Regulation of Investigatory Powers Bill

HL Deb 12 June 2000 vol 613 cc1463-508

8.35 p.m.

House again in Committee on Clause 2.

[Amendments Nos. 23 and 24 not moved.]

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Cope of Berkeley

I indicated that I wished to speak to this Motion, and to Amendments Nos. 212, 214 and 218. The effect of the three amendments, taken with the proposal that Clause 2 shall not stand part, would be to move all the subsections in Clause 2 into Clause 72.

Noble Lords who were present at Second Reading, or have read the debate in Hansard will know that it was marked by a most interesting and unusual speech by the noble and learned Lord, Lord Brightman. From his great legal background, he criticised the fact that there are two general definition clauses: Clauses 2 and 72. He said, rightly, that in most Bills there is a general definitional clause at the end of the Bill, and that other phrases and words are defined in the clauses in the parts of the Bill to which they relate so that they can be seen in the context of the Bill. However, the general definitions are given usually in a definitional clause at the end for the convenience of those who use Acts of Parliament.

I agree with that. It was a powerful speech. It moved the Minister to express sympathy with what the noble and learned Lord said. He undertook to consider the matter. Since then there has been an exchange of correspondence of which I have seen part; I may not have seen all of it. The Minister did his best to justify the inclusion of these definitions in Clause 2 on the grounds that they were important to the understanding of Clause 1 and the basic approach to the Bill; that they were fundamental and of great importance. I accept that some of the definitions in Clause 2 could be regarded in that category although others seem somewhat basic. As we discussed earlier, the definition of "postal service" means the transmission of postal items.

I see very little reason why the large part of the definitions in Clause 2 should not be more conveniently put into Clause 72. I will not go into the detail that the noble and learned Lord did at Second Reading, except to draw attention to the fact that quite a lot of the words and phrases are again redefined in Clause 72 as having the meanings given to them by Clause 2. That is perhaps a useful indexing, but it also demonstrates a certain duplication of effort.

In the years when I was a Minister in another place, and since I have been here, I have many times admired the work of parliamentary counsel, and I entirely agree with the comment made by the noble Lord, Lord Phillips, who said what a huge challenge it must have been for parliamentary counsel to face a Bill of this character, with such a complex technical background, such as the Internet, and reduce it to workable legal prose. But at the same time I have also had occasion over many years to become frustrated with the complexities of the legal drafting that we see in these Bills. It sometimes seems to me to be totally unnecessary.

We had a brief exchange earlier on, which I did not press, because I did not want to take up the time of the Committee, over the definition of "communications data". It is defined in Clause 20 as: In this chapter 'communications data' means any of the following— I suggested that it might be preferable to say, "In this part". In Chapter I "related communications data" is defined as: so much of any communications data (within the meaning of Chapter II of this Part)"— so one finds oneself going backwards and forwards from one part and one chapter to another in order to find the definitions that one needs.

My noble friend Lord Renton many years ago wrote an excellent report on the drafting of Bills which made a whole series of recommendations, very few of which have been consistently followed since then. One of them was about where to find definitions and how it was easier to have definitions in a place where they could be found. I do not believe that it matters very much whether that place is habitually at the beginning of Bills or habitually at the end of Bills. It would not matter. If the habit was to have them at the beginning of Bills, that would be fine. We could define all the words and then say what the Bill means.

Our habit has been—and it is an alternative approach to the system—to have all the definitions at the end of the Bill and to approach it in that way. That has been our habit, and it is one to which we should broadly stick. It is inevitable in a Bill of this complexity that some definitions and some important items shall be incorporated in the body of the Bill in order to be able to follow it and explain it. However, if parliamentary counsel with much more experience of the drafting of Bills could go through these Bills and look at the definitions, they could be improved no end.

To give another example which came up earlier, why is "postal service" defined by reference to "postal items" in Clause 2(1) of the Bill and "postal item" is not defined until Clause 2(10)? It means that one has to look for it and almost read the whole of the Bill in order to locate the bits which define other matters. They are not in a neat place, where one can put one's finger on them without difficulty.

I accept all the difficulties that are involved in the drafting of a Bill like this. However, I also believe that if the parliamentary counsel paid more attention to the users of Bills and trying to get a uniform system of placing the definitions, in this case, in a convenient place, it would be to the benefit of us all.

Before I sit down, I have to confess to your Lordships that when I was a Minister handling Bills in Parliament, I found myself on a number of occasions in a situation of arguing with parliamentary counsel in an effort to make the wording a little more straight forward. There were a number of occasions on which I had some discussion on the matter with the relevant lawyers—usually the departmental solicitor, because it is quite difficult to get through to the parliamentary counsel themselves—and I almost invariably lost. It may be that the Minister has lost on this occasion. Nevertheless, the noble and learned Lord, Lord Brightman, had a very good point.

8.45 p.m.

Lord McNally

The noble Lord, Lord Cope, has obviously come back from dinner in a mellow mood. He has had a few kind words to say about parliamentary counsel; he is sympathetic to the problems of the Minister; he has made a few confessions from his own days as a Minister. I suspect that it all bodes well for the next four or five hours. I had hoped that he would have come back in a slightly more robust mood, which would perhaps indicate that we were not going to send this clause back because of the issues raised by the noble and learned Lord, Lord Brightman. Although they are valid reasons, I believe that the definitions could be put together in a clearer way.

What this definitions clause has revealed is the true nature of this Bill. The real problem—and I suspect that it will recur for the Minister—is that this is a pantomime horse of a Bill. The front end is consolidation, as he has referred to it a number of times, and that is why we get constant references to telecommunications and postal systems which all hark back to legislation that is 15, 20, 30, 40 or 50 years old. At the back end of the horse is an attempt to deal with new technology. I suspect that one of the problems that we will continually encounter is the fact that the definitions, the scopes, the powers are either carryovers from old technology or attempts to address the new ones. I must say that, even at this early stage, the joining is beginning to show. It might have been better for this clause to be taken back so that the definitions which are already shown to be inadequate could be better defined.

The approach, which is not technology neutral but technology inadequate, could be better shaped up, so that we would get a better sense of what was termed before the dinner hour as "future proofing". It is a concern of many of those who have advised us that we are agonising over powers and the contents of this Bill which may not last more than a few months in terms of the development of the technologies of the industries that we are trying to control.

I would therefore have been keen to look at these definitions and this whole section as covered by Clause 2 with a much greater view to the future, to make sure that, even as we speak, technology is not bypassing the legislation, and to ensure that, in allowing it to bypass us, we are not at the same time adding cost to industry and putting our faith in obsolete ways of trying to deal with these problems. Law enforcement perhaps has to come to terms with a new regime of transmitting information which is not susceptible to the old interventionist ways of controlling it, and I believe that future proofing may need a different approach.

In case that provokes the noble Lord, Lord Cope, to call a Division at this stage, I must say that I believe that we should do better to keep our powder dry for a time in the future when we may look at the clause again to see whether it is worthy of staying in the Bill.

Lord Lucas

These are old technology and obsolete practices indeed! We should be looking at a Bill written in hypertext, as it would be and should be on the Web—it is not—so that one can click straight to the definition. No one will then care one fig where the definitions are; they could be peppered in every other clause but the whole thing would have the same meaning.

The Government have promised to be entirely Web-based by 2005, but their progress so far has been distinctly unimpressive, particularly as regards this House. I hope that the Government can assure us that we are looking at publishing Bills on the Web in hypertext—and the Home Office should be at the forefront of that—so that definitions can be found exactly where they should be, which is next to the word that is defined.

Viscount Goschen

Perhaps I may ask the Minister a general question in respect of Clause 2, but it could probably be asked about every other clause. In terms of the definitions, the specific offences, exemptions and so forth, can he give the Committee a further explanation of the efforts that have been made to try to develop a multi-national approach to such legislation? A number of Members who have spoken tonight have remarked on the importance of not going off on our own in an industry which must be the most multi-national.

I believe that in order to make the legislation credible we must have an integrated approach with colleagues in other governments. The party opposite has been keen on integrated government, on an integrated transport policy and on integrating everything under the sun. I should be grateful if the Minister could explain how his approach to this legislation will fit in with our colleagues in the EU, the US and beyond.

Lord Bassam of Brighton

I shall begin by commenting on the remarks made by the noble Viscount, Lord Goschen. I am loathed to enter into a lengthy discourse on the Question that Clause 2 shall stand part of the Bill, but I believe that the noble Viscount has made a good point. Perhaps we should try to contextualise the discussion around this legislation. We have been working closely with our European partners and are looking at ways in which we can do so with the Cyber Crime Convention, the Telecommunication Data Protection Directive and the Mutual Legal Assistance Convention.

Perhaps I am not as familiar as I should be with all of those, but, together with our commitments in this legislation and on e-commerce generally, they give an indication of our concern to ensure that we get right the legislation and the quality of regulation and provide the right kind of framework for business and enterprise. Therefore, it is proportionate and part of the debate around this legislation. I take the noble Viscount's point. I am not sure that I want to enter into a debate, but perhaps the House should have such a debate because I am sure that it would be useful and wide-ranging.

Tonight, it is my intention to recommend that Clause 2 shall stand part of the Bill and to set out some of the background relating to it. In doing so, I shall attempt to address the points made in this short debate. The clause sets out the definitions of telecommunications and postal services and systems relevant to the Bill. The purpose of the clause is to interpret the meaning of "interception" and related items.

The Interception of Communications Act 1985 contained no definition of "interception", an omission which the Bill rightly seeks to rectify. These definitions seek to reflect both current and future technology. These are not easy matters to set down in legislation, but this set of interlocking definitions certainly takes us forward from the position which we inherited with the 1985 Act.

Part I of the Bill introduces some difficult and complex concepts relating to interception and telecommunications. These are fundamental to the subject matter of Chapter I of Part I. As these are matters of great importance, they appear at the beginning of the Bill in Clause 2. This clause has been positioned with the substance of the matters to which they relate.

It is quite usual to define the basic concepts for a legislative proposition in the main part of a Bill and in this instance the Bill has a signal point of reference at Clause 72 for expressions that are defined for all the provisions of the Bill. Therefore, we have two clauses for that purpose. Clause 2 relates particularly to the important issues which are dealt with in Chapter I of Part I and Clause 72 has a definition which relates to the generality of the Bill. That is why we have two definitional clauses.

I know that that creates complexities, but it means that in Clause 72 we have an index to the expressions to be found in Clause 2. This Bill, and Part I in particular, contains a great deal of complex and interlocking concepts and definitions are contained in Clause 2 to assist the reader who wishes to demystify, to understand more precisely, Clause 1. That is why we have the juxtapositioning of those two clauses. That is the main reason for the way in which the Bill is set out.

Perhaps I may take an example raised by the noble and learned Lord, Lord Brightman, on Second Reading. The word "modification" receives two treatments, in Clause 2 and in Clause 72. However, subsection (6) of Clause 2 simply amplifies the phrase as it is used in a very specialist sense in subsection (2). It does not contradict or undermine the definition which is found in Clause 72.

I have tried to answer the valid points raised by the noble and learned Lord, Lord Brightman, on Second Reading. There are good reasons for the definitions included in Clause 2. While I retain some sympathy for his point, I believe that on balance it is more helpful to see the definitions there than to see all of them at the end. I think it makes for a better understanding and demystification of Clause 1. The reader of the Bill will find that Clause 2 definitions are carefully cross-referenced in Clause 72.

Today I received further correspondence from the noble and learned Lord, Lord Brightman. I am extremely grateful to him for writing because he does so from his hospital bed. He has suggested some small changes which I am happy to take away and consider. In the mean time and with that explanation, which I think is clear, I commend Clause 2 to the Committee.

9 p.m.

Lord Cope of Berkeley

I am, as it were, formally grateful and, in part, genuinely grateful to the Minister for what he said, although I am not entirely convinced. So far as concerns the points raised by the noble and learned Lord, Lord Brightman, obviously we shall have to wait to see how the later stages of the Bill turn out.

