustain her both through the personal joys and sadness of a long life lived to the full. As I said

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on Tuesday, it has suffused her sense of duty and commitment to others. In a life that has witnessed so many changes I know that it remains a source of strength to draw upon those Christian values that remain timeless. In this hundredth year we give thanks to Almighty God for Her Majesty the Queen Mother, for her public service and devotion to duty.
On Question, Motion agreed to nemine dissentiente and it was ordered that the Address be presented to her Majesty by the Captain of the Gentlemen at Arms.

Her Majesty The Queen Mother
Baroness Jay of Paddington: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That a Message be conveyed to Her Majesty Queen Elizabeth The Queen Mother as follows—
Your Majesty,
We, the Lords Spiritual and Temporal in Parliament assembled, warmly congratulate Your Majesty on Your Majesty's forthcoming hundredth Birthday and express our gratitude for Your Majesty's outstanding service to the Nation for over 64 years;
We remember the courage of Your Majesty and His late Majesty King George VI during the last War and the inspiration You then provided;
We thank Your Majesty for the immense joy You have given the British people and wish Your Majesty many happy returns.—(Baroness Jay of Paddington.)
On Question, Motion agreed to nemine dissentiente and it was ordered that the Message be presented to Her Majesty The Queen Mother by the Lord Archbishop of Canterbury, the Lord Chancellor, the Lord Privy Seal (Baroness Jay of Paddington), the Lord Strathclyde, the Lord Boston of Faversham, the Lord Craig of Radley and the Lord Rodgers of Quarry Bank.

Police (Northern Ireland) Bill
Brought from the Commons; read a first time, and to be printed.

Royal Parks (Trading) Bill
Read a third time.
Lord McIntosh of Haringey: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord McIntosh of Haringey.)
Lord Brougham and Vaux: My Lords, I do not wish to detain the House for long. The noble Lord was kind enough to respond fully to my questions at Second Reading. However, there is one question that I still
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have outstanding on which I seek clarification. I know that the Minister cannot say when the Bill will receive Royal Assent. However, will the orders be laid the day of, or the day after, Royal Assent to enable the clock to start ticking? What I am really trying to find out is when we shall be able to implement the Bill and get rid of these dreadful people from our lovely parks?
Lord McIntosh of Haringey: My Lords, it is not possible for me to say when Royal Assent will be given. However, if we were to assume for the sake of argument that Royal Assent were given by Thursday of next week, the orders could be laid immediately and would come into force at midnight on 28th October. That would be somewhat late for the ice cream trade but in good time for the hot dog trade!
Lord Brougham and Vaux: My Lords, I am grateful to the noble Lord.
On Question, Bill passed.

Television Licences (Disclosure of Information) Bill
Report received.

Regulation of Investigatory Powers Bill
3.56 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
Clause 48 [Effect of notice imposing disclosure requirement]:
Lord Lucas Lord Lucas moved Amendment No. 55:
Page 54, line 12, leave out ("and") and insert ("or").
The noble Lord said: My Lords, I am very much fortified by my success last night on a similar amendment similarly inspired by the notable Dr Charles Lindsey of Manchester University. I am trying yet again to convince the parliamentary draftsmen that they have their grammar wrong.
Clause 48(1) states,
"both the protected information and a means of obtaining access to the information and of putting it into an intelligible form".
"Both" qualifies two subjects, not three. In any event, the two latter points,
"a means of obtaining access to the information and of putting it into an intelligible form";
are not both necessary for the purposes of this clause. You need one or the other. I hope that this redrafting will appeal to the Government as it did last night. I beg to move.
Lord Bassam of Brighton: My Lords, I am, as ever, grateful to the noble Lord, Lord Lucas, for his tremendous concern for the English language and linguistic correctness, if I may so describe it. However, I am extremely puzzled by the amendment. My brief states:
"Resist … Purpose of amendment unclear. Imposes requirement to disclose plain text on persons who have no means of obtaining access to the information; or no means of putting it into intelligible form".
I almost expected to see a reference to "intelligible life form".
Unfortunately, in attempting to correct the parliamentary draftsmen—as the noble Lord did so expertly yesterday—he has fallen into the trap of perhaps causing more problems than he has sought to solve. Subsection (1) of Clause 48 is the basic disclosure requirement. It requires persons to disclose a plain text version of the protected information. It also makes it clear that there is no legal obstacle to their using their own key to decrypt the information so that they are able to deliver the plain text. According to subsection (1), this requirement works only if three conditions are met. Effectively, by his amendment the noble Lord is asking whether we need all three conditions, and so it falls to me to explain them.
The first condition is that the person is in possession of the protected information—there is no argument between us on that. The second condition is that the person must have a means of obtaining access to that information. I think it is pretty obvious that the purpose is to make clear that a notice does not entitle the recipient to obtain access to the information. Noble Lords will recall that on Amendment No. 44 we explained precisely why we do not agree that there should be such a right. The third condition, in plain and simple terms, is that the person has the means of putting the information into intelligible form. I should be very surprised if the noble Lord intended that condition to be at all optional. A requirement to deliver plain text cannot properly work without all of these conditions being fully satisfied.
The noble Lord has rightly sought to correct an inadequacy in the drafting, but in so doing he has undermined the working principles behind the way in which we see the clause operating. Obviously I take the point about the drafting—perhaps we should look at that again—but I ask the noble Lord, having scored his instant hit yesterday after many years of trying, to withdraw his amendment.
4 p.m.
Lord Lucas: My Lords, I am not surprised. There are a couple of points that I still do not understand. If a person is in possession of the information, how can they be lacking a means of obtaining access to it in the way described by the noble Lord? Having listened to the noble Lord, would not it be sensible if the word "both" was left out?
I remain puzzled by the wording of the clause and the way it will work. But I shall not detain the House now; I shall study in Hansard what the noble Lord said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 56:
Page 54, line 17, at end insert—
("( ) Where a person who has been given notice under section 47 believes that compliance with the notice will involve breaching a legal duty of confidentiality to another person, he may, within 24 hours of receipt of the notice, refer the notice to the Interception of Communications Commissioner who shall rule whether that person shall breach that other legal duty or whether the notice shall be withdrawn as disproportionate, having regard to the effects of the notice in either case.").

The noble Lord said: My Lords, this amendment has been brought forward because of the concerns of bankers and others in London that a conflict may arise in their obligations as a result of the Bill. The concern has been expressed to me by a number of organisations and companies that the provisions of the Bill may conflict with both their ordinary legitimate business arrangements so far as concerns commercial confidentiality and with the legal obligations they owe to their customers world-wide. After all, a key— which is what this clause is all about—that can be used to decrypt one message may also be capable of decrypting other messages which are nothing to do with the crime or possible terrorism—whatever it is that is being investigated—for which the key has been requested.
In these circumstances, they are extremely concerned, first, that they may face enormous legal challenges and, secondly, that their business will emigrate overseas. Any perception—and perception matters here quite as much as the reality—by customers and financial institutions that doing business in this country, in London or elsewhere, would be less secure because the confidentiality of encrypted messages was not protected as thoroughly as elsewhere could have a significant adverse impact on this country as a place to do business, particularly e-business, and on London's attractiveness as a financial centre.
Of course, to some degree it is a question of comparison of perceptions; that is one of the disadvantages of the Government's proud boast that they are in the lead in taking powers to tap the Internet in this way. That is why we have attempted in Amendment No. 56 to suggest what might happen when an organisation, a company or a person has been given a notice under Clause 47. If they believe that to comply with the notice will be to breach a legal duty of confidentiality to someone else, they should have

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somewhere to go—in the amendment we suggest the commissioner—to decide which of the legal obligations they should honour.
Where they are placed in the dilemma of whether to dishonour the legal obligations they have entered into with their customers or to disobey the legal notice with which they have been served, it seems to us that the commissioner—the judicial figure—would be the right person to decide which of those legal obligations should be carried out having regard to the importance of the case, the importance of the investigation, the importance of the key and so on, on the one hand, and the effects on the business of giving way and obeying the notice on the other.
We have suggested 24 hours as the time within which the recipients of the notice should be allowed to appeal. The danger will be immediately obvious to them, but while an appeal was running it would hold up the authorities—the police or whoever wanted the key—and they should not be allowed an infinite time for that. We think that 24 hours is a fairly minimal time but that is the suggestion in the amendment. We have not necessarily found a perfect solution but the amendment draws attention to a very real and potentially very damaging problem. I beg to move.
Viscount Goschen: My Lords, my noble friend's amendment is a welcome initiative to highlight one of the central concerns that industry has about the Bill. Of course, in the matter of encryption keys and the disclosure of those keys to public authorities, the potential effect goes far wider than those businesses which are actively involved in e-commerce; it goes to all businesses, particularly those of an international nature.
A provision whereby members of staff or the directors of a firm are put into a position of jeopardy and run the risk of breaching confidentiality undertakings with clients and other people with whom they have interaction is one of the central areas of difficulty over the Bill. My noble friend Lord Cope has suggested one solution—which I am sure would add a significant degree of comfort—but he has also indicated that he is not necessarily wedded to every detail of the amendment. So there is a good opportunity for the Government to come forward and say how they propose to address the situation.
I caution the Minister against saying "Don't worry. There is no difficulty. This is pure perception". The first point is that there are a number of people and bodies that would not agree with that point of view; the second point is that, even if the Government were very confident of their argument, there is still a significant problem of perception. The Minister cannot possibly be in a position to understand all the intricate contractual obligations that business might have made with customers in these circumstances. I suggest that it would be very difficult for the Minister to brush those aside.
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There is a real opportunity here for the Government to be constructive and give some additional comfort to industry. My noble friend has highlighted a significant point. I hope that the Government will take this opportunity.
Baroness Thornton: My Lords, I listened to the debates both yesterday and today. Several noble Lords made contributions on the basis of how industry perceives the problem. I am worried about that. Clearly, future investment depends on how people perceive the framework around this issue. Noble Lords opposite say that the way in which industry perceives the matter is a justification for not making the kind of effort proposed in the legislation. But perhaps industry's perceptions are wrong and the issue that noble Lords should tackle is industry's perceptions. There has been a huge amount of lobbying from the Internet industry. Perhaps noble Lords should ask questions of the Internet industry. Perhaps they should say, "You perceive that there are these problems, these threats and so on that discourage people from investing. But what do you think are the answers to these issues?".
For example, yesterday, I visited the website of the organisation run by Mr Caspar Bowden. I looked at the organisations that are involved in his campaigning and the work that he has done on the Bill. I noticed that not a single childcare organisation or organisation involved with the education of the young and their relationship to the Internet is involved in his campaign. That is very worrying indeed. Does industry gain its perception from those who do not reflect the users about whom we are concerned—the children, the young and those who are vulnerable? I ask noble Lords to address the issue of the perception problem of which they have made so much in the past few days.
Lord Lucas: My Lords, with the amendment we come to what I see as the one remaining major difficulty with the Bill. How can a reputable international business be sure that its keys, or such keys as it keeps in this country, will be properly treated? When thinking where to place one's jewels in a safety deposit box, one might hesitate before choosing Harrods. All the systems, safeguards, contracts and guarantees can be in place, yet perhaps there remains an element of mistrust. That is what the Bill, as it stands, introduces into the thinking processes of international businesses. When an international business is faced with deciding where to place its centre of business, which is where the keys will be stored, generated and maintained, will it choose a country where those keys at all times remain in its possession and under its control, or will the keys be kept where a chief of police with a particularly pressing problem can unlock the whole security system?
The noble Baroness has drawn attention—
Baroness Thornton: My Lords, does it not rather depend on what one is doing?
Lord Lucas: Yes, indeed, my Lords. The noble Baroness has drawn attention to some very important

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problems. We cannot put structures in place which make it difficult or impossible for the police to deal with real crime and real criminals. But what we likewise must do is change the perception of business, in terms of an accurate perception of the risks which the Bill poses for the safety and the sanctity of its encryption structure, which is what it uses to protect its business and what it uses to guarantee its dealings with other people. We have to find a better way of dealing with that problem than is in the Bill at the moment.
The amendment addresses one possibility. For example, if Barclays Bank is faced with a raid on its keys, it can appeal to an interception commissioner. It can say, "This is entirely out of proportion. They ought to be satisfied with plain text". It gives a chance for a business to keep control of its keys. We shall come later to Amendments Nos. 62 and 63 and to other amendments which deal with other ways of achieving this purpose.
We do not want to see all the dangers and difficulties portrayed so graphically yesterday by the noble Lord, Lord Stevenson. We do not want to produce in the minds of international lawyers, who I suspect will be the people making these decisions, when they are questioning whether a business should put its headquarters in England, The Netherlands, Germany or Switzerland, the thought that they should cross out England because they cannot be sure of the safety of their key structure. We must avoid that kind of position; otherwise, as the noble Lord, Lord Stevenson, said, we will loose by stealth, without anybody knowing it, our core international e-business. That will be followed, as surely as night follows day, by the administrative infrastructure of those businesses moving out of this country.
It may be that this is not the right way of achieving our purpose. It may be that this amendment offers too many opportunities for the criminal to impose a day's delay and to use it. But we must in the course of today at least find some way to make it absolutely clear that a reputable organisation running a large international business will never lose control of its keys, will always be in a position of being able to maintain its security, and that it is absolutely clear to the most cynical of foreign lawyers that that is the case.
4.15 p.m.
The Earl of Northesk: My Lords, I rise to support the amendment. Perhaps I may say to the noble Baroness, Lady Thornton, that this matter is not only one of perception; to a certain extent it is all fact. To try to illustrate the point, I should like to quote from someone called George Hall, Director of Corporate Affairs at ICL. He had just announced a 10-year, £350 million contract to supply—the irony is lost on me—the Home Office's IT services and support. Yesterday he said:
"We trade in many countries and most are not going down this road because the governments there realise they need to encourage the growth of e-business. There is a strong industry view that this legislation casts doubt on the UK Government's commitment to e-business".
That is a factual response: QED, my Lords.
Lord Bach: My Lords, I delayed rising to my feet because I thought we would probably hear something from the Liberal Democrat Benches on this important issue. Obviously, we shall not.
I am grateful to noble Lords for having had a proper, decent debate on this important amendment, which stands in the name of the noble Lord, Lord Cope of Berkeley. The amendment would mean that if a recipient of a Clause 47 notice believed that complying with it would breach a confidentiality agreement, he or she could refer the matter to the interception commissioner for a ruling on whether the notice should be withdrawn.
That is a difficult issue. We discussed it in Committee. Obviously we appreciate that the noble Lords, Lord Cope and Lord Lucas, expressed some continued reservations then about the position. We have received some representations from industry about the question of potential breach of confidentiality arrangements and we have sought to explain the position to them. We do not believe—indeed the noble Lord, Lord Cope, and other speakers have suggested that this may not be the exact or right solution—that the suggestion proposed in the amendment about referring any case to the interception commissioner where there is doubt about breaching a confidentiality agreement would be workable. The interception commissioner would not be the right person for such a referral in all cases. It does not seem to us right that the commissioner should be the one who has to decide whether confidentiality should outweigh the reasons for seeking access to the information. That is part of the proportionality exercise, and properly one for the person authorising the notice and the person giving it.
I should add two other points which may offer some comfort. First, we do not think that the commissioners should have a formal role here. But their oversight function will be crucially important, especially perhaps in the early years of these provisions, in ensuring that the proportionality tests are properly applied. Secondly, there is always access to the tribunal. The tribunal will hear cases under the Human Rights Act concerning these powers. It will also hear ordinary complaints. It will have power to grant interim remedies, following an amendment we made in another place to Clause 65(6).
As we said in Committee, we have looked at the possibility of reflecting the secure position of persons acting in obedience to disclosure notices served under the Bill. Our reassurance, again for the record, is that we believe a contractual term will be unenforceable if it puts someone in breach for meeting a statutory requirement and we expect the criminal law will be construed similarly. We have looked at other relevant legislation—for example, the Drug Trafficking Act 1994—to see whether there is a precedent for offering some protection on the face of the Bill. But the Drug Trafficking Act situation is different from that under this Bill. That Act deals with a person acting on a subjective suspicion. Under this Bill, the person obeying the Clause 47 notice is obeying a statutory requirement which unequivocally applies to their

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situation. In short, there is no doubt as to the lawfulness of what the person who obeys a notice is doing.
I have to be even more circumspect about litigation in another jurisdiction, on a contract governed by foreign law. I can, however, confirm what the Minister of State said in another place. He said that a person's duty of confidentiality to another, however it arises, will always be compromised to a greater or lesser extent by national rules requiring the disclosure of information. In this respect, Part III of the Bill does no more than the many disclosure requirements approved by Parliament over the years.
There are difficult issues here. The representations we have received on this point have largely come from industry. But we have continually said in discussing the Bill that, for legitimate businesses not themselves suspected of criminality, the disclosure of plain text rather than keys must be the expected norm. This information is no more than information to which a variety of authorities have lawful access now under a variety of statutory powers. That is the reality.
Perhaps I may make two other brief points. We shall come shortly to government Amendment No. 70, which specifically requires that a person asking for a key must consider how much more data may be revealed than is strictly required. That offers some reassurance on the issue. We shall come to that amendment later. Even later than that we shall come to Amendment No. 87, which stands in the names of the noble Viscount, Lord Goschen, and the noble Lord, Lord Cope. While I do not want to reveal everything at this stage about how the Government will respond to that amendment, it may be that the noble Viscount and the noble Lord will receive some good news. In the light of what I have had to say, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Cope of Berkeley: My Lords, I am grateful to the Minister for his response to the amendment. I hope that it will help to reassure those outside the House who are concerned about this matter. Perhaps I may make a brief point in response to the noble Baroness, Lady Thornton. She was concerned that in moving amendments we may sometimes over-emphasise perception. But we have always emphasised, too, that such perceptions are based on the reality of the situation as it stands before us. That is why perceptions are difficult to change. One of the organisations that has said it is considering moving overseas as a result of the Bill is Poptel, the large Internet service provider. On its website it lists its clients as including the British Association for Study & Prevention of Child Abuse and Neglect. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Government Annual Report
4.24 p.m.
Baroness Jay of Paddington: My Lords, with the leave of the House, I should like to repeat a Statement being made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
"With your permission, Madam Speaker, I should like to make a Statement on the Annual Report, published by the Government earlier today.
"Our first and primary responsibility was to get the economic fundamentals right—the building blocks that will make Britain stronger and fairer. Inflation is at 2.2 per cent, within our inflation target of 2.5 per cent. An inherited £28 billion deficit was turned into a £16 billion surplus by last year. Unemployment is down. One million jobs have been created since May 1997. Real take-home pay is up by about 8 per cent. And when you take out spending on areas we want to spend money on, like children and pensions, welfare spending is falling for the first time in decades.
"But none of this has come without serious choices: Bank of England independence, taking the politics out of people's mortgages, and tough action to clear the deficit. I know that some of these decisions, like the rises in fuel duty, were unpopular. But they were necessary. Interest rates over the years of this Government have averaged 6 per cent. In the previous 18 years, they averaged 10 per cent, a change that makes the average mortgageholder £160 a month better off.
"That stability having been fought for and on course to being won, now we must make the next choice: to invest in the country's future. I believe that the people of this country understand that Britain is a chronically under-invested in nation. For 18 years transport, health and education were starved of funds. In education, for example, the real terms increase during the 18 years of Conservative government was only 1.5 per cent a year. If we want opportunity and security for all in a world of change, we have now to invest in our essential infrastructure and in our public services. This is a government committed to that investment.
"There has been investment to repair and renovate 11,000 schools, with 6,000 more to come; more money for books; money for computers; money for paying teachers more; and thousands more schools linked to the Internet.
"We have seen a dramatic rise in standards in primary schools. The next challenge is to see the same big rises in standards in secondary education and in universities. The priorities remain education, education, education, and our response, Madam Speaker, will be investment, investment, investment.
"In the health service, we are meeting our target on in-patient waiting. We must now get sustained falls in out-patient waiting. By the end of this year all accident and emergency departments that need it

