Regulation of Investigatory Powers Bill (Hansard, 12 June 2000)

§ Lord Bach
My Lords, on behalf of my noble friend, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Bach.)

§ Lord Cope of Berkeley
My Lords, I apologise for interrupting the proceedings at this point, but I believe that I can address the House on an important matter before we move into the detail of the Committee stage. I should like to ask the Minister whether the Government have taken account of the strongly developing opinion against this Bill. When we debated the Second Reading a few weeks ago, it was generally true to say that the Bill was of serious concern only to the e-community, broadly speaking. However, opposition has grown much wider since that time, which means that the Bill has achieved the rare, if not unique, distinction of having The Times, the Financial Times and the Guardian all call for the Bill to be withdrawn and reconsidered.
A similar rare combination of allies against the Bill has developed among business and financial organisations. Today, the British Chamber of Commerce has published a detailed report by an impressive panel, edited by two gentlemen from the London School of Economics and one from University College London—neither institution is normally known as a force of conservatism—which concludes, among other things, that the costs to service providers of compliance would be £650 million over five years, and continuing thereafter. It has also concluded that the effects on the economy would be well over £35 billion over five years in the transfer of business to overseas jurisdictions. These are very serious figures.
1405 The report also says that the Bill as it stands is entirely inadequate as a mechanism to achieve efficient and reasonable interception and surveillance and that its effect is likely to be loss of confidence in e-commerce, unacceptable costs to businesses and to the UK economy, confusion and uncertainty at numerous levels of business activity and an onerous imposition on the rights of individuals. In those circumstances, can the Minister say whether the Government are treating these growing and much wider criticisms very seriously?

§ Lord Bassam of Brighton
My Lords, I am grateful to the noble Lord, Lord Cope, for intervening in this way. I should like to thank him for giving me notice of his intention to do so. Like the noble Lord, I have read the press coverage. We have received many representations. We wish to be as helpful as we can. However, the public debate has revealed some very serious misunderstandings about the Bill. We must, first, try to correct those misunderstandings because some of them are ill judged, while others are misconceived. They are also beginning to skew somewhat the debate.
We are more than happy at all times to consider serious and properly argued amendments. Perhaps it is worth pointing out to your Lordships this afternoon that we are very much in listening mode on this Bill. However, we shall not be deflected from our course; nor shall we withdraw the Bill, as suggested in some of the wilder public comments. None of our industry contacts asks us to withdraw the Bill. They ask for it to be amended in many and various respects. We shall see what we can do in that regard.
As regards some of the misunderstandings in the media, it may be useful if I quote from a letter that my right honourable friend Jack Straw, the Home Secretary, has written in response to The Times editorial today, in which he runs through some of the myths: The first myth is that the Bill requires all Internet service providers in the UK to install black boxes with a link to the Security Service to monitor traffic. This is completely untrue. The Bill introduces comprehensive statutory controls for the first time governing access to data, such as billing records. Access must be properly authorised for specified purposes only. This is subject to independent oversight … The second myth is that the Bill criminalises the innocent user of technology. Again, this is wholly wrong. It targets the serious criminal. There is a sanction for not complying with a decryption notice. But the burden is on the prosecution to prove beyond reasonable doubt that a person has, or has had, possession of a decryption key. Forgetting passwords or keys is a reasonable thing to do, so the Bill includes statutory defences for such cases". The Home Secretary then goes on to look at a third myth; namely, that companies will be required to surrender private keys to their entire network and will be prevented from divulging this. He says: But we have made it clear that, where legitimate businesses are concerned, we fully expect that disclosing material in an intelligible form rather than a key will normally be sufficient. The Bill reflects this. It contains restrictions on when keys may be required and when the 'tipping off' provision may come into play". 1406 We do not want to see the burgeoning e-commerce market overrun with high-tech criminals against whom law enforcement finds itself powerless; neither does industry with which we have actively engaged in consultation. So we need to update our laws. But we also need to ensure that we protect citizens' legitimate rights and that we do not overburden business. It is all about balance. I believe that the Bill strikes the right one.
As I said at the outset, I am grateful to the noble Lord, Lord Cope. We are very much in a listening mode. We want to hear what Members of your Lordships' House have to say on the very important matters contained in the Bill. We continue to listen to points that are reasonably put to us from all sections of industry. The noble Lord made particular reference to the report of the British Chamber of Commerce, which we received today. A representative from the BCC recently visited our officials. We are more than happy to meet the authors of that report, and of other reports, in order to go through some of the serious issues raised. We are seeking to find solutions to the problems.
Much of the Bill is uncontroversial and much of it is already on the statute book in another form. However, we seek to update, modernise and make more effective those parts of the legislation that require such amendment, as well as dealing with the difficult issues surrounding encryption. That is the primary purpose of this piece of legislation.

§ Lord McNally
My Lords, I apologise for entering the Chamber a little late for what was obviously a well prepared response to the opening remarks of the noble Lord, Lord Cope. This Bill seemed to start off as something of a "sleeper" in terms of public concern in that it went through the Commons stages without a great deal of public debate, although it was thoroughly dealt with in Committee in the other place. However, judging by my postbag and—dare I say it?—my e-mails, as well as comments in the editorial columns of the newspapers, there has been a growing concern since our Second Reading debate not just from civil rights lobbies, but increasingly from industry that this Bill is not good enough.
The Minister said that the Bill was "uncontroversial". That is a very generous comment for a Bill about which there is growing doubt as to whether it covers the relevant areas of technology. As I said, there is also increasing concern on the part of both industry and civil rights lobbies. The noble Lord, Lord Cope, was courteous enough to tell me what he planned to do; indeed, judging by the thoroughness of the Minister's reply, I think that the noble Lord may even have given him a nod and a wink in that respect.
Rather than go through the toil and the turmoil of a Committee stage which, if the Government's complacency remains, I fear will result in some defeats for them, would it not be better to take away the Bill and perhaps hold some public hearings and obtain some more expert advice on it? I believe that the Government are heading for the rocks if they do not realise that the warnings that have been given from 1407 some responsible quarters are valid. These are warnings from people who want pornographers, drug smugglers and others to be apprehended but who do not believe that some of the provisions in the Bill address those problems and, where they do, that they give the authorities far too many powers. There are real problems with the Bill. The Government should listen carefully to the wise advice of the noble Lord, Lord Cope, before we become embroiled in a Committee stage where I do not believe that we shall make much progress.

§ Lord Bassam of Brighton
My Lords, as ever, I am grateful to the noble Lord, Lord McNally, for his careful reflections. He always speaks with great common sense. However, I thought I had made it plain in my response to the noble Lord, Lord Cope, that we are aware of the growing volume of concern. Two editorials on this matter appear today in the Guardian and The Times. I have read those and I understand the arguments that are put forward. As I said earlier, I am more than happy to listen to concerns. As always, I have invited noble Lords to discuss points of the Bill that trouble them. It is an important piece of legislation. We are certainly not complacent about it, far from it, but it is a necessary piece of legislation. It makes plain—I think perhaps for the first time—that we need to have a proper regulatory framework for the interception of communications. It tries to address—I believe that it succeeds in this—the serious issue of the way in which technology is changing and evolving. That is no easy exercise. I can well understand that people may be concerned, as the noble Lord suggests.
Committee stage gives noble Lords a full opportunity to discuss the detail of legislation with a view to improving it. I recognise the strength of opinion on certain issues. We shall try to be as helpful as we possibly can as we proceed through the Committee stage. However, as I say, this is essential and important legislation. Our security services, our police service and many of the agencies covered by the Bill would be seriously concerned if we were to be deflected from our intended course of action. We should try to concentrate on resolving the serious issues of concern as best we can in Committee to improve the Bill. As I say, we are ready to listen to all views on these matters.

§ Lord Lucas
moved Amendment No. 1: Page 2, leave out lines 38 to 40. The noble Lord said: I have tabled a large number of amendments to the Bill. I shall try to deal with them as expeditiously as possible. In this case I think that it would be best to start with a short exposition from the 1408 Minister as to what lines 38 to 40 of page 2 are intended to achieve and a couple of practical examples of how they will be used in practice. I beg to move.

§ Lord Bassam of Brighton
I certainly congratulate the noble Lord on his—

§ Viscount Colville of Culross
Order! The amendment should be put.

The Deputy Chairman of Committees
Amendment proposed: Page 2, leave out lines 38 to 40".

§ Lord Bassam of Brighton
Before I was quite rightly interrupted I endeavoured to congratulate die noble Lord on his desire to be expeditious. However, that is in the noble Lord's nature.
This, and subsequent debates today, will, quite properly, seek to scrutinise—as I suggested earlier—the provisions of the Bill, which is a complex piece of legislation. The Bill has already been improved by scrutiny in another place. I repeat that it is for this Chamber to seek further to improve it.
During our debate on each of the amendments it is worth reminding ourselves what the Bill is all about, and why it is crucial that we legislate on these matters. As we are debating Part I today I hope that no one will mind me trying to put the Bill into perspective. This legislation is all about countering the threats which are posed to our society by criminals and terrorists. I believe that that is commonly agreed. The threats exist now and, in our view, the current legislation is either out of date or the law enforcement, security and intelligence agencies have been working on a non-statutory basis which we must rectify before the Human Rights Act comes into force in October. We should bear that date strongly in mind this afternoon.
This is an important Bill. Rather than backing up that claim with generalities or poorly researched figures, I shall give the Committee some facts regarding the effectiveness of interception. Successive governments have shied away from giving too much detail about its effectiveness—for reasons which we shall debate later—but these figures give an indication of just how successful interception is.
During 1996 and 1997 lawful interception of communications played a part—often the crucial part—in operations by police and HM Customs which led to 1,200 arrests; the seizure of drugs with a street value of some £600 million; and the seizure of some 450 firearms. During a 12-month period during 1998–1999 Customs seized 1.25 tonnes of Class A drugs, and made 93 arrests in connection with those drugs, through interception. In fact, in 1998, 52 per cent of the total amount of heroin seized by Customs was a direct result of interception. The total value of drugs seized in 1998 as a result of interception was in excess of £185 million. This comes to over 10 per cent of the total sum spent on drugs per annum in the United Kingdom, an amount which could cost the country up to £500 million each year.
1409 Meanwhile, in work against alcohol and tobacco smuggling, recent Customs interception operations have been so successful that the number of staff working on interception against these targets has doubled. Just this morning I saw some updated figures on the results that interception continues to achieve. By their very nature, it is not possible to share these figures publicly and I shall not do so. However, I reassure the Committee that the results I have just mentioned continue to be highly relevant. These are important powers for law enforcement. We, the public and businesses alike, cannot afford to do without them.
The Committee will note that I have not given any figure or quantification of the success of interception against terrorism. However, I assure the Committee that it is an equally potent weapon and has contributed significantly to the prevention of terrorist atrocities, including some which would undoubtedly have caused loss of life and extensive damage to property. I have today seen the latest monthly results accruing from interception. They remain impressive and I have no doubt of the benefit which serious criminals and terrorists would derive if we were not to bring our interception legislation up to date. Therefore, while I do not wish to labour the point, we need to consider what the Bill is designed to achieve and work towards that.
As I said earlier, I have seen comment in the press today. There are some serious misconceptions around. We have tried, and will continue to try, to get our message across. But this debate must be rational and based on the facts. When all sides have considered all the facts, we can focus on specific suggestions for improvement of the Bill. I am happy to do that but before accepting any changes, I shall want those who propose them to have a full understanding of their impact.
I refer to specific points on the amendment. With regard to Amendment No. 1, Clause 1(1) of the Bill creates the offence of unlawful interception, and then goes on to provide defences to that offence in subsection (5). But through the act of interception, the interceptor may commit other offences or torts, in particular under the Human Rights Act. The final part of subsection (5) ensures that there is a defence to those liabilities.
I trust that the noble Lord understands where we are coming from in terms of this particular clause and that those few comments will assist him in considering whether he wishes to withdraw his amendment.