However, the noble Lord, Lord McNally, believes that Clause 2 contained wider issues, and I agree with him. He referred to the Bill as being rather a "pantomime horse" because it adds technological aspects to the traditional controls over interception. Of course, the problem with that is that it makes the Bill extremely difficult to amend. It seems to me and to many commentators outside, as we have already discussed, that the provision deals only with the difficulties of the over-exaggeration of some of the technological clauses littered throughout the Bill. Whether the difficulty in amending the Bill is deliberate or accidental, I am not quite sure. However, it is the fact of the matter and it leads some people to say that the Bill should be taken away and reconsidered.

My noble friend Lord Goschen raised an important point with regard to the international dimension. That produced the interesting comment from the Minister that the Government are working closely with European partners. In the circumstances, that seemed to me to be a rather provocative remark. Our nearest EU neighbour, Ireland, is in the middle of proposing a Bill which, in some respects, is flatly the opposite of this legislation and provides protection for some issues which we are attempting to open up. However, that will be considered at a later stage.

A general criticism of the Bill was made by the Government's own adviser, Professor Turner, who is also connected with the Institute of Directors. He said that the Bill was an attempt to deal nationally with a problem which should be dealt with internationally. I have a great deal of sympathy with that approach, and it was reflected in what was said by my noble friend Lord Goschen.

We, and our Government, are not alone in wanting to catch criminals. However, for the moment among similar countries we are almost alone in trying to advance this particular set of propositions regarding how one deals with the Internet in this respect. But at this juncture I shall not press the Committee to oppose Clause 2.

Clause 2 agreed to.

Clause 3 [Lawful interception without an interception warrant]:

Lord Lucas

moved Amendment No. 25: Page 5, line 33, after ("place") insert ("only"). The noble Lord said: This amendment requires only the approval of the Minister. I beg to move.

Lord Bassam of Brighton

Amendment No. 25 seeks to ensure that under this subsection postal and telecommunications service providers are not at liberty to carry out interception for purposes other than those connected with the issues described in paragraph (b). The few words in question here are copied directly from Section 1(3)(a) of the Interception of Communications Act 1985, a provision which we believe, as I consider noble Lords opposite believe, has worked really rather well over the years and is well understood by the industry.

A provider may intercept a communication if it takes place for purposes connected with the issues listed. The question arises as to what effect the Bill might have where a provider intercepts for a number of purposes, some within the scope of subsection (3) and others not. Do the legitimate purposes provide an excuse for others? That is certainly not how the equivalent provision in the current interception Act has ever been understood; nor, for that matter, do we believe that that view would carry weight in court. If someone carries out interception for purposes other than those listed, this subsection does not authorise that conduct.

That is our understanding of the amendment. I believe that I have described fairly its effect. We are relying on something that has worked well in the past, and I trust that with that explanation the noble Lord, Lord Lucas, will feel more than able to withdraw his amendment.

Lord Lucas

I am grateful for that explanation and am content to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas

moved Amendment No. 26: Page 6, line 3, leave out from ("enactment") to ("that") in line 4. The noble Lord said: This amendment removes some words and seems to me to leave the clause saying exactly what it said before. Therefore, the words should be removed. I beg to move.

Lord Bassam of Brighton

I believe that the noble Lord has moved an amendment which is helpful, although I may be wrong. It seems that Amendment No. 26 seeks to tidy the wording of Clause 3(5)(c). However, the wording as it stands maintains a distinction between enactments contained in the Wireless Telegraphy Act 1949 and any other enactment. First, all the enactments contained in the Wireless Telegraphy Act are to be deemed relevant. Secondly, only those enactments which relate to wireless telegraphy are relevant. The wording as it stands preserves that distinction.

We believe that it is important that all enactments in the Wireless Telegraphy Act are included in this subsection and not simply those which relate to interference. From time to time, the Radio Communications Agency is required to carry out interception in the course of investigating unlicensed use of wireless telegraphy apparatus (that is rather old language; nevertheless, I am sure that it will serve), including use outside the terms and conditions of a licence. That is an offence under Section 1(1) of that Act and its detection and prevention would not fall within the terms of Clause 3(5)(a) of the Bill. Furthermore, Section 5(a) of that Act prohibits the use of radio equipment to send messages, such as a hoax 999 call. We do not believe that the Radio Communications Agency should be left without the legal capability to prevent that kind of activity.

I am sure that the noble Lord will understand the points that I have made and I trust that he will feel able to withdraw his amendment.

Lord Lucas

Now that I understand, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Power to provide for lawful interception]:

Lord McNally

moved Amendment No. 27: Page 6, line 26, at end insert— ("( ) The conditions to be prescribed by paragraph (1)(d) above shall require the Secretary of State to be satisfied that the rights in that country or territory provided by the domestic law of that country or territory for a person who has had his communication intercepted shall he no less than those set out in the European Convention of Human Rights and Fundamental Freedoms."). The noble Lord said: As we said earlier, this Bill is international in its consequences. It may affect legislation in areas where individual human rights are not so well respected as in the United Kingdom. Amendment No. 27 is simply a probing amendment to find out how the Government view such areas. It ensures that safeguards for individual privacy rights in other jurisdictions are taken into account when activating the powers in the Bill. I beg to move.

Viscount Astor

I was rather intrigued by this amendment from the noble Lord, Lord McNally, because, as I understood from reading it, it seemed to be stating that, whatever we do in this country, we should not break the law in another country if to do so would be in contravention of the European Convention on Human Rights and Fundamental Freedoms. I am not quite sure if that is what the amendment said. The noble Lord, Lord Phillips, is shaking his head so perhaps that is not what it says. The amendment perhaps raises a more general issue. We have talked about the international effects of this Bill. Do the Government believe that the effect of this clause will mean that we shall end up breaking the law in other countries—for example, other European countries—or not? I believe that, if we are to have an international solution to what is after all a world-wide problem, we should take care on this matter.

I may have got the thrust of the noble Lord's amendment slightly wrong, but in any event I should like the Minister to explain his view is on a slightly wider point. I refer to how this provision fits in with our EU obligations.

Lord McNally

Perhaps I may clarify this point. It is not to give licence to break the law but, where we may be co-operating with jurisdictions that do not respect law and human rights in the way that we do, the Secretary of State must satisfy himself that he is not meeting requests from jurisdictions and regimes that do not respect the convention.

Lord Bach

On behalf of the Government, I wonder whether the noble Viscount, Lord Astor, is going to speak to Amendment No. 40 which is grouped with Amendment No. 27 which stands in the name of the noble Lord, Lord McNally. I do not want to encourage the noble Viscount if he is not planning to do so.

Viscount Astor

If it will help the noble Lord, I shall speak to it. Looking at the groupings, I realise it is connected but perhaps only vaguely connected. Amendment No. 4 is a probing amendment. Page 9, line 5, paragraph (j) refers to the interception of warrants and then goes on to state a person who, for the purposes of … an international mutual assistance agreement by the competent authorities of a country or territory outside the United Kingdom". It may be helpful to the Committee if the Minister would say what type of person is referred to and in which countries. What is an "international mutual assistance agreement"? Is it an Act of Parliament agreement with other countries? Is it an EU convention? Are there any other conventions or Acts that the phrase encompasses? The amendment has been tabled to raise a general question relating to how this provision fits in with our international obligations. I should be grateful if the Minister would throw some light on the Government's thinking as regards Clause 6.

Lord Bach

The United Kingdom has recently signed up to a mutual legal assistance convention on criminal matters. One of its provisions will allow one member state to ask another to intercept someone's communications. This may be because that person, while committing a crime in the member state, is actually communicating from the requested state; or because the requested state is the best place to intercept the communications.

Amendment No. 27 raises the concern that the United Kingdom could be asked to intercept communications on behalf of a country with a poor human rights record. Obviously, everyone will appreciate the motives behind the amendment. No one could disagree with them.

The Minister of State in another place said that the amendment would represent an unnecessary addition to the statute book and went on to explain the reasons further in a letter to Committee Members and offered to consider a government amendment to ensure that the regulations referred to in paragraph (d) are a precondition for bringing Clause 4(1) in to force. That amendment was then introduced on Report and can be found in the Bill before us at Clause 4(1)(d).

Since that provision cannot come into force until the regulations have been made and since Section 6 of the Human Rights Act makes it unlawful for the Secretary of State to act in a way which is incompatible with the convention right, the regulations will have to be ECHR compliant.

In the letter to which I referred, the Minister of State gave the following assurances. First, in the first instance, we shall apply Clause 4(1) only to member states of the European Union for the purpose of implementing Article 17 of the EU Convention on Mutual Assistance in Criminal Matters. Secondly, we shall bring Clause 4(1) into force only in parallel with regulations which limit its effect to member states of the European Union.

Thirdly, in the event that the Government may wish to extend the regulations under Clause 4(1) in the future to cover non-EU countries, I can give an assurance to the Committee that we shall look very closely at their interception regimes to ensure that those regimes are consistent with ECHR principles before introducing any regulations.

I hope that that may go some way towards persuading the noble Lord, Lord McNally, that we are as concerned as he is about those matters and we have already taken some steps to make sure that the provisions cannot be abused.

Amendment No. 40, spoken to by the noble Viscount, Lord Astor, would remove the ability of a competent authority to make an application for an interception warrant under an international mutual assistance agreement. But our country has now signed up to the Mutual Legal Assistance Convention and I shall say a few words about that in a moment. So there must be a mechanism by which interception warrants are sought.

Routing the application through one of the persons already included on the list—Clause 6(2)—would not add any value to the process since the offence would not be occurring in the United Kingdom and it would make the process unnecessarily bureaucratic.

The draft convention on mutual assistance and criminal matters is currently being negotiated. The draft convention is intended to improve co-operation against serious and organised crime by improving the procedures for mutual legal assistance.

The convention provides that, in general, assistance should be given in accordance with the procedural requirements of the requesting member state, whereas the current presumption is that the law of the requested member state shall prevail. The convention will also provide a basis for co-operation in the use of modern methods of investigation; for example, controlled deliveries and use of modern technology—hearing by live video link and interception of telecommunications.

The mutual legal assistance regime operates in the following way. The convention makes clear that the requesting member state must always satisfy its domestic law before making a request. In practice, that means that requests from the UK would be based on a warrant issued by the Secretary of State in accordance with the same criteria which apply to applications from UK law enforcement agencies for serious crime warrants.

When requests are made under the convention, the target of the interception will be protected by the domestic laws of both the member state making the request and the member state in which the target is present. That is the double-lock system, as it is called, of safeguards endorsed by the European Communities Select Committee in its report on the draft convention in 1998.

9.15 p.m.

Lord Phillips of Sudbury

By the sound of it, that double-lock system is based on the theory of law in each country. Does it have any regard to the practical implementation of laws in both countries? In particular, I am thinking of a state whose legal protections may nominally be as good as ours but which, as a matter of fact, has a corrupted system which has been penetrated by criminal elements.

Viscount Astor

The Minister referred to the mutual legal convention and regimes in member states. Is he referring only to the EU or outside?

The Earl of Northesk

I am not sure that I have the correct place in the Bill, but I note that the Bill applies itself to the British Islands. Part of the explanation from the Minister thus far on the amendment is that the UK is obliged in this area because it has signed up to a mutual assistance agreement. As I understand the matter, the Isle of Man is not actually a signatory to the EU treaties, so can the Minister confirm that both the Isle of Man and the Channel Islands have been appropriately consulted about the content of the Bill? That is to say, is the constitutional position sound and secure? In asking this question, I should perhaps declare my interest as possessing a number of interests on the Isle of Man.

Lord Bach

There were a number of interventions then. All of them were equally helpful, if not all equally easy to answer. Regarding the double-lock point, as I understand it, the target of the interception, the alleged wrong-doer, will be protected by the practical domestic laws of both the member state—be it the United Kingdom making a request— and the member state in which the target is present. If one of those systems of law—and of course it is not the one in the United Kingdom, and, I venture to suggest, it is unlikely to be the one in the EU—was corrupted in the sense the noble Lord refers to, the double-lock would come into play and the rights of the target would be protected by our law. I do not know if that answers the question the noble Lord posed.

Lord Phillips of Sudbury

I hesitate to interrupt again. However, I am grateful for the invitation to do so. I was trying to get beneath the skin of the law as to how it was implemented in practice. How, for example, if the foreign country was making a request here for an intercept, would we have regard to the practical expression of that requesting country's laws, which might, as I say, be far less than we would wish in terms of compliance with their own legal system, let alone ours?