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will be rebuilt or refurbished. The first new hospital has already opened in Carlisle. Thirty-seven more infrastructure projects over £25 million are on the way in England alone. There are new services like NHS Direct, and walk-in centres. As a result of the Budget in March, the NHS is now finally getting the funds it needs—the biggest sustained increase in its history. But we know that there is much more to do.
"In transport, the Jubilee Line and Docklands Light Railway show what our transport system could be like. Also, there are additional numbers of trains and bus services. New rolling stock is starting to come into use. But in many parts of Britain, our transport infrastructure urgently needs substantial extra investment. We admit it. The 10-year transport plan, to be published shortly, will show how it can be done.
"The Government are committed to a society of opportunity for all, responsibility from all. Crime is clown since 1997, particularly car crime and burglary—in some areas, spectacularly so. But violent crime is rising. We need more police. We will get them. We need new ways to tackle drugs. We will get them. We needed tougher action against drug dealers. We are legislating against them.
"In all these areas we should all recognise the immense efforts of millions of public servants—school teachers, police, NHS staff and civil servants—because their work makes our country richer.
"This is a government committed to social justice. Thanks in part to the minimum wage, the working families' tax credit and the biggest ever rise in child benefit, 1.2 million children will be lifted out of poverty in this Parliament. But there is still a long way to go to meet our goal of ending child poverty altogether.
"On pensioners, I am well aware of the focus on the 75 pence rise on the basic state pension; and if that was all the Government had done for pensioners, people would have every right to feel angry. But it is not. We chose, deliberately, to get most help to the poorest by the new minimum income guarantee. Around 2 million pensioners have gained, some of them considerably, by about £15 to £18 per week. We have abolished eye test charges, introduced the winter allowance, now at £150, and given free TV licences to pensioners aged 75 and over. In total, an extra £6.5 billion is being spent on pensioners over and above what the last government planned. But I am the first to say that there is more to do and, step by step, as the country can afford it, we will do it.
"This year also saw the best inward investment figures in our history. Around the world, people see strong economic fundamentals. They see a good business environment, recently described by the Economist Intelligence Unit as the second best in the world.
"The Government are committed to a positive and constructive role in Europe. At the Lisbon summit, we helped to set a new economic course for
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Europe. Most recently, the Chancellor turned round the entire debate on tax in Europe. We are leading the debate in Europe on defence. We maintain a policy on the euro that is designed for our national economic interest, that is good for British jobs, British industry and British investment.
"There are many other areas where we can chart progress: hand guns are banned; land mines are banned; hereditary Peers are on their way out; paid holidays for everyone for the first time; the arts with funding rising, quality improving and our international reputation a credit to Britain; the right where employees want it to be represented by a trade union. We are starting to cancel third world debt. The Strategic Defence Review is allowing Britain to count for more in the world.
"Of course, there is more to do. We have been in government for three years. One million more in work. True. But still many thousands of jobs lost through industrial change. We now have the best ever results in primary schools. True. But our secondary schools still are not near the level of the best in the world. An extra 10,000 nurses in the NHS compared with three years ago. True. But we need many more, and we need many more cancer and heart surgeons, too. Domestic burglary has fallen by 20 per cent in three years. True. But violent crime is increasing. There is a lot done, but a lot more needs to be done and this Government will do it.
"Deliver the stability. Deliver the investment the country needs. Deliver opportunity for all in a civic society founded on rights and responsibilities. Our purpose is to build a Britain that is strong, modern and fair, under a government who at long last see economic prosperity and fairness not as opponents but as partners in building the Britain of the future.
My Lords, that concludes the Statement.
4.32 p.m.
Lord Strathclyde: My Lords, I thank the noble Baroness for repeating the Statement. However, having read it and having now heard it, I am bound to say that I have my doubts if what are essentially trivial public relations statements of this type—spin and not substance—are worthy of the attention of your Lordships' House.
Is there not a sense of utter bathos in moving from the Motions we heard earlier after Question Time to this Statement? It is a journey from service to self-service, from real achievement to a land of promises, promises, promises and a descent into the land of Walter Mitty in which the Government and their swelling army of spin doctors increasingly live.
To listen to what has been said by the Prime Minister and to what the noble Baroness has just repeated, one would think that the Government had more achievements to their name than a combination of the Britain of the Victorian era and the Athens of Pericles. However, outside of this House, if they bother to listen to the people of this country—at the school gate, in the hospital queue, in the farmyard, in the traffic jams, on the Underground or even at home in

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the still, small hours, pouring over bureaucratic forms and struggling with the tax return—it feels very different. Rarely in the history of politics has there been a more giant gulf between preening self-image and real substance than we sense with this Government.
Elements of the Statement sound as though they were being presented as a prospectus for action for a government on their first day in office rather than a government with three wasted years behind them. Perhaps noble Lords will remind me: was it last year or was it the year before that that was supposed to be the "year of delivery", or was that only one more empty and insincere soundbite along the way?
I do not intend to take up much of the time of noble Lords on this Statement. After all, there is nothing of policy substance in it. I shall content myself with just two observations.
The Prime Minister has said that we are,
"leading the debate in Europe".
Whether we take my view on the euro or that held by the noble Lord, Lord Rodgers of Quarry Bank, does not the noble Baroness think that both he and I would be entitled to just a hint of scepticism on that score?
The Prime Minister has said that he can chart progress because hereditary Peers are on their way out. I know that the noble Baroness has to repeat the words so masterfully crafted in No. 10, but is not this House entitled to rather more respect than that the Prime Minister should crow about the passing of people who served their country and this House with a rare sense of duty? Furthermore, the Government still do not know how to replace them. If, over the past three years, the Government had had half the commitment to the details of legislation as that of the hereditary Peers we have lost, they would not keep loading Parliament with so many ill-thought-out, half-baked and damaging Bills.
In the Statement there was one constant refrain: "We have more to do. We have work to do". Goodness me, they are right on that. But while they spin, we must toil. This House has real work to do. It has work to do once more this afternoon, yet again tidying up the confusion and chaos of this Government's legislative programme.
We know well that the real measure of the quality of this Government is not to be found in this self-serving and self-congratulatory report. It is to be found in the Report stages of Bills such as the one which forms our main business today, a snoopers' charter of a Bill and a Bill in which, once again, only the diligence and wisdom of noble Lords is contriving to save the Government from themselves.
It is in that legislative confusion and those misplaced priorities that one will find the reality of this Government. We have to live with it day by day. Perhaps I may therefore suggest that we move swiftly on from this vacuous report to return to the real work of Parliament.
4.37 p.m.
Lord Rodgers of Quarry Bank: My Lords, I am struggling with the temptation to follow the advice of the noble Lord, Lord Strathclyde, but I am not confident that, even if I did, others would so do.
We, too, are most grateful to the noble Baroness for putting on a firm face and a pleasant smile while reading out a Statement which seemed like a preface to every election manifesto since the beginning of time. I have read a great many of them. For those who can recall this one, it sounds like, "Let us face the future by first remembering the past". Alternatively, it could read as, "Why we should have a second term in government".
I have been reading the very glossy document and it is rather amusing to think about how it was put together. Clearly, it was placed in the hands of a picture editor. He probably said, "We must have a gender mix; we must have an ethnic mix and we must have an age mix". The age mix must have been particularly important given the hard deal that old age pensioners have had. He may also have said, "Let us print some nice pictures, preferably smiling ones. Then we should try to find some text to put around them". That is how a document like this is made up. Indeed, I wrote, "Suitable for sixth formers", but then thought that that was perhaps casting it a little high.
The first part of the Statement contained a good deal with which one could agree. I certainly think that the economy is a good deal stronger, although the Government inherited a far stronger economy than any other Labour government during the 20th century. It is true that inflation is low and I congratulate the Government on that, as well as on the lowering of the unemployment figures. Those are matters about which it is reasonable to rejoice.
However, by the time one reaches the second page, the whole report changes its tone. We do not have hard choices; we now have "grown up" choices. The report goes on to blame the previous government for 18 years of neglect in transport, health and education. Surely there will come a point when this Government, like every other, will give up blaming a government in the increasingly distant past. Then we come to a reminder that it is, "Education, education, education", to which is now added, "Health, health, health"—and so the document goes on.
There is one interesting little device in the Statement. Noble Lords will recall Mrs Thatcher's great ability, when she saw high unemployment figures—when she walked, for example, in my old constituency of Stockton-on-Tees—of deploring a situation which she had either done so much to create or absolutely nothing to alleviate. We find the technique adopted on page five of the Statement:
"We need more police. We will get them".
That is said after three years when it has been a regular theme on all sides of this House and in another place. The Government cannot rely on that at this stage.

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We come again to a reference to hereditary Peers, as the noble Lord, Lord Strathclyde, mentioned. The Prime Minister says in his Statement:
"Hereditary Peers are on their way out".
It is not a question of what we are doing in future. They are here, nearly 100 of them. The report could equally have said, "We the Government decided that we wanted to retain 100 hereditary Peers in the House of Lords, and we have been successful in achieving that"! So every issue can be looked at in an alternative way. There follows a peculiar reference to,
"Paid holidays for the first time".
Paid holidays for the hereditary Peers? Paid holidays for whom? Are paid holidays an invention of this Government? I thought that paid holidays had existed not for 10, not for 20, but for more than 50 years. Perhaps the noble Baroness will explain the point. In what ways are paid holidays available for the first time in a way that they were not available in the past?
I shall not adopt tedious repetition, as indeed I could. The document is a mixture of fact, fiction and fantasy, with a certain degree of frankness occasionally thrown in to give it a sense of authenticity.
I rather like this Government. I believe that they are better than the previous government, and I tend to give them the benefit of the doubt. Therefore, I shall not say that the report is an abuse of public money, merely that it is a waste of public money. I ask the noble Baroness only one question: how much did it cost?
4.42 p.m.
Baroness Jay of Paddington: My Lords, the conventions of the House, by which we all abide with great precision, require me to thank both noble Lords for their response to the Statement and to the Annual Report. I cannot say that I am entirely surprised by their lack of overwhelming enthusiasm, although in responding the noble Lord, Lord Strathclyde, did not seem to take his own criticisms seriously, so I do not feel enormously burdened by them.
Both noble Lords spent an enormous amount of time doing what the Government are usually criticised for doing. They spent the entire time referring to the presentation of the Annual Report. Perhaps I may draw attention to one or two facts, beginning with the final question from the noble Lord, Lord Rodgers. The total cost of the report—together with numerous pages on the website in which the detail of many of the polices will be explained more fully, together with the regional operation, which involves people being able to identify and access matters of particular significance to their area, together with videos demonstrating that—is expected to be somewhere in the region of £140,000, about £40,000 less than last year's Annual Report. So to that extent, efficiency and economy have succeeded.
I am slightly surprised that both noble Lords took what I can only describe as a rather "Westminster-centric" view of the absolutely genuine attempt by the Government to make sure that people throughout the country understand some of the complicated changes
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that have taken place, and of the way in which the Government have tried to make people feel that they can have access to this information by arranging it in an attractive format rather than the rather dreary format of a traditional White Paper. That is precisely what people enjoy. I can vouch for that from my personal experience as Minister for Women. Last autumn, the Government produced—again, to rather patronising criticism from many—a publication entitled Voices, which reflected the consultation my right honourable friend Tessa Jowell and I had conducted with 30,000 members of the electorate around the country. That document is now internationally accepted as an example of the way in which government should communicate with the electorate in the modern age. I believe that the present document will have exactly that sort of success.
The fundamental point of the overall policy of the Government which both noble Lords have missed, or have decided to ignore, is that the reason why the emphasis in this document is on acknowledging some of the achievements, but also the fact that much more needs to be done, is that the hard decisions taken in the past three years have created opportunities for investment and the economic stability which now enable all those points—the health service, the police force and the situation in secondary schools, for example, to which both noble Lords referred—to be addressed with proper money and proper programmes.
It is not sufficient for the noble Lord, Lord Rodgers of Quarry Bank, to suggest that this is merely a retrospective assessment of a situation for which we should now take total responsibility. When we have been in government for 18 years, that may indeed be true; but on the basis of three years, this is a proud record.
The noble Lord, Lord Rodgers, said that the report reads as though it is demonstrably an election manifesto. If that is the basis for an election manifesto, it is certainly one on which I should be proud to fight an election. As the Prime Minister says in his opening message,
"These are the facts. People can make their own judgement on them".
4.46 p.m.
Lord Tomlinson: My Lords, I thank my noble friend the Leader of the House for repeating the Statement made by my right honourable friend the Prime Minister in another place. Does she agree that a report that clearly shows inflation at 2 per cent, unemployment at its lowest for 20 years, in-patient waiting lists in the National Health Service down by over 100,000, and Britain better off in Europe, indicates progress in 38 months which contrasts most favourably with the record of the previous government? Does my noble friend further agree that if we plead guilty to any deficiency it is the failure in 38

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months not to have fully redeemed all the damage that was inflicted on the country by the previous administration?
Baroness Jay of Paddington: Yes, my Lords, I am very happy to accept my noble friend's sensible and accurate appreciation of the detail of the Annual Report. I have not been asked, because it is a point to which people do not want to draw attention, about the present position on the five pledges made at the last election. But, with the leave of the House, I shall repeat them. It can be done shortly. We have halved the number of infants in classes of more than 30; we have helped 210,000 young people to find work through the New Deal on our way to the target of 250,000; the average time for getting persistent young offenders from arrest to sentence is down to 108 days, on our way to the target of 72 days; we have already cut 100,000 off in-patient waiting lists; inflation and interest rates are low; and we have cut VAT on fuel.
Lord Waddington: My Lords, may I ask the noble Baroness a question not so much about the content of the Statement but about the use of this device of an Annual Report? Will she recognise that many of us were horrified at the form of the Queen's Speech at the beginning of this Session? It was not, as it is supposed to be, a catalogue of the Government's plans for the coming Session, but instead, to a large extent, a tedious and extremely ill-written recital of the Government's alleged achievements? Does the noble Baroness agree that the introduction of the Annual Report removes all excuses for not returning to a Queen's Speech as it should be—a simple recital of the Government's plans for the coming Session? Will the Government please have some mercy on Her Majesty, who had to read all that tripe last time round?
Baroness Jay of Paddington: My Lords, perhaps I am a little slow but I do not entirely follow the noble Lord's logic in making a connection between the Queen's Speech and the Annual Report.
Lord Waddington: My Lords, the logic is obvious. If there is a new device in the form of an Annual Report to outline the alleged achievements of the Government, there is no excuse for repeating that list in the Queen's Speech.
Baroness Jay of Paddington: My Lords, I remain unconvinced about the connection. I am delighted to point out that the Annual Report was written by civil servants. It is, therefore, a wholly official document, not a party political attempt to influence opinion in that way.
Lord Clinton-Davis: My Lords, does my noble friend recognise that the fact the noble Lord opposite is so upset bears testimony to the value of the Annual Report? Will my noble friend deal in particular with the question of Europe? Does the Leader of the House agree that to shut one's eyes to the idea of a Europe
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which includes the United Kingdom is the opposite of common sense? Is it not much better to acknowledge that there needs to be convergence and that, subject to the test set out by the Chancellor of the Exchequer, in a year or two from the date of the next election the British people should be asked to express their view about the future of Europe?
Baroness Jay of Paddington: My Lords, with his normal clarity and authority my noble friend sets out precisely the Government's position on Europe. One of the advantages of the Government's position over the past three years which my noble friend outlines is that it demonstrates precisely the influence that the UK can have in the European councils in a way which perhaps has not happened before. I refer in particular to the detailed debate in your Lordships' House several weeks ago about the leadership of the Chancellor of the Exchequer on European taxation. Six months ago we were very much in the minority, but by virtue of my right honourable friend's good arguments and leadership there has been a change of opinion within the European Union. That change is very much to the advantage of this country and is in tune with a number of points made previously in your Lordships' House.
Viscount Cranborne: My Lords, in view of the emphasis that the noble Baroness places on the effectiveness of this document as a means of communication with the electorate, can she tell the House how many copies of the equivalent document last year were sold and how many hits the website received? Does the noble Baroness expect to do better this year than last? In view of the electioneering tone of the document, which was acutely spotted by the noble Lord, Lord Rodgers, can the noble Baroness tell the House whether the document is being sold in this way with a view to an early autumn election so that the Government can try to garner the remaining benefits of 18 years of Tory government before things really begin to go sour on them next year?
Baroness Jay of Paddington: My Lords, with his customary seductive ability, the noble Viscount leads me down very dangerous paths and tempts me to speculate about the date of the next election. He knows full well that I have no intention of replying, even rhetorically, to that question. I understand that last year a similar document sold between 10,000 and 12,000 copies, but many others were distributed through other mechanisms. The website then was not as elaborate as it is today. If one is connected to the Internet the website now enables one to gain access based on one's own postcode and particular locality. Therefore, I expect the number of website hits to be much greater this year. I do not have a breakdown of the number of hits last year, but if I discover that fact I shall write to the noble Viscount.
Lord Wallace of Saltaire: My Lords, does the noble Baroness accept that the four pages of the report devoted to foreign policy and international developments are very bitty and anecdotal and that a

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number of major developments over the past year are simply not mentioned? For example, as a member of the European Union Committee of your Lordships, I note that the Schengen opt-in, which has been one of the more significant movements in Britain's relations with the EU over the past year, is not mentioned. Does the Leader of the House recall that in April 1974 the Foreign Secretary, Mr James Callaghan, proposed that there should be an annual White Paper on Britain's international commitments and foreign policy? Do the Government consider that it would now be useful to have such an overall annual White Paper?
Baroness Jay of Paddington: My Lords, I am well aware of the detailed and authoritative interest of many noble Lords in foreign affairs. In response to the specific points raised by the noble Lord, the printed document must be seen in combination with the other bits of information which have been published. The whole point of this document is that it should be anecdotal. I believe that the noble Lord used that word pejoratively, but I use it in a positive sense. One of the criticisms in the past has been that lists of achievements and developments are regarded as indigestible. The whole point of such a document is that it should be more broadly accessible and popular. However, there is a complex, detailed website which provides much detail of the Government's developments and policies over the past year. I am not in a position to respond authoritatively to the noble Lord's question about an annual report on foreign affairs. I am aware that your Lordships have many important debates on that subject which perhaps collectively add up to such an annual report.
Lord Hylton: My Lords, I welcome the emphasis on education. The Leader of the House may be pleased to hear that in the village where I live, 30 year-old mobile classrooms are being replaced by a permanent building. Being a voluntary-aided school, there is a very large contribution from parents, neighbours and interested local people. Can the noble Baroness say something about the Achilles heel of the education system, by which I mean those children and young people who are suspended and excluded from school? I am aware that a little while ago the Government earmarked a sum of money to deal with this problem. A few days ago at Question Time the noble Lord, Lord Elton, pointed out, quite correctly, that suspension and exclusion were the strongest indicator of subsequent criminality, with all the social costs that that entails. Will the Government each year increase the amount of money that is available for these young people and place continued emphasis on alternative social and literacy education for those who miss out on what we all expect for our children?
Baroness Jay of Paddington: My Lords, the noble Lord puts his finger on a very significant part of the boundary (if one can so describe it) between social policy and education policy and the way that they should work together. The noble Lord will be aware that next week we shall see the outcome of the comprehensive spending review in which the kind of
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spending to which he refers may be identified. Perhaps the noble Lord should acknowledge that the Excellence in Cities initiative precisely seeks to straddle social and education programmes. For example, if as a result of that initiative one has on-site welfare officers to tackle truancy and special units to remove disruptive pupils from the classroom, at least one identifies at local level the problems and, it is hoped, the solutions. However, I agree with the noble Lord that the important boundary between education and social policy, together with the other pieces of policy which need to be present to support families, must be looked at in totality.
Baroness Whitaker: My Lords, my noble friend the Leader of the House explained the format of the report. Does she agree that the report is modest in not celebrating the largest ever increase in one year in the international development budget: namely, 12 per cent in real terms over the previous year?
Baroness Jay of Paddington: My Lords, yes, my noble friend identifies an important contribution which the Government have made to international development. At the same time the Government have continued to play a leading role in reducing the international debt of developing countries. As my noble friend will be aware with her special interest in this area, last year we backed the agreement on the heavily indebted poor country initiative to enable those countries to take advantage of the additional 252 million dollar programme which gave relief to individual countries.
Lord Clark of Kempston: My Lords, is the Minister aware that many people in this country consider the report a blatant misuse of taxpayers' money to produce an electioneering pamphlet? First, why is the pamphlet silent on the inheritance by this Government of the strongest economy for many years? Secondly, why is there no mention of the enormous increase in taxation when one takes into account direct and indirect taxation?
Baroness Jay of Paddington: My Lords, I am surprised that the noble Lord translates the economic statistics that I repeated in the Statement into that gloomy overview. The noble Lord talks about the economy being very strong in 1997. As I pointed out in the Statement, we inherited a £28 billion deficit. By last year that was turned into a £16 billion surplus.
As I also said in the Statement, one million jobs have been created since May 1997. None of those factors adds up to a picture of strength which we inherited. They add up to a picture of strength we have created.
I am surprised that the noble Lord should identify the tax issue as of specific importance today. In the Opposition's extraordinary contortions over their tax guarantee, they propose a £16 billion cut in public investment were they ever to come to office.
Earl Russell: My Lords, when I collected my copy of the report at lunchtime today, I looked at the glossy