§ The Earl of Erroll
Presumably these three lines protect the prosecutor from the kind of case that happened recently, where judges decided that there had been an abuse of process and people who were probably criminals were released. Judges punishing 1410 the police—and, effectively, the public—by releasing people who are probably criminals because there has been a technical abuse of process, is not the way to deal with the problem. In general, we should punish the authorities for an abuse of process quite separately. That should not invalidate evidence which may well convict a clearly guilty criminal—and therefore protect the public—even if that evidence has not been garnered correctly. It should carry over from this Bill into other areas to ensure that cases cannot be thrown out on various technicalities. I know that it sounds complicated.

§ Viscount Astor
It may be helpful to the Minister if I intervene before he replies to the noble Earl. I apologise that I was not here at the Second Reading debate; unfortunately I was abroad. I declare an interest, which I hope will suffice for the remaining stages of the Bill. I am a non-executive chairman of a company called Streetnames Plc, listed on AIM, which is an address-related Internet domain names company. It will offer e-mail addresses to businesses and private users and, by subscription, access to an Internet-based e-mail service for sending and receiving messages and attachments, and will include automatic e-mail forwarding. Therefore it might be affected by parts of the Bill—although the Bill is so complicated that I have not yet worked out which parts. No doubt I shall find out as we go through it.
Having said that, perhaps I may make a general point. I do not think that anyone on this side of the Committee doubts that interception is successful and important to the Customs and to the police. I do not think that any noble Lords want to take away those interception powers. We are concerned with the additional powers proposed in the Bill, and it would be helpful if the Minister could focus on that element.
As to my noble friend's amendment, subsection (5) concerns conduct. The final part of that subsection, which my noble friend wishes to delete, states: shall also be taken to be lawful for all other purposes". The words "other purposes" raise a question in my mind. To what "other purposes" does that refer?

§ Lord Lucas
Perhaps I may raise a point that the Minister does not seem to have covered which concerns the words, (whether or not prohibited by this section)". Since these three lines refer only to conduct specifically authorised under paragraphs (a) or (b), what is that phrase in brackets doing there? Does it not have the effect of making any conduct authorised for other purposes, even if it is not authorised for the purposes of the Bill? It seems a very odd phrase. I do not understand what it means and I should like some examples.

§ Lord McNally
The noble Lord and the noble Viscount have put their fingers on issues which will come up time and again. It may be useful for the Minister to deal with them. There is no doubt that where phrases such as, (whether or not prohibited by this section)"; "lawful for all other purposes"; and, as I mentioned on Second Reading, lots of "anys", get into the clauses, it causes concern—and the kind of blanket permissiveness which runs through this Bill is causing concern.
Going back to the initial intervention of the noble Lord, Lord Cope, it would have been far better all round if we could have seen the code of conduct under which some of these powers will be used by the authorities. We should then have been able to make a judgment on whether or not it is wise. But at the moment we are being asked to take the code of practice on trust. I am not sure that we have had any assurance from Ministers that we will see it in this House during any stage of the Bill. It would be a step forward to at least get a timetable of when we will see the code of practice and some appreciation by Ministers that, lawful for all other purposes"; "(whether or not prohibited by this section)"; and all the "anys" that run through the Bill, is certainly not the kind of legislation that should be tolerated when Parliament is passing extensive powers to the executive and to the security and other services. Parliament has to be very careful.
It would probably save time as we go through the Bill if we acknowledge that we know—as the Minister emphasised—there are a lot of bad guys out there and that the authorities need powers to get after them. We want them to get after the drug smugglers and the paedophiles as much as anyone in any Whitehall department wants them to do so. But Ministers must not use the scale of the problem as a way of scaring and bouncing this House into passing slipshod or over-powerful legislation.

§ Viscount Goschen
I associate myself with the concerns and points raised by my noble friends Lord Lucas and Lord Astor. Almost for the first time I associate myself with concerns raised by the noble Lord, Lord McNally, from the Liberal Democrat Benches.
The issues that my noble friend Lord Lucas has highlighted within the subsection are a motif that runs throughout the Bill. Either this subsection gives very wide powers or it is badly drafted and a number of us have misunderstood it. Either way, we need a clear explanation from the Minister as to how exactly these powers are restricted when the subsection states, (whether or not prohibited by this section)". I should also declare an interest at this stage—albeit a tangential one—in that I work for a financial institution that from time to time advises companies with e-commerce interests.

§ Lord Bassam of Brighton
Perhaps I may first respond to some of the comments made by the noble 1412 Lord, Lord McNally. He offered me good advice in his observations. It is not the Government's intention to try, as he put it, to bounce the Committee into accepting poorly drafted legislation because of security needs or the needs of the various law enforcement agencies. That is not our intention. Like the noble Lord, I, too, have trouble in reading and getting my mind fully round some of the legalese language in which much of our legislation is drafted. It is not an easy task. I share his frustration and the frustration of other noble Lords in doing so.
As to the noble Lord's point about the code of practice, that will be based on the existing public code which has been used and issued by ACPO. We intend to publish a draft and to provide a full opportunity for public consultation; I cannot be precise as to when. The noble Lord makes a useful point. Perhaps it is something that should be published during the course of our discussion and debates. If that is possible, we shall seek to do that. That seems to me to be reasoned and sensible.
But, to give the noble Lord a flavour, the code shall be based around the current one, which is very useful. As I said in my opening remarks, much of the legislation is not controversial in the sense that it has been incorporated into our statutory framework, but is littered across it in small pieces. What we are trying to do here is to bring all that legislation together in a coherent fashion, modernise it, update it and make it more intelligible. I apologise if it appears that we have not succeeded in achieving that, but of course that is what we are aiming to do here.
I shall turn to the comments made by other noble Lords. I am grateful to all those who have declared their particular interest as regards this issue. I believe that we all have a certain interest here. The intervention from the noble Earl, Lord Erroll, was well intentioned but perhaps wrong. There is a prohibition on the use of intercept material. Given that, the point that he made probably does not arise. It is worth reminding ourselves that the ECHR demands that any interference with the human rights set out in Article 8 is carried out, in accordance with the law". It would not be enough to say merely that an interception warrant gives a defence to a narrow criminal offence. That is why we have set out the circumstances under which interception would be permissible. If those tests are met, the interception will generally be lawful.
I am not sure that I shall be able to provide a specific example of how that will work for the noble Lord, Lord Lucas. However, I shall give further thought to the point he made. A description of how something will work in practice is always helpful.
This kind of provision may become more common as human rights legislation begins to kick in substantially. It is no longer right to believe that an action is lawful unless it is prohibited. That is an important point to make clear. If something interferes with fundamental rights, it is generally unlawful unless it is positively allowed. I believe that we shall all come 1413 to understand the process better once the human rights legislation begins to have an impact on the way in which we legislate.
The amendment moved by the noble Lord would make the demands of the law unreasonable. The danger of the amendment is that it could make law enforcement staff engaged in carrying out interception liable under other legislation, even if they were operating under a properly authorised warrant. There lies the danger of this amendment and, in essence, that explains why we must object to it. I therefore suggest to the noble Lord that it might be better if the amendment was withdrawn.

§ Viscount Astor
Before my noble friend decides what he wants to do with his amendment, perhaps I may say that we are grateful to the Minister for his remarks about the code of conduct, in particular when he said that a draft may be made available to noble Lords at the earliest opportunity. It would be of enormous benefit if that is the case. Indeed, I hope that it can be made available before we consider the Bill on Report. That will be advantageous to all noble Lords and, indeed, no less so to the Government, because we shall then be able to proceed through the Report stage with a much clearer understanding of the effects of the Bill.

§ Lord Bassam of Brighton
I hope that I can be even more helpful to the noble Viscount. I understand that we shall be able to publish a draft form of the code by the end of the month. When considering the timetable for this legislation, it is likely that the House will have an opportunity to look at the draft code before the beginning of the Report stage. Furthermore, public consultation is to follow.

§ Viscount Astor
I am even more grateful to the noble Lord. As I said, this will be to the advantage of the Government because it will mean that we shall be able to conduct a far speedier Report stage.

§ Lord Lucas
I am grateful to the Minister for answering at least one-half of my question. I am beginning to understand in general terms why we need these three lines. However, it seems an odd concept to include in legislation and I hope that the Minister will be able to write to me giving further information on why, having said that an action is lawful, we need to say that it is specifically lawful for all purposes and how we expect to see this put forward in further legislation, if only from the point of view of better understanding the Human Rights Act.
However, I do not believe that the noble Lord has addressed my question as regards the words, whether or not prohibited by this section". I am still unclear as to their meaning or why it is necessary to include them here. Without those words, the clause would read: and conduct … which has lawful authority for the purposes of this section by virtue of paragraph (a) or (b) shall also be taken to be lawful for all other purposes". 1414 That now seems to me to be reasonably straightforward. However, any conduct "prohibited" by this section is still to be, lawful for all other purposes". That implies that conduct prohibited by Clause 5 is lawful for all other purposes. In any event, I cannot see the point of the wording here. If it has a point, it seems to me that it could be extremely dangerous. I sure that there is an innocent explanation, but given that I gave the Minister's officials several days' notice of what I meant when I tabled the amendment, I had hoped to receive a clear answer today.