Lord Bach

I am sure we would have regard to it. I think that this issue may come up later on in our discussions and perhaps I may return to it then. The answer regarding the convention is that it is an EU convention. So far as the Isle of Man and the Channel Islands are concerned, the Bill does not extend to them, although they have been consulted regarding its contents.

Perhaps I may finish off what I was saying about the draft convention. The convention itself will only actually enter into force when eight member states have ratified it. That may take another two or three years. We have signed up to the draft convention. The Parliamentary scrutiny committees have been sent all formal texts of the draft convention and have recently cleared the latest text of the interception provisions from scrutiny. I have given quite a long answer to the noble Viscount, Lord Astor, because he wanted, quite rightly, to know more about the draft convention that we are signed up to.

Viscount Astor

I am extremely grateful for the explanation of the Minister. It poses a number of questions. The first point is that he said this is purely an EU matter and it is dependent upon eight countries signing up. If anyone reads Clause 6(j) it is not clear that this is just an EU matter. It merely talks about "any international mutual assistance agreement". I find that misleading, which of course was the reason why I asked the question. Perhaps the Minister, between now and Report stage, may like to consider whether there might be some wording which might make it more explicit that this is not something that relates to the EU but something wider. It then begs the question whether under the existing legislation the Government can add other countries that are not in the EU. For example, one would think that the USA is a natural home for some form of international agreement, because after all the USA is at the leading edge, the cutting edge, of technology, and whatever is invented in this form of technology is usually invented there.

Therefore it would be very helpful if the Minister could say whether, if the United States is not included under the present wording, there is any intention to carry out any form of negotiation with the USA on this, so that there could be some sort of mutual assistance agreement, to use the Minister's words?

It seems to me it would be very helpful if the Minister could put it in the context of "we have heard how this relates to the EU, but how is it going to relate to other non-EU countries? Can they be covered by the wording in Clause 6(j) as it is now worded?" Is it, on the other hand, merely intended to refer to EU countries? If so, perhaps we could improve on the drafting. If it is intended that this could be expanded to non-EU countries, it would be very helpful if the Government could say how they would propose to deal with it. After all, the United States of America is just one example. I think it would be enormously helpful to the Committee if the Minister were able to give some answers to those questions.

Viscount Goschen

Before the noble Lord, Lord McNally, or the noble Lord, Lord Phillips, tell the Committee how they intend to proceed with their amendments, I should like to ask the Minister one very straightforward question for elucidation. I am sure there is an equally straightforward answer, probably involving precedents or other legislation. Referring to Amendment No. 40, in Clause 6(2) there is a list of people who are permitted to provide the application. Could I just ask why the Commissioner of Police of the Metropolis, the Chief Constable of the Royal Ulster Constabulary or the chief constable of any police force maintained under or by virtue of Section 1 of the Police (Scotland) Act 1967 are shown there, but not other chief constables within the United Kingdom? It would be helpful to know the answer.

Lord Lucas

Might I ask the reverse question? What is the position going the other way? What rights have we, as a country, to extract this kind of information from other countries? As I understand it, we have a reciprocal arrangement with the European Union and in that case is it always on this Part I warrant-to-warrant basis, or could we find people who are after communications data under Chapter II, having a right to communications data that, say, I may have generated while on holiday in France? Is that something they could ask for and, if so, would they get it on a similar basis as applies in the United Kingdom or would they have to apply for a French ministerial warrant to get it?

The Earl of Northesk

I hope the noble Lord the Minister will permit me to come back on die Isle of Man and Channel Islands point. Clause 5(5) states categorically that, A warrant shall not be considered necessary on the ground falling within subsection (3)(c) unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British islands". I am happy with that drafting, but my understanding is that the Interpretation Act defines the British Islands as Crown dependencies. To a very major extent the Bill does impact upon the Crown dependencies, i.e. the Isle of Man and the Channel Islands.

Lord Bach

Before the noble Lord, Lord McNally, speaks, perhaps I could deal with several issues that have arisen. The noble Viscount, Lord Astor, asked about the European context. The Bill says, for the purpose of any international mutual assistance agreement". So it obviously does not include just the convention that we have signed up to. Your Lordships will remember my earlier reply that in the event of the Government wishing to extend the regulations under this clause in future to cover non-EU countries, we would look very carefully at their interception regimes to ensure that they are consistent with ECHR principles, before introducing any regulations.

In answer to the noble Viscount, Lord Goschen, the chief constables of other forces in England and Wales are not mentioned because all England and Wales interceptions, apart from those of the Metropolitan Police, are through the National Criminal Intelligence Service—a national body covered by the clause. Special Branch is covered through the Metropolitan Police and the Scottish police through the Scottish Office.

9.30 p.m.

Lord Cope of Berkeley

I apologise for interrupting the noble Lord, but it is not the Scottish Office that covers Scottish police but the chief constables of Scottish constabularies, who differ from the chief constables of England and Wales.

Lord Bach

I will return to the noble Lord's point.

As to the concern expressed by the noble Earl, Lord Northesk, the Bill does impact on the Crown dependencies, in the sense that it gives them special protection and treats them like the UK in that respect—but it does not apply as a matter of Manx law. That is the best I can do for the noble Earl tonight.

I referred earlier to the Scottish Office but the reference should have been to Scottish Ministers in the devolved government. No doubt it is through Scottish Ministers that the matter reaches the chief constables to which the clause refers—not the Scottish Office in London but Scottish Ministers in Edinburgh.

Lord Cope of Berkeley

I apologise for interrupting the noble Lord again but Clause 5 states that the Secretary of State may issue a warrant. That might be the Secretary of State, Home Department or the Secretary of State for Scotland but the Secretary of State may issue warrants—not Scottish Ministers.

Lord Bach

It is not a question of who issues the warrant but who should apply for one.

Lord Cope of Berkeley

Yes. As far as concerns an application, that may be done in Scotland by the chief constable of any police force. An application cannot be made by the chief constables of an English or Welsh police force. They can only apply through NCIS. That is not quite what the noble Lord said.

Viscount Astor

To give the noble Lord the opportunity to receive further advice, I thank him for his helpful explanation about Clause 6(2)(j). He clearly said that it includes the European Union and any international mutual assistance agreement—and could be added to by regulation. I will not press the point now but it would be helpful to the Committee if the noble Lord would send me a written explanation of the regulations required to add new countries and how that mechanism will work.

Lord Bach

I have not quite finished my response because I have to tell the noble Lord, Lord Lucas, that I shall be writing to him in answer to his question.

Perhaps I may return—it is to be hoped, for the last time of asking—to the Scottish police; not the Leith police, but the Scottish police. The Scottish police forces apply to the Scottish Ministers by way of a devolution order made under the Scotland Act. The Secretary of State's powers go to Scottish Ministers. Therefore, the noble Lord, Lord Cope, is right: it is the Scottish police chiefs who make the application, but the decision is reached by Scottish Ministers in Edinburgh.

Lord Archer of Sandwell

Can my noble friend confirm that the reason for this is that there is no National Criminal Intelligence Service in Scotland?

Lord McNally

I wanted to intervene earlier in the debate because I wished to withdraw my amendment. I did not wish to do so for the spurious reason that I intended to bring it back later. It may be just the Minister's presentational skills, but what he said about the area that is at the centre of my amendment sounded to me to be rather reassuring.

We have heard much about the horrors of the Internet, but we should all welcome the fact that this will make it much more difficult for totalitarian states to keep their people in ignorance. It will also make it much more difficult for those concerned to run totalitarian regimes. But, alas, not all totalitarian regimes are unfriendly states. Therefore, the intention of my amendment was to ensure that we did not get into the habit of helping out friendly but, nevertheless, unacceptable regimes (in human rights terms) in controlling their legitimate dissidents.

I heard the Minister spell out the assurances made in the other place and the comments that he made tonight. That seems to me to be the Government's intention. I shall, of course, read the Hansard report carefully, but if what the Minister said was such a tightening assurance, I very gladly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Dean of Harptree)

I should point out to the Committee that if Amendment No. 28 is agreed to, I cannot call Amendments Nos. 29 or 30.

Lord Cope of Berkeley

moved Amendment No. 28: Page 6, line 27, leave out subsections (2) and (3). The noble Lord said: It has been suggested that we should discuss Amendments Nos. 29, 30 and 31 with this amendment. Perhaps I may deal, first, with Amendment No. 31, which is extremely small. Again, this is another amateur effort of mine at parliamentary drafting. However, if Members of the Committee will refer to line 15 on page 7 of the Bill, they will see that it says that prison, has the meaning given by subsection (8) of this section". It promptly goes on in the next line to establish what prison means. It seems to me that line 15 is entirely unnecessary; indeed, it just clutters up the page. This is a small point but one which I thought was worth mentioning.

By comparison, Amendments Nos. 28 and 29 deal with a much more important point of principle. The former seeks to leave out subsections (2) and (3) of Clause 4 which provide for the Secretary of State to make regulations authorising legitimate business practice as far as concerns interception, and so on. It is extremely important that businesses should be able to do a certain amount of interception during the course of their normal and perfectly respectable business, as is suggested in paragraphs (a) and (b).

However, I am much less happy about the fact that this should be achieved by way of regulations, subject only to the negative procedure, which will be produced at some future date. I hope that the undertaking given by the Minister earlier—namely, to produce information on the codes of practice before the Report stage—might apply also to these regulations.

As I said, this Bill is quite damaging to business. These regulations are potentially extremely restrictive in terms of carrying on normal business. However, I feel sure that eventually the Secretary of State will provide some satisfactory regulations—at least, I hope that he will. We in this Chamber, and Parliament generally, will not have the opportunity to do much about that if they take the form only of negative resolutions. We can, of course, debate them, but we cannot amend them or do much to them. In practice, it is extremely difficult to tinker with any regulations which may be produced on that basis.

Amendment No. 28, which seeks to delete subsections (2) and (3) of Clause 4, is an attempt to persuade the Government to tell us what the regulations will contain and to produce them before we reach Report stage.

Amendment No. 29 seeks to delete "may" and insert "shall" to place a duty on the Secretary of State to produce regulations of the character we are describing. If he does not do so, businesses will not be able to indulge in the perfectly acceptable practice of keeping a record of transactions that employees and others are undertaking on their behalf and of other communications relating to their business. This is frequently done and is a perfectly legitimate and correct practice essential to business. The idea that the Secretary of State may, or may not, introduce regulations is quite wrong. He should introduce such regulations and, what is more, he should produce them before Report stage so that we can consider them. I shall not discuss Amendment No. 30 which stands in the names of Liberal Democrat Peers. I beg to move.

Lord Phillips of Sudbury

It may be appropriate for me to say now that Amendment No. 30, which stands in the names of the noble Lord, Lord McNally, the noble Baroness, Lady Harris, and myself, should be withdrawn. We wholly approve of what the noble Lord, Lord Cope of Berkeley, has said with regard to his amendments. I add only that the Delegated Powers Committee had some stringent things to say about the Bill, quite a bit of which concerned the extensive power retained to the Secretary of State under its measures to bring forward regulations. I shall confine my comments to that.

Lord Bassam of Brighton

Amendment No. 28 deals with the monitoring of corporate and government networks for business practice reasons. Without the regulations for which subsections (2) and (3) provide, such monitoring would become unlawful by virtue of Clause 1.

We can give an undertaking that a full draft of the regulations will be available before Report. I hope that that will help noble Lords' deliberations. As I have said before, over the next few months we shall wish to consult fully with all those who are likely to be affected by the Bill. I give an undertaking here and now that we shall carefully consider any responses to that consultation.

I understand entirely the concerns of the noble Lord, Lord Cope. The intention of his amendment is, quite rightly, to avoid any excessive regulation on business—we have no desire to impose excessive regulation on business—and that is an aim with which I entirely concur. However, I am not convinced at this stage that providing a blanket permission on the face of the Bill is the right way forward.

As we have already discussed at length today, interception is an intrusive tool. I think that we well understand that. We do not believe that it should be undertaken lightly in any circumstances. Article 8 of the European Convention on Human Rights lays down clear requirements that any interference with privacy must be in accordance with the law and be necessary in a democratic society. In other words, the law must set out the circumstances in which interception may take place with a reasonable degree of specificity. The regulations which the Bill permits the Secretary of State to make will achieve that.