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photograph on the cover and asked a colleague whether he thought that the Government intended to market it alongside Vogue. After some thought, he replied, "No, Tatler". Nevertheless, in the spirit of the Minister's remarks I shall engage with the content of the report.
I was pleased to notice that the Government take their anti-poverty strategy seriously enough to have honoured it with a small paragraph on the top of page 17. The noble Baroness will be well aware that the Government define poverty as below half average income. Were I to ask her why, she would doubtless reply that the line should be drawn somewhere. I shall not put her to that trouble. However, I shall ask her why the Government collect no information on the percentage of the population below 20 per cent, 10 per cent or 5 per cent of average income.
If, when the Government meet the electorate, they find that they have reduced the proportion below 50 per cent of average income but that the proportion below 20 per cent has increased will they then claim that they have reduced poverty?
Baroness Jay of Paddington: My Lords, I take advantage of an old friendship with the noble Earl to say that by his remarks about marketing this publication with Vogue or Tatler he demonstrates a lack of awareness of the way in which most people in this country like to read the information contained in this publication and access the more detailed information on the Internet, should they wish to do so, along with the ability to have a video presentation or something of that kind. The noble Earl may prefer the population to access government information only in a more traditional form. However, our experience—I referred earlier to my experience—is that that is not so.
The noble Earl asked some detailed questions about the alleviation of poverty. I say simply—I am aware of time running out—that by 2001, for example, I should be perfectly ready to defend this Government's agenda on poverty by identifying the extra billion which is being spent on support for children, lifting one million children out of poverty over the period of this Parliament.
Lord Archer of Sandwell: My Lords, does my noble friend agree that one attractive feature of the report is that it can be tested against the proportion of benefits already visible to the eye? I refer, for example, to increasing numbers of people in jobs and reduced waiting lists. Does my noble friend recollect that it records additional resources to the health service of the order of £2 billion and a rising graph to 2003?
Can my noble friend give some indication of the proportion of that money which will he dedicated to long-term benefits such as the building of new hospitals and how much to benefits which will be obvious fairly quickly, such as reduced waiting lists?
Baroness Jay of Paddington: My Lords, my noble and learned friend rightly identifies the extra spending on the National Health Service. He will be aware, as
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will all noble Lords, that we await the new National Health Service strategy which will set out the detail of the way in which the extra money should be spent.
My noble and learned friend is right to say that there has to be a combination of short-term goals and long-term investment. One of the most important factors will be to identify particular resources for the training and support of people within the caring and clinical professions. It is by reinforcing the numbers of doctors, nurses and other people working in the front line of the health service that we shall achieve the step change which this Government are determined to achieve.
Lord Boardman: My Lords, the noble Baroness said that the Statement had been prepared by civil servants. She referred to the record level of inward investment. How does she reconcile that with the many statements made by the Foreign Secretary and others that the Government's indecision with regard to the euro is having disastrous effects upon inward investment in this country?
Baroness Jay of Paddington: My Lords, I should be grateful if the noble Lord would identify a statement by my right honourable friend the Foreign Secretary in which he said that. I simply repeat the sentence in the Statement, which is accurate, that,
"This year … saw the best inward investment figures [to this country] in our history".

Regulation of Investigatory Powers Bill
5.7 p.m.
Further consideration of amendments on Report resumed on Clause 48.
Lord McNally Lord McNally moved Amendment No. 57:
Page 54, line 28, leave out paragraph (a).
The noble Lord said: My Lords, before that government commercial break, these Benches were chided by the noble Lord, Lord Bach, for not intervening on Amendment No. 56. I do not know whether the noble Lord's Chief Whip heard those remarks. I assure the noble Lord that if he is encouraging interventions on every amendment, we shall be here rather late tonight.
Lord Bach: My Lords, I encouraged an intervention on that amendment alone. There was reason for doing so; that reason has obviously not reached the noble Lord.
Lord McNally: My Lords, the general suspicion about government access to keys formed part of the earlier discussion and will unfold more strongly as the amendments are debated. That general unease is widely shared. I received an open letter with about 50 signatories. The key sentence states:
"The ability of Government to demand decryption keys creates a dangerous precedent.

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The noble Baroness, Lady Thornton, may find it interesting to note that among the signatures are those of representatives of the Royal College of General Practitioners, the Royal College of Nursing, the Brook Advisory Centres and others. I think that they are in her bailiwick in terms of the Bill, yet they still have concerns about the implications. I do not want this matter to be seen as an attempt at a division between a cold-hearted and indifferent industry lobbying vigorously on one side and the caring professions lining up behind the Government on the other. I beg to move.
Baroness Thornton: My Lords, I too have accessed these lists. There are no childcare organisations involved. I point out to the noble Lord, Lord Cope, that I discussed the matter with Poptel because its name is on the list. It is an organisation with which I have been familiar for many years. It was very keen to assure me that its clients are not involved in this matter. The question here is that children's interests are not represented by these organisations. That is the problem.
Lord Phillips of Sudbury: My Lords, Amendment No. 57 is grouped with Amendments Nos. 58 and 59. If it is convenient, I shall deal with the three together. The three amendments address broadly the same point as was addressed by Amendment No. 50 which was debated at some considerable length last night. Your Lordships will remember that I endeavoured to paint a scenario where Steve and Willie were engaged in exchanging information and where, wholly innocently, Willie could find himself on the wrong side of the law in circumstances also addressed by Clause 48(3) of the Bill.
I do not propose to repeat the explanation that I gave last night. As I have said, the issue is the same. The Minister gave me an assurance that he would make sure that there were no circumstances in which an innocent recipient of information could find himself or herself on the wrong side of this provision or that dealt with by Amendment No. 50. On the basis of that assurance and after consideration of the matter, I do not propose to say any more on this occasion.
Lord Lucas: My Lords, the truth of it is that the Government's present position leaves Willie exposed. It appears that there is very little that the Government wish to do about it. It seems to me that there are difficulties in dealing with the problem piecemeal in trying to make it slightly more difficult for the Government or their agents to raid someone's keys and therefore expose correspondence and business to attack. The measures proposed in these amendments are sensible in themselves, but they go only part of the way. The more we hear about the Government's attitude and concerns, the clearer it becomes that we need to be more radical in our efforts to make sure that keys should be kept confidential where that is essential.
5.15 p.m.
Lord Bassam of Brighton: My Lords, the effect of Amendment No. 57 will be as follows. The fact that someone does not have the protected information in his possession would not be enough to convent the disclosure requirement into a requirement to disclose a key. The implication is that the person served with that notice should be able as of right to obtain access to the information in order to provide the plain text.
We have already debated Amendment No. 44 which raised the same point. I explained at that stage why the idea of access to protected information in all circumstances simply would not work.
Amendment No. 58 also touches on similar ground covered by Amendment No. 44. I believe the reasoning behind the amendment is that a person served with a Section 47 notice who has only part of the key, should be able to come to some arrangement with persons holding the other parts of the key to enable the plain text of information to be accessed.
The suggestion is that a person served with a notice should be permitted to seek the assistance of any persons holding the protected information. That is very similar to the point that we have already discussed. There may be cases where exactly the kind of arrangement mentioned by noble Lords would be appropriate and in that case that would happen by arrangement with the person giving the notice.
But we cannot turn that into a general right to seek assistance. The reason is that seeking assistance from the holder of the protected information may tip off the person under suspicion. I hope that the noble Lord will accept that reasoning and feel able to withdraw the amendment on that basis.
Amendment No. 59 would delete Clause 48(3)(c) which enables a Section 47 notice to contain a direction that a key is to be disclosed by virtue of Clause 49. It seems to me that that is a consequential change to Amendment No. 71 which proposes that Clause 49 should be deleted. We shall come to discuss the merits of that amendment later on.
I can see what lies behind Amendment No. 60. As I understand it, it seeks to ensure that a key may not be required to be disclosed where there is a less onerous means of obtaining the relevant information. I believe that part of what noble Lords are seeking here is already in the Bill. In that regard I mention three matters. First, none of the Part III powers can be used unless it is not reasonably practicable to obtain the protected information by some other means. That can be found quite clearly in Clause 47(2)(d). Secondly, a person served with a notice requiring disclosure of a key can use any key at his or her disposal which puts the relevant protected information into an intelligible form. The choice of key is entirely theirs. I believe that I made that point when we were discussing this matter in Committee.
Thirdly, the service of a notice requiring key rather than plain text is tightly controlled by Clause 49. We believe that that clause provides exactly the right balance. It recognises that demanding keys requires special circumstances. The difficulty with the

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amendment is that it would undermine the effects of Clause 49. It would unsettle the balance and that disturbs us most. I trust that with those fairly clear explanations the noble Lord will withdraw his amendment.
Lord McNally: My Lords, the Minister is right in that what we are seeking is a proper balance in these matters. I do not believe that at the moment the Government fully appreciate how serious and deep is the concern about access to keys. I believe that high-tech industries use simple words for very clever and scientific matters. I have always believed that the nuclear industry could have found a better word than "flask" for carrying its nuclear waste given the implications of fragility in the word "flask". In some ways a key gives an impression of something one has on a chain on a belt rather than a complicated code which gives access to an immense amount of information.
The suspicion remains among people who hold these codes that agencies will try to obtain the most advanced codes to gain access to most information. I appreciate that during the passage of the Bill the Government have offered various reassurances to meet that concern. In a later debate we may deal with whether they are trying to achieve the impossible.
I appreciated the Minister's explanation and I hope that he appreciates the concerns about not only his intentions but also the implications of the legislation for owners of keys. In the light of his explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 58 to 62 not moved.]
Lord Lucas Lord Lucas moved Amendment No. 63:
After Clause 48, insert the following new clause—

Regulation of Investigatory Powers Bill

  CASES IN WHICH PROOF OF CORRECT DISCLOSURE MAY BE REQUIRED (NO. 2)
  (" .—(1) This section applies where—

  (a) the person who for the purposes of Schedule 2 granted the permission for the giving of the notice in relation to that information, or

  (b) any person whose permission for the giving of such a notice in relation to that information would constitute the appropriate permission under that Schedule,

  considers it appropriate to give a direction in accordance with subsection (2).

  (2) If the person identified in subsection (1) believes that a person to whom a section 47 notice is to be given has made, or may attempt to make, a false disclosure, he may direct that the notice may require that person to provide proof that the disclosure made truly represents the protected information in intelligible form.

  (3) The requirements of subsection (2) may be satisfied by the confirmation by a firm of solicitors, designated by the Law Society, who have been provided with the claimed disclosure, the keys and the protected information that the claimed disclosure is the product of applying the keys in question to the protected information.").

  The noble Lord said: My Lords, to my surprise I find myself rising to move Amendment No. 63. I had thought that I should happily follow an expert from the Liberal Democrat Front Bench.
  Having listened carefully to what the Minister has said today, I have become more enamoured not of the wording of the amendment but of the concept behind it. It is that when a business is faced with a demand for a key—I presume that business will make the most use of the measure—rather than giving it to someone who may be hostile to its commercial interests, it should be able to hand it to a third party who is trusted by both the government agency and the business. That third party should then perform the decryption. In that way, the party which requested the decryption of the information is obtaining exactly what it wants but in a way which will not give the owner of the key access to the information—the Government understandably asked for that in reply to our earlier amendments—and the owner of the key can be sure that the key will not leave his control. It is no worse for him than the idea of giving his solicitor control of the key.
  I do not have a recipe for arriving at the trusted third parties but it would not be difficult. The Government merely have to let it be known that they want various people to qualify as trusted third parties. I am sure that some of the major firms of solicitors, which are never short of ideas about how to earn fees and are electronically sophisticated in particular with regard to security, would step forward; perhaps other people would, too.
  The amendment would address the problems of, say, a major American investment bank deciding where in Europe to place its core security operations. It would have the comfort of knowing that in all but the most exceptional circumstances its keys and security would remain under its control and the Government would be able to obtain exactly what they wanted. They could obtain the key to use on the information which was in their possession, or on information which was to come into their possession, without the results of the decryption being available to the keyholder.
  The proposal would provide a neat answer to the problems faced by industry and it would give the Government everything for which they have asked to date. The amendment, if properly phrased and organised—I make no claims that it is that—would go a long way towards overcoming the problems we have discussed today. It would also leave the Government all the facilities they require and it would leave the noble Baroness, Lady Thornton, sure that nothing about the system of protection we had devised for major companies would obstruct the access to justice which the people she rightly brings to the fore will require. I beg to move.
  Lord McNally: My Lords, the Deputy Speaker, the noble Baroness, Lady Gardner, flashed steely looks at me because of the tenuous hold I have on Report stage proceedings. As I would have withdrawn the probing amendments had I moved them, I slip in behind the noble Lord, Lord Lucas, to make the point that I would and should have made, which is that we are looking to provide industry with comfort and assurance. Ministers appear to work on the basis that everyone believes that government agencies will

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  behave with absolute propriety and security. Yet, as has been pointed out on a number of occasions, the legislation is being examined not only by those of us who have grown up in the comfort of British society but by those on the outside looking at its cold print.
  We are probing whether the kind of comfort and cordon sanitaire which exists between providing the agencies full access and access to the information they legitimately require cannot be provided by the kind of device proposed by the noble Lord, Lord Lucas.
  Lord Cope of Berkeley: My Lords, it appears to be necessary to say once again that all noble Lords and those outside who have commented are of the opinion that the agencies of the police, Customs and so forth need to be able to access the Internet from time to time in a way which is similar to that in which they have been able to tap telephones and so forth. The key is the Internet equivalent of that.
  We are not trying to prevent that, but we are trying to ensure that the mechanism is not such as to drive firms overseas. My noble friend, in his amendment, makes a valuable suggestion—he has done so in respect of this Bill and others—which is well worthy of consideration.
  Viscount Goschen: My Lords, I hope that the Minister will give the amendment his fullest consideration. My noble friend has put forward an innovative idea of how we might overcome a problem which is vexing the industry and the representatives of agencies which are looking to have the fullest access, in appropriate situations, to encrypted material.
  It is a genuine attempt to be helpful to the Government in producing a new mechanism and I hope that the Minister will be able to respond favourably. It is different from the original suggestion of a key escrow, for example. It is a much safer system whereby trusted third parties can act as intermediaries. There may be clear reasons why the Minister has difficulties with the amendment but, unless they are pressing, I urge him to welcome it.
  Lord Bassam of Brighton: My Lords, I appreciate the sincerity with which the amendments have been tabled. They seek similar aims and build on pronouncements which the Government made about circumstances in which a key, as opposed to plain text, might be required. We have said on a number of occasions that one of the circumstances in which we may require a key is where profound concerns exist about the bona fides of the person served with a notice. As we have said continually, that is unlikely to be a consideration where the authorities are dealing with entirely legitimate organisations which have not provoked a profound security concern or been involved in criminality. In those cases, it will be the norm to ask for the plain text rather than a key. That is similar to what happens now when, for example, the police need to approach a bank for information.
  Both amendments say that a burden may be placed on the recipient of a notice to prove that the plain text being disclosed is a faithful, intelligible version of the
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  relevant protected information. I believe that there are difficulties with that. Amendment No. 62 made no reference to how the proof was to be obtained. Amendment No. 63 contains—it is attractive for this—an ingenious attempt by the noble Lord, Lord Lucas—and it is not the first time that he has been ingenious throughout our long debates on this subject—to close what he sees as a loophole. However, I am not sure that the whole approach which he offers is entirely workable. I shall go through the reasons for that.
  The essential point is that the very circumstances in which the authorities might consider asking for a key to be disclosed are those which involve, for example, an individual or organisation suspected, as I said earlier, of involvement in some form of criminality. I am not sure that it would be possible or, more importantly, desirable in those circumstances to impose a direction for such persons to obtain proof either from a solicitor or from anyone else about the authenticity of the information they are being asked to disclose. If the high tests set out in Clause 49 for requiring that a key be disclosed are met—because, for example, someone is suspected of being a criminal—it does not seem to us to be appropriate or even sensible to trust that person to prove, by whatever means, the authenticity of the relevant plain text.
  In addition, critical timing considerations may be involved in cases which involve a criminal investigation. We do not see how an additional proof stage could be built into the procedure without it damaging the effectiveness of the Part III power and having a profoundly detrimental effect on investigations. As in the case of other amendments, in putting these additions into the Bill I am sure that that was not the intention of the noble Lord, Lord Lucas., or of other noble Lords who are interested in this particular amendment and in the one which has not been moved. However, I am sure that they understand what the effect might be in putting this extra hurdle in the way because, effectively, that is what it amounts to.
  This issue is bound up with the test for asking for keys set out in Clause 49. Although I understand the heartfelt plea on behalf of the industry, we do not believe that these changes are workable. On that basis, I ask the noble Lord to withdraw his amendment.
  5.30 p.m.
  Lord Lucas: My Lords, when I realise that the noble Lord is about to reply to one of my amendments, I often close my eyes and open my ears to discover whether I can hear the little sigh that he utters when he is of the opinion that what I have suggested is utterly absurd. On this occasion there was no sigh and I am comforted by that. Indeed, I believe that the reply which the noble Lord gave to the amendment was immensely helpful because he outlined what the Government see as its problems. I believe that I can see a way through that and will follow up that line between now and Third Reading.
  It seems to me that the Government need the flexibility that they have asked for and which the noble Lord has enlarged upon in his reply. There should be