§ Lord Bassam of Brighton
I am always willing to try again. Clause 1(5) allows only conduct authorised by Clauses 3 or 4 or by an interception warrant. That conduct can be only interception, but it may be interception that is not prohibited, for example, the interception of a private postal system. I think that I understand that. If, on reflection, the noble Lord finds that he, too, understands it, I shall be delighted. However, if on reading Hansard he is still not certain, perhaps we shall need to address the finer detail of his point in correspondence or return to it at a later stage.
The wording may be a little opaque, but I think that it is in fact more transparent than perhaps we believe it to be. Perhaps we are being a little too suspicious of it.

§ Lord Lucas
I shall not detain the Committee for any longer than is necessary. I shall be grateful if the noble Lord could write to tell me what would happen if the words set out in brackets were deleted from this paragraph in the Bill. What harm would accrue to the Bill? I shall then be able to consider sensibly what provision to put down when we return to the Bill on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord McNally
moved Amendment No. 2: Page 2, line 48, at end insert— ("and the interception is in accordance with provisions of regulations made under section 4(2) with the object of ensuring that the senders and recipients of such communications are made aware of the purposes for which, and the circumstances in which, those communications may be intercepted"). The noble Lord said: With this amendment we move to one of the first areas in which concerns have been expressed about the treatment of individual rights in the Bill. We are trying to establish what might be described as the legitimate expectations of privacy for employees when they operate a private system. There is a danger that overly inquisitive employers could bug their own staff; indeed, in the past we have seen examples of that kind of behaviour, using older technologies. We need also to consider the circumstances of whistle-blowers and how they need to be protected.
The amendment seeks to ensure that the arrangements for the interception of communications in the course of transmission by means of a private telecommunications system are compliant with Article 8 of the European Convention on Human Rights. 1415 Again, I suspect that the compatibility with the human rights convention of some of the powers conferred by this Bill will be a recurring theme throughout our deliberations in Committee.
The European Court of Human Rights has decided that the definition of "private life" can extend to business activities and to the office. A case that comes to mind is that of Deputy Chief Constable Halford, who was bugged by her own police force. The European Convention on Human Rights requires that any interference with rights set out in Article 8 must be prescribed by law. In its current form, Clause 1(6) provides too wide an exemption when it refers to, The circumstances under which a person makes an interception … by means of a private telecommunications system". However, if it were subject to the arrangements we propose under Clause 4(2), this difficulty would be removed.
This is a probing amendment to see whether Ministers have considered such an approach. However, I think that it covers a far more fundamental issue as we begin to embrace quite breathtakingly new technologies. I freely admit that the Minister and I are soul brothers in this area—when the parliamentary draftsmen meet the Internet geeks, simple souls like us need to look for protection. Nevertheless, this issue deserves clarification and I look forward to the Minister's reply. I beg to move.

§ Viscount Astor
If I happen to telephone the Minister in his office, he is in effect "bugged" in a rather old-fashioned way. The private secretary will listen to the telephone call on the extension to make sure that after the call I am unable immediately to telephone the press and say that the Minister agreed to something to which he did not agree. That practice exists for the Minister's protection.
More sophisticated techniques are used in modern offices. In my place of work—the "day job—the telephones are regularly taped on all the trading floors or in any part where business is done. That is a protection not only for clients, but for those who work in the building, so that what they say is not used by anyone else. Indeed, the e-mail system in my office—if it works properly, which it does not very often, because we keep being attacked by outside things—has a capacity for copies to be retained for certain purposes. It is perfectly reasonable for that to happen in a commercial environment.
But the noble Lord, Lord McNally, refers to a form of protection for the individual. The very least that the individual must know is that the interception is taking place. The second point relates to the uses to which the e-mail copies or taped conversations can be put by an employer or anyone else. It is a theme to which we shall return throughout the passage of the Bill. We do not need not to be frightened by the concept; however, we do need to pay careful attention to the safeguards that 1416 should be in place for the protection not only of employees but also of employers. This is an important issue. I shall be interested to hear the Minister's reply.

§ Lord Bassam of Brighton
This short exchange has been quite useful. It has set out the parameters of the debate and some of the awkwardnesses in terms of legislation with which we are attempting to deal.
The effect of the amendment would be to replace the civil liability for a person making an interception on a network that he has a right to control or use with a criminal offence unless that person had carried out the interception in accordance with regulations made under Clause 4(2). I believe that my interpretation of the amendment is correct. The noble Lord attempts to ensure that every person who may be monitored is made aware of the purposes and the circumstances in which that might happen.
The Government are as keen as anyone present to ensure that the privacy of the individual is protected—hence Clause 1(3), which enables a civil action to be brought against anyone who intercepts a communication on a private network. One of the key drivers for this legislation is that such interception should be in accordance with the law. It must be within the legal framework and for a lawful purpose—hence also the lawful business practice regulations, which will govern the actions of businesses in this context and of any public authorities which monitor calls to the switchboard or the communications of the staff. These will contain the stipulation that businesses have reasonable grounds to believe that all parties to any communication are aware that monitoring may take place.
However, applying these regulations to the general public at large is an entirely different matter. The amendment would place a legal obligation, for instance, on all parents to inform every person who called them on the telephone. The same would apply to the circumstances described by the noble Viscount, Lord Astor, where ministerial conversations are monitored. In such circumstances the child, the Minister's private secretary, or any individual present might conceivably pick up a second handset and listen in. We do not believe that the amendment is either reasonable or realistic. Such communications are already protected by the civil action provision in Clause 1(3). I trust that with that assurance the noble Lord will feel able to withdraw his amendment.

§ Lord McNally
I shall readily withdraw the amendment. However, perhaps I may point out to the Minister's advisers as much as to the Minister himself that I hope that the response every time we put forward an amendment will not be one of reductio ad absurdum. We are not worried about 10 year-olds listening to their parents' conversations—although I am desperately trying to stop mine doing just that! We are moving into the use of awesome new technology. The amendment attempts to express concerns about the rights of the employee in the working environment 1417 The Minister referred to the civil redress that is contained in the Bill. I shall ponder on his reply. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Lucas
moved Amendment No. 3: Page 3, line 17, leave out ("postal"). The noble Lord said: I am interested in the word "postal" which appears twice in the Bill, where my amendments seek to delete it. The reference is to "postal items". So far as I can see, the term is not defined in the Bill; nor does it appear in the Postal Services Bill—the closest that that Bill comes is in its use of the term "postal packets".
The general sense of the interception capability ought to be that the authorities, when suitably authorised, can look at any item in the course of transmission if that item contains a communication. My amendments would make sure that anything is considered "post"—it could be a piece of heavy plant, but if there is a communication with it, the provision in the clause would apply. If the restriction is to something "postal", I should like to know what the word means in this context and why there is no common definition with the Postal Services Bill. I beg to move.

§ Lord Cope of Berkeley
I, too, am interested in the definition, which does not seem satisfactory. What it really says is that a "postal service" means any service that consists in the collection and so on of postal items. So it does not define anything at all. It is fairly obvious that the service has to do with collection and I am not sure that the definition is necessary. I accept that lawyers may think it wise to include a definition, even if the Bill does not define "postal", which is the nub of the matter.
The matter becomes difficult in relation to considerations arising out of the speech of the noble and learned Lord, Lord Brightman, at Second Reading. The noble and learned Lord complained about the definitions in Clauses 2 and 72. The Minister was kind enough to send me a copy of a letter that he wrote to the noble and learned Lord. It is undated, but is recent—I saw it this morning, therefore it may have arrived after I left at the end of last week.
In the letter, the Minister explains that, Part I of the Bill introduces some difficult and complex concepts relating to interception and telecommunications". and says that, These are fundamental to the subject matter of Chapter I of Part I". The Minister goes on to say that that is why it has been thought right to put them at the start.
1418 Whatever it is, this definition is not a difficult and complex concept relating to interception. It is a much simpler definition than that. I should have thought that it could well have been left in Clause 72, where there is already a reference to it in any case.

§ Lord Bassam of Brighton
"Postal service" and "postal item" are found in two different parts of the clause. I am sure that noble Lords will have read them. On reading "postal service" I thought that it was pretty clear what it meant. For the purposes of the record, I point out that the clause says, in subsection (1), 'postal service' means any service which— (a) consists in the following…the collection, sorting, conveyance, distribution and delivery (whether in the United Kingdom or elsewhere) of postal items". Subsection (10) says: 'postal item' means any letter, postcard or other such thing in writing as may be used by the sender for imparting information to the recipient, or any packet or parcel". If noble Lords can find more than that defining "postal item" or "postal service", I should be most grateful if they would tell me.
As I understand their effect, Amendments Nos. 3 and 4 would dramatically extend the offence of unlawful interception by applying it to any goods at all, rather than communications, as intended by the Bill. As I have said on a number of occasions, the Bill is designed to update legislation, primarily the Interception of Communications Act, in the light of new technology and legal and market developments, not to extend the powers, which would I think be harmful to the Bill. That would be the effect of the amendments.
I think that the phrases "postal item" and "postal service" cover everything that we would wish to catch within the legislation, without extending the criminal offence unnecessarily. If the noble Lord has some examples of things he thinks we have missed, I should be most grateful for further elucidation of his point, but perhaps in view of what I have said he will feel able to withdraw the amendment.

§ Lord Lucas
I had missed the fact that "postal item", rather than being in the alphabetical list in subsection (1), is stuck away in subsection (10). For the purposes of this Bill we have a different definition from that current in another Bill going through the House—the Postal Services Bill. I should be grateful if the noble Lord the Minister would consider whether those two definitions might not with advantage be brought into coincidence.

§ Lord Bassam of Brighton
I am grateful to the noble Lord for reminding me of that important point. I shall of course look at the two definitions and see whether they in any sense contradict each other in terms of effectiveness of the law. I am certain that they will not, but we shall make a further check on that.