We intend to consult widely with all parties with a view to making regulations which establish the general circumstances in which interception may legitimately take place for business practice reasons, but which do not contain so much detail that they tie up businesses with red tape. We have already received positive reactions to this initiative from industry, from Oftel and the DTI.

Turning to Amendment No. 29, if this amendment were agreed to, it would oblige the Secretary of State to make regulations under Clause 4. I am pleased to say that my colleague, the Minister of State at the Home Office, made a clear commitment during the Committee stage of this Bill in another place. He said: Later this year, we shall consult widely with all parties likely to be affected, with a view to making regulations that establish the circumstances in which interception may legitimately lake place for business practice reasons". The Government are committed to ensuring that regulations are in place before Part I of the Bill commences. The Department of Trade and Industry will begin the consultation process on their content shortly. We do not believe that it would be acceptable to put businesses or the Government in a position whereby they will be completely prevented by law from monitoring their own communication networks in the way described in Clause 4. I hope that the noble Lord will understand that and feel able to withdraw his amendment.

I shall turn now to Amendment No. 30 and then make a brief reference to Amendment No. 31. As I understand it, Amendment No. 30 is consequential upon Amendment No. 2, which would have made a change to Clause 1(6) to require any person described by that subsection to carry out an interception in accordance with Clause 4 regulations. As I explained during our debate on that amendment, we do not believe that the requirements these amendments would impose upon the public at large would be either reasonable or realistic. I trust that on that basis the noble Lord will withdraw Amendment No. 30.

We can gratefully accept Amendment No. 31. No doubt the noble Lord has helped us to improve the quality of the legislation. I am very happy to say that we can accept Amendment No. 31. Progress has been made and we have come to something that we can all agree.

I hope that with those explanations, the noble Lord will feel able to withdraw his amendments.

9.45 p.m.

Lord Cope of Berkeley

First, may I express my deep gratitude to the Minister for accepting the most inconsequential amendment that I have moved or spoken to. It is extremely minor, but I am glad to have made a small contribution to the clarity of the drafting.

So far as concerns the more important Amendments Nos. 28 and 29, of course I am in favour of consultation about the detail of what the regulations should contain. I do not object to this being in regulations as opposed to being in the Bill. The Government made the point in their memorandum to the Select Committee on Deregulation that business practices change and it may be necessary to modify the regulations in this respect in the future.

The Minister said that the Government would begin consultation shortly; he also undertook that a draft would be ready for Report stage. It will help us to forecast the business of the House if the consultations are just beginning and will be completed in time for Report stage. I should perhaps emphasise that I was talking about seeing a draft of the regulations—not necessarily the absolutely final form—so that we know what we are talking about when we come to consider this clause again at Report stage.

The Minister also spoke of excessive regulation of business and his wish to avoid that. That would of course apply only if the regulations were unduly onerous in prescribing the business practices that would be permissible under the clause. I hope that they will not be too onerous. However, we shall be able to make a judgment on that when we see the draft regulations.

If I noted it correctly, the Minister also stated that, if amended, the clause would "commit" the Secretary of State to making regulations. It would not. It would only "permit" the Secretary of State to make regulations, which was the point behind Amendment No. 29. However, when he used that phrase, he did, in effect, accept Amendment No. 29, even if he did not say that he will do so in actuality, as he did with Amendment No. 31. Bearing in mind the progress that we have made, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 29 and 30 not moved.]

Lord Cope of Berkeley

moved Amendment No. 31: Page 7, leave out lines 14 and 15. On Question, amendment agreed to.

Clause 4 agreed to.

Clause 5 [Interception with a warrant]:

Lord Phillips of Sudbury

moved Amendment No. 32: Page 7, line 28, leave out ("the Secretary of State") and insert ("a judge"). The noble Lord said: I am not sure whether I still have the spirit to move this amendment, having heard about England's defeat by Portugal by three goals to two.

Lord Bassam of Brighton

A nation mourns.

Lord Phillips of Sudbury

However, the show must go on and the Bill must be scrutinised.

The nine amendments in this group all address a single, simple point; namely, whether the issue of a warrant under this clause, as specified in Clause 7, should be undertaken at the behest of the Secretary of State or at that of a judge.

We are all aware of the status quo contained in the Interception of Communications Act—if one may call that a status quo. That legislation provides for the Secretary of State to undertake this onerous task. I believe that I am right in saying that on average he has to deal with something in excess of seven warrants on each working day.

It is not my proposition, nor that of these Benches, that the Secretary of State is "unfit" in the normal sense of the word to undertake the task. However, it is our belief that times have moved on and that a considerable body of informed opinion in the country now believes that this task would be better undertaken by a judge, in particular in the context of a Bill containing the most wide-ranging and extensive powers of intervention in the private lives of citizens and organisations of the state. Again, I emphasise that there is no wish or intent on our part to suggest any bias or intentional abuse, shall we say, of the rights and duties which the issue of warrants would bestow on the Secretary of State under the provisions of the Bill.

However, the world that this Bill will control is one which comes ever closer to the private citizen in more and more dimensions of his or her life. As I have said, we are of the view that, whereas in the past it may have been satisfactory to continue with a system in which the Secretary of State had a monopoly of power in this regard, now the time has come to recognise that a separation between the Secretary of State and the powers to issue such warrants is desirable.

I say that particularly in light of the fact that we are dealing here with issues of human rights that are of considerable import. We are dealing with them in a context where the Secretary of State will be exercising these powers in secret, without the citizen concerned ever knowing that those powers have been exercised. The burden on the Secretary of State will inevitably be greatly enlarged by the Bill. This may indeed be one matter which he or she would be happy to hand over to a judge.

As to accountability, it may be said that nothing is better than the present circumstance. I venture to doubt that proposition, given the covert nature of the exercise of the power, and given that. I do not believe that a busy Secretary of State can reasonably be expected to give case by case consideration to warrants when they are pouring on to his or her desk even at the current rate, let alone the rate that is to come.

Other states with which we have close relations, such as Germany, give this power to a judge—except, in the case of Germany, where national security is involved. We all ought to consider this matter carefully. There is a great deal of public concern about the nature of the Bill, particularly its human rights dimensions. For those reasons, I commend the several amendments in the names of myself and colleagues. I beg to move.

The Chairman of Committees (Lord Boston of Faversham)

As Amendments Nos. 41 and 42 are also being spoken to, I must point out to the Committee that, if Amendment No. 41 is agreed to, I cannot call Amendment No. 42. For the sake of completeness and accuracy, perhaps I should also offer an apology to the noble Lord, Lord Phillips of Sudbury, because his name is spelt wrongly. It should of course be "Lord Phillips of Sudbury", not "Lord Phillips of Subdury"!

Viscount Astor

I am sure that the mistake is entirely unintentional.

My Amendment No. 47 is grouped with this one. Before speaking to it, however, perhaps I may add a comment on the amendment moved by the noble Lord, Lord Phillips. We agree with the Government on this amendment. We believe that the Secretary of State should have this power. The Secretary of State is able to have a wider view and take more points into consideration. It is important that the Secretary of State is burdened by these decisions—that is why he is there.

The noble Lord, Lord Phillips, spoke of the covert nature of some of the decisions. That provides an even greater reason why the Secretary of State should be required to take these decisions. Frankly, I am nervous of giving this power to judges. The Secretary of State is answerable to Parliament. I am happy with that: Ministers are answerable to Parliament; judges are not.

In recent times, under governments of both parties, legislation passed by Parliament has been interpreted by judges in a way that no one ever expected. That is further reason why the power should rest with the Secretary of State. That is the correct place. I am against extending such power to judges. That would be wrong. The Secretary of State should be answerable to Parliament on such issues.

My Amendment No. 47 relates to Clause 9(1)(b), which states that a warrant may be renewed by the Secretary of State, or, in a case falling within section 7(2)(b), under the hand of a senior official". As I have said, Ministers should be answerable to Parliament. I am therefore nervous also about the idea of this power being transferred to a "senior official". I regard it as a retrograde step. I do not know whether it should be the Secretary of State or, indeed, any other Minister in the department. I do not know the real definition of a senior official. Is it purely someone within the Home Office, for example? It does not say so. Officials are not accountable to Parliament.

There is a definition in Clause 72, on page 78: 'senior official' means, subject to subsection (6), a member of the Senior Civil Service". I am sure that there is a definition somewhere, lurking in a Sir Humphrey-type way, of who is a member of the Senior Civil Service. It would be useful to know how many members of the Senior Civil Service there are in the Home Office. Are there two or are there 222? I have no idea what those definitions are. It would be useful if the Minister explained.

What really concerns me is that the definition says "subject to subsection (6)", because subsection (6) states: If it appears to the Secretary of State that it is necessary to do so in consequence of any changes to the structure or grading of the Civil Service, he may by order make such amendments of [he definition of 'senior official' in subsection (1) as appear to him appropriate to preserve, so far as practicable, the effect of that definition". The nice way of looking at that is to say that someone changes the grades and there is an extra grade—grade six or seven or whatever it happens to be, and that is it. But the worry is that a Secretary of State can say, "We wish to lower this decision-making to a much wider group within the department" and may add a vast number of people. That is why I am fundamentally against the principle.

Ministers should be answerable to Parliament. It is an unfair burden to put on senior officials. I am extremely concerned about the idea that the Secretary of State can change the definition at almost any time he wants, for whatever reason. I am sure that he would consider doing it only for the right reasons, but the fact is that the power is there; he can do it whenever he wants and for whatever reason.

The power should rest with Ministers. It follows the logic of the Government's case that the Secretary of State, not judges, should have the power. That follows naturally, and therefore I would hope that the Minister will consider my amendment very carefully. I regard it as being of enormous importance, because it affects the Government's answerability to Parliament. We regard that as being extremely important, particularly in the House of Lords.

10 p.m.

Lord Archer of Sandwell

I did not participate in the Second Reading debate. That was not primarily because I had to be elsewhere; it simply reflected my abysmal ignorance of the subject matter of the Bill. I was born into the age of the carrier pigeon. But some of the principles that the Committee has been debating today are matters that can be understood even by those of us who do not follow all the technology involved.

I intervene at this stage for a particular reason. I am privileged to serve on the Intelligence and Security Committee, chaired with great distinction by Mr. Tom King. There are members of that committee who have a great deal more expertise in this field than I shall ever claim to have. In fact, almost every other member of the committee would be in that position. But they were precluded from participating in the debates in another place because the authorities, in their infinite and unfathomable wisdom, scheduled the Report and Third Reading debates in a week when the committee was 4,000 miles from the Chamber. Therefore, some at least of the comments that the committee had wanted to make fall to me to make at this stage.

I believe, first, that the Government have responded handsomely to some of the representations that the committee made. The committee was anxious that that should be placed on the record. Secondly, the committee has an interest in this debate because, among other things, it believes that the Government have the balance about right.

It has been stated repeatedly today, I believe without contradiction, that the powers which are being regulated by the Bill are necessary if the public is to be protected from a whole spectrum of serious crime but that they can be used obtrusively, and can be oppressive, and it is important that they are properly regulated.

That being so, the Government have addressed the issue by the following scheme. The application has to be made by someone who is listed in Clause 6. I understand that the Committee will debate that clause a little later. It has to be someone responsible in both senses of that word. That is the first stage.

The second stage at present is that it is to be considered by the Secretary of State or, in certain narrowly defined circumstances, by the senior official. I believe that that is right. I believe that it should be considered by someone who is a member of the executive, answerable for the execution of law enforcement and who is close—I say only close; I do not attempt to define it more than that—to the agencies which have the responsibility for operation. I can say from my own knowledge that Ministers who have that kind of responsibility take it very seriously. In a somewhat different context, I had to sign warrants at one period. They were manageable in number. I made all necessary enquiries before I signed them. I have spoken to many colleagues who have held high office, in particular as Secretary of State for Home Affairs. They have assured me that the same has been true of them. I think that the Secretary of State is the best person at that stage in the balance which the Government have arranged.

