Regulation of Investigatory Powers Bill

HL Deb 19 June 2000 vol 614 cc97-146

House again in Committee.

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

Lord Phillips of Sudbury moved Amendment No. 63A: Page 17, line 17, at end insert (", and ( ) is identifiable as an external communication").

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

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

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

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

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

The next exception—a higher level of exception—is the double certification allowed under the provisions of Clause 15(3)(a). That allows not only the trawl of external communications permitted by a certificated warrant under Clause 8(3), but also a trawl of internal communications. It is plain that that goes as far as one might in intervening in the affairs of citizens because the underlying thesis of the Bill is that the powers of intervention should be available only with regard to external communications and not internal communications.

I need to add that a confusion, certainly in the minds of those of us on these Benches and it may persist in the minds of many others, is thrown into this already complicated mix by the provisions of Clause 5(6)(a) of the Bill, which allows an interception warrant to be taken to include, all such conduct … as it is necessary to undertake in order to do what is expressly authorised or required by the warrant".

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

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

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

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

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

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

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

The first report of the Interception of Communications Commissioner, the noble and learned Lord, Lord Lloyd, who happily is in his place, published in 1987, stated that, it would be possible for the Security Service to get indirectly, through a legitimate examination of certified material, what it may not get directly. In such cases it has become the practice to apply for a separate warrant under Section 3(1) [of the IOC Act], known as an over-lapping warrant, in addition to the warrant under Section 3(2)".

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

We have to wonder, given the likely collection mechanism of black boxes stationed at Internet service providers, and given, too, the difficulties of distinguishing external Internet communications from internal, whether the intention here is for the new Clause 15 override certificate to authorise trawling through a mixed pool of raw internal and external communications derived from these packet-stream captures at the ISPs. The danger is that that procedure could in practice become a routine way of performing mass surveillance—the trawling of contents indiscriminately—on the full spectrum of domestic Internet communications.

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

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

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

9 p.m.

The Earl of Northesk

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

Lord Cope of Berkeley

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

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

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

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

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

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

Lord Hylton

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

Lord Bassam of Brighton

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

I shall discuss first Amendment No. 63A and the matter of identifying an external communication. It is worth pointing out that the concept is defined in Clause 19, which states, 'external communication' means a communication sent or received outside the British Islands". It is precisely that point that subsection (2) of Clause 15 seeks to reflect when it stipulates that interception is permitted only where its purpose is to identify material which was not sent by, or intended for, an individual known to be in the British Islands and is not selected by reference to such an individual. To the extent that material does not fall within this subsection, it must not be read, looked at or listened to.

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

I turn to Amendments Nos. 64 and 66. The noble Lord, Lord Cope, said that these were probing amendments. They substitute the phrase "associated with" for the current phrase used in the Bill "referable to". The noble Lord may consider that his phraseology is more restrictive. However, I believe it is the opposite. We consider that the term "referable" limits far more than "associated with". We make reference to factors "that are referable" to a specific individual. But factors that are "associated with" an individual can just as easily be associated with many other individuals or things. I doubt that the noble Lord is any more of a linguist than I, but I hope that he will accept my assurance over the terminology we have used and will withdraw Amendments Nos. 64 and 66.

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

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

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

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

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

Successive IOCA commissioners have visited intercepting agencies and examined their procedures in detail. They have also expressed their satisfaction with them. For example, in 1987 the noble and learned Lord, Lord Lloyd, who is in his place this evening, specifically said about external warrants, from enquiries I have made I am satisfied that the greatest pains are taken to ensure that interception of communications does not go beyond what is necessary in order to intercept communications covered by the warrants". I add that he went on to say that all the certificates satisfied the relevant criteria, with one arguable exception which was at once put right.

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

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

The noble Lord, Lord Phillips, made two specific points which to my mind were questions. At one stage he asked if a warrant could be treated as external merely because it was routed outside the British Islands. I have read the definition of "external communication". Clause 19 defines an external communication as one, send or received outside the British Islands". That does not mean that a communication sent and received inside the British Islands may be deemed to be external simply because it takes an international route. It must be sent or received at a point outside the British Islands. I hope that that clarifies that issue, which seemed to be of particular concern.

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

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

Lord Lucas

As a point of interest, listening to the Minister's explanation, why not just phrase a Clause 8(1) warrant to include, in the terms of Clause 72, everybody in the world, in which case we would not need Clause 8(3)?

Lord Bassam of Brighton

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

Lord Lucas

From whom?