§ Lord Lucas
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Phillips of Sudbury
Moved Amendment No. 5: Page 3, leave out lines 23 to 33 and insert— (""private telecommunication system" means any such parts of a telecommunication system which do not comprise a public telecommunication system;"). The noble Lord said: In moving the amendment, I should like to speak also to Amendments Nos. 9 and 11, which are grouped with it. The noble Earl, Lord Northesk, will speak to Amendment No. 14, which is in the same group.
I must declare an interest, to this extent: I might reasonably claim to be a highly experienced lawyer, but I am a remarkably inexperienced computer buff. Maybe that is an advantage, in that the world at large will have to grapple with this extraordinary legislation. While we all criticise it, and try to be constructive in our criticisms, I acknowledge as a lawyer that drafting this measure must have been one of the most complex and difficult jobs that the parliamentary draftsman has had to confront in many a long day.
The amendments to which I am speaking are both purposive and probing. After listening to me the Minister may say that they could be better dealt with in some other way, but the point revolves around the difference between Chapter I and Chapter II of Part I. The Committee will recognise that I am here referring to the fact that access to information under Chapter I can be gained only with a warrant and that access to communications data under Chapter II can be gained without warrant, on a self-authenticating authorisation procedure that obviously gives far less protection to the citizen.
The reason we propose these three amendments to the definition clause is that if the definitions are right a great deal of the nuts and bolts of the Bill that follow will be correct, although what the noble Lord, Lord Lucas, said reminded me of the point made on Second Reading about the unhappy fact that the definitions are spread around the Bill. Nevertheless, if we get the definitions right, the Bill is more likely to be right. If the definitions are inappropriate, everything else will collapse, particularly in a Bill of this nature, which is so complex and interlaced.
The points that we seek to rectify by the three amendments concern requests for information, or for what are sometimes called datagrams, which, as the Bill is drawn, will fall within Chapter II as being communications data and not within Chapter I, which covers the content. On the face of it a request for information using the huge search engines that are now a feature of this world would seem to concern what are classically communications data, rather than significant content. However, I am advised, and can readily understand, that in investigating all the requests for information from various web servers over a period of time, using one of the now commonplace analytical programmes that can draw salient points, salient trends and so on, out of a mass of detail, one has an extraordinary tool for obtaining a profile of those in respect of whom the searches are 1420 made that will build up to a highly sensitive intrusion into their lives. It will get at their life's concerns, contacts, political views, plans—all by building up patterns that emerge from analysing a thousand separate datagrams.
It should be made absolutely clear—and we believe that it is not—that that sort of inquiry, that sort of access, must be possible only by warrant, and not under Chapter II. I am told that the rate at which the technology is developing makes this point, which may seem arcane to some, one of immense importance, since most telephonic conversations will be carried by these means, by so-called datagrams, in the near future. We believe that changing the definitions in this clause, as would be done by Amendments Nos. 5, 9 and 11, would achieve our purpose.
Finally, we seek to establish that the end points of a transmission are not part of the telecommunication system—that is, that no interception warrant may require any interference with the origin or destination. I beg to move.

§ The Deputy Chairman of Committees (Lord Brougham and Vaux)
I have to advise the Committee that if Amendment No. 5 is agreed to, I cannot call Amendments Nos. 6 to 8 inclusive.

§ The Earl of Northesk
Amendment No. 14 is in this grouping. For the convenience of the Committee, and at the invitation of the noble Lord, Lord Phillips of Sudbury, I shall speak to it now.
I hope that the Minister will find it music to his ears if I tell him that it is very much a probing amendment. I am only too well aware that the phrase "general reception" in Clause 2(3) is intended to be very much wider than my substitute formulation of "reception by the general public". Nor, per se, do I quarrel with that. It merely strikes me that the phrase is woolly. It lacks clarity.
I am aware that the phrase has been used previously in drafting, I believe in recent legislation related to broadcasting. But its context in this Bill seems somewhat different. It is conceivable that messages transmitted to pagers within a closed network—let us say that of a political party—could be interpreted as falling within the terms of, any communication broadcast for general reception". In the case of a properly registered and legitimately constituted political party it is difficult to imagine an occasion when interception of such communications could readily be justified, even on the grounds specified in Clause 21(2). That is all good and well.
Equally, it is possible to envisage instances—in particular in the context of organised crime—where such closed networks could be the preferred mode of communication even though they could be interpreted to fall within the ambit of "general reception". Either way it is important that the Government's intended parameters of the phrase should be more clear-cut.
1421 While I do not believe that the Bill would be improved by a copious list of the communications and broadcasts that the Government have in mind, none the less I should be grateful if the Minister can put some flesh on what are, as they stand, very bare bones.

§ Lord Bassam of Brighton
I am grateful to both noble Lords who have spoken and for the probing nature of the amendments.
Amendment No. 5 would include within the definition of a "private telecommunication system" all self-standing private systems in the United Kingdom, and all telecommunications systems abroad, whether public or private. I think that that is the correct understanding. The scope of the prohibition on interception would be widened to include all such systems. Amendments Nos. 6, 7 and 8 have this effect only for self-standing private systems. Under the Interception of Communications Act 1985, only the interception of communications in the course of their transmission by means of a public system is unlawful. The Bill extends this to make unlawful also interception on a private system attached to a public system: for example, an office or hotel network, or the telephones in a domestic household. This extension implements the requirements of Article 5 of the European Telecommunications Data Protection Directive. That is how we see it working. That is where it comes from. That is its root.
Our understanding is that Amendments Nos. 9 and 11 would change the definition of telecommunication system to exclude the origin and destination. The noble Lord made that clear in his explanation. But a primary purpose of this part of the Bill is to ensure that wherever along the path of a communication it is intercepted, the required level of authority, handling, safeguards and oversight remain the same. It would make no sense for interception of a telephone wire in the street to require a Secretary of State warrant, yet no warrant to be required if the interception was to occur at the telephone handset. Indeed, this was the deficiency identified by the European Court in the case of Halford v. UK which this Bill seeks to remedy. An important step is being taken with this legislation.
Amendment No. 14 seeks to clarify the meaning of the phrase "for general reception". Clause 2(3) is designed to ensure that listening to a publicly available communication—for example, a radio or television programme—is not treated as interception for the purposes of this Bill. It uses a phrase which is used and well understood in other legislation. The noble Lord acknowledged that point. For example, the Broadcasting Act 1996 uses it in its definition of a "digital programme service". In Section 1(4) it states that this means, a service consisting in the provision by any person of television programmes (together with any ancillary services, as defined by section 24(2)) with a view to their being broadcast in digital form for general reception". In Section 1(7), we are told that "for general reception" means for general reception in, or in any area in, the United Kingdom. I hope that the noble 1422 Lord will be reassured that the phrase here has the same meaning. I trust that with those reassurances, the noble Lord will feel able to withdraw the amendment.

§ Lord Cope of Berkeley
On Amendment No. 14, police and ambulance broadcasts were, and sometimes still are, able to be picked up on short-wave radio. People sometimes listened to them out of interest and sometimes because they were criminals wishing to ensure that the police were not headed in their direction. It became a relatively common practice. I am not sure whether that counts as "general reception". It is no fault of the person that he or she receives the broadcast. But is it an offence not to retune immediately one's radio should one come across such a broadcast? I am not sure whether that would be a new offence. It would be of interest to know the position.

§ Lord Lucas
From the Minister's remarks and the definition he cited from the Broadcasting Act 1996, my noble friend Lord Northesk has hit the nail on the head. "General reception" means anything that is intended to be received generally. In the case of television, that includes signals intended to be used only by people who have paid the fee to unscramble them, or the pay-per-view fee. "General reception" clearly includes signals broadcast generally which are intended to be used only by those who have paid the fee or fulfilled specific requirements.
Under the Bill, even if I were to intercept and make use of a signal for Sky Sports 1, I would not be committing an offence under this Bill. However, if that technology is to be legitimate under this provision—under the definition given by the Minister it is—then, as my noble friend Lord Northesk said, interception of a signal to a pager or to a mobile phone, both of which are broadcast for general reception but are intended to be decrypted by an individual or group of individuals, falls within the definition and falls outside the prohibitions in the Bill. Therefore tapping mobile phones and pagers is not covered. It is an area that the Minister should consider. His own definition compounds the difficulties that my noble friend Lord Northesk outlined.

§ The Earl of Northesk
Perhaps the Minister will undertake to give the matter firm consideration. We seem to have unearthed a problem that we have not encountered previously.

§ Lord Bassam of Brighton
I think that we have. We can debate this issue further under Clauses 20 to 24.
Perhaps I may clarify the point on pagers. It is clear that to intercept pagers would need a warrant. The noble Lord seemed to think that one would not be needed; we take the view that it would.
We do not agree that communications for reception by a closed network come within the provisions for general reception. We are clear that the term "general" means available to all. However, it specifically excludes those on a closed network. Noble Lords will need to understand that precise point.
1423 The noble Earl, Lord Northesk, makes a useful contribution. We can have further debate on the issue on Clauses 20 to 24. On reflection, perhaps he will be satisfied with the definition as we have sought to explain it.

§ Viscount Astor
Perhaps I can ask the Minister a question relating to his reference to "general reception" and the fact that pagers are not included in this. Where does that leave subscription broadcasting, and indeed encrypted broadcasting? Where does that fit into the definition?

§ Lord Bassam of Brighton
I am grateful to the noble Viscount for his intervention. I shall need to take further advice on that point. I am sure that the noble Viscount will appreciate that it is rather more complex than is perhaps usual.

§ Lord Lucas
In case the noble Lord wishes to wind up, this is very much getting at the same point, a point which we should not leave alone now until we get a firm commitment from the Minister to deal with it very seriously. The size of a private group does not have any bearing on its status under this Bill. If I send out a signal which is receivable by two or 200 pagers, that is not something which is relevant under this Bill. If I send out a television signal which is intended only for the 200,000 people who have paid but is actually receivable by everybody, the definition that the noble Lord has just quoted refers to "general reception". Therefore, it is for general reception whether the group happens to be 200,000-strong or 200-strong. In other words, pagers—and I suspect mobile phones, even though they comprise only a singular group, which is none the less mathematically a group, as any mathematician will doubtless acknowledge—are by this clause as currently drafted (using definitions in other Bills, because there is no definition in this Bill) excluded from the effects of this Bill. The noble Lord has demonstrated that with his own words. None of us wishes that to be the case, but we must take this absolutely seriously.

§ Lord Bassam of Brighton
I agree that we need to take it seriously. However, the noble Lord is perhaps taking the reductio ad absurdum argument to its nth degree here. "Broadcast for general reception" has a fairly obvious meaning. It could not possibly refer to pager messages to a closed group. A pager network is a full part of a telecommunications network and, as I have made plain, pagers are clearly caught by Clause 2(2)(c). I therefore do not quite understand that particular difficulty about the definition. I believe that we are in the right territory here in terms of how this should work. I simply invite the noble Lord to reflect on some of the observations that I have made. If there are further questions or points to be raised in relation to this matter, we can, of course, deal with them at a later stage.

§ Lord Lucas
I should prefer it if the noble Lord did the reflecting. General reception is exactly what pagers are about. The pager system has no knowledge whatsoever of where an individual pager is. It sends out a signal over the whole of the United Kingdom and it is just picked up by my pager. Mobile phones know, within a cell, where somebody is within a few hundred yards or a few miles, but within that area of the country the signal is again sent out for general reception. "Reception" merely means that I am all owed to receive it, that I do receive it. My pager is at this moment receiving every single message sent out on that system. My pager is not operating on a unique frequency. All sorts of messages are being received by my pager at the moment. It does not happen to be buzzing, because they are not for me, but the signals are sent out for general reception and they are received generally; they are just not acted on by my pager. There is no difference between the technology employed in television and the technology employed in pagers so far as transmission and reception are concerned. The two clearly must fall within the same box.