The third stage is that the Secretary of State's decision can be reviewed by a commissioner. I understand that the commissioners will be selected from the senior judiciary. It is at that stage that one has a judicial scrutiny. That is the way in which, constitutionally, we have normally arranged our affairs. It is at the stage when it reviews what the executive has done that the judiciary intervene.

Perhaps the Committee will permit me to say in parenthesis that there is a fourth stage. There is a tribunal to ensure that the proper procedures have been carried out. If I may wear a hat which I discarded last year, it is in accordance with the normal advice of the Council on Tribunals that there should not be a proliferation of tribunals. The Government are to be congratulated on bringing all the relevant tribunals under one umbrella. I believe that the Government have the right series of stages to ensure that the powers which are being regulated in the Bill are not in danger of being abused.

In agreeing with the noble Viscount, Lord Astor, perhaps I may make one further remark. As I understand it—no doubt my noble friend on the Front Bench will confirm it if true—the intention of having an official considering the application is narrowly defined, I suspect, for a situation where it will not be easy to find a Secretary of State, or even a middle-ranking Minister. There may be occasions—I believe that they would be rare—where that situation may arise. It would be a great pity if a major crime were not prevented because there was no one in a position to consider and grant the application. I shall be interested to hear what my noble friend says about that.

Lord Phillips of Sudbury

Before the noble and learned Lord sits down, perhaps I may mention this. He referred to the power of review. Does he accept that it is a general power of review and not a case by case review?

Lord Archer of Sandwell

I understand from the commissioners who operate at present that they consider individual cases. If they think that a problem is arising in relation to individual cases, they report accordingly.

Viscount Astor

I am grateful for the noble and learned Lord's support. There was never a case, so far as I am aware, where a Minister was not on duty at or very close to the Home Office. I accept the point that it would be wrong for a document not to be signed because no one was available. But in practice there is always someone present in the Home Office.

Lord Archer of Sandwell

The noble Viscount's experience of the Home Office is probably greater than mine. It would be a pity if I fouled up my noble friend's reply to this debate by saying something with which he may not agree. It may be better, therefore, if I subside at this stage.

Lord Lucas

Can the Minister take the opportunity to explain Clause 7(2)(b)? It appears that there is an exemption from the Secretary of State having to sign a warrant in a case where we are likely to know as little as possible and have the least reason to trust the person who has asked for the warrant, that is when it comes from overseas rather than from someone with whom we are generally used to working. There is a very odd provision in Clause 7(2)(b)(ii), which says, the interception to which the warrant relates is to take place in relation only to premises outside the United Kingdom". If it relates to premises outside the United Kingdom, why is it within our jurisdiction?

Lord Bach

The intention of Amendments Nos. 32, 33, 37, 38 and 41 is to remove the power of the Secretary of State to issue interception warrants. Instead, this power would be handed to the judiciary, specifically a circuit judge in England and Wales, a sheriff in Scotland and a county court judge in Northern Ireland.

This serious debate has, of course, a long history and was certainly discussed at some length at both Committee and Report stages in the other place. We accept, of course, what was said by the noble Lord, Lord Phillips of Sudbury, that this is not an attack, veiled or otherwise, on the Secretary of State. The motive behind these amendments is absolutely clear.

The arguments put forward by those who advocate judicial involvement do not at the end of the day persuade the Government that that is the right course to take. We maintain the view that authorising interception involves particularly sensitive decisions that are properly a matter for the executive. This involvement by the executive has historically reflected the very high level of scrutiny which this particularly intrusive means of surveillance has attracted. The warrant-issuing process is a key part of the line of accountability from the law enforcement and intelligence agencies to the Secretary of State. Any alternative means of authorising interception would need to show that it will be an improvement upon a system which has proved to be remarkably effective over many years.

I can reassure noble Lords, however, that all interception warrants have to pass through highly experienced staff in the warrants unit who are able to identify any errors at an early stage. This process adds consistency to the way in which warrants are handled and provides a degree of oversight prior to the Secretary of State being presented with a warrant for consideration.

Of course, there is an important, vital place for judicial involvement. That comes, as my noble and learned friend Lord Archer of Sandwell said, in the independent judicial oversight provided by the commissioners and the tribunal, who are there to provide a remedy if the executive has acted outside its statutory powers. We do not believe, however, that judges can reasonably be expected to make decisions on what is or is not in the interests of national security.

The European Commission of Human Rights has endorsed the present practice of executive authorisation—for example, in the case of Christie v United Kingdom. In addition, and importantly, the current system was recently endorsed in the last report of the previous Commissioner, the noble Lord, Lord Nolan.

Perhaps I may draw the Committee's attention to one further aspect which is relevant to the discussion that we shall have on Clause 12. Requiring the Secretary of State to authorise interception means that he or she keeps a close eye on the demands made of communication service providers in respect of the interceptions they are asked to effect. That is particularly the case because in practice only a small number of Secretaries of State perform the function. It is limited normally to the Secretaries of State at the Home Office, the Foreign Office and the Northern Ireland Office and, previously, the Scottish Office. It concentrates knowledge of the burdens placed on industry. Once the requirements of industry are established under Clause 12, it will be very important that the Secretary of State keeps an eye on the use made of the capability. This cannot easily be done if individual interception warrants are authorised by judges.

10.15 p.m.

Lord Mackay of Ardbrecknish

I thank the noble Lord for giving way. Listening to that argument, I was intrigued to hear him say "previously" by the Secretary of State for Scotland. Perhaps he could tell me who under the Bill will be the relevant person as regards Scotland.

Lord Bach

As soon as I mentioned Scotland and saw the noble Lord in the Chamber. I knew that someone had made a mistake! I understand that it is Scottish Ministers in Edinburgh by way of devolved government. If I am wrong about that, I shall return to the matter later in my remarks.

I was grateful for the comments of my noble and learned friend Lord Archer of Sandwell. He speaks with great authority on these matters and the Government are reassured by his support. He has a most distinguished record not only in the area of intelligence and security but as a former Solicitor General of great distinction.

The other amendments in the group have been tabled in order to remove the role of a duly authorised senior official to issue a warrant under certain circumstances. These circumstances, which are most specific, are when a warrant application is urgent or when a request has been made under the mutual legal assistance convention. I believe that the noble Lord, Lord Lucas, was sceptical about that last issue.

It might be helpful if I explain the procedures which must be followed in urgent cases. First, the senior official who signs the warrant must be expressly authorised to do so by the Secretary of State. Secondly, the express authorisation must be in relation to that particular warrant only. Thirdly, the official who signs the warrant must endorse on it a statement that he has been expressly authorised by the Secretary of State to sign that particular warrant. So even when the urgent procedure applies, the Secretary of State must have given personal consideration to the application in order to give instructions to a senior official for the signing of that particular warrant. An additional safeguard is that in such circumstances the warrant is to last for five days only. I hope that that goes some way to assuring Members of the Committee that these provisions have been looked at carefully and that the authorisation and actions required under such circumstances are strictly prescribed.

I hope that the noble Viscount, Lord Astor, for whose support of the main part of the amendment we are grateful, will be satisfied by the fact that under the Interception of Communications Act 1985 provision was made for the signing of a warrant in an urgent case by a senior civil servant; an Assistant Under-Secretary of State. As regards urgent cases, that has been the case since 1985 and I do not believe that that power has ever been misused. Therefore, we are not making up new law; this has already been on the statute book for 15 years.

The other circumstance which allows for a senior official to issue a warrant relates to a request made under an international mutual legal assistance agreement. Here, the interception subject, or the premises where communications are to be intercepted, must be outside the United Kingdom. In such circumstances, a warrant may be issued if the competent requesting authorities have already issued an interception order against a subject of interception. Therefore, by the time it reaches us, an interception order will already have been issued against the subject of interception. As we are making no decision on the merits of the case, and the purpose of the warrant is solely to provide technical assistance—in other words, with a satellite interception or a telephone interception on foreign territory—we consider it appropriate for the warrant to be issued by senior officials rather than by the Secretary of State. I hope that that answer goes some way to satisfying the noble Lord, Lord Lucas.

I was asked what was meant by a "senior civil servant". A senior civil servant is someone who is at grade 5 and above; in other words, an Assistant Secretary or above.

In a recent and telling intervention, I was also asked about Scottish warrants. According to the Bill, they are issued by the Secretary of State. However, a devolution order under the Scotland Act will transfer that function to Scottish Ministers—in practice, the Scottish First Minister—in matters which involve serious crime. I hope that that answers the noble Lord, Lord Mackay of Ardbrecknish.

I hope that the comments that I have been able to make on these matters have satisfied the noble Lord who moved the amendment and that he will feel able to withdraw it.

Lord Cope of Berkeley

I want to return briefly to the Scottish matter. We discussed it a little on an earlier amendment and my noble friend Lord Mackay of Ardbrecknish intervened on the matter again during debate on this amendment. Is it the case that under a devolution order which, according to the phraseology used by the Minister, is to be signed, Scottish Ministers—in practice, the First Minister—will be involved? That is an interesting contrast with the position in England where signing is carried out either by the Home Secretary or by an official. In Scotland, it would appear to be done by the First Minister or a more junior Minister.

Lord Bach

Perhaps the noble Lord will forgive me for interrupting. It will be done either by the First Minister or by the Deputy First Minister, neither of whom, I believe, can be called "junior".

Lord Cope of Berkeley

I accept that. However, it seems to me that if that is the case and it is the established case, it would be much better if the Bill said so. The Bill is specific. It states that it is under the hand of the Secretary of State. That is not simply a generalised reference. It is a specific reference to a warrant being issued under the hand of the Secretary of State. I suggest that it would be advantageous if there were a reference on the face of the Bill to the fact that in Scotland the regime is to be different and is to be restricted, as the noble Lord said, to the First Minister or the Deputy First Minister.

Lord Mackay of Ardbrecknish

Before the noble Lord replies, we are well into devolution; the Scotland Act is well on the statute book and the Scottish Parliament is up and running. Why are we still writing new legislation which is couched in terms as though it were still to come about? Should not the new legislation state quite clearly that the reference is to the First Minister or the Deputy First Minister of the Scottish Executive? We are going through the pretence that reference is to the Secretary of State and we are then depending on a piece of secondary legislation, which is still to be signed, to say that in the case of Scotland it should be the First Minister.

We are experiencing this problem with a raft of government Bills. It just so happens that this evening this one has come to my attention. However, some of the noble Lord's colleagues are in exactly the same position. They appear to be writing legislation as though devolution has yet to happen, when in fact it has already happened. They should be writing new legislation to take account of the fact that the reference should be to the Scottish First Minister.

I have no difficulty with the fact that the Scottish First Minister signs the warrants. I am not entirely sure that the Liberal Democrats, who may not be happy with the warrants, will be happy with the idea that the Deputy First Minister, who is a Liberal Democrat, will be asked to sign the warrants in the absence of the First Minister. The First Minister, who is a friend of mine, although not in political terms, is recovering from a serious heart operation at the moment, so I have little doubt that it is the Liberal Member who is going to have to sign them.

Why do we go on and on writing UK legislation, ignoring the fact that the Scottish Parliament and the Executive are now up and running? Should we not be doing that now and not depending on secondary legislation?

Viscount Astor

From an English point of view, is there not an extraordinary difference here? In Scotland it would be the First Minister or the Deputy First Minister, but in England it would be the Secretary of State or a senior official. What is wrong with the senior officials in Scotland? What is wrong with the Ministers of Slate in the Home Office?

Lord Bach

The same point has been made in very different ways by the noble Lords, Lord Cope and Lord Mackay. It is a good point. It is one we will take away and consider carefully.

Lord Phillips of Sudbury

No one can exceed my respect for the noble and learned Lord, Lord Archer of Sandwell, whom I have known and admired for over 30 years. I am very affected by any argument he produces on this matter, particularly in view of his experience. However, occasionally it is forgotten that it is not always right or best to ask those who have fulfilled a particular role (or even still fulfil it) as to what is the best way forward in a new era. He mentioned closeness to the police and other agencies as being a virtue of the Secretary of State's procedure. I view it as a defect, and I believe the public does.