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  a way in which we can provide a mechanism whereby, on most occasions, if a key is required from a reputable company and there is no pressure of time, that key can be disclosed to a trusted third party rather than to law enforcement agencies.
  As I said, that requires some thought and some drafting. So long as it is included as an option and not as something which the Government or their agencies are forced to do, then it should not be a burden to them when it is critical that they obtain possession of a key. However, it will be of considerable comfort to the companies and businesses concerned when the Government are able to go the extra step to provide reassurance that their security will not be breached more than is absolutely necessary.
  As I said, I shall follow up this matter between now and Third Reading. I believe that it would fit particularly well with a later amendment in the name of my noble friend Lord Cope of Berkeley. Therefore, when we come to consider that, I shall return to the point in order to illustrate to the Minister how I believe they might work in together. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 49 [Cases in which key required]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 64:
  Page 55, line 43, leave out from beginning to ("that") in line 49 and insert ("the Secretary of State has issued a warrant directing").
  The noble Lord said: My Lords, Amendment No. 64 is grouped with Amendments Nos. 66 to 68, 88 and 89. I believe that it is one of the most important amendments to be tabled. It returns to the question that we have discussed during debate on many of the amendments: the government agencies' access to keys for encrypted material. It is one of the most difficult aspects of this difficult Bill.
  It is a matter of the greatest controversy, not only in the e-community, if I may call it that—the businesses which are Internet service providers, and so on—but also in the wider world of banking and commerce, and wider. The first and most obvious reason is perfectly simple and well known. The Internet is a very open system—an international system in the fullest sense. So far as concerns banks and companies, the keys protect information of the highest value—contracts, negotiations in progress, current transactions, and so on. So far as concerns individuals, the information is personal and, in many cases, of the most delicate character.
  I believe that if one says to a bank, "We must be able to access the keys of your electronic information systems", that is very similar to saying, "We must have a spare set of the keys to all your safes and all your strong rooms so that we can enter them by ourselves at any time". That would not encourage people to leave their valuables in bank safe deposits or, for that matter, to deposit their money with those banks, particularly if they could just as easily deposit them in a safe deposit box elsewhere.
  Essentially, the Internet is a worldwide system and it is easy to use an overseas service rather than one in the United Kingdom. The Bill started off by almost completely overlooking that fact. People can move to a country where they have more confidence in the security of their valuable information more easily than they can move their valuable property from one safe deposit box to another. That is why companies and similar institutions talk increasingly about moving.
  Earlier, Ministers were rather dismissive of the idea that companies were worried or would move operations overseas. However, I hope that our debates during previous stages of the Bill helped to convince the Government of the seriousness of that threat. For obvious reasons, some companies have been unwilling to talk about it, but increasing numbers have been willing to talk either directly or through their organisations.
  The open letter that the noble Lord, Lord McNally, referred to a few minutes ago showed that concern is not confined to companies, but extends to all sorts of charities and campaigning organisations. Apart from the organisations that the noble Lord mentioned, I notice that some of the many other signatories of the letter included Amnesty International, Unison, the Manufacturing, Science and Finance Union and the Medical Foundation for the Care of Victims of Torture. The letter says:
  "We urge the Government to withdraw the Bill".
  That is going a lot further than us. The letter continues:
  "The ability of the Government to demand decryption keys creates a dangerous precedent which will affect the rights of all computer users. Surveillance of website visits will undermine confidence in the Internet as a means of communication".
  In response to the noble Baroness, Lady Thornton, I also mentioned the statement made the other day by the Internet service provider Poptel. I do not want to embarrass the Minister or Poptel, which is only one of a number of companies to have expressed concern, but among its customers are a number of large unions, including Unison, as well as the Labour party. Poptel's website says:
  "The Labour party decided to connect up its offices … and activists into a private network run by Poptel with access to the Internet. This became a key campaigning tool for the 1997 General Election. Tony Blair was one of the first MPs on-line and the e-mail address tony.blair@geo2.poptel.org.uk soon became one of the most famous in the country".
  In a public statement the other day, the chairman of Poptel said:
  "We are concerned that under the proposed regulatory regime we will not be able to guarantee the integrity of communications for our clients".
  He also said that if the Bill was not withdrawn,
  "We will have no alternative but to actively look at moving at least some of our services overseas".
  There are plenty more quotes from other companies in a wide variety of fields, including banking and commerce. There is a danger that the Bill will make this country an e-commerce pariah, not the centre of e-commerce, as the Government wish. That would be bad not only for Internet service providers and other similar companies based in this country, but for every

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  company, because, from the smallest to the largest, every company uses the Internet to some extent and some of them rely on it heavily.
  We all agree that the police, Customs and Excise, and the intelligence services must be able to do their duty and catch criminals, including paedophiles, drug barons and terrorists. To do that, they need the Internet equivalent of telephone tapping. They are losing the ability to keep track of communications because of the growth of the Internet. That is the dilemma that we all face.
  The Minister was kind enough yesterday to recognise the constructive spirit in which we have tried to approach the problems of the Bill. The amendment is another example of that constructive approach. We are pressing the principle on the Government, although I am not wedded to the drafting. Changes could still be made at Third Reading if necessary. However, the principle is important.
  Those who signed the open letter, as well as many other companies and organisations, are pressing for the Bill to be withdrawn, whereas we are trying to produce a solution to the dilemma. The proposal in the amendment is that, as with the tapping of telephones, a warrant from the Secretary of State should be required for the police and other authorities to access a key.
  Throughout our debates, the Government have tried in two ways to reassure us and all those who are concerned. First, they have said that they envisage keys being required only rarely, although that is not how the Bill was originally written. That reinforces the case for the Home Secretary to be the person to authorise access to keys. If there are not going to be many cases, it will not be a huge additional burden for him and his officials.
  Secondly, because we have pushed so hard in earlier debates and because of outside pressure, the Government have tabled Amendment No. 66, which says that access to keys will be granted not on the say-so of a police superintendent or the equivalent in the other organisations, but on the say-so of the chief constable or his equivalent, such as a brigadier in the Army.
  I assume that no superintendent would be likely to do such a rare and difficult thing as demand access to keys without knowing that he had the support of his chief constable. I do not suppose that many chief constables would let their superintendents go around demanding keys without laying down carefully when it should happen. Welcome though Amendment No. 66 is, it is not a great advance. I am not much reassured by it and I do not think that the companies concerned will be either.
  The Home Secretary is asking for exceptional powers, so he should take responsibility for authorising their use. He is answerable to Parliament and to the nation in a way that no chief constable is answerable on operational matters. Like the tapping of telephones, it should be a ministerial responsibility. I beg to move.
  5.45 p.m.
  Lord McNally: My Lords, as the noble Lord, Lord Cope, has said, a number of arguments will reappear during this evening, particularly on Clause 49, which is a symbolic crunch clause. We want to test the Government's intention that the powers being sought are to be used only in exceptional circumstances by returning the responsibility for exercising them to the Secretary of State.
  Almost from the beginning, the Government have tried to disarm their critics by denying that they would ever use the powers that the cold print gives them. By accepting the amendment, the Government would do much to reassure the public and industry that their intentions were limited and specific. We have repeated time and again that we do not want to obstruct the Government in the proper pursuit of wrongdoers of various kinds, but we have emphasised that in giving them those necessary powers, we do not want to allow government agencies to intrude into the private lives of ordinary citizens or to undermine at its inception the e-commerce industry, on whose potential the Prime Minister and other Ministers have put such emphasis.
  It really is no use the Minister trying to belittle the range of criticisms which have been made of this Bill They have been catholic, in the full sense of that word. I have never seen such a range of concern about a piece of legislation.
  And it continues. In the past 24 hours, the Data Protection Commissioner has voiced concerns about this Bill's compatibility with the Human Rights Act. I understand that the Better Regulation Task Force has recently written to the Minister pointing out that the extra regulatory burden of the Bill is onerous indeed. The task force has expressed concern about its implications.
  So Ministers must face up to the fact that the level of criticism of the Bill has been intense. The argument that the Bill should be taken away and looked at again carries weight. It really is a deeply-flawed Bill. The Government should be grateful to your Lordships' House for the good fist which has been made of trying to improve it.
  I see that the noble Lord, Lord Bach, is becoming agitated, as he always does, by this stage in one of my speeches. It is rather like having a spaniel and a Rottweiler on the Government Benches. Half the time, we are being licked by the noble Lord, Lord Bassam, and the rest of the time, the noble Lord, Lord Bach, is snarling at us.
  Lord Bach: And we do not know, my Lords, which is the Rottweiler and which is the spaniel! Perhaps noble Lords will make up their minds after I have made this point.
  The noble Lord said that the Bill is flawed and should be taken away because of the criticisms received. If that is so, why did his party vote for its Third Reading in the House of Commons? The party of the noble Lord, Lord Cope, did not do that. It voted

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  against the Bill. That seems to me to be rather more consistent with the attitude that it has taken during the course of these debates.
  But the party of the noble Lord, Lord McNally, voted in favour of the Bill. Indeed, the speech of his honourable friend, Simon Hughes, praised the Bill, as did the speech of the noble Lord, Lord McNally, on Second Reading. Has the Liberal Democrat Party changed its mind about the Bill? Do his colleagues in the House of Commons know that?
  Lord Cope of Berkeley: My Lords, perhaps I may intervene while the noble Lord, Lord McNally, is thinking about the answer to that question. On Third Reading in the House of Commons, my party did not vote against the Bill as a whole but voted for a reasoned amendment.
  Lord McNally: My Lords, the noble Lord, Lord Bach, is obviously more used to the confrontational give-and-take of the court room than he is to the parliamentary process. In the House of Commons, yes, my honourable friend Simon Hughes supported the Bill on Third Reading as I did on Second Reading.
  However, this has been an amazing process. First, there was a full-page spread in the Observer just before Second Reading. But then there has been a growing rumble of discontent from all sections of the community, the noble Baroness, Lady Thornton, excluded. In the Commons now they would be shouting, "Give her a job", but I would not do that.
  We had speeches from noble Lords on the Cross-Benches last night, a number of which made the point that they had come late to the concerns about the Bill. I take tremendous pride in the way in which this House has dealt with the Bill. It has exposed flaws in the Bill. We still say that we want to see a Bill passed and we want to try to improve it as it goes through. We are not in the business of wrecking; we are in the business of improving.
  But Ministers must face the fact that at the end of this process, we shall be the only G8 economy with this kind of legislation and the only economy in the world, other than India and Singapore, with this kind of legislation. Oh, I see another government loyalist rising to his feet.
  Lord Desai: My Lords, hardly! I stand up to correct the noble Lord because he said we are the only country in the G8 to have this kind of legislation. I am told that Russia has had legislation like this. It is even alleged that we used it as a model, but I am not sure of that.
  Lord McNally: My Lords, I never argue with an LSE professor on these matters. This legislation has a case to answer and it certainly has a case to answer in relation to access to keys. Much of the debate today is about raising the threshold for the agencies and raising the level of justification in respect of this matter. In
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  moving the amendment, the noble Lord, Lord Cope, made a very strong case for the Government to accept the amendments.
  Baroness Thornton: My Lords, I want to comment on the speech of the noble Lord, Lord McNally. On Second Reading and throughout our proceedings on the Bill, I have spoken from the point of view of my experience of working with children's organisations. I am concerned about the opportunities which this industry and the Internet provide in relation to children because I want those children to be safe. My knowledge of this subject is based on my experience over many years of working for NCH Action for Children, which is the leading children's organisation in this field.
  I am extremely concerned about the methods which have been employed by the Foundation for Information Policy Research which has been taking a leading part in the activities and comments against the Bill. I have already mentioned one concern which is that it does not feature children's organisations or children's concerns at all among the list of people who support it.
  Indeed, when it was founded, it said that it wanted to face the challenges of dealing with the debates on technology and its accessibility and to focus on social concerns. I do not believe that the organisation does that at all. It is funded and backed by Microsoft and the industry and they want this Bill to fall.
  It is beholden on noble Lords who are using the lobbying material and literature of that organisation to understand where it and its supporters are coming from. They do not want the technology to be available to all or for it to be safe. They would like to have the regime which exists in America, which is protected by the First Amendment and which has no constraints at all.
  I do not want the industry to grow in this country under that regime because, in America, children are kidnapped. In America, there is no restriction on the paedophile activity which can take place. In America, there is no restriction on the Nazi propaganda, bomb-making and all the other things that can take place on the Internet because the authorities in America are hamstrung by the regime under which they work. I do not want the Internet in the rest of the world to operate under that regime. This country must take a lead in ensuring that that is not the case.
  This debate is not just about what happens in the UK, but it concerns us taking a lead on this issue. It is about us ensuring that the environment under which the Internet and its industries work in this country is the one that we want under our laws and under our regimes. That is why I am quite passionate about this subject, particularly as it concerns the future and our children.
  6 p.m.
  Viscount Goschen: My Lords, it is worth emphasising that we are now at the Report stage of the Bill. The noble Baroness, Lady Thornton, has made

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  some valid points about the overall discussion of the kind of regime that we should have. The amendment is not concerned with the sanction available. Indeed, from all sides of the House, noble Lords have said that this ultimate sanction should be available should the special circumstances specified by the Minister arise.
  If those circumstances are as exceptional as the Minister says, the regime should require the highest level of authorisation: that of the Secretary of State. The noble Baroness made some impassioned remarks about a sensible foundation and one that we all support in preventing the terrible criminals who have utilised electronic means to further their ends. However, I doubt that she would object to an amendment that stated that the Secretary of State should authorise this unusual event. I am prepared to give way to the noble Baroness if she wants to contradict me on that.
  There is no need to rehearse the arguments about the dangers to the economy, particularly the e-commerce economy, of this country, which were so ably put by my noble friend Lord Cope in introducing the amendment and by other noble Lords throughout all the stages of this Bill. The Government should understand that noble Lords are trying to assist them in making what was a bad and unacceptable Bill which would not have worked into one which, although there are still reservations in relation to it, could have a greater level of support and confidence from industry. That support will he absolutely vital in making the Bill work.
  I can think of no better way of giving that comfort to industry than to acknowledge the seriousness of what the Government are asked for, the power to access encryption keys. Once given, there is no going back. For this high level of disclosure, the approval of the Secretary of State should be given. I can think of no valid reason, if it is as unusual as the noble Lord, Lord Bassam, has repeatedly assured the House, why that should not be the case.
  Lord Lucas: My Lords, it is quite clear that this Government's Bach is worse than their Bassam! I do not believe that even the noble Lord, Lord Bach, could accuse me of having become harder on this Bill as time has gone by; indeed, I find myself becoming softer on the Bill as time goes by because the Government have done so much to improve it.
  I support completely this amendment in the name of my noble friend Lord Cope of Berkeley. The analogy that he made between the effect of disclosure of a key and the effect of having one's telephone tapped is good. Indeed, the disclosure of a key is potentially much more damaging to a business than is having its telephone tapped. If the Secretary of State's authorisation is required for telephone tapping, the Secretary of State's authorisation should be required for key disclosure.
  If the Government agree to this amendment, they could look again at the principle underlying my Amendment No. 63 and say that the Secretary of State is required to authorise key disclosure but, if the police
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  are happy that the key should be disclosed to a trusted third party, that a lower level of authorisation would be required because the danger to the company would not be the same. That would make it possible in non-urgent cases, or cases where there was not another particular difficulty, for the whole process to take place without risk to the company and without involving the Secretary of State. That would leave the Secretary of State to deal with those crucial cases where it is necessary to break into a company's vaults and to lay open the whole of the company's security network. I believe that that would be the appropriate level of authorisation for those extreme cases.
  Lord Phillips of Sudbury: My Lords, if the noble Baroness, Lady Thornton, believes that we are under the control of the foundation to which she referred, she gives little credit to the many noble Lords on this side of the House. That foundation is an extremely public-spirited one. The fact that it receives money from Microsoft does not align it with the devil. Without its assistance many of us on these and other Benches would have been a good deal more befuddled than we already are.
  I have two other points to make. First, a leitmotiv has run through the Bill that the powers taken by the state should be proportionate to the dangers against which it legislates. Secondly, in looking at the overall impact of the Bill, one must have regard to the economic well-being of the country. It is ironic that both those issues are at the heart of the clause to which this amendment relates.
  On this side of the House the case is that however well intentioned the arrangements are, as they stand, the Government would do better to listen more carefully to what is now a diverse chorus of concern from the business industry and, therefore, would be wise to accept the proposal that in order to issue one of these particularly vicious requirements for disclosure of keys, the authority of the Secretary of State must be obtained. Ultimately, one comes to a common sense, broad judgment. Simply piling extreme power on extreme power, as though that will best deal with the evils that we all want to prevent, is misconceived. Often the best law is that which has a degree of restraint in it and the worst law is that which purports to destroy or oppress evil with the absolutism that is apparent in some of the clauses of this Bill.
  Lord Bassam of Brighton: My Lords, contrary to what may be presumed, I have rather enjoyed this debate. Politics have been brought into something that runs the danger of becoming a dry, technical subject. I am not sure whether I am a Rottweiler or a spaniel. Sometimes I am a Rottweiler and sometimes a spaniel—at least that is what my children tell me.
  I was pleased when eventually a Member of your Lordships' House mentioned the issue that we are debating. We have had a lot of high-flown language about the Government and their attitude to industry: whether we have got it right or wrong; and whether we understand how intrusive and vicious the powers are. However, the debate is about the level of authorisation

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  for access to encryption. That is a rather dry subject. I suppose the debate has become a metaphor for the approach and scepticism, not to say cynicism, of many noble Lords to the Government's real and underlying intentions in regard to this piece of legislation.
  My noble friend Lord Bach was quite right to bring us back down to earth with a blast of reality. As he rightly said, the Liberal Democrats supported this Bill in another place. The noble Lord, Lord McNally, welcomed the Bill at Second Reading. Many other noble Lords indicated in our debates that they welcomed the Bill. They understand that in large measure it updates an out-dated piece of legislation and provides many more safeguards than existed in the Interception of Communications Act 1985. It strengthens the position of the public and guarantees liberties and freedoms which we are latterly being accused of attempting to undermine and destroy.
  I want to focus on the subject in front of us: levels of authorisation for encryption. That is what we are talking about. In a sense the Government and the Opposition Front Bench are fishing in the same pool. We both realise that there has to be confidence in the level at which authorisation is sought.
  It is our view that, on balance, we have got the level right in our amendments. I am puzzled as to why the noble Lord, Lord Cope of Berkeley, has such a poor view of the rank of chief constable, which is the level at which we suggest authorisation should be granted. To require a chief constable's personal authority is an impressive safeguard and I do not follow the argument that important operational decisions must be made by someone who is accountable to Parliament. The decisions to arrest a suspect, to bring charges or to deploy resources in a public order situation are not made by Ministers. They are quite rightly the operational decisions which finally rest at chief constable level. Yet the noble Lord, Lord Cope, suggests that somehow that level of authorisation is wrong and inappropriate for this piece of legislation.
  We recognised and understood that superintendent was perhaps not the right level. For that reason we raised the threshold. That is a significant move on our part. Having listened to everything that has been said during the course of this debate, I continue to be perplexed at the cynicism or scepticism at the bona fides of our levels of authorisation process. We have worked hard throughout this Bill to try to get it right. We listened to the many representations. We continue to listen to them. We must focus on the practicalities of the situation.
  As we all understand, particularly noble Lords opposite who have had ministerial experience, a Secretary of State is an important and busy person. Is it right that he should be confronted with this extra and more onerous task of applying these authorisations? That is an important question. Is it right that a Secretary of State should have his time potentially crowded by this extra level of consideration when, quite properly, a chief constable could undertake that work? Changing referral from superintendent to chief constable level indicates that
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  we fully understood and took on board the seriousness of the representations made to us about levels of authorisation.
  I accept that businesses have a real and legitimate concern—and we have sought to address it. But this does not apply only to businesses. We are also concerned about the individual in possession of an encrypted hard drive who refuses to hand over plain text. As many have argued in another context, there may well be cases when an individual considers it to be in his best interests not to hand over plain text or indeed to hand over plain text which is different from that which is truly covered by the encryption in question. In that regard I am thinking of paedophiles who may be hiding data on their hard drives or others with data they want to protect for similarly scurrilous purposes. It would be a significant burden for the police to cross, that they should have to go to their chief constable every time they wished to demand that someone suspected of such activity should hand over an encryption key. But that is what our amendment provides. We tried to balance the concerns of industry with the concerns of all Members of this House who wish to stamp out the kind of criminal activity that can now be perpetrated on computers.
  It is for that reason that I believe that the sentiments in Amendments Nos. 64, 67 and 68, while I appreciate their origins, go too far. To remove all those decisions to the Secretary of State, particularly those cases where individuals in possession of data themselves are refusing to hand over keys, would be both unnecessary in terms of the need to protect privacy, and could act as a considerable impediment to normal law enforcement operations. I urge Members of your Lordships' House to bear that firmly in the forefront of their mind in considering these amendments.
  We are concerned to assuage the worries of business. We shall continue to do that. I undertake to intensify our efforts in that regard. But we are also concerned to ensure that law enforcement has a credible deterrent in respect of some of the more vile crimes that can be perpetrated through computers. We feel that our amendments strike the right balance and that amendments tabled by noble Lords opposite go too far. They would seriously undermine the capability of law enforcement. In short, we are all concerned to protect business but we must not forget that this power is aimed at individuals who conceal their illegal activities through the use of encryption. Powers truly are needed in this regard and will be more so as easily accessible encryption spreads, as all Members of your Lordships' House who have contributed to this and other debates fully recognise.
  Finally, I ask noble Lords to consider just how far we have increased the level of authorisation in the government amendments in this group. But I want to offer one further element of flexibility that the Government have and which I would be more than happy to bring back as an amendment at Third Reading. We are prepared, in so far as it will offer extra reassurance both to civil libertarians and the industry, to require chief constables or their equivalents to notify the Surveillance Commissioner of