§ Lord Phillips of Sudbury
Before I make a few short observations, I want to add to the comments of those who have already spoken on Amendment No. 14; that the dubiety expressed on the issues debated this afternoon gives the lie to the Minister's confidence that this is a clearly defined phrase.
I thank the Minister for his comments on Amendments Nos. 5, 9 and 11. He dealt with the origin and destination point. However, he did not touch at all on my main concern relating to how datagrams or search requests will fall in this Bill. Will they, as I think the drafting now intends, be treated as communications data, or will they be treated as communications having content entitling them to warrant prior to search and access? I should be grateful if the Minister would think about that. I believe that it has a very wide and deep significance for the Bill as a whole.

§ Lord Bassam of Brighton
I am not sure how wide and deep that significance might be. However, I acknowledge the noble Lord's point that perhaps my comments have not covered his observation that one cannot look at each communication, each piece of data, separately. The noble Lord made the point that one needs to look at it cumulatively, that one can detect patterns and that although there may be an analysis that applies to patterns, one can in fact detect something else. I entirely understand that point, and I undertake to reflect further on it. However, I do not believe that it poses to us a general problem that we have not already thought through in terms of the way in which the legislation is intended to work. I undertake to give further thought to that issue and to how this piece of the drafting affects that point.

§ Lord Phillips of Sudbury
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Lucas
moved Amendment No. 6: Page 3, line 25, leave out from ("which") to ("there") in line 30. The noble Lord said: This amendment picks up a general question on the drafting of this part of the Bill. As it is expressed here, I am concerned that it fails to catch particular kinds of communications systems. First, if I choose to connect my private telecommunications system through a dish on my roof to a satellite, that appears to fall outside the Bill because under subsection (a), which I seek to delete, it is no longer attached directly or indirectly to a public telecommunications system, because public telecommunications systems are only those systems which have equipment in the UK.
My second point is that we appear to be in danger of having a definition of what falls within a private telecommunications system which will not mesh with similar definitions if they are employed in other countries, and thus leave loopholes where there is not total coverage of what can and cannot fall within similar legislation in other countries. From the point of view of the prevention of international malfeasance, that is a bad idea. It seems to me that our jurisdiction should depend on whether there is apparatus in the United Kingdom. If there is no apparatus in the United Kingdom, we clearly have something which is entirely outside our jurisdiction; but if there is apparatus in the United Kingdom, it ought to fall within our jurisdiction. I therefore propose that simplification. I beg to move.

§ Lord Cope of Berkeley
Some businesses have an internal telephone system which is free-standing and is solely the internal system, whereas in other businesses the more modern practice is to have an internal telephone system which is also connected to the external system. I cannot understand why there should be a separate regime, with regard to interceptions, for these two different types of internal telephone system. But if the words which my noble friend seeks to leave out remain in the Bill, a totally free-standing internal telephone system would be treated differently from one which happens to be connected to the public system as well. I cannot see the reason for wanting to treat them differently.

§ Lord Bassam of Brighton
I understand that Amendments Nos. 6, 7 and 8 would widen the scope of prohibition on interception to include interception of entirely self-standing private systems. I hope that that is a correct understanding of the amendments.
Under the Interception of Communications Act 1985, only the interception of communications in the course of their transmission by means of a public system is unlawful. The Bill extends this to make unlawful also interception on a private system attached to a public system; for example, an office or hotel network, or the telephones in a domestic household. This extension seeks to implement the requirement of Article 5 of the European Telecommunications Data Protection Directive.
1426 Framing the terms of the extension has not been without difficulty and we have done so cautiously in order to avoid inadvertently making any legitimate activity unlawful; for example, criminalising a teenager for picking up a second handset in his or her own home. I know that one might consider that to be somewhat fatuous, but it could happen and we could have the ludicrous position of criminalising that activity. We do not seek to do that. There is no legal requirement for the scope of unlawful interception to be further extended; while to do so in a way proposed by the amendment would include the interception of walkie-talkies, garage door and video player remote control systems and a whole host of other freestanding systems which we do not believe it would be right to make unlawful in this context. I am sure that the noble Lord, in moving the amendment, did not seek to make it unlawful in that context.
I hope that that explanation helps the noble Lord to withdraw his amendment and I look forward to hearing his reflections on those points.

§ Lord Lucas
I suspect that that convinces me. I shall certainly read Hansard, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Lucas
moved Amendment No. 10: Page 4, line 3, leave out ("for the purpose of ") and insert ("one of the purposes of which is"). The noble Lord said: I want to pick up the singularity of purpose in the Bill that telecommunication must have, for the purpose of facilitating the transmission of communications". At times in my house I have used electrical cable for doing that because baby alarms are commonly sold on that basis. Indeed, wider networks are based on it, as are other means of communication. For instance, if it were not broadcast for general reception, the teletext system would be just such a communication system. There is the possibility of putting communications down other conduits and I suggest that one of the purposes should be telecommunication but not the sole purpose. I beg to move.

§ Lord Bach
We see where the noble Lord is coming from. The Bill does not state "sole purpose"; it states "for the purpose of". We would say that that probably implies the major purpose; not necessarily the only one, but the major purpose.
Amendment No. 10 seeks to widen the scope of the definition of a telecommunication system, to be found at Clause 2(1), to include systems only one of whose purposes is to facilitate the transmission of communications. We believe that the existing wording already provides for this. Perhaps by example I may put to the noble Lord the proposition that were technology in the future to be developed which permitted the National Grid to be used as a means of transmitting telecommunications, various adaptations 1427 to the grid would need to be made, such as the addition of routers and so on. The grid would become part of a system which had as one of its purposes facilitating the transmission of communications. As such, it would then fall within the definition in subsection (1).

§ Viscount Goschen
Will the Minister therefore confirm that he is confident that, for example, an e-mail system based in interactive TV and using TV signals would be counted as a telecommunication system rather than anything else?

§ Lord Bach
I should be far from confident in agreeing that, as the noble Viscount knew well when he posed the question. However, it is such an interesting question that I should like some time to consider it and will let him know whether I have the confidence that he requires me to have.

§ Viscount Goschen
Perhaps I may suggest that if the Minister is not confident he should accept my noble friend's amendment.

§ Lord Lucas
I hope that we shall persuade the Government to do that in due course. It will not have escaped the Minister's notice that interactive TV also involves signals broadcast for general reception, but intended to be received by only one person.
In this area, I accept what the noble Lord says is the Government's opinion, but I draw his attention to the many pieces of legislation in which the opposite view has been taken. I hope that he will give that some consideration. We have heard of "general purposes", "principal purpose" and many similar phrases in many pieces of legislation. If they have been unnecessary, I do not know why we have passed them. Therefore, I urge the noble Lord to take further advice, but in the mean time beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ The Deputy Chairman of Committees
If Amendment No. 12 is agreed to, I cannot call Amendment No. 13.

§ Lord Lucas
moved Amendment No. 12: Page 4, line 8, leave out from first ("if") to end of line 12 and insert ("he does anything so"). The noble Lord said: In moving Amendment No. 12, I shall speak also to Amendment No. 13. The amendment is intended to make the set of definitions in the Bill general, rather than the complicated triplicate. If that turns out to be wrong, Amendment No. 13 is intended to leave out the third paragraph because it appears to me already encompassed by the first two paragraphs.
What I am really after is an explanation of why this particular set of definitions has been chosen. It looks as though the Government are trying to close a loophole, to paper over a crack, in the basic definition in which my Amendment No. 12 would result. As I cannot see what the crack is, I am disturbed that the 1428 Government should be able to see such a lacuna in the Bill and I want to ensure that what they are doing by way of this rather odd and complicated definition cures the problem that they see. I beg to move.

§ Lord Bassam of Brighton
I suspect that the noble Lord is seeking riddles within riddles, but I shall try to help him. Amendment No. 12 would extend the definition of "interception" to include any action which made a communication available to a third party in the course of its transmission, rather than simply the narrower list of actions contained in paragraphs (a), (b) and (c). I can understand that this more concise approach is at first sight attractive and has the advantage of simplicity. However, as with our extension of the tort of unlawful interception in Clause 1, the current wording reflects the care we have tried to take to avoid making innocent activity unlawful. Subsection (3) is another example of this. It ensures that the ordinary use of a radio receiver or television in a home is not made unlawful.
We are concerned that by extending the definition in the way the amendment proposes would catch a great deal of innocent activity. We do not want to do that. For example, I am advised that passing on any files sent to a computer to a third party would be made unlawful by virtue of subsection (7). In short, we are concerned that the offence of unlawful interception bites only where it should and we believe that the current wording achieves that aim and objective.
I suspect that Amendment No. 13 would have the reverse effect by trying to narrow the definition of interception to exclude the monitoring of transmissions made by wireless telegraphy. This limb of the definition is necessary to ensure that interception of mobile communications between two microwave dishes and of point-to-point radio communications is caught. We are obliged by the European Telecommunications Data Protection Directive to prohibit that.
I hope that that explanation enables the noble Lord to withdraw his amendment.

§ Lord Cope of Berkeley
It seemed to me that the Minister said that if a file were received by me, for example, and I forwarded it to someone else, in being forwarded, the file would not be covered by the definition that he outlined. Having read the definition, I am not sure that I agree with that, but it is extremely complicated and I should not want to be cross-examined too closely on whether or not such cover is included.
I believe that if a file is forwarded by the communications system, it should be covered by the provision as much as one that is received. After all, it is a perfectly normal occurrence and is, in any case, just as much a transmission through the telecommunications system. If forwarded files were not covered by this 1429 legislation, that would be a loophole because one would have only to use that method in order to escape interception.

§ Lord Lucas
I very much agree with what my noble friend has said. I find myself in the position of not having understood to any degree the answer given by the Minister. I do not want to go on at length about the amendment in front of the whole Committee. However, I should be grateful if the Minister would ensure that I receive a written example of what harm would accrue if Amendment No. 12 were passed; in other words, what undesirable effects would be caused by the passing of that amendment?
I should also be grateful for some justification in writing as to why paragraph (b) of Clause 2(2)— so monitors transmissions made by … the system"— does not cover the items in paragraph (c). Paragraph (b) seems to me a perfectly straightforward and sensible general clause which covers paragraph (c) in every respect. What is it about the items in paragraph (c) that means that they are not covered by paragraph (b)? Surely that raises the question as to what else is not covered by paragraph (b).
If the Minister is unable to provide it now, I believe that both those points deserve elucidation at length in writing. I hope that the Minister will confirm that he can provide that clarification.