The noble and learned Lord also mentioned a review of the Secretary of State's decision. I view that as a defect compared with an independent judicial decision, and the review in any event, as I attempted to draw from him, will be a general review and will be unlikely to cover a particular case. Later in this debate we will come back to haunt the noble Lords, Lord Bach and Lord Bassam, on the inadequacy, as we see it, of these new arrangements, but that is for another evening.

The noble Viscount, Lord Astor, suggested to us that judges are often out of step with Parliament. This is a Bill we are passing. It is an Act which will need to be construed judicially or quasi-judicially. If the judge or even the Secretary of State is out of step with Parliament that will be because they have been trying to apply this measure.

The noble Lord, Lord Bach, talked about the sensitivity of the decision which would be reached by the Secretary of State; maybe too sensitive, too sensitive to the pressing consideration which will surround the Secretary of State when he reaches those decisions, particularly as there is immense power of regulation under this Bill.

The noble Lord, Lord Bach, then suggested that there are highly experienced staff to carry out these measures, and that is true. But no one is as experienced nor as competent as judges in the consideration and interpretation of complex legislation such as this. Indeed, in opening, the noble Lord, Lord Bassam, was so honest as to say that the amazingly complex web of law that is this Bill is perhaps beyond all but an experienced lawyer really to understand in all its dimensions.

These Benches are not at all satisfied with the outcome of this part of the debate. It has been acknowledged in the amendment that urgency would still be dealt with by the Secretary of State. It is accepted that national security measures are better dealt with by the Secretary of State. But, ultimately, public confidence is the judge of all that. Public confidence is not increasing as regards government, Parliament and administrations. Rather, I am sad to say, the reverse is true.

In the age of the Human Rights Act when, on 1st October, we are about to launch into an era undreamt of even 10 years ago, we should be much better, bolder and more right were we to accept the purport of the amendments. But this is not an occasion on which to attempt to take the matter further and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 33 not moved.]

10.30 p.m.

Lord Lucas

moved Amendment No. 34: Page 8, line 6, at end insert ("and ( ) that any information obtained will only be used for the purposes for which the warrant is granted"). The noble Lord said: Amendment No. 34 speaks for itself. I beg to move.

Lord Bach

I believe that the answer speaks for itself but I had better say a little about it. The intention behind this amendment is to limit strictly the use to which information gained by means of an interception warrant can be used. I sympathise with the noble Lord's intention but the result of accepting this amendment would be, in certain circumstances, unintentionally to hamper our fight against serious crime.

For example, it is certainly possible that an interception warrant that has been granted for the purpose of national security might pick up information that would prevent or detect serious crime which falls under one of the other purposes. I stress that the information used in such a circumstance would still have to be for one of the few warranted purposes, and could not be used for a purpose that could not achieve that level of seriousness. But it would seriously hamper our tight against serious crime if the unintended result of this amendment were to prohibit any action being taken in such an instance.

However, I understand the reasoning behind the noble Lord's amendment. He wishes to ensure that the information received by means of warranted interception is not abused in any way. We have introduced into Clauses 14 and 15 of the Bill a large number of safeguards to protect warranted information and to restrict the uses to which it may be put. Those include the requirement to ensure that the distribution and disclosure of intercepted material is kept to a minimum; and that all intercepted material is destroyed as soon as it is no longer necessary to retain it for any of the authorised purposes.

So, although we sympathise with the intentions of the noble Lord, we believe that the unintended consequences of his amendment—restriction of the ability of the intelligence and security agencies to act on information, even if only because the information received would fall under the grounds of a different warranted purpose—are not ones that he would wish to see in place.

Viscount Goschen

In terms of the restrictions on the warranted information, perhaps the noble Lord will go a little further. Will he explain to the Committee what would happen, for example, in a case where the intelligence services found that they had been pursuing the wrong man but, by accident, they stumbled upon a relatively minor crime or misdemeanour?

The noble Lord said that the information would be destroyed as soon as it was no longer necessary to pursue the cause of the original warrant. But what would happen in the case that I have just described?

The Earl of Northesk

Does the noble Lord accept that the phraseology of my noble friend's amendment is entirely consistent with the Data Protection Act? Therefore, there is existing legislation which almost obliges the Government to comply with what my noble friend's amendment seeks to achieve.

Lord Bach

I can really only repeat to the noble Viscount, Lord Goschen, what I have already said on this point. If the warrant is taken out for a particular purpose and another warrantable purpose is discovered—for example, serious crime—then it would be ridiculous to shut one's eyes to that other serious crime. But the authorities would not be allowed to take advantage of a warrant obtained for one purpose if what was discovered—I use the noble Viscount's words—were some minor misdemeanour. It will not be possible to use the warrant to achieve justice in that case.

Lord Lucas

I am comforted by the words of the noble Lord, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McNally

moved Amendment No. 35: Page 8, line 9, leave out paragraph (a). The noble Lord said: In introducing this amendment let me say what a pleasure it is to see the noble Lord, Lord Mackay of Ardbrecknish in his place. I am glad that he has come for the night shift. He is probably jealous that this is not a DTI Bill because then he could have had all the fun.

These are probing amendments which look at the terms "national security" and "economic well-being". National security and economic well-being are vague and subjective ideas. The Bill defines neither. If activity is so great a menace to society as to justify interference with the fundamental rights of the citizen, one would expect it to be prohibited by the criminal law, with the definitional certainty that that attracts. Subject only to well-defined exceptions, prevention or detection of serious crime should be the sole ground for authorising interception.

In the field of national security, crimes of espionage, terrorism and conspiracy cover an enormous range of harmful conduct. In the field of economic well-being, offences covering fraud, evasion of fiscal and Customs regulation, insider dealing, false accounting, counterfeiting and so forth, prohibit an equally broad range of objectionable activity. If Parliament has not judged an activity sufficiently grave or insidious to justify bringing it within the criminal law, then it should not generally be regarded as a legitimate basis for interception or surveillance.

It is as to why these vague terms are inserted into the Bill that we probe. In case Members of the Committee think that this is just the concern of the civil liberties lobby, I was interested to receive a fax from the Alliance for Electronic Business which consists of the Computing Services & Software Association, the CBI, the Direct Marketing Association and the Federation of the Electronics Industry. It says that the clauses which provide that, the Secretary of State to have access to information 'for the purpose of safeguarding the economic well-being of the United Kingdom' … would give the government an unprecedented right of access to information on legitimate business activities. We believe this proposal could damage the UK's ambitions to becoming the global leader in e-business. The generic use of 'economic well-being' in this context is potentially a highly onerous burden upon business, allowing the Secretary of State to force an intercept requirement on a business on spurious grounds. It is essential that there is clear guidance, for example in the Code of Practice. We believe the only circumstances in which such a power should be exercised would be to carry out regulatory activities already authorised under existing legislation, for example, Financial Services legislation. It is absolutely vital that the guidelines have clear criteria to ensure business understands what is a legitimate requirement". There we have both from the civil liberties lobby and from business a concern that there have been slipped into the Bill two very vague terms of "national security" and the "economic well-being" of the United Kingdom, which could be used as "catch-alls". We probe to find out why they are there.

Lord Cope of Berkeley

As far as I am concerned, I think that warrants can readily be justified if necessary in the interests of national security. That is covered by Amendments Nos. 35 and 122. I am not sure where national security is defined. It is not defined in the Bill. By definition, it would seem to be national security not involving serious crime, because serious crime is covered under Clause 5(3)(b). So it is national security of some other character. There are national security considerations of another character essentially covered in the jargon, as it were, by the word "spy" as opposed to "terrorist activity", which involves potentially serious crime. I am content with that.

Where I start to wonder what it is all about is when we come to (c), the subject of the second of the two amendments in this group, Nos. 36 and 123. It talks about safeguarding the economic wellbeing of the United Kingdom. That is an enormous phrase. When I was a Member of the other place I had a great deal to do with the aircraft industry and from time to time we were concerned about whether defence orders from the UK and from overseas went to British companies or to American or other companies. A great deal of time was spent on trying to make a case on behalf of our constituents and for neighbouring constituencies as well, in order that the UK could gain from these defence orders.

I believe that it was, and still is, in the interests of the economic wellbeing of the United Kingdom that these orders should have gone to UK companies. It would have been of great advantage to the companies concerned, and indeed of the Government in some respects, to have known what overseas firms were doing in respect of such contracts. To have a warrant to inquire into that kind of thing seems to me entirely consistent with the permission being given in this subsection. I hasten to acid that I do not think that is what this Bill should be all about: it should be about combating terrorism and serious crime. However, they are already covered by (a) and (b) and do not need covering by (c).

These days there are other considerations, like exchange rates and other financial matters, in which it would be greatly to the advantage of British interests, both in the national sense and in the sense of British companies and institutions, to know some of the things that were happening in respect of foreign financial institutions. Safeguarding the economic wellbeing of the country is extremely important. One can argue about things like exchange rates, the euro and so on, but I am not going into all that. Is interception to be used for this purpose? Is that what is intended by safeguarding the economic wellbeing of the country?

It is not only a question of interception which is covered by Clause 5 and the first of the two amendments. Intrusive surveillance might also be used, and that is covered by the second of the two amendments. If it is thought by foreign companies that if they had a British partner, whether to do with defence, aerospace, finance or anything else, they might be subjected to the interception of their e-mail and so on, they would be much less inclined to have a British partner as their own interests might be placed in jeopardy.

It seems to me that this is an extremely wide power, going well beyond what this Bill should generally be about. Perhaps the noble Lord the Minister will be able to reassure us.

Viscount Goschen

May I associate myself with the remarks made by my noble friend Lord Cope with regard to (3)(c)? We can see what the Bill is driving at, but the way it has been drafted is incredibly broad. There is a very substantial power here for the Government to intervene, not necessarily where they see lawlessness taking place, but for the purpose of safeguarding the economic wellbeing of the United Kingdom. That could take into account a broad variety of circumstances. For example, one can think of currency speculators acting against the pound, or of bugging Mr Greenspan's conversations and so on. One thinks of serious takeovers involving national interests, employment and so on. One does not have to stretch one's memory back too far to think of serious corporate activities in the United Kingdom in the past year or so that would have fallen within the scope of the Bill.

The Government must be more specific and tighten Clause 5(3)(c). One difficulty that the financial community and industry have with the Bill is the prospect that it may drive commerce overseas. Clause 5 has that risk written all over it.

10.45 p.m.

Lord Bassam of Brighton

I am grateful to the noble Lord, Lord McNally, for raising his probing amendments in the way he did, to flesh out concepts.

Threats to national security change over time and, as yet, Parliament has not enacted a definition, It may help if I describe our understanding of the term "national security", which has been the subject of numerous debates in Parliament over the years. Ministers and parliamentarians have defined threats to national security as any substantial threat to the nation as a whole; matters that relate to the survival or well-being of the nation; protecting the security of the nation and safeguarding its economic well-being from outside threats; any contribution to the protection of the nation's security that is clearly necessary; and the protection of freedom for us all.

Other definitions might include the safeguarding of the state and community against threats to their survival or well-being; defence of the realm and of government defence and foreign policies involving the protection of vital national interests in this country and abroad; and defence of the realm against potential enemies.

The term "national security" can refer only to matters relating to the survival or well-being of the whole nation, not political, sectional or lesser interests. As we see it, the term is concerned with espionage, terrorism and subversion, and with the acquisition of intelligence in support of the Government's defence and overseas policies. We take it that "national security" includes, but is not necessarily confined to, protecting against threats of espionage, terrorism and sabotage; the activities of agents of foreign powers; and actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means. Those may all reasonably be described as being in the interests of "national security".

Similarly, the term "economic well-being" could include identifying warnings of threats to the supply of energy, commodities and raw materials on which the UK is particularly dependent; identifying attempts by rogue traders or others to manipulate commercial markets, especially when such actions could undermine confidence in the City or affect the stability of financial or other markets; and developing better government understanding of events and trends that could have a serious effect on the UK economy.

The meaning of the phrase was debated at length during the passage of the Interception of Communications Act 1985, and the description used then by Ministers remains valid. Safeguarding the economic well-being of the United Kingdom does not mean industrial espionage or intelligence gathering on behalf of UK companies. In all cases, the aim of work carried out under this heading is to allow the Government to take such protective actions as are appropriate and consistent with obligations under national, EU and international law.