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  circumstances in which they have used their power to demand a key rather than make an ordinary disclosure requirement. That would place a duty on them to bring specifically to the commissioner's attention the fact that they had used the power. What he wished to do in terms of oversight would obviously be up to the commissioner. But that would be an extra and significant safeguard in that it would bring the matter specifically to the attention of the commissioner in his role of providing judicial oversight. If that were not the case, whether he took an interest in particular authorisations under his compass would be left to the discretion of the commissioner.
  I believe that adds an extra significant safeguard, while recognising the fact that in a small number of years the police are likely to be faced with strong, unbreakable encryption on all home computers which can he used to conceal crimes of all varieties. It is for that reason that I believe that moving to Secretary of State authorisation is a step too far. However, I am prepared to move one further step at Third Reading and I hope that Members of your Lordships' House understand why I made that undertaking. We have to be practical. We have to be pragmatic in addressing these authorisation levels. These matters must be carefully borne in mind. We need something that works, that is effective and with which the police can work so that we can stamp out and crack down on some of the most unpleasant and heinous crimes. I urge your Lordships to reject Amendment No. 64.
  6.15 p.m.
  Lord Cope of Berkeley: My Lords, during some parts of that short debate I began to think, as the Minister evidently did, that we had wandered back into Second Reading: or that we could look forward to Third Reading and Bill do now pass in discussing the general issues behind the Bill. I do not want to go back into that.
  Amendment No. 64, as the Minister said, concerns levels of authorisation. Should the Secretary of State authorise the provision of keys or the insistence on keys as he does the tapping of telephones, or should chief constables do so under Amendment No. 66? It is not that I have a poor view of chief constables; on the contrary, I respect them highly. However, I also have a high view of the seriousness of requiring a key compulsorily by law from commercial and other organisations, or from individuals.
  The suggestion made by the Minister at the end of his remarks about the involvement of the commissioner is an interesting one and well worthy of consideration. But, after all, everything that the noble Lord said in arguing against the proposition in my amendment would apply equally to telephone tapping. Indeed, everything he said about the convenience for the police, and so on, would apply equally to telephone tapping; yet no one, not the Government or anyone else, is suggesting that we should alter the Secretary of State's warrant in that respect.
  In the course of our debates both the Government and noble Lords on this side of the House—indeed, the House as a whole—have, together, improved the Bill
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  in quite a number of ways. I believe that the proposition in my amendment is yet another way in which we could further improve it. I urge noble Lords to support my amendment.
  6.20 p.m.
  On Question, Whether the said amendment (No. 64) shall be agreed to?
  Their Lordships divided: Contents, 119: Not-Contents, 120.

  Division No. 1

  CONTENTS

  Ackner, L.

  Hylton, L.

  Addington, L.

  Inglewood, L.

  Alderdice, L.

  Jacobs, L.

  Anelay of St Johns, B.

  Jenkin of Roding, L.

  Astor, V.

  Jenkins of Hillhead, L.

  Astor of Hever, L.

  Kingsland, L.

  Attlee, E.

  Lawson of Blaby, L.

  Avebury, L.

  Lester of Herne Hill, L.

  Barker, B.

  Lucas, L.

  Biffen, L.

  Luke, L.

  Blackwell, L.

  McNally, L.

  Blaker, L.

  Masham of Ilton, B.

  Blatch, B.

  Miller of Hendon, B.

  Bowness, L.

  Molyneaux of Killead, L.

  Brabazon of Tara, L.

  Monson, L.

  Bridgeman, V.

  Montrose, D.

  Brougham and Vaux, L.

  Mowbray and Stourton, L.

  Burnham, L. [Teller]

  Murton of Lindisfarne, L.

  Carnegy of Lour, B.

  Naseby, L.

  Chadlington, L.

  Newby, L.

  Clark of Kempston, L.

  Northbrook, L.

  Clement-Jones, L.

  Northesk, E.

  Colwyn, L.

  Northover, B.

  Cope of Berkeley, L.

  Norton of Louth, L.

  Courtown, E.

  O'Cathain, B.

  Craig of Radley.L.

  Oakeshott of Seagrove Bay, L.

  Craigavon, V.

  Onslow, E.

  Crickhowell, L.

  Park of Monmouth, B.

  Croham, L.

  Phillips of Sudbury, L.

  Dahrendorf, L.

  Plummerof St. Marylebone, L

  Dixon-Smith, L.

  Razzall, L.

  Elliott of Morpeth, L.

  Elton, L.

  Redesdale, L.

  Erroll, E.

  Rees, L.

  Ezra, L.

  Rees-Mogg, L.

  Falkland, V.

  Rennard, L.

  Feldman, L.

  Renton, L.

  Ferrers, E.

  Roberts of Conwy, L.

  Fookes, B.

  Rodgers of Quarry Bank, L.

  Fraser of Carmyllie, L.

  Roper, L.

  Gardner of Parkes, B.

  Russell, E.

  Garel-Jones, L.

  St.John of Bletso, L.

  Geddes, L.

  Saltoun of Abernethy, Ly.

  Geraint, L.

  Scott of Needham Market, B.

  Glentoran, L.

  Seccombe, B.

  Goodhart, L.

  Sharman, L.

  Goschen, V.

  Sharp of Guildford, B.

  Greaves, L.

  Shutt of Greetland, L.

  Greenway, L.

  Smith of Clifton, L.

  Hamwee, B.

  Stewartby, L.

  Hanham, B.

  Strathdyde, L.

  Hanningfield, L.

  Swinfen, L.

  Harris of Greenwich, L.

  Taverne, L.

  Hayhoe, L.

  Thomas of Gwydir, L.

  Henley, L. [Teller]

  Thomas of Walliswood, B.

  Higgins, L.

  Thomson of Monifieth, L.

  Hooson, L.

  Tordoff, L.

  Howell of Guildford, L.

  Tugendhat, L.

  419

  Waddington, L.

  Williams of Crosby, B

  Wilcox, B.

  Younger of Leckie, V.

  NOT-CONTENTS

  Acton, L.

  Irvine of Lairg, L. (Lord Chancellor)

  Ahmed, L.

  Alli, L

  Janner of Braunstone, L.

  Amos, B.

  Jay of Paddington, B. (Lord Privy Seal)

  Andrews. B.

  Archer of Sandwell, L.

  Judd, L.

  Ashton of Upholland, B.

  King of West Bromwich, L.

  Bach, L.

  Laird, L.

  Bassam of Brighton, L.

  Layard, L.

  Berkeley, L.

  Lea of Crondall, L.

  Billingham, B.

  Lipsey, L.

  Blackstone, B.

  Lovell-Davis, L.

  Blease, L.

  Macdonald of Tradeston, L.

  Borrie, L.

  McIntosh of Haringey, L. [Teller]

  Bragg, L.

  Brennan, L.

  McIntosh of Hudnall, B.

  Brett, L.

  MacKenzie of Culkein, L.

  Brooke of Alverthorpe, L.

  Mackenzie of Framwellgate, L.

  Brookman, L.

  Massey of Darwen, B.

  Brooks of Tremorfa, L.

  Merlyn-Rees, L.

  Burlison, L.

  Milner of Leeds, L.

  Carter, L. [Teller]

  Mitchell, L.

  Christopher, L.

  Molloy, L.

  Clarke of Hampstead, L.

  Morgan, L.

  Clinton-Davis, L.

  Morris of Castle Morris, L.

  Cocks of Hattcliffe, L.

  Morris of Manchester, L.

  Crawley, B.

  Nicol, B.

  Currie of Marylebone, L.

  Parekh, L.

  David, B.

  Paul, L.

  Davies of Coity, L.

  Pitkeathley, B.

  Davies of Oldham, L.

  Plant of Highfield, L.

  Desai, L.

  Ponsonby of Shulbrede, L.

  Diamond, L.

  Prys-Davies, L.

  Donoughue, L.

  Ramsay of Cartvale, B.

  Dormand of Easington, L.

  Rea, L.

  Dubs, L.

  Rendell of Babergh, B.

  Eatwell, L.

  Renwick of Clifton, L.

  Elder, L.

  Richard, L.

  Evans of Parkside, L.

  Rogers of Riverside, L.

  Evans of Temple Guiting, L.

  Sainsbury of Turville, L.

  Evans of Watford, L.

  Sawyer, L.

  Farrington of Ribbleton, B.

  Serota, B.

  Sewel, L.

  Gale, B.

  Simon, V.

  Gilbert, L.

  Strabolgi, L.

  Gladwin of Clee, L.

  Symons of Vernham Dean, B.

  Gordon of Strathblane, L.

  Thornton, B.

  Gould of Potternewton, B.

  Tomlinson, L.

  Grabiner, L.

  Turner of Camden, B.

  Graham of Edmonton, L.

  Uddin, B.

  Grenfell, L.

  Walker of Doncaster, L.

  Hardy of Wath, L.

  Warner, L.

  Harris of Haringey, L.

  Warwick of Undercliffe, B.

  Harrison, L.

  Watson of Invergowrie, L.

  Haskel, L.

  Wedderburn of Charlton, L.

  Hayman, B.

  Whitaker, B.

  Hilton of Eggardon, B.

  Whitty, L.

  Hollis of Heigham, B.

  Wilkins, B.

  Howells of St. Davids, B.

  Williams of Elvel, L.

  Howie of Troon, L.

  Williams of Mostyn, L.

  Hoyle, L.

  Winston, L.

  Hughes of Woodside, L.

  Woolmer of Leeds, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  6.30 p.m.
  Lord Lucas Lord Lucas moved Amendment No 65:
  Page 55, line 50, leave out ("the key itself") and insert ("an actual key").
  The noble Lord said: My Lords, this amendment also addresses a grammatical oddity in the Bill as it is currently drafted. Clause 48(3) now requires the disclosure of any key of a "noticee's" choice; hence the words "the key itself' are no longer appropriate and should be replaced by the words in the amendment. I beg to move.
  Viscount Astor: My Lords, I support my noble friend's amendment. The wording that he suggests appears to be sensible when one considers the detail of the Bill.
  Lord Bassam of Brighton: My Lords, yesterday the noble Lord, Lord Lucas, achieved what I believe he said was a first ever drafting point over parliamentary counsel. I am afraid that on this occasion we do not feel able to accept the noble Lord's suggestion, precise though it may be.
  I hope that the policy behind Clause 48(1) is clear. It is perhaps worth spelling it out. A Section 47 notice may not specify that only the key to the relevant protected information, as opposed to the plaintext, is sufficient unless one of the persons listed in paragraphs (a) and (b) has given a direction that only the key itself will do. The question the amendment poses is whether the reference should be to "the key itself" or to "an actual key". We are happy to provide reassurance that subsections (5) and (6) apply in every situation to which it refers: a person may choose any key, or combination of keys, where that key, or combination of keys, is sufficient to access the information and render it intelligible. Therefore, the reference to "the key" has to be read with those provisions firmly in mind.
  With the greatest respect to the noble Lord, we prefer the wording in the Bill to his suggested amendment. We think that the word "actual" is probably redundant. Abandoning "the key" would mean consequential amendments in Clause 48. There is nothing between us in substance. I appreciate the spirit in which the noble Lord tabled the amendment. However, I politely suggest that he withdraws it.
  Lord Lucas: My Lords, we are back to normality! I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 66:
  Page 55, line 50, at end insert—

  ("(1A) A direction for the purposes of subsection (1) by the police, the customs and excise or a member of Her Majesty's forces shall not be given—

  (a) in the case of a direction by the police, except by or with the permission of a chief officer of police;

  (b) in the case of a direction by the customs and excise, except by or with the permission of the Commissioners of Customs and Excise; or

  (c) in the case of a direction by a member of Her Majesty's forces, except by or with the permission of a person of or above the rank of brigadier or its equivalent.

  421

  (1B) A permission given for the purposes of subsection (1A) by a chief officer of police, the Commissioners of Customs and Excise or a person of or above any such rank as is mentioned in paragraph (c) of that subsection must be given expressly in relation to the direction in question.").

  The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.
  On Question, amendment agreed to.
  [Amendments Nos. 67 and 68 not moved.]
  Viscount Astor Viscount Astor moved Amendment No. 69:
  Page 56, line 2, at end insert ("on reasonable grounds").
  The noble Viscount said: My Lords, government Amendment No. 70 may go a long way to satisfy my concerns on Amendment No. 69. It may be helpful if I do not make a speech now and allow the Minister to discuss Amendment No. 70 on the condition that I can return to the issue. I beg to move.
  Lord Bassam of Brighton: My Lords, I am grateful to the noble Viscount, Lord Astor, for not making a speech. I shall try not to make much of a speech.
  Government Amendment No. 70 fulfils an undertaking we made in Committee to consider suggestions put forward by the noble Earls, Lord Liverpool and Lord Northesk, as to whether we could spell out in one particular instance what the question of proportionality would mean in relation to cases where keys are demanded rather than a disclosure requirement.
  Amendment No. 70 highlights that, in particular, those demanding keys should have consideration to whether the key in question will grant access to more information than is directly sought. To the extent that more information could be accessed, the evil that is to be addressed by the handing over of the key will need to be proportionately greater. The amendment makes this consideration clear on the face of the Bill. It meets the suggestion from noble Lords opposite. I hope that it will be welcome. With that explanation, I trust that the noble Lord will feel able to withdraw his amendment.
  Viscount Astor: My Lords, I thought that I was going to be grateful to the Minister but I do not think that he addressed the effect of Amendment No. 69 which seeks to add the words "on reasonable grounds" to the end of line two on page 56.
  Lord Bassam of Brighton: My Lords, perhaps I was being too helpful in the sense that I was trying to be brief. Amendment No. 69 seeks to add to the conditions which must be met before the key can be demanded rather than plaintext. Not only are the conditions at Clause 49(2) to be met, but noble Lords opposite would seek to ensure that the person who authorises the demanding of a key should believe that the conditions are met "on reasonable grounds". I believe that this condition is already implicit in the test as it already exists. I believe that what the noble Viscount seeks is already present. That is the spirit in which our amendment has been tabled. All statutory powers must, of course, be exercised reasonably. That
  422
  is a fundamental principle of public law. It does not need to be stated in this Bill, or any Bill. It is a principle which operates across the whole field of public law. I trust that with that extra reassurance the noble Lord will feel confident in withdrawing his amendment.
  Viscount Astor: My Lords, I thank the Minister for those comments. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 70:
  Page 56, line 9, at end insert—
  ("( ) The matters to be taken into account in considering whether the requirement of subsection (2)(b) is satisfied in the case of any direction shall include the extent and nature of any protected information, in addition to the protected information in respect of which the disclosure requirement is imposed, to which the key is also a key.").

  On Question, amendment agreed to.
  Lord McNally Lord McNally had given notice of his intention to move Amendment No. 71:
  Leave out Clause 49.
  The noble Lord said: My Lords, my noble friend Lord Phillips and I had intended to have a full stand part debate at this point and to divide the House However, as the Government clearly have overwhelming numbers to take part in Divisions, I shall not move the amendment.
  [Amendment No. 71 not moved.]
  Clause 51 [Failure to comply with a notice]:
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 72:
  Page 56, line 20, after ("he") insert ("knowingly").
  The noble Lord said: My Lords, in moving Amendment No. 72, I wish to speak also to Amendment No. 73. There is not much between us on this issue. However, we prefer the wording in our amendment to that in Amendment No. 73.
  The noble Lord, Lord Cope, proposed an amendment in Committee to add an element of intent to the offence of non-compliance with a disclosure notice. This is now covered in Clause 51. The noble Lord, Lord Phillips, asked me to look again at the issue of intent. I undertook to give this more detailed thought and government Amendment No. 72 appears before your Lordships as a result.
  The changes made to the non-compliance offence in Committee have been broadly welcomed. Amendment No. 72 will, I believe, offer some further comfort. The amendment means that Clause 51 would say that a person is only guilty of an offence if he knowingly fails to comply with a disclosure requirement imposed upon him. So some kind of inadvertent failure to comply would not be penalised. That was the point of the earlier debate and appears to be the issue behind the amendment of the noble Lord, Lord Cope.
  We believe that "knowingly" is the right addition here rather than "wilfully". We have imported the concept from the offence of failing to comply with a

  423
  duty to give effect to an interception warrant under Clause 11(7) of Part I of the Bill. So it is familiar territory. In Part III, a person can be convicted of an offence only if he has been given a disclosure notice and failed to comply with it. It is a simple offence. But we are happy to make clear that unwitting failure should not be—and will not be—penalised.
  In short, there has been a general welcome for the new construction of the non-compliance offence, which we have arrived at following our consideration in Committee. I believe that the addition offers some further reassurance. In moving Amendment No. 72, I trust that the noble Viscount will feel able to withdraw Amendment No. 73. I beg to move.
  Viscount Astor: My Lords, I am nearly tempted to debate with the Minister the semantics of "knowingly" and "wilfully". However, your Lordships will be relieved to hear that, as the Minister has made clear in his explanation of his amendment that unwitting failure—I think those were his words—will not be penalised, I am happy to accept the noble Lord's amendment and not to move mine.
  On Question, amendment agreed to.
  [Amendment No. 73 not moved.]
  Lord McNally Lord McNally moved Amendment No. 74:
  Page 56, line 24, after ("any") insert ("recent").
  The noble Lord said: My Lords, as we understand it, currently a person could be convicted of an offence under the Bill because he had forgotten, lost or destroyed a key which he had last used some five years previously. The amendment seeks to place a limit on how far back in time the prosecution may go in showing that he once had a key. I beg to move.
  Lord Bassam of Brighton: My Lords, I certainly understand the intention behind the amendments; they seek to tie down yet further the circumstances under which someone who has been in prior possession of a key may yet be prosecuted for failing to comply with a disclosure requirement. As I recall, this was the subject of considerable amendment to the Bill at Committee stage. Noble Lords will note that we introduced merely an evidential burden in respect of people who are shown to have had prior knowledge and possession of a key. I was able to clarify for the noble Lord, Lord Phillips, in Committee that this evidential burden is less even than the standard of the balance of probabilities—another one of those wonderful legal terms. The defendant merely has to raise an issue, which then has to be disproved by the prosecution. In that case, the prosecution has to prove the contrary beyond a reasonable doubt.
  These are significant hurdles for the prosecution to overcome. As I said at Committee stage, I thought the offence would be difficult to prove even as drafted at that time. Now that we have introduced the amendments that we have, the offence will be even more difficult to prove. I accept that the reasons for doing it are a good ones; that is why the Government
  424
  have moved on this point. I do not accept that there is a need to go further at this stage and question whether the amendments tabled by noble Lords would provide further reassurance in any event.
  Specifically, the amendment seeks to insert a qualification that the person must be shown to have been in recent possession of a key. What is intended by this qualification is spelt out in detail in Amendment No. 76. I do not think that the qualification helps overmuch. Particularly, the investigation or events which gave rise to the issue of a notice could well have been happening for some considerable time, or may well not have been happening for a long time; in either event, it would be difficult to show how long the investigations had been taking place. Further, it does not seem to be relevant to the prosecution of a particular offence as to how long an investigation has been going on. In other words, people who may be in possession of a key should not be penalised simply because they were in possession of a key which was relevant to a long, ongoing investigation. The length of the investigation is no concern of theirs, and their vulnerability to criminal prosecution should not depend upon it.
  I sympathise with the intent behind the amendments but the Government have moved significantly on the question of this offence, particularly as it applies to prior possession of a key. I hope that, with that thought in mind, the noble Lord will reflect on the matter and withdraw the amendment.
  Lord McNally: My Lords, I thank the Minister for that reply. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6.45 p.m.
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 75:
  Page 56, line 42, at end insert—
  ("or that to make a disclosure of the key would result in a professional legal adviser producing or giving access to items subject to legal privilege").