§ Viscount Astor
Before my noble friend sits down, is he aware—I am sure that he is—that, as I understand it, coverage is needed on e-mail because an e-mail system which uses, for example, a terrestrial digital system sends only a general signal that says, "You have an e-mail". However, collection of that e-mail by the recipient is carried out through a dial-up process within a box. Therefore, subsection (2)(b) must cover not only the transmission of that broadcast to the individual, but presumably it must cover also, either via a cable or a telephone, the link to collect it. Therefore, my noble friend must consider how that fits in with the point that he makes.

§ Lord Bassam of Brighton
I am not sure how much more helpful I can be in relation to this matter. There are many clever pieces of elucidation bouncing around the Chamber. I shall pick up the point made by the noble Lord, Lord Lucas, although I believe that I had made it fairly plain. In phrasing the legislation, we must be terribly careful that we do not catch everything when, in fact, we want to catch something more precise. I believe that that is what we are trying to achieve in the drafting of this particular part of the Bill. I take the point that has been made by the noble Lord. If we are able to provide further information which will be of help and will perhaps persuade him that he does not need to return to this particular group of amendments, then, of course, we shall try, as ever, to be helpful.

§ Lord Lucas
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Lucas
moved Amendment No. 15: Page 4, line 20, leave out from first ("if") to second ("the") in line 21. The noble Lord said: In moving Amendment No. 15, I shall speak also to Amendments Nos. 16 to 18. I am concerned about the scope and reach of the Bill. To my understanding, my amendments would make a more seamless and watertight join with the likely regimes of other countries. I believe that it would be more simple if I were to listen to the Minister's reply first, rather than trouble the Committee with a lengthy explanation as to why I believe that the amendment provides an improvement. I beg to move.

§ Lord Bassam of Brighton
The noble Lord, Lord Lucas, adopts a novel approach to the moving of amendments. I shall try to live within the spirit of that.
As we understand it, Amendment No. 15 would, crucially, remove the words "and only if" from line 20. The words are used to make it clear to the reader that he should look only to subsection (4) of Clause 2 in order to understand the meaning of the phrase "in the United Kingdom" in the context of the interception of a communication. Without that restriction, there is a danger that the reader may look elsewhere in addition to this subsection in order to understand the phrase. For example, the words "in the United Kingdom" appear alongside the words "whether wholly or partly" in the definition of a telecommunications system in line 2 of page 4. I believe that the draftsman has used a similar device at line 9 of page 16, where the reader is directed to Clause 14(4) alone for a definition of the phrase "the authorised purposes".
Amendment No. 16 would criminalise interception carried out in another country which had effect in the UK. The criminal law must be precise, and this test is imprecise. An important question is: where does the interception of a wireless communication have effect? It is almost impossible to answer that question, and interception currently is not prohibited by the Interception of Communications Act 1985; to do so would make a criminal of anyone anywhere in the world who undertook the interception of a communication in the United Kingdom. We have no evidence that it is necessary to extend the scope of the offence world-wide. Generally, criminal law is limited to the jurisdiction of this country.
Amendments Nos. 17 and 18 would extend the definition of interception "within the United Kingdom" to include any interception of any communication anywhere, provided that the interception was carried out in the United Kingdom. As drafted, the Bill follows the precedent set by the current interception Act, which outlaws only interception of communications within the United Kingdom. As I mentioned previously, in the context of private telecommunications systems, we are cautious 1431 about extending further the scope of the offence, especially when there is no evidence that the existing scope is problematic.
I have explained our view of the noble Lord's amendments. I hope that in putting our response, he will now feel able to withdraw Amendment No. 15.

§ Viscount Goschen
I listened carefully to the Minister's explanation. In respect of my noble friend's Amendment No. 16, can the Minister clarify the point further? With the globalisation of telecommunications equipment, it is possible to envisage that someone may sit behind a desk in Singapore and intercept an e-mail sent from Milton Keynes to Portsmouth. Conceivably, they will have injected a virus into the ISP. However, I defy the Minister to tell me that that cannot be done. If it cannot he done now, I am sure that such an act will be possible next year.
Therefore, it is important to test how far the Bill can be taken with regard to the interception of communications. Clearly, we do not want to create a loophole where illegal activity could take place in havens. We want to ensure that the Bill tackles areas where criminal activity takes place and that proper sanctions can be taken against such criminals.

§ Lord Lucas
I would have asked the same question but would have phrased it less well.

§ Lord Bassam of Brighton
I am not a technocrat nor a technophobe, but I am sure what the noble Viscount says is right. If the technology to do precisely as he wishes does not exist this year, it will exist next year. I am sure we are all familiar with the Internet and the systems that are accessible.
The problem with Amendment No. 16 is that, if it were accepted, it would criminalise interceptions carried out in another country which had an effect here in the United Kingdom. The Government are trying to ensure that the criminal law is as precise as it can possibly be, notwithstanding the important point that both the noble Viscount and the noble Lord, I suspect, are making; namely, that, obviously, communications systems are global.
As I said earlier, the Government have no evidence that extending the scope of the offence world-wide is necessary. Our criminal law must surely be limited to the conduct of our own jurisdiction. That seems to be sensible, right and proper on the basis on which we conduct our business.

§ Viscount Goschen
I suspect that technology moves faster than the draftsman's pen on this issue. This legislation has to be made as future-proof as it possibly can be. Is the Minister seeking to ignore that such a problem could occur?

§ Lord Bassam of Brighton
I am not saying that the problem could not or would not occur. The problem is very real. I am saying that the Government are trying to act within the limit of our own legal system, understanding that only those matters occurring within our own jurisdiction may be criminalised.
1432 I appreciate the noble Viscount's point. I myself have had access to a K-World system which sends e-mails all around the world. I can quite see the problem that the noble Viscount described. The Government think that in terms of their own legislation that this is the best that can be done and that at this stage there is no need to seek to criminalise interceptions carried out in another country that might have an effect here.

Viscount Goshen
I accept the purpose of what the Minister is seeking to achieve here, but I do not accept his degree of confidence that this might not create a substantial legal loophole.
I understand that we are limited within the jurisdiction of the United Kingdom. But perhaps further thought could be given to the definition of the conduct; that is, where the interception actually takes place. If one could not phrase it in terms of intercepting a transmission domestically, I would urge the Minister to look at that issue quite seriously.

§ Viscount Astor
Before the Minister rises, perhaps I may ask one simple question. If somebody was in France and using a system there that intercepted an e-mail which had derived from this country, had been sent within this country and had been received by someone in this country—therefore, the interception was carried out abroad—would that be an offence under this Bill in this country? Would it be an offence in France? Is there an EL aspect to this? Have we consulted our European neighbours? One can dial up by telephone anywhere in the world and then plug into a computer. Therefore, it is where the person sits who is using the keyboard which is important. I realise that the Minister may not be able to answer this question immediately, so perhaps when he writes to my noble friend he will include an answer to my question also.

§ Lord Bassam of Brighton
I thought that the noble Viscount was going to ask me a simple question. It is believed that it would not be an offence because the conduct would have to be committed here. I understand that to be a general principle in criminal law. I am not a lawyer (although I live with one) but I believe that to be the case.
I am interested in what the noble Viscount, Lord Goschen, said on this. If what he said highlights something we have missed, I shall be very interested to know the noble Viscount's remedy. Perhaps there is some scope for further discussion on that point. But the Government must look at the criminal law in the light of our own jurisdiction where conduct is undertaken.
Of course, the noble Viscount is right and this legislation has to be made as future-proof as it can be. That is why the Bill is as complex as it is: the Government have tried to create a framework within which it can operate for a long period. As noble Lords will appreciate, the Interception of Communications Act 1985, though only 15 years old, has rapidly been overtaken by advances in communications. That is the problem we are attempting to tackle.

§ Lord McNally
I regard future-proofing as very important. But does the Minister regard international compatibility as an aim of this Bill? That is a concern. We may be inventing crimes that are purely national for a system that is obviously global.

§ Lord Bassam of Brighton
The noble Lord makes a very important point. Of course we have to operate in an international environment. We live in a global telecommunications/communications system. The noble Lord will have detected that I have referred to various articles relating to the European directives. We are advised by them and by the internationality of the nature of the beast with which we are dealing. Those things have been reflected on in drafting the legislation. I do entirely accept the point the noble Lord makes.

§ Lord Lucas
There is a point here that requires further consideration. To take the obvious parallel to that, an alleged action by two Libyan gentlemen in putting a bomb on board an aeroplane in North Africa is a crime in Scotland because that is where the consequences occurred. The fact that those gentlemen were not extracted for a long time from Libya to stand trial is surely beside the point. If an action is a criminal action, and the important part of the action takes place in this country, it should be something which is subject to prosecution in this country. The fact that people are difficult to get at is a matter for other aspects of international law.
I give an example of something that might occur under this clause. Someone in France, and without leaving France, through his own clever devices, plants a bug in the communications system of a merchant bank in London. He is thereby able to follow the course of takeover transactions and to extract valuable information which is then made use of. Under this Bill as it now stands, I believe that he is not committing an offence, but surely that should be the case. If we are faced with difficulties in getting hold of and extraditing him, that is a different question.

§ Lord Bassam of Brighton
I am not sure that the noble Lord has added anything new to the debate. I am not sure that the Lockerbie example is necessarily the right one. I shall think more about that, but ultimately the offence was conducted in the air space over Scotland. Although it has taken us a long time to get to the position we are presently in, I think that it was right that we followed the approach we did in seeking to try that particular case. I shall reflect further on the noble Lord's words, but I cannot promise to go any further than that.

§ Lord Grabiner
On that point, the conduct that we are concerned with is the interception of a communication. The concept of interception is defined in subsection (2). If the modification or interference with the system took place in the United Kingdom, which, on the noble Lord's example, it would have done because the bug would have been placed in a 1434 merchant bank in London, I believe that that is conduct which would plainly be caught. It would have happened in the United Kingdom. Another part of the exercise is to tap in, and in the example given that is done in France. Such an example would be caught fairly and squarely by the terms of the Bill as now drafted.

§ Viscount Goschen
I suspect that that may be so, but deliberate online interference would not be caught. That is not physical interference—that is, planting a bug—but rather someone sitting at a desk in Singapore sending a virus over the line to the RSB which, in turn, sends information on.
A clearer and more probable example is that provided by mobile telecommunications. For example, a man may travel from South Africa to England with a South African mobile phone. We could be standing two streets away. I could call his mobile phone and that call may be routed via South Africa although we are both in the United Kingdom. However, that transmission could be monitored in South Africa.
There is a problem here to which we should certainly return at the next stage of the Bill.

§ Lord Lucas
I am grateful for all the efforts by Members on the Benches opposite to clarify this question. I shall read Hansard with great interest. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Lucas
moved Amendment No. 19: Page 4, line 28, leave out from ("communication") to ("do") in line 30. The noble Lord said: Here I seek a short explanation from the Government as to why they want to use the concept "in the course of its transmission" rather than just "interception of a communication" full stop. I beg to move.