It is a crucial part of the UK's foreign policy to protect the country against adverse developments overseas which may have grave and damaging consequences for our economic well-being and future. Therefore, by definition, the matter must be one of national significance and cannot be what one might accurately describe as being of a trivial nature—

Viscount Astor

Perhaps I may interrupt the Minister for a moment. In his description of the definition of, the interests of national security". the Minister used the words "economic well-being". If "economic well-being" comes under national security, why do we need paragraph (c)? The noble Lord also described "economic well-being" as being of national significance. If that is the case, we can all understand the phrase "economic well-being" when it is connected to national security. However, when the Minister puts the phrase on its own, that raises all sorts of connotations. I do not understand why we need paragraph (c), when what the Minister said about paragraph (a) as regards national security actually covers the term "economic well-being".

Lord Bassam of Brighton

My explanation would probably go something like this. I tried to set out an explanation giving various interpretations of the meaning of the term "national security". Part of that explanation relates to economic well-being. In itself, the latter is of importance and significance. Therefore, it is considered useful to have it set out separately.

In putting forward his probing amendments, the noble Lord has tried to flush out what we might consider "economic well-being" to mean, and how that might be best interpreted and understood in the context of this legislation. I tried to provide a reasonably coherent set of explanations to that end.

I was about to make a point on the report of the all-party Intelligence and Security Committee. Its annual report in 1996 said: We reviewed the subject with both the intelligence producers and consumers, and came to the overall conclusion that intelligence work in support of economic well-being is an important, valuable and, on the evidence we have taken, properly conducted area of the Agencies' activities". I believe that to be a very useful observation on the term.

The noble Lord, Lord Cope, and the noble Viscount, Lord Goschen, asked, essentially, what the extent of "economic well-being" might be, where it might lead us and what kind of subjects it might cover. It has been a fairly long-standing practice not to go into too much detail in such matters. However, in his 1991 report, the then Interception Commissioner, Lord Lloyd, stated that there had never been more than a few warrants issued on the ground of safeguarding the economic well-being of the United Kingdom. I believe that I can confirm that that is still the case. It would not be right for me to comment on particular examples, other than those that are commonly understood.

It must be a matter of national significance; indeed, that must be clear. It cannot be something trivial. The emphasis has to be properly on protective action—that is to say, action that is protective of the economic wellbeing of the United Kingdom. As I said earlier, it is the case that the intelligence work that is currently carried out for this purpose has been endorsed by the Intelligence and Security Committee as being of particular importance. Ultimately, the decision as to whether it is right in each case must be a matter for the Secretary of State; and, of course, there is accountability here.

The Secretary of State's actions are reviewable by the commissioner. If, on consideration of all relevant factors, the Secretary of State took the view that the economic well-being of the country was under threat, and that interception in a particular case was both necessary and would be a proportionate action to take, he could authorise any such interception by means of a warrant. I believe that that makes good sense in those circumstances.

I hope that that explanation has furthered the debate. I hope that it has satisfied in part at least the intent of the probing amendments of the noble Lord, Lord McNally. I should have made it clear that threats to the country's economic well-being may overlap with national security—I believe that the noble Viscount, Lord Astor, mentioned that point—but it is, nevertheless, a legitimate purpose in its own right. The Committee may wish to reflect on that point.

Lord Mackay of Ardbrecknish

I have listened to the Minister's reply. I have absolutely no problem with the provision relating to the interests of national security. I suspect that I am one of three noble Lords present in the Chamber who have signed warrants. I suspect that the noble and learned Lord, Lord Archer, has signed many more than I have. I believe that my noble friend Lord Cope may have signed one or two in his time. As I say. I have no argument with that point.

However, I was worried by the Minister's comments on economic well-being. I believe that he said that the measure might help in the better understanding of events which relate to the economic well-being of the United Kingdom. Many companies in this country are part of multinational groups. Often decisions taken by those multinational groups considerably affect the economic well-being of this country. For example, the recent decisions taken by BMW could be considered to have affected the economic well-being of this country. Would it have been legitimate for the Department of Trade and Industry, which seemed to be in almost total ignorance of what was going on, to seek a warrant to intercept the considerable e-mail and telephone traffic which must have taken place between the high command of Rover in this country and BMW in Germany? The Government could thus have kept track of events which were clearly of enormous economic significance to this country.

When we go down these difficult roads we must be sure what powers we are giving to government. I have no doubt that the noble and learned Lord, Lord Archer, my noble friend Lord Cope, myself and, indeed, the noble Lord, Lord Bassam, if he has had to sign a warrant in the absence of Mr Straw, have taken that duty extremely seriously. However, to sign a warrant on the ground of economic well-being seems to me to go miles beyond the basis of any warrants that I was expected to sign. I suspect that is true as regards the noble Lords I have mentioned.

Lord Bassam of Brighton

It would be unwise for me to be drawn into whether it is right for us to authorise warrants to tap into e-mail systems, the contents of which may or may not relate to recent events at BMW and Rover. That would be quite wrong.

However, the Committee is entitled to an explanation of the extent of the term "economic wellbeing" in this context. I thought that I gave an honest and straight interpretation. I said quite plainly that we sought to develop a better government understanding of events and trends. I explained that the power had been used extremely sparingly and that the interception commissioner, the noble and learned Lord, Lord Nolan, had considered that where a threat or potential threat was posed to economic well-being, the power might be used in certain circumstances. No government would wish to set aside the opportunity in those extreme circumstances—few as they may well be—to authorise a warrant. That would be very foolish indeed and would do little to sustain the confidence of industry and commerce. I invite the noble Lord to reflect on that.

No doubt when he was a member of a government, that government would have used the opportunity from time to time, when it was necessary, to authorise warrants where it was properly felt that the economic well-being of the United Kingdom was being undermined. It would be a foolish government indeed that set that opportunity on one side.

11 p.m.

Lord Mackay of Ardbrecknish

That is all right as far as it goes. All of the warrants that I was asked to sign were clearly designed to do something about the Irish Republican Army and its threats to the law.

The problem with the noble Lord, Lord Bassam, is that when he tries to be helpful he makes me more worried than I was at the beginning. He said that he did not want to comment on my example. Did he not want to comment because he did not think that my example was relevant, or because he did not want to get into that ground? That requires a "yes" or "no" answer. I postulated the circumstances of an international company and I mentioned BMW. But the circumstances could relate not only to BMW but to many other companies which, over the past 20 or 30 years, have had to do rather difficult things with their subsidiaries in the United Kingdom so far as concerned the well-being of this country; it could have been any of those companies.

My question is whether it would be right in those circumstances to intervene on their electronic and telephonic traffic in order to obtain a better idea of events. The answer is either "yes" or "no". They are not doing anything illegal; they are not doing anything which threatens national security. Arguably they are doing something which threatens the economic wellbeing of at least a part of this country and perhaps a considerable workforce, but is that a sufficient definition to obtain a warrant? It is a clear question which requires a "yes" or "no" answer. If I were confronted with a request for a warrant of that nature, I would have severe difficulty in signing it.

Viscount Astor

Perhaps I may help the Minister by giving an example. He will no doubt remember the dark days when the pound fell out of the ERM and a number of currency traders—notably Mr Soros—supposedly made a huge amount of money out of betting against the pound. If, in the future, someone chose deliberately to run the currency either up or down—the direction does not matter—and ther to bet on it, would that kind of action be subject to a warrant being considered on the grounds of economic wellbeing? The Minister may remember that the government of the day resisted the trend going against them and it cost them a lot of money. If anyone has a go against the currency, is that regarded as an area that the Government would consider relevant?

Lord Bassam of Brighton

The danger of trying to legislate by example in this way—which is what both noble Lords are seeking to draw me into—is that one does exactly that. It is wrong to declare exactly what kind of examples may or may not be included within the overall term that we are seeking to understand better. Examples do not always necessarily make for a better interpretation.

As I said, there may be occasions—it has to be termed in that way—where it is right to authorise a warrant for interception to protect the economic wellbeing of the country. We have to make a judgment when such circumstances arise. In all honesty I said that it might cover events and trends. However, I think that it would be best to leave it at that because I do not think that it would be helpful to pursue these hypothetical examples. I believe that it is right to provide for this power and authority. It is subject to a form of accountability and, of course, the intelligence commissioner will have an interest in these matters.

Lord Mackay of Ardbrecknish

Perhaps the noble Lord will give way. We are trying to seek his view on this, in his role as a Government Minister. I accept that my noble friend Lord Astor and I have put forward hypothetical cases here, but they are hypothetical examples that nevertheless reflect two very real situations.

A simple answer could be given in the case of the currency speculation that took place when the pound fell out of the ERM. Does the Minister believe that such a situation would constitute an attack on the country's economic well-being sufficient to merit the issue of a warrant to intercept the telephones or e-mails of certain speculators?

As regards the situation I outlined, does the Minister believe that, if the Bill had been enacted as it stands, the Government should have used the powers conferred to intercept e-mail traffic between BMW and Rover in the days leading up to BMW's decision? Surely the noble Lord can give me a simple "yes" or "no" answer. There is little room for equivocation, given that these were real situations that are now part of our history.

Lord Bassam of Brighton

I can see that the noble Lord is becoming rather excited about this point. However, as the noble Lord well knows, in government these situations are not painted in black and white and do not always respond well to "yes" and "no" decisions. Grey zones apply in such cases.

The question for the Secretary of State to consider in such circumstances would be whether it would amount to a sufficiently serious threat to the economic well-being of this country. In those circumstances, the Secretary of State would then have to consider whether the issue of a warrant was necessary. The matter is simple and turns on a proportionate reaction to a given set of circumstances. The element of proportionality would form an important part of any decision reached by the Secretary of State.

The noble Lord spoke of the kind of warrants he has had to sign as they related to terrorism. In some senses, a parallel can be drawn here. In those situations, the noble Lord would have had to come to a decision whether, in exercising those powers, the decision was right and proportionate to address the seriousness of the threat. Surely he will accept and understand that a black and white, "yes" or "no" response is not always appropriate. To try to come to a decision on whether it would be right and proper to issue warrants by responding to examples put across the Dispatch Box would be the wrong way to proceed.

Lord McNally

I am about to withdraw the amendment. Before I do so, perhaps I may say in response to the point made by the noble Viscount, Lord Astor, on the management of the economy at the time the pound came out of the ERM, that there is absolutely no evidence that intelligence of any kind was shown at the time. He should rest assured on that point.

As regards an attempt to break into BMW's communications network, we know that the Americans would have got there first if we had tried to take an action of that kind. I believe that the noble Lord, Lord Mackay of Ardbrecknish, has demonstrated the benefit of being well rested and coming late to a debate of this kind. The noble Lord appears to have the energy of a Portuguese substitute tonight. He has been all over the pitch and he is in dazzling form.

Nevertheless, the Minister should take note of the concern expressed in the fax sent to me from the CBI and in other evidence from those at the sharp end, that leaving in the Bill a general catch-all power might have implications for British companies and for our future e-commerce. If nothing else, we shall return to that point later in the proceedings on the Bill. For the moment, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 36 to 38 not moved.]

Clause 5 agreed to.

Clause 6 [Application for issue of an interception warrant]:

Lord Cope of Berkeley

moved Amendment No. 39: Page 9, line 4. at end insert— ("( ) the Chief Executive of the Benefits Agency;"). The noble Lord said: This is another matter that was discussed in another place. The amendment nevertheless makes a valid point, as the answer given by Ministers there was not satisfactory.

The clause specifies who may apply to the Secretary of State or the First Minister for an interception warrant. Most of the people listed are obvious: the Director-General of the Security Service, the senior policeman—a provision which received a certain amount of discussion in the other place—and the Chief of Defence Intelligence. But one notable exception is the Chief Executive of the Benefits Agency.

I am not supposing that the Benefits Agency will wish to use these powers and apply for warrants for individual cases of small benefit fraud. There is quite a large number of such cases and considerable effort is made to try to catch up with them. I do not believe that such cases would be an appropriate use of this provision. However, there is in addition some major fraud involving the Benefits Agency. It involves criminal conspiracies on quite a large scale and many millions of pounds, and is large enough to justify an application for a warrant of this character.