  The noble Lord said: My Lords, we return here to the question of legal privilege. We discussed this issue yesterday in relation to a different part of the Bill. Amendment No. 75 and Amendment No. 93, which defines a lawyer—if that is not too grand a phrase to describe the effect of it—seek to preserve legal privilege in the way we discussed yesterday.
  The suggestion made yesterday was that we do not need to worry because the common law will cover the issue. I have been asked why, if the common law would apply in the situations covered by these amendments under Clause 51—and, for that matter, under Clause 52—it has been necessary to legislate, for example, in the Terrorism Bill in an analogous way? The creation of statutory offences and the recognition of statutory defences require to be supplemented by legislative change in this respect and not left simply to what one might call the "magic potion" of common law coming to the rescue. I have come out of the closet—or was it back in?—to risk another legal opinion. I hasten to add that I am acting entirely on advice rather than on my own knowledge.
  As I said, this also applies to Clause 52. Amendments Nos. 82, 83 and 84 have a similar effect so far as concerns Clause 52 and, rather than repeat the words when we come to those amendments, if the answer is different and the Minister is happy to respond to those amendments, I should be content with that. I beg to move.
  Lord Fraser of Carmyllie: My Lords, I regret that I was not present when this matter was raised yesterday. I have taken the opportunity of reading both the Minister's response and the contribution of the noble Lord, Lord Grabiner, for whose views I have the greatest respect.
  I have a lot of sympathy for the position adopted that, if possible, these matters should be left to the common law on both sides of the Border because that allows for a flexibility in the interpretation from time to time as to what exactly is the legal privilege granted. There are difficult issues—for example, where people seek informal advice, or where they communicate after instructions have been declined—but the position seems to me to have become more complicated than was indicated last night.
  My noble friend Lord Cope has pointed to the Terrorism Acts. I have stumbled across an Act which causes me some concern because it seems to be inconsistent with the line being followed last night—that is, the Data Protection Act 1984. In Section 31(2) of that Act, an exemption is granted,
  "if the data consist of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could he maintained in legal proceedings".
  That seems to me to be a classic position of what I understand the common law to be.
  I am somewhat at a loss. If the common law is as clear-cut as the Minister seemed to indicate, why has it proved necessary on previous occasions to set out that legal privilege expressly on the face of the statute? In the time available to me, I have not had the opportunity to go all the way through the Data Protection Act to determine whether the exemption granted and the circumstances in which that privilege is made express on the face of the Bill is wholly apt. But it would seem to me that there is a very clear parallel. If the Minister cannot give me an explanation for the provision in the Data Protection Act today, I hope that before we reach the next stage I will be provided with an answer or an indication that we will have some express provision on the face of the Bill. In these exceptionally complicated areas of the law it would be desirable to have express provisions on the face of the Bill.
  Lord Bach: My Lords, we return to legal privilege. We understand the intention behind the amendment. It is a theme that reappears, and will reappear, in other amendments. But it is important to express again that in Part III of the Bill the disclosure powers do not undermine safeguards in existing legislation restricting access to legally privileged material. As we have said before, where, for example, such material is protected
  426
  by provisions in the Police and Criminal Evidence Act, the powers in Part III cannot be used to circumvent those safeguards since the authorities will not be permitted access to protected material which is subject to legal privilege.
  Where there are safeguards already in place in the underlying powers, they are not weakened by the Bill. This means that in circumstances where the relevant agency should not have access to legally protected material, the decryption power will not work to grant it such access. On the other hand, in circumstances where there is some access to legally protected material, albeit under strict controls, these powers should, we believe, be available to ensure that the existing power continues to be available to law enforcement in other agencies.
  In so far as this amendment would remove the effectiveness of any existing powers which do provide some access to legally protected material, albeit in particular circumstances, we do not welcome them. As was said yesterday, we believe that adequate safeguards for legally protected material are essential. We expect to do that in the code of practice. As I indicated earlier, we will be happy to work up sections on legally protected material in accordance with any representations made to us. The House knows that the code of practice is in draft form only and is open to consultation. We have never said that the common law protects legally privileged material from disclosure requirements. As I have just argued, that protection will be in the code of practice.
  The point about the common law is that it prevents legally privileged material from use in evidence. It is that distinction that I want to get home. As far as concerns the Data Protection Act, I shall take advantage of the very generous offer made by the noble and learned Lord, Lord Fraser of Carmyllie. We shall look at this and write to him with the position regarding the Data Protection Act.
  Lord Fraser of Carmyllie: My Lords, before the noble Lord sits down, perhaps I may make this observation. I am not much comforted by his reference to PACE. Although some interviews in Scotland might be conducted observing the requirements of PACE, it is not a statute that has its effect north of the Border. The noble Lord must understand that in any response he gives to me my concern is not only about the position on this side of the Border, but, as the Bill extends also to Scotland, that the position is equally maintained north of the Border.
  Lord Bach: My Lords, all I can say is that the author of that Bill, who actually spoke about it yesterday, has much to be proud of. As someone who practised at the Criminal Bar in England, I know that it absolutely revolutionised the way in which police evidence was given and accepted. As to its scope in Scotland, I have to bow down to the noble and learned Lord whose

  427
  knowledge of events north of the Border is much greater than mine. I ask the noble Lord, Lord Cope, to withdraw his amendment.
  Lord Cope of Berkeley: My Lords, I cannot say that I am happy about this matter. It is something about which I shall have to take further advice. Clearly, I am not sufficiently knowledgeable to argue about it off the cuff. However, I make two observations. First, patently the situation in Scotland needs to be considered. The Minister promised to do that. Secondly, I am a little sceptical of the reaction of lawyers to being told, "Do not worry. Your position will be protected by the code of practice". That will not be statutory or legal protection: it will only be the intention of the Government and their agencies. It will not be legally binding on them. I must consider this matter carefully with others before deciding what to do next. For the moment, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 76 not moved.]
  Clause 52 [Tipping-off]:
  Lord McNally Lord McNally moved Amendment No. 77:
  Page 57, leave out lines 6 to 9 and insert ("that any of the matters falling within subsection (1A) not be disclosed to any person such that—

  (a) the safety or well-being of any person;

  (b) the effectiveness of any investigation or operation; or

  (c) the effectiveness of a specific investigatory technique, would be affected by such a disclosure.

  (1A) The matters that may be provided for under subsection (1) are—

  (a) the giving of the notice;

  (b) the content of the notice; or

  (c) the things done in pursuance of the notice.").

  The noble Lord said: My Lords, we reach Clause 52, the famous "tipping-off" clause. I notice that the noble Lord, Lord Cope, the noble Viscount, Lord Astor, and the noble Earl, Lord Northesk, have tabled amendments to this clause as well. Perhaps I may make a general comment, on which I should be interested to receive a response from the Minister. The CyberLaw Research Unit of the University of Leeds—a new name for the noble Lord to put in his little black book—says of the tipping-off clause:
  "The tipping-off offence in respect of key seizure is effectively useless for its presumed purpose of preventing those whose keys are seized from tipping-off their colleagues about the Government interest. It has been accepted by the Government that a person whose keys are seized is free to issue a new key immediately although they cannot say that they have done this because of key seizure. But if, on all other occasions in which they issue a new key, they simply say 'here is my new key—my old key is now insecure but not as a result of key seizure', their criminal colleagues can immediately see that the absence of an explanation identifies a law enforcement interest".
  I wonder whether there is such a glaring loophole, because, as the Minister knows, of general concern is not the malicious tipping-off but the dilemmas in which it would put wholly innocent people. Amendments No. 77 to 80, standing in my name and
  428
  that of my noble friend Lord Phillips, seek to tip the balance in tipping-off away from accidental incrimination by making it clear that such accidental incrimination will not fall foul of the law, and that the offence will require actual damage before prosecution. I beg to move.
  7 p.m.
  Lord Bassani of Brighton: My Lords, I must say that I am not as intimately familiar with the findings or practices of the Leeds University CyberLaw Research Unit, nor do I share the absolute knowledge apparently shown by the noble Lord as regards issues such as key seizure, which for a moment I thought might be a form of ghastly malady.
  The proposed amendments are the first of a number relating to the circumstances when a secrecy provision may be included in a Section 47 notice. Several general points need to be made on this issue, to which no doubt we shall come when we discuss Amendment No. 85 in the name of the noble Lord. Lord Lucas. At this point I shall confine myself to giving an explanation of why I believe that Amendments Nos. 77 to 80 are undesirable. Ultimately they are undesirable because we believe them to be unnecessary.
  We would argue that the present construction of Clause 52 contains a clearly stated requirement in subsection (1) and a secrecy provision can be imposed only when the tests set out in subsection (3) of that clause are fulfilled. In our view, the proposed amendments in this grouping would jumble things around and, we believe, cause difficulties as a consequence. The recipient of a notice would be left needing to exercise some judgment as to whether any disclosure would "affect"—to use the phrase proposed here—any of the matters listed in subsection (1) of the proposed changed clause. We do not believe that this can be right. Furthermore, we are not sure that the word "affect" is either appropriate or right in those circumstances.
  More important, Amendment No. 78 would have the effect of removing one of the important safeguards in Clause 52. I do not think that that is what the noble Lord wishes to achieve. Subsection (3) of Clause 52 is there for a purpose. It limits the occasions when a secrecy requirement may be imposed. It says that a secrecy requirement may be included in a Section 47 notice only where this relates to information which has come, or is likely to come, into the possession of the police, HM Customs or the intelligence services—and then only in restricted circumstances. This is an important restrictive safeguard which would be lost through the change proposed by Amendment No. 78. As I said, I do not believe that that is the intention of the noble Lord, but it most certainly would be the effect. It would open things up so that any public authority could consider asking for a secrecy provision to be included in a Section 47 notice. It would widen the possible use of the secrecy requirement. We do not believe that that is right. There is no operational necessity for it.

  429
  I know that the Government have been criticised over the proposed tipping-off offence in Clause 52. We do not believe that those criticisms are justified. The clause is carefully worded and contains safeguards and restrictions. Indeed, I believe that some commentators have now begun to acknowledge that. However, we do believe that these amendments would damage the position. I am sure that that would not be the intention either of the Leeds University CyberLaw Research Unit or of the noble Lord, but that would be the effect. I trust, with that explanation, that the noble Lord will feel able to withdraw the amendment.
  Lord McNally: My Lords, I am sure the Minister knows that, almost while he speaks, the CyberLaw Research Unit will be looking at every word. In the meantime, until I receive a response from the group, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 78 to 80 not moved.]
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 81:
  Page 57, line 43, at end insert—
  ("( ) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the person to whom he made the disclosure—

  (a) was not named in the notice as someone who should not be informed, and

  (b) was a person employed by the same employer on duties involving compliance with legal requirements or involving the security of electronic communications or transactions.").

  The noble Lord said: My Lords, this amendment also refers to the secrecy provisions. It makes a specific proposal that it should be in order for a person in this situation to share the requirements with which he must comply with someone whose duties involve compliance with legal requirements or the security of electronic communications or transactions. In a case of this kind, where it might involve a company of any size, experts are frequently on hand. Quite frankly, in many cases the directors of the company will not be able to achieve what is required by the notice unless they are able to use their own staff.
  The amendment is restricted. Paragraph (b) does not greatly widen the protection but is intended to make it more practicable. We do not wish to see a situation where the directors of a company are unable to comply with the notice because they are not allowed to use the necessary skilled staff. I beg to move.
  Lord Bassam of Brighton: My Lords, I appreciate some of the concerns which lie behind this amendment. I hope to explain why the protection sought is already present in the Bill. For that reason the amendment would be an entirely unnecessary addition. This covers ground similar to that we discussed yesterday when we considered Amendment No. 54A.
  It is important to stress again that a secrecy provision will not be attached to all Clause 47 notices. I believe that a misapprehension has crept in here. There is simply no need for this. The occasions when a
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  notice may contain a secrecy requirement are constrained by Clause 52(3). A statutory defence against tipping-off is already contained in Clause 52(10) where someone other than the person served with the Clause 47 notice neither knew nor had any reasonable grounds to suspect that a notice contained a secrecy provision.
  Where a secrecy provision is included in a notice, it has never been the intention of the Government to penalise individuals other than the person served with the notice within an organisation, for example, who may need to be informed about the notice—either to enable the notice to be complied with, or to retrieve or produce the plain text of protected material, or to ensure that proper steps are taken afterwards to maintain the security of any systems. It is right that that should be the case.
  The Bill allows such disclosures to be authorised either by the terms of the Clause 47 notice itself or by the person serving it without such disclosures falling foul of the tipping-off offence. I am sure the noble Lord will be aware that the statutory defence is clearly set out in Clause 52(9). Notices will set out who may be authorised to know about them. They will not, as envisaged by the way in which the amendment is drafted, say who should not be informed. That is riot the way in which the clause works.
  The persons within an organisation who may properly be authorised to know about a notice are likely to vary from case to case. This is where the practical implementation of the legislation becomes important. I believe that we made clear in the initial draft code of practice that the person serving a Clause 47 notice which contains a secrecy provision will need to take all reasonable steps, either before the notice is served or at the time it is served, to ascertain who may reasonably need to know about its existence. Proper disclosure may then be authorised. This is the basic position as set out in the code. As we explained yesterday, we shall be more than happy to receive comments from the industry about how this will work from case to case.
  In summary, the protection sought by the noble Lord's amendment is already in place in the Bill. There is no intention to penalise legitimate practices within an organisation. We have already set out in the initial draft code of practice some idea of the way in which we see Clause 52 working and we welcome comments from the industry about the practicalities of those issues.
  With that explanation, I trust that the noble Lord will feel able to withdraw his amendment.
  Lord Cope of Berkeley: My Lords, as we have said on many previous occasions, we are concerned about the practical application. The Minister has recognised that that is entirely the purpose behind the amendment. However, he has given an assurance that it is unnecessary in that respect. In spite of the charges made by the noble Baroness, Lady Thornton, who entered our debates for a short while earlier, we are concerned with the practicalities. I do not wish to press

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  the amendment because it appears that care has been taken of those practicalities. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 82 to 85 not moved.]
  Clause 53 [General duties of specified authorities]:
  Lord Bach Lord Bach moved Amendment No. 86:
  Page 59, line 11, at end insert—
  ("( ) that, for the purpose of ensuring that those requirements are satisfied, any key so disclosed is stored, for so long as it is retained, in a secure manner:).

  The noble Lord said: My Lords, this amendment would place on the face of the Bill a requirement for any key obtained under the Part III powers to be stored in a secure manner for as long as it is retained.
  We discussed this issue in Committee following amendments proposed by the noble Lords, Lord Cope and Lord McNally. We have reflected on the constructive discussion that your Lordships initiated on this matter and on the representations that we have received from industry and others on the issue. The result is this amendment. We hope that it will be welcomed.
  Perhaps I may stress a point that I made in Committee We see clearly the need to store very securely all sensitive material obtained under the Bill. As regards Part III, Clause 53 already sets out strong safeguards governing the retention, copying and destruction of material obtained under the new powers. Those safeguards are described in practical terms.
  The safeguards arrangements in Clause 53 will be overseen by independent commissioners who will have a statutory responsibility to examine the adequacy of the arrangements, and to report any inadequacies to the Prime Minister.
  All this said, we have reflected on the position as regards the Bill itself and, in line with amendments tabled by noble Lords previously, we have proposed our own change. This places a statutory requirement on the face of the Bill for keys to be held securely. I hope that this offers a degree of comfort to the House and to those interested parties outside.
  How the provision is taken forward in practice is properly a task for the technical project to establish the dedicated resource—the technical assistance centre—that we are putting in place to assist law enforcement over encryption. Deploying the highest level of protection for keys and other sensitive information relating to keyholders is a specific objective of this project. That includes the security of data and keys being transported to the centre, whether physically or electronically. The commissioners will have access to the facility. Providing reassurance that it is properly executing functions derived from the legislation is, we recognise, essential. I beg to move.
  Lord Cope of Berkeley: My Lords, I welcome the amendment.
  Lord Phillips of Sudbury: My Lords, we too welcome the amendment. However, I have two points for the Minister. First, is it not the case that in the code of practice the requirement is merely that the keys are kept secret, rather than that they are stored securely? Is there not a significant difference between the two? "Storing securely" means just that; "keeping secret" could mean a police sergeant putting a key in his desk.
  Secondly, am I right in thinking that the amendment covers only intercept warrants and that it would not, therefore, cover keys obtained by the police under PACE provisions or keys obtained under the provision in Clause 47 where they are likely to be of value, or indeed keys obtained by other non-statutory means? I am sorry to bowl those balls at the Minister with no notice, but I did not have notice myself. In the event that, understandably, he cannot answer these queries here and now, will he review the matter? If I am right in thinking that those matters may not be covered, will the Minister at least give a semi-assurance that sympathetic consideration will be given to covering them? They would seem to fall within the ambit of the policy that he outlined in moving the amendment.
  Lord Bach: The noble Lord asks fair questions, but I shall not pretend that I know the answer to all of them as I stand at the Dispatch Box. The government amendment writes the words "in a secure manner" on to the face of the Bill. I am told that the codes to which the noble Lord refers—I am full of admiration for his having read them already in their draft form—will be revised to reflect this amendment. I think that that may go a long way to satisfying him. I am also told that the amendment will cover all keys.
  On Question, amendment agreed to.
  7.15 p.m.
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 87:
  Page 59, line 14, at end insert—
  ("( ) The duty of any person under this section shall he enforceable by civil proceedings against that person by the person on whom the section 47 notice was served, or by any associate or customer of his who has suffered damage.").
  The noble Lord said: My Lords, we are all agreed and government Amendment No. 86 has just tightened up the provisions—on the importance of the security of keys that are obtained. Nevertheless, with the best will in the world, it is to be expected that at some point that security might be breached, by human error or some other event. If one of the officials of an agency charged with the responsibility for secrecy does not carry out his duty sufficiently, the amendment suggests that civil proceedings against that person should be possible following a breach of security. The damage could be considerable.
  There are two reasons for suggesting an amendment of this character. First, it would have the practical effect of ensuring that, if someone suffered damage as the result of the loss of a key by a policeman or anyone else, he would obtain some compensation through civil

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  proceedings. Secondly, the fact that an action for compensation might be brought would be a great spur to all concerned to make sure that the keys were securely kept, a spur which would have behind it the ingenious stimulus that the more important the key was in financial terms, and hence the larger the potential loss if there were civil proceedings of this character, the more careful people would be to retain its secrecy. This is again a question of reassuring those who are likely to be involved. I believe that this would be an improvement. I beg to move.
  Lord Bassam of Brighton: My Lords, we understand the great concern surrounding the conditions in which keys are stored. We said in Committee that we believed that a private law action would indeed exist if a breach of the necessary duty of care and a degree of negligence were proven. Noble Lords have come back with an amendment to put the matter beyond doubt.
  On reflection, we agree that the industry and the public have a right to know whether or not Parliament intends a civil liability to exist in these circumstances. The noble Lord opposite has taken good advice. We therefore accept the amendment in principle. I would, however, ask the noble Lord to withdraw it. We, for our part, undertake to consider this matter urgently to see what, if any, amendment is needed to give effect to the principle that owners of keys or of protected data who suffer damage as a result of a breach of the duty imposed by Clause 53 may sue. If the noble Lord is content to withdraw the amendment, we shall take the matter away, having accepted the principle, and return with a provision that we think will fit the bill—as it were!
  Lord Cope of Berkeley: My Lords, I hope that it will not be too large a bill! I am pleased that the Minister has accepted the principle. Listening carefully to the words he used, I did not quite detect whether an associate or customer of his who suffered damage would he included in the provision, and I shall not ask him at this point to confirm that. I merely want to ensure that he looks at that point when considering the revised draft. It may be covered automatically by the fact that a customer would be in a position to sue the principal and, therefore, the principal would suffer damage that way and the compensation would, as it were, flow through. In any case, I am pleased that the principle has been accepted. I have no pride in the draftsmanship of the amendment by comparison with those clever fellows the parliamentary draftsmen. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 88:
  Page 59, line 22, leave out subsection (4).
  On Question, amendment agreed to.
  Clause 54 [Interpretation of Part III]:
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 89:
  Page 59, line 37, at end insert—
  (""chief officer of police" means any of the following—

  (a) the chief constable of a police force maintained under or by virtue of section 2 of the Police Act 1996 or section 1 of the Police (Scotland) Act 1967;

  (b) the Commissioner of Police of the Metropolis;

  (c) the Commissioner of Police for the City of London;

  (d) the Chief Constable of the Royal Ulster Constabulary;

  (e) the Chief Constable of the Ministry of Defence Police;

  (f) the Provost Marshal of the Royal Navy Regulating Branch;

  (g) the Provost Marshal of the Royal Military Police;

  (h) the Provost Marshal of the Royal Air Force Police;

  (i) the Chief Constable of the British Transport Police;

  (j) the Director General of the National Criminal Intelligence Service;

  (k) the Director General of the National Crime Squad;").