§ Lord Bassam of Brighton
Amendment No. 19 would extend the applicability of the communications data exemption in subsection (5) to all references in the Bill to "the interception of a communication". For example, the conduct authorised by Clause 3(1) (interception with the consent of both parties) and by Clause 3(3) (interception by a telecoms company for service provision purposes) would include interception of the content of the communication, but not of its address. Those subsections would no longer be effective for authorising interception in order to acquire communications data.
Such a change would be disastrous for public telecommunications operators seeking to trace the originator of abusive phone calls by examining the communications data associated with such calls. Their behaviour would be rendered unlawful. The acquisition of communications data would be 1435 unlawful under Clause 3(1) too, even if both parties to the communication had agreed that this should take place.
The phrase, in the course of its transmission by means of a postal service or telecommunication system has been carefully chosen by parliamentary counsel to cover a particular set of circumstances. The course of transmission begins where a postal service or telecommunication system first begins to transmit a communication. In a telephone, the sound waves from the human voice first begin to be in the course of their transmission by means of a telecommunication when they are received by the microphone in the handset. They continue to be in the course of their transmission until they are emitted by the speaker.
Such phraseology ensures that one is not technically intercepting a communication if one is in the same room as someone using a telephone, and one happens to overhear what is being said. In the same way, listening to a voice from a speakerphone is not interception: the sound waves have left the telecommunication system on which they were transmitted, and are hence no longer technically in the course of their transmission. That is what we have in mind and why we have used that phraseology. I hope that that helps the noble Lord.

§ Lord Lucas
I thank the Minister for that extremely helpful explanation. I shall be able to look at the Bill in that context. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Lucas
moved Amendment No. 20: Page 4, line 41, at end insert ("and where no use whatever is made of any other information which a person may need to have access to in order to obtain addresses and other data so comprised or attached"). The noble Lord said: This is one of the great nubs of the Bill as it is presently drafted; namely, the danger posed to all our civil liberties by giving government unfettered access to what they have smilingly called "communications data".
With so much of our life becoming electronic and with so much of that life consisting of movement from one address to another to obtain predetermined information, the picture of a person's life which can be built up with access to communications data goes way beyond anything which we have traditionally allowed people to obtain without a warrant. The point of the exemption here is to allow communications data to be obtained without a warrant.
The particular point which I am addressing in this amendment is that in order to obtain communications data, one very often has to obtain a great deal of other data too, particularly if one is trying to intercept a package-switch system. I am concerned that the freedom from the restrictions from this part of the Bill should not apply if there are not proper safeguards in place to make sure that that part of the information which is not communications data—that part of the information data which should properly fall within 1436 Part I—is safely handled by whoever is seeking to escape from the necessity for a warrant under this subsection of the Bill.
We shall doubtless return to many aspects of communications data. This is merely the opening shot in that war. But I hope that the Minister recognises the problem; namely, that if information is transmitted in "clear", we are allowing people to look at a great deal of information just in the course of gathering communications data which should be visible only with a warrant. If we are to allow such a process, proper safeguards must be in place. I beg to move.

§ Lord Cope of Berkeley
I rise only to agree with my noble friend. I emphasise the fact that one of the difficulties with the Bill is that it collects an enormous amount of information and is not targeted on the precise information which is required for the purpose of the police, the security service, the Customs and so on.
I accept entirely that that is in part because of the nature of the Internet and the way it works, particularly as regards such matters as package-switching and so on and the way that that works. It may be impossible to design a system which does not collect a lot of additional information. But that means that we should be even more careful about what happens to that additional information, what use is made of it and that it is properly protected. It is not information which is necessary for the main purpose of the Bill; that is, for catching criminals, terrorists and so on.

§ Lord Phillips of Sudbury
From these Benches, we associate ourselves with the general purport of the remarks made by the noble Lord, Lord Lucas, as I tried to indicate in relation to the earlier amendments which I moved.
We agree that this matter goes to the heart of one of the most worrying aspects of the Bill. My only concern about the amendment is whether it is back to front. We should prevent information reaching people who do not need it at all. But it will be interesting to hear the Minister's response.

§ Lord Bassam of Brighton
I suspect that we are fishing in the same pool and that we are not a million miles apart in terms of our intent. It requires us to think more generally across the legislation.
Amendment No. 20 would expressly prohibit the use of any information incidentally obtained in the course of identifying addresses and other data under subsection (5). In practice we believe that the current wording of the Bill already achieves that objective. I draw the attention of the Committee to subsection (5)(a) which states expressly that the conduct described must provide a person with only, so much access to a communication as is necessary for the purpose of identifying addresses and other data so comprised or attached". Let us say that a person is obliged, in the course of his duties, to programme his computer to scan through the content of a series of e-mail packets in order to 1437 isolate those which contain addressing information. In scanning through other packets, he has access parts of the communication other than those which contain addressing information. So far so good. This is clearly permitted by paragraph (b). However, let us imagine that he now decides to retain those other packets which he has scanned through, or worse, to read them. In doing so, he has taken more access—I think we would all agree—to the communication than the Bill entitled him, and subsection (5) does not provide a defence for his conduct.
Certainly we recognise and understand the issue. It has been raised by the noble Lord, Lord Phillips of Sudbury, in an earlier debate. But we think that the way in which the legislation is drafted captures the issue that noble Lords have, quite rightly, attempted to address in this amendment, and the comments made thereto. Therefore, we do not think that it provides for unfettered access. It certainly closes off any line of defence. I hope that the noble Lord is reassured by that. I look forward to listening to his comments.

§ Lord Lucas
It seems to me that we are getting into a technical and legal definition of "access" here, which is not something to which I pretend to have immediate access, or to the arguments for or against. If the status is, as the noble Lord has expressed it—that making use of data to which you have access is actually further access rather than something separate—the Minister's argument stands and I am satisfied. Between now and Report stage I shall consider whether I really believe that to be the case. Meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Lucas
moved Amendment No. 21: Page 4, line 41, at end insert ("or ( ) any conduct in relation to anything which has been delivered, without any deliberate intent by any person, to a final destination other than a final destination intended by the sender"). The noble Lord said: It is unclear to me whether under the exceptions we are allowing the innocent third party, or someone to whom a communication has been delivered in error, to deal with the matter in a way which is convenient and sensible to them without incurring the risk of liability. If a letter or fax ends up in the wrong place, one may well wish to read it to discover to whom it should be sent back. I should like to be assured that that sort of conduct in relation to a communication is not caught by the Bill. I beg to move.

§ Lord Bassam of Brighton
I think that my explanation will make it plain that we do not seek to create a problem here where really there should not be a problem at all. We are confident that the Bill as drafted has the effect of providing the exemption from the interception offence where the communication is delivered to a wrong address. The definition of "interception" is limited to interception of a 1438 communication in the course of its transmission by certain means. To take one example, a letter which has been delivered through a letterbox and is lying on a doormat is no longer in the course of its transmission—it has, after all, arrived—because it is no longer being delivered by the public postal service into whose care it was entrusted. Should it have been misdelivered, readdressing it and sending it on could not possibly constitute an interception under the Bill.

§ Lord Lucas
I am grateful for that comfort. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Bassam of Brighton
moved Amendment No. 22: Page 4, line 41, at end insert— ("( ) In subsection (5) the reference to data comprised in or attached to a communication for the purposes of a telecommunication system by means of which it is being or may be transmitted includes a reference to any communication or part of a communication consisting of signals for the actuation of apparatus comprised in a telecommunication system by which they will be or may be received."). The noble Lord said: Amendments Nos. 22 and 83 are designed to address a deficiency in the law highlighted by the recent House of Lords case of Morgans. They will ensure that there is legislative provision to allow the investigation and prosecution of dial-through fraud on telecommunications networks.
Dial-through fraud is the illegal accessing of outgoing telephone lines by using switch facilities to place calls at reduced or no cost to the caller. The primary motivation is to obtain telephone calls without having to pay. But there are further reasons: to avoid detection by call tracing; to facilitate computer hacking, which would otherwise cost a great deal in telephone charges; to exchange information with other protagonists by abusing voice mail; and to perpetrate other fraud-related action such as call-selling or premium rate service fraud.
The prosecution of dial-through fraud requires the evidence of dialled digits from a protagonist's telephone line. We think that monitoring those digits, both under the Interception of Communications Act and Part I of this Bill as currently drafted, amounts to interception. It follows therefore that the activity needed to monitor these digits should be warranted and will not be capable of evidential use by virtue of Clause 16. Clearly, it is in everyone's interests that such prosecutions can take place. The intention of these amendments is to ensure that they can.
It has also been brought to my attention that these amendments have caused some concern in relation to the Internet, with one interpretation being that they would allow the content of e-mail communications to be treated as communications data and therefore allow interception of e-mail communications to take place without the need for a warrant authorised by the Secretary of State. Although I do not agree that this is a valid interpretation of the wording, I want to place on the record that this is not the intention—I repeat the word "not"—of these amendments and that the Bill 1439 will require Secretary of State warranting for the interception of e-mail communications. I offer my assurance that the code of practice will clearly spell that out so that there can be no misunderstanding on that issue.
There is also the question of the point at which a visit to a website becomes a communication with the website. That is an interesting issue. Although I think that few would argue that the fact that I visited an airline website is the equivalent of me dialling the airline booking service and that the data should be treated in the same way, what I do when I am on the airline website is clearly more private and equates perhaps more closely to the content of the communication when I am through to the airline booking service. We think that this distinction is reflected in the amendment. It is clearly a difficult distinction in practice, and my officials are already in dialogue with industry representatives on that point to find a technical solution. This specific point will be addressed in the code of practice. I can offer that assurance to the Committee.
On Amendment No. 74, removing subsections (2) and (3) would leave both the investigating agency and the provider of communications data open to criminal or civil liability in respect of any actions they carried out under an authorisation or notice. The most obvious area in which actions may be taken would be under the Human Rights Act. But it is possible that, for instance, a customer could sue his communications service provider for breach of contract or breach of confidence if there was no cover provided by the Bill.
Regarding Amendment No. 75, I do not believe that adding the word "expressly" makes any material difference to this subsection. A person either is authorised or he is not. If he is not, any actions carried out by him under this section are not lawful, and it leaves him potentially liable under civil and criminal law, including actions under the Human Rights Act.
Although Amendment: No. 77 would apply the definition of "communications data" to Part I in its entirety, rather than just this chapter, the term "communications data" is not used in Chapter I, so this amendment would have no effect.
I believe that the intention behind Amendments No. 78 and 80 is to restrict the types of data which may be collected under this chapter. I think that there are two important points to make here: first, the whole point of this chapter is to place on a clear statutory basis that which already occurs. The Data Protection Act already allows holders of communications data not restricted by any definition to supply it for certain purposes. Secondly, this Bill is not about making communication service providers start to collect data which they do not already have the capability of collecting. This is what Clause 21(7) is designed to achieve, and it was drafted in response primarily to industry concerns.
Amendment No. 79, as I understand it, would tighten the definition of communications data so that it could not indicate any of the content of the communication. But if a person phones an airline 1440 booking service, does that not indicate that in all likelihood the communication will be related to airline bookings? This amendment would mean that the telephone number of the airline booking service could not be treated as communications data and restrict the use of the data so tightly as to be effectively unworkable, which I am sure was not the intention of the amendment.
Amendment No. 82 seeks to restrict the third category of communications data (i.e. not addressing information or usage information) to data which serve to identify persons to whom the communication service is being provided. While this category of data may not in itself identify anyone, it may well provide an invaluable lead which would enable the person to be identified. This is necessary, in our view, because it is so easy for those who seek to evade the law to purchase communications services without giving a name, address or other contact details.
I trust that what I have said will help noble Lords who are moving other amendments and that, having heard my responses, they will feel able to withdraw their amendments and accept the Government amendments. I beg to move.