Some of the frauds are managed from overseas. I got to know about one in particular—a large fraud that took place some years ago. It was extremely difficult to pursue, partly because much of it was managed from overseas; but it also involved dealing with people in this country. In that case, interception warrants would have been very valuable. I cannot recall whether interception warrants were used in that case, but in some circumstances they would certainly be justified.

It was said in another place that the police tend to become involved if the fraud is large enough. However, it is the Benefits Agency that has ultimate responsibility for stopping fraud in the benefits system and for combating such crimes. Of course, the agency receives assistance from the police from time to time, and some of the powers which only the police have can be necessary in the course of such investigations. But such frauds are complex and involve details of the benefits system which the Benefits Agency knows much better than the police do. It is right that the agency should be in charge of the investigation of such frauds, just as it is right that Customs and Excise should be in charge of investigational matters that come within its purview and which can involve large criminal conspiracies, as I know from my experience in the department. Therefore, given the scale of some benefit fraud, it seems odd that the Chief Executive of the Benefits Agency is not included in the list.

The one practical benefit of the discussions on the matter in another place was to narrow down the fact that the Chief Executive of the Benefits Agency did appear to be the right official to include, rather than others who were suggested at an earlier stage, such as the Permanent Secretary. I believe that to be the case. It would be right to include this official among those listed in this part of the Bill. I beg to move.

The Earl of Northesk

I support my noble friends in this amendment. We all know why the Government have resisted this modest addition to the list of those empowered to make an application for an interception warrant. It is because there is a presumption that instances of benefit fraud will be subject to criminal investigation, and the fact that the police are already listed in Clause 6(2) obviates the need for the Chief Executive of the Benefits Agency to be added to the list. I am bound to say that I find that a singularly lacklustre defence.

I am sure that the noble Lord the Minister, in preparing for scrutiny of the Bill, will have delved into our proceedings on the Data Protection Act 1998. One of the salient features that emerged from our debates on that measure was that there should always be a presumption against making the exceedingly powerful analytical tools of the new technology, such as data matching, available to government departments without statutory authority. Indeed, that premise has its roots in consideration of the Social Security Administration (Fraud) Act 1996—my noble friend Lord Mackay of Ardbrecknish may remember it— when the previous administration accepted the arguments of the noble Baroness, Lady Hollis of Heigham, and the noble Baroness, Lady Gould of Potternewtown. I shall quote from each.

The noble Baroness, Lady Hollis, said: In principle we welcome data matching so that local authorities and DSS managed benefits share a common IT architecture along the lines of project accord. But we shall want to take great care that it does not unreasonably invade the privacy of tenants and, of course, the national and international rules about data protection".—[Official Report, 17/2/97; col. 465.] The noble Baroness, Lady Gould, said: the sharing of personal information and data matching between two or more organisations, crucial as it is, raises fundamental principles of data protection, including the principle th, it personal information should only be used for the purpose for which it is collected … There must be a balance between the use of data matching to detect fraud in order to protect public funds and the individual's right to privacy".—[Official Report, 17/2/97; col. 490] The difficulty with the Government's response to the amendment is that it runs against the grain of those views. It implies that data matching and other analytical tools should be freely available to the investigative authorities across departments, but without being rooted in statutory sanction. My interpretation is that it is important that the Benefits Agency be given specific statutory authority to be able to make use of its databases for the detection of fraud, rather than relying on the conferment of an inferential grant to the police.

In effect, not only is the amendment of my noble friends important and significant in terms of its contribution to the needs of law enforcement, but, as important, it affords the individual citizen an additional check and balance against possible arbitrary and inappropriate use of the analytical tools of the new technology.

11.15 p.m.

Lord Bassam of Brighton

I am intrigued by the noble Earl's comments. They seemed somewhat adjacent, rather than directly related, to the area that we are considering. I shall study Hansard with great interest.

We take the view that the amendment is entirely unnecessary, although I understand and sympathise with its intention. We all want to see an appropriate and proper measure to combat benefit fraud, but providing the Benefits Agency with the power to apply for an interception warrant seems to us neither appropriate nor necessary.

I should like to take the police as a comparable example. If the police wish to intercept a communication when the cases they are investigating are serious enough, they must approach the National Criminal Intelligence Service to apply for a warrant:. Individual forces are not able to apply in their own right. Similarly, if the DSS is working on a serious fraud inquiry with the police, it can either apply through the police or via NCIS for an interception warrant, or it can apply to NCIS directly itself.

Therefore, we see no need for the Benefits Agency, as a body in its own right, to be added to the list. It does not in any event possess the technical capability to intercept communications, nor have we received any formal request or pressure, or interest, from the DSS or the Benefits Agency to be considered as an intercepting agency.

We have to take steps and measures which are proportionate, appropriate and necessary. This proposed addition to the list is entirely unnecessary. If it were made it would not add any extra weight or strength to the investigatory effect of the Benefits Agency. Not having it there in no way hampers the agency's work in detecting fraud nor its important fraud detection work with the police service. As with other agencies, all it has to do is to apply through the police, via NCIS, or make a direct application. We do not believe that the amendment is necessary.

Lord Archer of Sandwell

Before my noble friend sits down, I note that the Inland Revenue is not included in the list. Has it ever suggested that it needs to be included specifically? Alternatively, is it content to work through NCIS?

Lord Bassam of Brighton

I think that it, too, is content with the arrangements set out in the Bill. It is content to work through NCIS. That seems to us appropriate. We believe that the Benefits Agency will work in the same way.

Lord Cope of Berkeley

The Minister suggested that there was a comparison between individual police forces and the Benefits Agency. I do not think that that is relevant. I agree that individual police forces in England and Wales, although not in Scotland, cannot apply; in Scotland they can. It is no part of this proposition that individual benefit offices or areas of the Benefits Agency should be able to apply. The analogy is more direct with the Commissioners of Customs and Excise, for example.

As regards the Inland Revenue, perhaps it might be considered for this list alongside the senior revenue department of Customs and Excise. I do not press that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 40 not moved.]

Clause 6 agreed to

Clause 7 [Issue of warrants]:

[Amendments Nos. 41 to 44 not moved.]

Clause 7 agreed to.

Clause 8 [Contents of warrants]:

Lord Lucas

moved Amendment No. 45: Page 10, line 2, after ("person") insert ("(with or without such other persons as may be associated with him)"). The noble Lord said: The amendment is unnecessary because the definition of "person" on page 77 includes, any organisation and any association or combination of persons". That raises the question as to why Clause 8(1)(a) is in the Bill. If a "person" includes any combination of persons, there is no restriction on those to whom it applies. It can apply to all Members of the House of Lords, or any other connection, or disconnection, of people one chooses to think of. There is no restriction in personal terms as to who the warrant can apply to. It can be any grouping one cares to think of whether or not there is any logical connection because a "person" can be any combination of people.

I should like to know why Clause 8(1)(a) refers to "one person" when there is no restriction on the persons described. Given the ability to sweep up a whole county or a kingdom in a single warrant, why is the provision restricted to "a single set of premises"? It seems odd to have this dichotomy, with no restriction on the number of people, but restricting the provision to "one single set of premises". I beg to move.

Lord Bach

I do not think that I can assist the noble Lord on the questions he poses. The expression "one person"—it can cover one person or, because of the way in which it is defined in Clause 76, a number of people—is precisely the right way to draft the provision.

Lord Lucas

I think that there is a move to go to bed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach

moved Amendment No. 46: Page 10, line 9, after ("identifying") insert ("the communications that may be or are to be intercepted. ( ) Any factor or combination of factors set out in accordance with subsection (2) must be one that identifies"). The noble Lord said: On behalf of my noble friend I hope that I can be as brief as the noble Lord, Lord Lucas, when moving his amendments.

Clause 8 sets out what an interception warrant must contain. For example, the name or description of the interception target is described on the face of the warrant. Attached to the warrant is a schedule which identifies the communications which are to be intercepted.

Government Amendment No. 46 improves the drafting by splitting subsection (2) into two parts. It is solely a technical alteration. There are no policy changes. I beg to move.

On Question, amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Duration, cancellation and renewal of warrants]:

[Amendment No. 47 not moved.]

Clause 9 agreed to.

Clause 10 agreed to.

Clause 11 [Implementation of warrants]:

Lord Cope of Berkeley

moved Amendment No. 48: Page 13, line 8, at end insert ("except for particulars which are necessary to identify the target of interception for the purpose of ensuring that conduct is in accordance with section 5(6)"). The noble Lord said: This clause is all about the implementation of warrants. Subsection (3) provides that a warrant that is served on a person can, to the extent that it is allowed to be so or is agreed by the person to whom the warrant is addressed, omit some of the schedules to the warrant. This amendment seeks to ensure that the particulars which are necessary to identify the target of interception are not omitted. It makes particular reference to Clause 5(6), which relates to the conduct which is authorised by a warrant.

It seems to me important that anyone who has a warrant of this character served on them must understand and must be able to know from the warrant exactly what is the target of the interception in order to be enabled to carry it out with precision. This is one element of the warrant that should not be omitted or obfuscated in any way on the warrant— hence the reason for this amendment.

There are clearly some aspects of the warrant which might be omitted, bearing in mind that we are dealing with intelligence matters and so on. Perhaps some aspects should not be omitted, but it seems to me that these are some aspects which should never be omitted. I beg to move.

Lord Bach

The intention behind Amendment No. 48 is to ensure that if a warrant is served on an individual to assist in an interception request and the schedules attached to the warrant have been modified, they are not modified to such an extent that the individual cannot adequately action the request and therefore, as the noble Lord has just said, fall foul of the duty of conduct provisions in Clause 5 of the Bill.

I hope that after I have clarified the warranty implementation process, the noble Lord, Lord Cope, may feel in a position to withdraw the amendment.

Each warrant contains a cover document which names or describes the person or set of premises which is the interception target. The warrant will also comprise one or more schedules which will list the communications factors to be intercepted; for example, the postal address, e-mail address or phone numbers used by the interception target. Each schedule will contain only factors, not the names of any target. Different schedules may be served on an individual telecommunications operator or individual Internet service provider.

The intention of subsection (3) is to ensure that the information needed by an individual served with an interception warrant is the minimum necessary to carry out the interception requirement and no more. We do not believe that it is necessary or good practice, for example, for a telecommunications operator also to be provided with a schedule listing the other interceptions that have been carried out, perhaps by the postal service or perhaps by an Internet service provider.

We have allowed for the interception agency to be able to remove one or more schedules from the warrant so that the information provided is no more than is necessary to conduct a particular interception by a specific communications service provider. There is simply no need for a single provider to see all the various schedules which may form part of a single warrant. Each will see the front sheet with the name of the target. I hope that that explanation will go some way towards satisfying the noble Lord.

Lord Lucas

When the interception being affected is made by means of a piece of equipment which the Government have placed on the premises of an Internet service provider, and that piece of equipment is operated remotely, say, from GCHQ to adjust the email addresses which are being intercepted from time to time, on whom will the warrant be served and what information will it contain?

Lord Bach

I find it difficult to answer that specific question. Perhaps the noble Lord will give me time to consider it and return to the matter. I am not sure how it relates specifically to Amendment No. 48.

Lord Cope of Berkeley

With respect, it is relevant. I am not sure where the Internet service provider comes into all this, but, judging by the Minister's response, it does. Presumably the warrant will be addressed to the agency or the Director of the National Criminal Intelligence Service. Under the 1985 legislation, the warrant was addressed to British Telecom or whoever was to conduct the telephone tapping. But I understand that that will no longer be necessary. If the black box system works, the ISP will not know what is going on. It will only have installed the black box and maintained it. I understand that the warrant will be served only on the police agency or whichever agency will carry out the surveillance via the black box. The provider will not need to see it at all.

Lord Lucas

I suspect that that is an excellent answer and I look forward to the time when my noble friend Lord Cope is answering for the Government.

Lord Cope of Berkeley

It seems that whether or not the answer was satisfactory, it is all we are going to get.

Lord Bach

The noble Lord is quite right.

Lord Cope of Berkeley

No doubt the Minister will write to us. He is acknowledging that he will do so. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Lord Bach

I beg to move that the House do now resume.

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

House resumed.

House adjourned at twenty-six minutes before midnight.