  On Question, amendment agreed to.
  Lord McNally Lord McNally moved Amendment No, 90:
  Page 59, line 42, at end insert (", and does not affect the intelligibility or accessibility of that communication or data").
  The noble Lord said: My Lords, Clause 54 is an interpretation provision. Amendments Nos. 90 and 91 refer to electronic signatures. I recently saw on television President Clinton making a great to-do about the acceptance of electronic signatures, which are clearly of importance. I do not believe that I have one at the moment. However, fairly soon they will become a "must have". Those who know about these matters believe that these amendments help to make even clearer that signature-only keys are free from disclosure. Moreover, to extend the definition in this way describes the essential feature of an electronic signature; namely, that it does not serve to obscure anything.
  The second amendment in the group ensures that the key as it applies to decryption is always used to unscramble something that has been deliberately concealed, which is surely the essence of encryption. We believe that these are constructive suggestions for the definition of an electronic key and put them forward in that spirit. I beg to move.
  Lord Lucas: My Lords, at this stage I should perhaps address Amendment No. 92 since it covers exactly the same subject but in a slightly different way. I believe that the current definition of "key" does not embrace the use of that word as an electronic signature, and the use of the word "key" in the Bill in various places does embrace the use of that word as an

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  electronic signature. Therefore, this small addition will bring the definition of "key" into line with the way that it is used in the Bill.
  Lord Bassam of Brighton: My Lords, Amendment No. 90 takes us back to the debate yesterday about the protection which the Bill affords to electronic signatures. We also debated an amendment in almost exactly the same form at Committee stage. To reiterate, we recognise that it is difficult to provide a definition in statute for what is essentially the electronic equivalent of a manual signature. However, we believe that what we have by way of a definition in Clause 54(1) is clear enough. The important words are to be found in Clause 54(1)(c) which states that an electronic signature is anything in electronic form which,
  "is used for the purpose of facilitating, by means of a link between the signatory or other source and the communication or data, the establishment of the authenticity of the communication or data, the establishment of its integrity, or both".
  We believe that that is where the definition should stop. On final reflection, we believe that the effect of the addition suggested by Amendment No. 90, although it is intended to be helpful, is dubious. Authenticity and integrity are the crux of the matter. This is not about intelligibility, which is a different issue.
  The definition of "electronic signature" in Section 7(2) of the Electronic Communications Act 2000 refers only to authenticity and integrity, and we believe that the definition here should follow in a similar way. There are dangers in moving away from the definition in that Act. For example, a wider interpretation in this Bill may jeopardise the proper construction of that Act.
  We have considered the rationale behind Amendment No. 91 and believe that it is flawed. It stems from a belief that PACE is sufficient to do what this Bill seeks to achieve. We debated that yesterday when examining an amendment tabled by the noble Lord, Lord Lucas. The fact is that, regrettably, PACE is deficient in this respect. As my noble friend Lord Bach said, ground-breaking though the Act may be there is no clear power to require the disclosure of protected material in an intelligible form—and "intelligible" is the important word here. Amendment No. 91 seeks to insert an element of intention into the definition of what constitutes a key by making reference to data that has been "deliberately processed". We believe that that is wrong. It also attempts to include a reference to an electronic signature which is better left separate. We believe that the definition of "key" in Clause 54 is precise and clear. With the greatest respect to the noble Lord, we believe that the suggested alternative is less than clear.
  I turn briefly to Amendment No. 92 spoken to by the noble Lord, Lord Lucas. It is plain from the speech of the noble Lord that the amendment seeks to widen the definition of "key" to include those used to establish the authenticity or integrity of data. As the noble Lord said, that amendment follows on from the others. We
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  have looked at the definition of "key" in Clause 54 and believe that what we have arrived at is clear and workable. We are not convinced that the additional limb to the definition is appropriate. We believe that it seeks to include something that is more appropriate to the definition of an electronic signature. In so far as the only reason for mentioning signatures in this Bill is to exclude them from what can be accessed as keys, it seems to us to be unhelpful specifically to include these signatures in the definition of "key" in the first place, only to exclude them at some later point.
  We believe that the definition of "key" for the purposes of this part of the Bill is cast correctly. We recognise that the amendments spoken to by the noble Lord, Lord McNally, and the noble Lord, Lord Lucas, seek to be helpful, but they would add extra, and perhaps confusing, substance to the definition. I hope that, having understood where the Government come from on this matter, both noble Lords will not press their amendments.
  Lord Lucas: My Lords, before the noble Lord sits down, will he undertake to take a last look at the way in which the word "key" is used in Clause 47(9) as against the definition that we are now considering? Is he really happy that the definition encompasses the use of the word "key" in Clause 47(9)?
  Lord McNally: My Lords, my previous amendment was inspired by the University of Leeds, whereas this one was inspired by the University of Manchester. It is clear that, in spite of the collective wisdom of the great northern universities, the Minister is determined to believe that the man in Whitehall knows best. Reluctantly, I seek leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 91 to 93 not moved.]
  Clause 55 [Interception of Communications Commissioner]:
  Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 93A:
  Page 61, line 23, at end insert ("; and
  (e) the carrying out of the orders made by the Tribunal under section 65").
  The noble Lord said: My Lords, Amendment No. 93A is the first of several amendments that I have tabled. I do not know whether it is permissible, or sensible, to speak also to Amendments Nos. 93B, 93C, 93D, 96A and 96B. Perhaps I should stick to the list of groupings. These amendments seek to lend greater strength, resources and authority to the interception of communications commissioner.
  Lord Bassam of Brighton: My Lords, we are content to accept on the Floor of the House a re-grouping if the noble Lord intends to speak to all of the amendments.
  7.30 p.m.
  Lord Phillips of Sudbury: My Lords, I shall try not to confuse noble Lords by grouping the amendments in that way. There is no disagreement between us that the role of the interception of communications

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  commissioner is absolutely pivotal to the Bill. The public's satisfaction with the working of the Bill will centre on his or her performance. As the Bill has proceeded through the House, the Government have tended to give more power and credence to that role in order to disarm in part the anxieties among business, the voluntary sector and civil libertarians. These amendments are designed to make his or her role more effective and better resourced.
  The volume of warrants is likely to be enormous. I have asked those who know better than me the numbers we might be talking about. The best guess was as follows: 50,000 reverse telephone tapping warrants; 10,000 traffic data warrants; 2,000 interception warrants; on security and oversight of keys and their storage, 50 or 100; and possibly 50 certificated warrants. In addition, Clause 55 requires the interception commissioner to keep under review,
  "the exercise and performance by the Secretary of State of the powers … tinder sections 1 to 11",
  and under Part III in respect of information obtained under Part I.
  The clause requires the interception commissioner to keep under review,
  "the exercise and performance,"—
  it is an enormous obligation—
  "by the persons on whom they are conferred or imposed … under Chapter II of Part I".
  Another enormous obligation, involving a high level of qualitative judgment by the commissioner, is the requirement to keep under review the adequacy of the arrangements by virtue of which a duty is imposed on him under Clause 14 as regards interception warrants, and Clauses 15 and 16 without which Clause 14 cannot be construed. There is a requirement to evaluate the adequacy of the arrangements in respect of Part I and the duties imposed by Clause 53.
  I make no apology for reading out those provisions. One needs to have some measure of the complexity and depth of his role and the sheer volume of the matters with which the commissioner has to concern himself.
  There is one lacuna in the list of duties. As drafted, the Bill contains no reference to anyone checking how the orders made by the tribunal—its role is also vital—are complied with. Amendment No. 93A gives the interception commissioner that task. The orders of the tribunal relate not merely to the award of compensation but such other order as the tribunal thinks fit. Orders which may be made by the tribunal are itemised in Clause 65(7) as,

  "(a) an order quashing or cancelling any warrant or authorisation; and

  (b) an order requiring the destruction of any records of information",

  as set out in the Bill. That is a hugely important underpinning of the Bill. We believe that it makes sense for the commissioner to be responsible for overseeing the carrying out of those orders.
  I can deal more quickly with Amendments Nos. 93B and 93C. Clause 55(7) relates to the resources to be made available to the interception commissioner. I
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  shall not repeat the comments I made in Committee. Amendment No. 93C is designed to provide a more objective requirement as regards the resources to be made available to the commissioner. There is concern on this side of the House that, politics being what they are, and budgets and economic strength as variable as they are, there could be a temptation in bad years for allowances for the commissioner to be inadequate. We believe that Amendment No. 93C would make that less likely.
  We suggest that as well as consulting the interception commissioner and the Treasury before arriving at the resources that the Secretary of State will make available, the Secretary of State will also consult the Intelligence and Security Committee as established by the Intelligence Services Act 1994. It will have a great deal of interest in the workings of the Bill and of the commissioner. That seems a practical measure.
  Amendment No. 93D would insert a provision which is in the Intelligence Services Act 1994. Not only will the commissioner's report be made to the Prime Minister and laid before Parliament but also, under the 1994 Act, the commissioner has a right of direct access to the Prime Minister at any time. The amendment seeks to replicate that provision.
  Amendments Nos. 96A and 96B relate to the workings of the tribunal. Amendment No 96A is a drafting amendment. It follows the Intelligence Services Act 1994 by defining a "person"—he may be aggrieved and may therefore complain—so as to include organisations and any association or combination of persons. Without that provision, under the normal rules of interpretation they might not be within the class of persons who can complain. We think that they should be.
  Finally, Amendment No. 96B would allow the Secretary of State to order that other categories of conduct should fall within Clause 63(5) so as to allow them to be within the ambit of the tribunal in its role as listener to and adjudicator of complaints. The list in subsection (5) is specific. In the event, other categories of conduct perhaps should fall within the ambit of the tribunal in the complaints procedure. I hope that that will be an uncontroversial proposal. I beg to move.
  Lord McNally: My Lords, I support my noble friend. He has introduced three important elements which bear close scrutiny by the Government.
  Clause 55 states that one of the key responsibilities of the interception and communications commissioner is,
  "the exercise and performance by the Secretary of State of the powers and duties conferred or imposed on him".
  The commissioner is in some respects a supervisor of the Secretary of State. Therefore, we are concerned that it is the Secretary of State and—Lord help us—the Treasury who will be the arbiters of the commissioner's needs. As my noble friend made clear, it is a very big job indeed. Part of the confidence that we have been looking for throughout the Bill in giving powers to agencies of the state is to make sure that the commissioners have the means to do the job.

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  As regards other aspects of the overall supervision of our security services, I have been a strong supporter of the involvement of the Intelligence and Security Committee. I believe that my noble friend has produced an excellent proposal in Amendment No. 93B. I endorse Amendment No. 93D with a little direct experience. When I worked at No. 10 for the noble Lord, Lord Callaghan, as he now is, it was a way of getting action in other parts of the Whitehall jungle to imply that, however reluctantly, we might have to draw a matter to the attention of the Prime Minister. To have in the commissioner's armoury the ability to say, "This is a matter that I want to take directly to the Prime Minister" is extremely strong and an ability which, given the nature and stature of the commissioners, would be used very sparingly. It is still a very useful shot to have in the locker.
  Lord Cope of Berkeley: My Lords, I express general sympathy for this batch of amendments. It is important that the commissioner should have the appropriate staff. He or she will clearly need to have technical staff of a high order. As regards the Prime Minister, I was very interested in the slight lifting of the curtain as to how No. 10 worked in the days when the noble Lord, Lord Callaghan, was Prime Minister. It is extremely interesting, but not exclusive to that particular premiership. Not everyone who has had the experience of the noble Lord, Lord McNally, and myself, to a smaller degree, realises that whereas "Yes Minister" might be regarded as a joke book by other people, in Whitehall it is a textbook. The noble Lord, Lord McNally, makes a powerful point.
  7.45 p.m.
  Lord Bach: My Lords, I shall follow the example of the noble Lord, Lord Phillips of Sudbury. He spoke to a number of amendments in different groups, but only one is before us at the moment. I shall also speak to them. I am grateful to the noble Lord for the way in which he dealt with the amendments.
  We are very sympathetic to the general tenor of the amendments and wish to do everything we can to agree with them. Unfortunately, for the most part I shall resist them while agreeing absolutely that the role of the commissioner is crucial.
  I resist the amendments not because I have been told to do so but because the Government believe that the very real worries the three noble Lords have raised are met by what happens and by what is in the Bill. I begin with Amendment No. 93A. The intention is to add to the duties of the commissioner the oversight and the carrying out of any orders made by the tribunal. The fear is that without that addition no one will ensure that public authorities carry out the orders that the tribunal makes. That would add to the duties of the interception commissioner the task of ensuring that orders made by the tribunal were carried out. While we are in agreement that a power to ensure that should be available, we believe that such a function is primarily for the tribunal itself. The fact that the proceedings will usually not be adversarial means that we expect the
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  tribunal to take a much more pro-active role in enforcing orders than would a court. For example, we expect that the tribunal will have power under rules to direct the agency concerned to report back to the tribunal on steps taken to carry out an order.
  However, where the tribunal decides that it needs the assistance of either the interception commissioner or the intelligence services commissioner, it may turn to Clauses 55(3) and 57(3), which place a duty on each of them respectively to give the tribunal all such assistance as it may require in connection with its investigation of any matter. The tribunal can ask either of the two commissioners to give it such assistance as it may need. I hope that that is reassuring to the noble Lord and that he will be able to withdraw Amendment No. 93A.
  Amendment No. 93B requires the Secretary of State to consult the Intelligence and Security Committee before providing the interception commissioner with staff. He is of course already obliged to consult the commissioner himself, who is free to make his requirements known. It goes without saying that governments of all hues have always listened very carefully to the interception commissioner across a whole range of issues on which he has felt it appropriate to express his views, including the question of resources which should put at his disposal. That practice will continue.
  The Intelligence and Security Committee has an important function, which is set out in Section 10 of the Intelligence Services Act 1994. It is to examine the expenditure, administration and policy of the intelligence agencies. We do not believe that commenting on the resources available to the interception commissioner is a proper function for the committee. The relevant pieces of legislation have always drawn a careful distinction between those areas for which the Secretary of State, the commissioner and the committee are respectively accountable. The commissioner must be consulted on the staff to be put at his disposal and we shall listen.
  Amendment No. 93C seeks reassurance that the interception commissioner will be provided with the necessary facilities with which to do his job. I hope that I can give the House that necessary reassurance.
  Amendment No. 16, which we moved earlier, demonstrates the Government's commitment to the policy that any interception capability developed in obedience to a notice under Clause 12 of the Bill should provide the commissioner with the wherewithal to fulfil his duties in the face of rapid technological development. Further reassurance is provided by Clause 56(1) which imposes a duty on everyone involved in interception to disclose or provide to the commissioner all such documents and information as he may require to carry out his functions.
  The requirement to provide information means, for example, that expert technical staff in the agencies would be obliged, at the request of the commissioner or his staff, to explain how any particular system worked and to show them the information stored on it. That might involve briefing sessions or visits to the

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  commissioner's office by communications engineers and IT specialists. Moreover, the practice of successive interception commissioners has been to make regular visits to the intercepting agencies and also to inspect the warrant-issuing units of the four central government departments. The noble and learned Lord, Lord Nolan, noted in his report for the year 1995 that he had extended his study to include the safeguards operated by the public telecommunications operators.
  It has always been the Government's practice to provide the commissioner and his staff with the necessary office accommodation and equipment to do their job properly and effectively. This practice will continue under the new regime. And, to provide further reassurance, we intend to spell out in the code of practice for Part I what the implications of Clause 56(1) shall be for the intercepting agencies.
  During the Committee debate on this issue, the suggestion was made that the amendment provided a more objective test than the wording of the Bill. Indeed, the noble Lord, Lord Phillips, used that expression today. The commissioner should be provided with such resources as may be requisite, rather than such as the Secretary of State considers necessary. There is not much between us.
  The fact of the matter is that the Secretary of State will consult the commissioner about the resources he needs. The commissioner will express his views. The Secretary of State will take account of those views, gain the approval of the Treasury as to numbers of staff and then provide the commissioner with the staff he requires to carry out his functions effectively. The Government have already given some thought to the greater resources which will be necessary to equip the commissioner in the light of his extra duties under the Bill. This work will continue until we are sure, in consultation with the commissioner, that he has what he needs to do the job.
  Finally, I want to add that under Clause 56(4) the interception commissioner is required to make an annual report to the Prime Minister, which is then laid before Parliament. Were the commissioner to be unhappy in any way with the resources he had been given, he would be free to raise this with the Prime Minister, or indeed in his report. The House can be sure that he would.
  I hope that the spirit with which I have tried to reply to the noble Lord's amendment shows that we share his concerns but that we believe his amendment is not necessary.
  Amendment No. 93D would provide the interception commissioner with the power to report ad hoc to the Prime Minister about any matter. Subsections (2), (3) and (4) of Clause 56 set out those reports which the commissioner is obliged to make. They are: any contravention of the provisions of this Bill which falls within his oversight and on which the tribunal has not already made a report; any inadequacy in the arrangements made under Clauses 14 and 53; and an annual report on the carrying out of all of his functions.
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  In addition, the commissioner has meetings with the Home Secretary and other Secretaries of State responsible for signing interception warrants and visits the intercepting agencies on a regular basis. In combination, these powers and practices together ensure that the commissioner has regular contact with all those involved in the regime and the ability to make his view known at the highest level. What I am about to say is important. At any stage where he discovers a contravention of the Act he may make a report to the Prime Minister.
  We do not therefore believe that any further report-making power is necessary and hope that the noble Lord will not move his amendment.
  I turn to Amendments Nos. 96A and 96B. Amendment No. 96A seeks to ensure that an organisation or association of persons may complain to the tribunal and that access is not restricted merely to individual persons. I can confirm that that is already the case, by virtue of the definition of "person" contained in Clause 79. That clause provides that the word "person" includes any organisation and any association or combination of persons, wherever in the Bill the word appears.
  As regards Amendment No. 96B, we accept that the omission from tribunal jurisdiction is that complaints about Section 47 notices, if given by the Secretary of State, can go to the tribunal but others cannot. That appears to be an omission from Clause 63(8)(d) and (e). We will consider and endeavour to get that put right by Third Reading.
  I hope that that promise enables the noble Lord not to move Amendment No. 96B.
  Lord Phillips of Sudbury: My Lords, as regards Amendment No. 96B, I am not clear what the noble Lord's amendments would achieve. However, I shall wait and see because it sounds as though he agrees with the general ambition.
  I am extremely disappointed with his response to the issue of facilities. If he agrees that there is little between us on the wording, I do not understand why he does not accept my wording. It has more bracing and strength than the wording in the Bill.
  One must accept that there is in the Bill a severe conflict of interest because the Secretary of State will decide on resources and the commissioner will oversee the Secretary of State. To tell the House that it should take comfort from the fact that the Secretary of State must consult the Treasury is a rather bad joke. I do not believe that the Treasury will be straining at the leash to provide more resources because the interception commissioner is not doing a proper job.
  The Minister referred to the noble and learned Lord, Lord Nolan. The House will recollect that when last the matter was raised in Committee the noble and learned Lord rose to support my points about resources inter alia. I have since discussed the matter with him and he regrets that he cannot be here tonight due to his duties as Chancellor of Essex University. However, he is strongly of the view that the Bill so far extends and deepens the role of the commissioner that