§ Lord Cope of Berkeley
First of all with regard to dial-through fraud, the noble Lord the Minister may recall that I mentioned this at Second Reading. It is important for this issue to be tackled, but at the same time I am not absolutely sure that it has been fully tackled in a satisfactory way by the Government amendments. The noble Lord himself said that the amendments in themselves have not proved enough to reassure some people who are concerned about this matter, but that the code of practice would go further. That may be so. We are not at the moment in a position to judge that because we have not seen the code of practice, but the Minister almost promised that we would see the code of practice before Report stage. I think that would be most helpful. The Minister nods "yes" from a seated position, and I take that as confirmation that we shall see the code of practice later and be able to return to the matter if we wish to.
There are two amendments in this group standing in my name. The first one, Amendment No, 77, concerns an extremely small point and is no way comparable to the government amendment. It attempts to extend, as the noble Lord said, the definition of communications data to make it apply to Chapter I as well as to Chapter II. The Minister seemed to be under the impression that the phrase "communications data" did not occur in Chapter I and therefore did not need to be defined. I did have a number of instances of it, but I have lost all but one of them for the moment! However, if the noble Lord will look on page 8 at line 30, he will see communications data referred to there. There are other examples, but I do not think the expression is defined elsewhere.
This whole definitions business is difficult, as has already been mentioned. With regard to Amendment No. 79, the Minister is entirely correct in suggesting that I would not wish to cause the difficult effects that he has mentioned. I shall therefore not press that 1441 amendment, and I am grateful to him for the explanation he has given. It will be necessary to make sure that the wording is satisfactory.

§ Lord Phillips of Sudbury
If I may, I should like to address a few comments to Amendments Nos. 22 and 83, which have been dealt with by the noble Lord, Lord Bassam of Brighton. They really come back to what I was seeking to impress upon the Minister in talking earlier about Amendments Nos. 5, 9 and 11. It seems from these two amendments—I should be grateful if he would correct me if I am wrong—that it is the Government's intention that HTTP requests, which I understand are hypertext transfer protocol requests for individual pages from a web server or interrogation of search engines, along the lines I was referring to in connection with earlier amendments, are now to be considered as communications data matters and not as issues relating to content, which would bring into play Chapter I of Part I of this Bill.
I am sorry that this matter has to be put in such technical terms, but, if that is so, we would say that is a really massive breach of the privacy entitlement of citizens of this country, while well understanding that the ills—dialled-through frauds and the like—towards which these amendments are addressed are very serious matters which do indeed need to be contained by effective legislation.
I do not for a moment pretend that it is at all easy to strike the balance between, on the one hand, cutting out those sorts of ingenious fraud, and, on the other, not engaging in the sort of discretionary intervention in the facts pertaining to individual citizens in the way apparently permitted by these amendments, but I would be grateful if the Minister would confirm that these amendments would confine the two matters of the HTTP requests for individual pages from the web server and the interrogation of search engines to the lesser category of communications data.

§ Viscount Goschen
Picking up on the points made by the noble Lord, Lord Phillips of Sudbury, and referring to the distinction which the Minister sought to draw between visiting a website and having address information and actually communicating with that website, could the Minister offer the Committee his views on whether the exchange of so-called cookies or pre-packaged information between a visitor to a website and the website itself would fall into the first or second category? There would seem to be something of a middle ground.

§ Lord Bassam of Brighton
I will try to find the answer to that one for the noble Viscount. His question is a very good one. I must say that this debate is very helpful because we are getting more and yet more pieces of technological verbiage. They grow by the hour. "Cookies" is one of them and HTTP is another one.
1442 To pick up the point made by the noble Lord, Lord Cope, regarding my explanation that there were no mentions of "communications data" in Chapter I, I think he will find that it is only in the reference to "related communications data". That is to be found in Clause 19.
Referring to the point made by the noble Lord, Lord Phillips of Sudbury, as we understand it, the term "interrogation of search engines" is a communication, and HTTP requests are also included in the term "communications data". I hope that clarifies the point. I would say to the noble Viscount, Lord Goschen, that I will write to him on the subject of cookies. We will try to sort out that very interesting point.

§ Lord Lucas
I apologise for prolonging the debate, but it seems to me that we must bear in mind that we are not seeking in any of our discussions to deny the Government access to this information. All we are discussing is under what conditions this information—to which, as I understand it, Uncle Tom Cobbley and all seem to be able to have access—requires a warrant. It appears that under Amendment No. 22, which is drafted to deal with a real and specific ill, it is quite likely that this Government have opened up to inspection by all sorts of people a whole wealth of information which was not otherwise intended to be open in this Bill. That seems a wrong-headed approach to the individual's rights and civil liberties. If such information is required, the Government can obtain it through a warrant. That may a little tiresome but can be done. The Government should suffer a little inconvenience in obtaining warrants to safeguard the civil liberties of the vast majority of people going about their ordinary business and messing about on the Web. They should not have their private affairs pried into by all sorts of government officials on their own recognizance.
The Government are getting the balance wrong. There is an ill to be dealt with but the Government do not seem to recognise that the consequences they are inviting far outweigh the benefits of not having to be troubled with obtaining warrants. One has always thought of the Labour party as having liberty somewhere at its heart. Surely there is a spark of that left in the Government and they recognise the damage they are doing adopting a cavalier disregard for individual liberty in order to pick off a small number of pestilential malefactors. That attitude should not be part of any government—let alone one made up of the Labour party.

§ Lord McNally
We are asked not to move Amendments Nos. 74 and 75. The Bill introduces more draconian concepts than any of the existing legislation that it is supposed to consolidate. I speak as a layman. I am sure that the parliamentary draftsmen are operating from the best of technical grounds but I worry when I read, at Clause 20(2): Conduct to which this Chapter applies shall be lawful for all purposes if— (a) it is conduct in which any person is authorised or required to engage by an authorisation". 1443 Our amendments, which we will not press at this stage, are an attempt at some tightening. The Minister seems strangely impervious to the criticisms uttered by the noble Lord, Lord Lucas, in a rather robust way but felt in all parts of the Committee. The Government seem to be taking some very large sledgehammers to the nuts they want to crack—and we are not sure that in every case, those nuts require such a draconian approach.

§ Lord Bassam of Brighton
I take to heart the comments made by the noble Lords, Lord Lucas and McNally, but it is a question of balance. I cannot agree that the nuts we seek to crack are worthless. They are real problems. Looking at the history of the interception of communications, perhaps it has not been sufficiently regulated in the past. We are trying to achieve balanced regulation that protects the civil rights and liberties of the individual. I come from that stream of philosophy within the Labour party and have argued that course throughout my political life.
There is another side. We have to deal with evil and nuisance. The interception of communications that the Bill seeks to permit addresses precisely those matters. We need those powers to be effective. The narrowing sought by some amendments would undermine the important and powerful needs not just of the Intelligence Service but of the police and a range of other agencies. None of your Lordships would seek to render that activity beyond use or of little value. After considering the case for these powers and the controls and checks on them that the Bill contains, I am entirely convinced that we are getting into the right territory.
Throughout, we are informed by the Human Rights Act and its impact. That framework will serve us well and protect the individual's rights, freedoms and liberties. Sometimes one can see more conspiracies than exist—but we are right of think of them because they are the worst-case example. I invite noble Lords not to move the linked amendments. The spirit of getting the balance right is one we all share.

§ Lord Lucas
Before the amendment is put to the Committee, I want to point out that the Government already have the power they want in Amendment No. 22. It just requires a warrant.
On how many occasions in the past year—or whatever period for which the Minister has data—did the Government use, or might they have used, the powers in the amendment? If there were 1,000 or 10,000 occasions, it might be reasonable not to plague the Home Secretary with that number of warrants in future. But if such a warrant was issued only 20 or 30 times a year, a few extra interception warrants under Part I would be a small price to pay for not endangering the liberty of the citizens to look where they have wandered in their travels through the Web.
Given that a large part of the Web is composed of unsavoury if not illegal material, a substantial proportion of our citizens must visit such sites from time to time. I am sure that the Minister has never done such a thing. To place such data on public files and make them available to all sorts of people—as if every visit one made to a X-movie or an Ann Summers shop 1444 were recorded—would be entirely inappropriate. One might consider doing so in the case of a major evil but if such occurrences are relatively minor, the Committee should not think of passing Amendment No. 22.

§ Lord Bassam of Brighton
I respect the integrity with which the noble Lord posed his question but I do not have those data in my back pocket. I will see whether I can provide some useful information further to elucidate the matter. The noble Lord's request is not unreasonable on the face of it, so I shall reflect on his point.
As to whether I would wander into a website other than where I might want to be, I am not sure that I have the competence—but perhaps that is an admission too far. I will ascertain what information we have and whether we can reasonably disclose it.

§ The Deputy Chairman of Committees
The Question is, That Amendment No. 22 be agreed to. As many who are of that opinion will say, Content.

Noble Lords
Content.

§ The Deputy Chairman of Committees
To the contrary, Not Content. The Contents have it.

§ Lord Lucas
Not content. I am not content that the amendment should be moved. The Governmmt have provided no proper justification for it.

§ The Deputy Chairman of Committees
The Question is, That Amendment No. 22 be agreed to. As many who are of that opinion will say, Content.

Noble Lords
Content.

§ The Deputy Chairman of Committees
To the contrary, Not Content. The Contents have it.
Amendment agreed to.

§ Lord Bach
My Lords, I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage should begin again not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.