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  the present arrangements leave everything to the good will and discretion of the Secretary of State. The Secretary of State will be governed by politics and by budgets. We on these Benches are saying that the role of the commissioner is so pivotal and fundamental, and so much the guarantor of all the Bill's fine print, which we welcome to safeguard civil liberties and the rest, that it is not enough to do as the Minister did in response by saying, "I can give the House my assurance". I am sure that as long as the good Lord Bach has anything to do with it the resources will be sufficient, but relying on the good will of a particular Minister or a particular government is no way to legislate. I am deeply dissatisfied with the Minister's response to Amendment No. 93C.
  As regards Amendment No. 94A, I accept that the tribunal will effectively oversee the implementation and carrying out of its orders. I hope that it will have sufficient technical expertise to do so.
  In respect of Amendment No. 93B, which refers to the Intelligence and Security Committee, I accept what the Minister says and am therefore happy not to move it. However, as regards Amendments Nos. 93C and 93D relating to access to the Prime Minister, which is currently the entitlement of the commissioner under the 1994 Act, I and my colleagues on these Benches remain unhappy. It may be a matter to which we will want to return on Third Reading but in the mean time I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 93B and 93C not moved.]
  Clause 56 [Co-operation with and reports by s.55 Commissioner]:
  [Amendment No. 93D not moved.]
  Clause 59 [Investigatory Powers Commissioner for Northern Ireland]:
  Lord Bach Lord Bach moved Amendment No. 94:
  Page 65, line 17, leave out from ("the") to end of line 18 and insert ("Office of the First Minister and deputy First Minister in Northern Ireland").
  On Question, amendment agreed to.
  Clause 61 [Assistant Surveillance Commissioners]:
  Lord Bach Lord Bach moved Amendment No. 95:
  Page 67, line 20, at end insert ("; or
  (b) require any Assistant Surveillance Commissioner to provide him with assistance in carrying out his equivalent functions under any Act of the Scottish Parliament in relation to any provisions of such an Act that are equivalent to those of Part II of this Act").
  The noble Lord said: In moving Amendment No. 95 I shall speak also to Amendment No. 96. In Committee we introduced provisions for the establishment of an assistant surveillance commissioner to assist the chief surveillance commissioner in carrying out his functions under Part II. That was necessary because of the extra duties placed on the Chief Surveillance Commissioner to keep under review the exercise of Part II powers by public authorities other than the intelligence agencies and MoD/Armed Forces outside Northern Ireland.
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  We felt it necessary to create the post of Assistant Surveillance Commissioner in the absence of sufficient High Court judges to take on the role of Surveillance Commissioner and because we felt it essential to have a judicial input to the oversight role.
  These amendments ensure that the Chief Surveillance Commissioner, when carrying out a review function under the Scottish Bill—that is, functions similar to those in Clause 60(1)(a) of this Bill—will be able to obtain assistance from the Assistant Surveillance Commissioner. I beg to move.
  On Question, amendment agreed to.
  Clause 62 [Delegation of Commissioners' functions]:
  8 p.m.
  Lord Bach Lord Bach moved Amendment No. 96:
  Page 67, line 29, after ("enactment") insert ("or any provision of an Act of the Scottish Parliament").
  On Question, amendment agreed to.
  Clause 63 [The Tribunal]:
  [Amendments Nos. 96A and 96B not moved.]
  Clause 69 [Issue and revision of codes of practice]:
  Lord Lucas Lord Lucas moved Amendment No. 97:
  Leave out Clause 69.
  The noble Lord said: My Lords, I tabled this amendment in order to give an opportunity to noble Lords who wish to do so to make comments on the codes of practice, which they have been unable to do under previous amendments. I have no such comments, but I beg to move.
  Lord Bassam of Brighton: My Lords, I was going to invite the noble Lord, Lord Lucas, to move Amendments Nos. 97 and 98 at the same time as they have the same purpose. As noble Lords do not seem to have taken up his invitation to comment, he may be happy to adopt the same position on each.
  From the Government's point of view with regard to the codes, we published the four preliminary drafts on Monday. They cover interception of communications and accessing communications data, surveillance, covert human intelligence sources, and investigation of electronic data protected by encryption, and so on. They are in the public domain and we look forward to receiving comments from industry.
  By and large, we have already received some favourable observations. I believe that people greatly respect the fact that we have published them in their preliminary form. I believe that it is a very good example of the Government being open and trying to encourage and engage with an industry and a sector. I know that we were criticised at an earlier stage of the Bill for failure so to engage. However, we have now done so and we shall look forward to and welcome comments as they come in. I am sure that those comments will be made in a spirit which attempts to improve the codes. That, after all, is what we want. We shall be more than happy to accept direct representations about their content.

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  We accept that the documents will not be perfect in every way, shape and form. That is the nature of a draft. However, we believe that we have been as helpful as we possibly can be in this matter. After we have improved the codes as far as possible, the Secretary of State will consult on the drafts as required by Clause 69 and in accordance with Cabinet Office practice and guidelines. Therefore, there will be a full eight-week consultation period.
  I hope that that clarifies how we intend to approach matters. We want to be as helpful as possible. We have placed the drafts on the website and we look forward to receiving as much commentary of a useful kind as we can possibly encourage.
  Lord Lucas: My Lords, I am grateful for that explanation. It is indeed a tribute to the Minister that no one has anything to add to what I have said. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 70 [Effect gls codes of practice]:
  [Amendment No. 98 not moved.]
  Clause 76 [Orders, regulations and rules]:
  Lord Bach Lord Bach moved Amendments Nos. 99 and 100:
  Page 83. line 16, after ("section") insert (" 2(10B),").
  Page 83, line 16, after ("12(7),") insert (" 20(7B),").
  On Question, amendments agreed to.
  Clause 79 [General interpretation]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 100A:
  Page 84, line 18. at end insert—
  ("activity affecting "the economic well-being of the United Kingdom" shall not include activity taking place within the United Kingdom;").

  The noble Lord said: My Lords, this amendment arises directly from the contacts which I mentioned earlier with Poptel, the online service provider to many governmental organisations, the voluntary sector and particularly to trade unions. One concern that it mentioned was that some previous powers in comparable legislation specifically excluded activities within the United Kingdom from the definition of "economic well-being of the United Kingdom" so that the powers of, for example, GCHQ to look into matters which affect the economic well-being of the United Kingdom concern only external matters.
  If it is for the convenience of the House, I shall mention also Amendment No. 101A because it arises from the same correspondence. That amendment excludes the so-called "common purpose" condition from the definition a little later in Clause 79. Noble Lords will see rapidly that common purpose, when applied to the possibility of damage to the economic well-being of the United Kingdom internally, could be considered to cover from time to time some of the activities of trade unions. That has given rise to concern and I believe that it was right to bring that concern to the notice of your Lordships. I beg to move.
  Lord McNally: My Lords, I watched the approach of this amendment with some trepidation because I
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  thought that the noble Lord, Lord Mackay of Ardbrecknish, might suddenly appear, fresh and full of vim and vigour, to stimulate us all. However, clearly he is back in the Glens.
  I want to make one small observation attached to the phrase "economic well-being of the United Kingdom". I am increasingly concerned about industrial espionage and its acceptance in the manner of, "Oh, everyone—the Americans, the French or whoever—does it". I believe that industrial espionage can be extremely corrosive—almost as corrosive as is corruption. Recently, grotesque activity was exposed in the United States concerning major corporations which bug each other. I read an article in one of the papers about the vast industry of hi-tech companies which sell to business all kinds of equipment to both bug and debug.
  That may be the nature of the world in which we live, but I believe that the Government should be using their influence internationally in order to minimise industrial espionage either by governments or by individual corporations. As I said, I believe that it is corrosive and undermines genuine economic and industrial activity. In the terms of this Bill, the catch-all phrase "economic well-being of the United Kingdom" is a little disturbing. I believe that as Britain has always stood for the highest standards of integrity in terms of business dealing, and given the dangers that the new technologies bring, we should be on our guard against the corrupting influence of this type of activity.
  Lord Bassam of Brighton: My Lords, I always listen carefully to the noble Lord, Lord McNally. I am not sure whether he has just given a speech in support of the amendment or in support of the Government's concern that lies behind our continued reliance on the words used in the Bill.
  The aim of the amendment is to ensure that no power under the Bill exercised in the interests of the economic well-being of the United Kingdom can be used in relation to activity within this country. However, we believe that the effect of the amendment is already achieved via existing statutes.
  As I explained last night on Amendment No. 48, the amendment is largely unnecessary because the underlying powers of the relevant agencies that may lawfully obtain material in the interests of the economic well-being of the UK are constrained by existing statutes, which significantly confine the agencies' functions.
  As I explained, the statutory functions of the Secret Intelligence Service and GCHQ, which may be exercisable,
  "in the interests of the economic well-being of the United Kingdom"
  are constrained by the Intelligence Services Act 1994 only to where this relates to,
  "the actions or intentions of persons outside the British Islands".
  The corresponding function of the Security Service is to safeguard the economic well-being of the UK against threats posed by the actions or intentions of persons outside the British Islands, by virtue of Section

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  1(3) of the Security Service Act 1989. Section 5(2)(a) of the ISA says that the Secretary of State may authorise a warrant only where it is necessary for carrying out the functions of the agencies. Those functions are constrained as I have just described. As regards economic well-being, that must relate to the actions or intentions of persons outside the UK. It is unlawful for the agencies to act outside their statutory functions.
  Circumstances might arise in which the agencies came into possession of information other than by a statutory power. One might ask whether they would, in such cases, be empowered by the Bill to serve, for example, a Section 47 notice to decrypt such material when it related only to the actions or intentions of persons inside the UK. I can confirm that such behaviour could not be authorised under the Bill. The agencies may only act within their statutory functions. Any activity that they undertake on the grounds of the country's economic well-being must relate to the actions or intentions of persons outside the UK.
  I probably made a mistake when I said that the effect of the amendment was met by other statutes. I should have said that the principal effect was met by other statutes. The amendment would go wider than current law.
  The noble Lord, Lord Cope also spoke to Amendment No. 101A, which gives rise to some interesting considerations. He said that it was of concern to trade unions and others.
  This limb of the definition,
  "large number of persons in pursuit of a common purpose"
  derives from similar wording first used in Home Office guidance issued to the police and Customs in 1951 and employed by the Interception of Communications Act since 1985. The 1951 Home Office guidelines explained to the police that "serious crime" offences were those for which a man with no previous record could reasonably be expected to be sentenced to three years' imprisonment, or offences of lesser gravity in which a large number of people were involved.
  After substantial parliamentary debate, the current definition was incorporated in the Interception of Communications Act 1985. It has since been repeated in several other Acts, including the Police Act 1997, the Intelligence Services Act 1994 and the Security Service Act 1996. This definition was chosen instead of the definition of "serious arrestable offence" in the Police and Criminal Evidence Act 1984 on the basis that the Interception of Communications Act definition is narrower.
  The definition of "serious crime" makes it clear that the starting point is a crime itself. A crime that does not involve the use of violence or result in substantial gain may nevertheless fall within the definition of "serious crime" if the criminal conduct is carried out by a large number of persons in pursuit of a common purpose. Any criminal act carried out by a large number of persons in pursuit of a common purpose counts as a "serious crime". The idea that this part of the definition could be used to justify interception or intrusive surveillance of legitimate peaceful protesters
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  is not correct. We are talking about preventing or detecting situations involving a large number of persons and a large number of crimes but in which each individual crime would not necessarily fall within any of the other limbs.
  During the debate on the Interception of Communications Bill in 1985, the late Lord Whitelaw explained that the "large number of persons" definition was needed to deal with the case of a major criminal conspiracy involving many people but in which the involvement of any individual was not necessarily such as to bring the case within criteria relating to the length of likely sentence. He suggested that some form of racketeering might be one example.
  During the Police Bill debates in 1996, Michael Howard gave the example of a situation in which a large number of neo-Nazi youths concerted to disrupt a football match but none of them was sentenced to more than three years for their activity. He also gave the example of certain offences under the Criminal Damage Act 1971. However, it is not enough simply to determine whether crime falls within the definition of "serious crime". In any particular case, necessity and proportionality need to be considered. It may not be appropriate in the circumstances of the case to issue a warrant for interception or grant an authorisation for intrusive surveillance.
  I can give further reassurance by quoting from the 1997 report of the interception commissioner who at the time was the noble and learned Lord, Lord Nolan. He said:
  "All of the serious crime warrants which I have examined have been concerned with offences which would rank as serious crime by any reckoning."
  I trust that with that explanation, the noble Lord will consider withdrawing his amendment. I understand why he raised the issue and he was right to do so. I appreciate the concerns of the organisations to which he referred.
  8.15 p.m.
  Lord Cope of Berkeley: My Lords, I am reassured by what the Minister has said and by the fact that the definition has been used by successive governments of different political persuasions over the years. I hope that those who mentioned the matter to me will be similarly reassured. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Lucas Lord Lucas moved Amendment No. 101:
  Page 84, line 39, at end insert—
  (""data" includes information in any form;").

  The noble Lord said: My Lords, I wish briefly to have another attempt at seeing whether the Government will enlarge on the definition of "data", which is incorporated, among other places, in the definition of "key" on page 60, line 5.
  The Government wrote to me after our debate in Committee saying that they were satisfied that "data" was a wide enough concept to cover everything that might be a key to electronic data or cover the other

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  uses of the word "data" in the Bill because anything that could he used as such a key was reducible to data. If the Minister can point me to any legal definition of "data" that is stretchable in that way, I should be enormously grateful.
  I have a couple of examples. The most obvious is that the key is a physical key, as we all understand it. I do not see how such a key or its lock can be reduced to the concept of data. Then there is a slightly odder possibility. Let us suppose that there is a niche which is aligned with a fairly random array of electronic sensors and the key is the Dispatch Box which is in front of the noble Lord. When the Dispatch Box is inserted into the niche, the sensors record values which correspond to the key necessary to unlock data.
  The values of the sensors constitute data but it is very difficult to say that the Dispatch Box is data under any normal use of that word. But the Dispatch Box is the key which someone is required to disclose. Or one can present a finger to a sensor. If one is not very careful, it is possible to fall the wrong side of the definition of "data" which is in this Bill and the key is therefore not discloseable because the key itself is not data, although it generates data.
  I merely request that the noble Lord looks at this matter again. I shall not raise it further. I beg to move.
  Lord Bassam of Brighton: My Lords, I have a speaking note in front of me but, with due deference to the officials in the Box, I do not believe that it does justice to the way in which the noble Lord has raised the issue of the definition of data. It is a really interesting and perhaps even esoteric point. I sat here trying to envisage, in the very graphic way in which he explained it, the situation to which he was referring.
  My concern—and no doubt the concern of those who have been struggling with definitions—is to understand what we gain by providing the broader definition of "data" which the noble Lord proposes. It is a fascinating concept. We have tried to be specific in the circumstances and to follow a consistent path of having a narrower definition. But I am intrigued by what the noble Lord has said.
  I make no promises to do anything other than take up the point which he has raised, esoteric though it is, to see whether it is helpful in any way, shape or form. I am extremely grateful to the noble Lord for the way in which he has interestingly persisted with this matter. I am sure that there is benefit in pursuing it. Therefore, I ask the noble Lord to give me time to reflect on what he has said and to withdraw the amendment.
  Lord Lucas: My Lords, I am grateful for that answer. Of course I shall withdraw the amendment. I prefer the amendment which I proposed in Committee as regards the definition of "key" which probably meets the case better. But as always, or as almost always, I defer to the expertise of parliamentary draftsmen. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 101A not moved.]
  Schedule 4 [Consequential amendments]:
  Lord Bach Lord Bach moved Amendment No. 102:
  Page 100, line 31, leave out paragraph 13.
  The noble Lord said: My Lords, this is a very simple and straightforward amendment. At one time, it had appeared possible that the Freedom of Information Bill would receive Royal Assent before this Bill. It is now more than likely, perhaps even apparent, that the Regulation of Investigatory Powers Bill has overtaken the Freedom of Information Bill in its parliamentary passage. It will no longer be appropriate for this Bill to amend the Freedom of Information Bill.
  This amendment therefore removes the consequential amendment to the Freedom of Information Bill which had been included in Schedule 4. I beg to move.
  Lord Cope of Berkeley: My Lords, what an interesting amendment! It is extremely convenient that the noble Lord the Lord in Waiting has moved this amendment because he may be in a position to tell us, in view of his other duties and the fact that the Captain of the Gentlemen-at-Arms is sitting next to him, how the Freedom of Information Bill is coming along. We know that it is awaiting a Committee stage. But we do not have any further information at this point.
  Lord Carter: My Lords, we shall not be dealing with it before the Summer Recess.
  Lord Cope of Berkeley: My Lords, that shows the standard of helpfulness that we receive from the noble Lord the Captain of the Gentlemen-at-Arms. That is information without any value and, therefore., contrasts greatly with the courtesy and assistance that we have received from the noble Lords, Lord Bassam and Lord Bach, when representing the Home Office.
  The Home Office is not always thought of as the most helpful department of government but the two Ministers concerned have been extremely helpful in dealing with our concerns during the course of our debates on the Bill. I should like to put that on record. I also thank those outside this House who have been of great assistance to us in trying to understand what on earth it is that the Home Office is trying to achieve through this Bill, and in our efforts to improve it.
  Lord McNally: My Lords, I feel like Stanley must have felt when he glimpsed Livingstone through the jungle undergrowth. We knew that the Freedom of Information Bill had been kicked into the long grass but, as to where it has been, I thought it was in cyberspace! But now we know and we can all spend our summer holidays dreaming up amendments for that Bill. I am sure that the noble Lord, Lord Bassam, will be much refreshed.
  It is always a pleasure to see the Captain of the Gentlemen-at-Arms here. But it has been a great benefit to stay here on a Thursday finally to find out where the Freedom of Information Bill is. I am sure that many people outside will be equally happy to know that.

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  I associate myself with the thanks to the ministerial team, who have been helpful. As I said earlier, I was never quite sure whether I was going to get a friendly lick from the noble Lord, Lord Bassam, or a bite on the ankle from the noble Lord, Lord Bach. But they are a very impressive team.
  As has been said on a number of occasions, the reason that we have given Ministers and their advisers such a thorough testing has been the willingness of those northern universities and others to help us with
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  a very technical Bill. We look forward to Third Reading and then on to the Freedom of Information Bill.
  Lord Bach: My Lords, the two noble Lords have been extremely gracious, as always. My noble friend and I are very grateful for their kind comments. I commend the amendment to the House.
  On Question, amendment agreed to.
  House adjourned at twenty-seven minutes past eight o'clock.