Lord Phillips of Sudbury

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

Amendment, by leave, withdrawn.

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

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

Lord Lucas

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

Lord Cope of Berkeley

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

Lord Bassam of Brighton

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

Clause 15 agreed to.

Clause 16 [Exclusion of matters from legal proceedings]:

The Earl of Northesk moved Amendment No. 67B: Page 18, line 45, at end insert— ("( ) For the purposes of this section, section 2(3) applies.").

The noble Earl said: Whether or not intentional, a persistent theme of the Bill is that, at its most charitable, there is a difference of interpretation between its critics and the Government on how wide its scope is. This ranges from issues such as the definition of communications data to, as we have seen today, the vast sums of money involved in terms of regulatory compliance with its provisions.

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

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

Lord Bach

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

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

The Earl of Northesk

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

Amendment, by leave, withdrawn.

9.30 p.m.

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

Lord Lloyd of Berwick

I should like to apologise for having missed the debate on Second Reading. I wished to give a warm welcome to the Bill in general terms. It brings together for the first time all the various provisions relating to interception of communications, intrusive surveillance and so forth, currently spread over three separate Acts. The only point of detail I wish to make is on Clause 16. As my views on Clause 16 are very well known to the Home Office—I explained them at great length in chapter 7 of my report on terrorism—nothing that I shall say will take the Minister by surprise.

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

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

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

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

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

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

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

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

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

The question has now arisen in England whether those same tapes should be admissible in criminal proceedings brought against B. The judge before whom this matter came said that if the tapes were not put before the jury it would, almost certainly result in a miscarriage of justice". Those were his very strong words. He held that the tapes should be admitted in the circumstances despite any argument against it based on the Human Rights Act or Section 9 of the old Act.

That decision was upheld in the Court of Appeal and very recently in your Lordships' House. Perhaps I may read the short question which the Law Lords were asked to answer: Is evidence obtained as a result of a telephone intercept made in a European jurisdiction in accordance with the law of that jurisdiction in respect of a call in which one or both parties make or receive such call within the United Kingdom, admissible in criminal proceedings in the United Kingdom? The Law Lords have said that it is admissible and will give their reasons later.

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

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

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

We have here a valuable source of evidence to convict criminals. It is especially valuable for convicting terrorist offenders because in cases involving terrorist crime it is very difficult to get any other evidence which can be adduced in court, for reasons with which we are all familiar. We know who the terrorists are, but we exclude the only evidence which has any chance of getting them convicted; and we are the only country in the world to do so.

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

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

Lord Cope of Berkeley

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

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

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

9.45 p.m.

Lord Bach

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

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

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

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

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

For those reasons, we are not convinced that a change to an evidential regime would involve a rise in criminal convictions in any more than the short term. Criminals and terrorists would become "wise" to it. The Government have considered the subject many times and have carried out a number of specific studies, including most recently research into the experience of seven other countries in operating an evidential regime. We are the first to admit that the issue is finely balanced. The decision to retain a version of Section 9 is supported by the majority of respondents—which is hardly a convincing argument in itself—to the consultation paper. It has helped us decide that we are right in believing that the prohibition should be maintained.

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

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

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

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

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

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

Lord Lucas

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

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

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

Lord Bach

I shall not attempt to answer the majority of the questions put by the noble Lord, Lord Lucas, but I shall say something about the innocent man charged with murder. We shall come to debate Clause 17 in a moment. It is clear that the prosecutor, in his capacity as a minister of justice in any criminal trial, should, in the circumstances outlined by the noble Lord, be told by the police or the prosecuting authorities of the existence of an intercept if it clearly showed that the accused could not be guilty of the crime with which he was charged. Under the system that has worked until now, it would then be the duty of the prosecutor to make sure that the defendant was no longer put at risk of being convicted of a murder that he did not commit. To deal with the problem that the noble Lord mentions, even under this strict system, prosecutors, and in some circumstances judges, are told of the existence of intercepts.

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

Lord Nolan

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

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

10 p.m.

Lord Cope of Berkeley

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

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

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

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

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

Lord Lloyd of Berwick

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

Lord Cope of Berkeley

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

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

Lord Bach

The noble and learned Lord, Lord Nolan, answered that point and dealt with it clearly. He referred the Committee back to a clause to which I should have referred; namely, Clause 14(4)(d). That states that, it is necessary to ensure that a person conducting a criminal prosecution has the information he needs to determine what is required of him by his duty to secure the fairness of the prosecution". That paragraph is the answer to the query of the noble Lord, Lord Lucas. In other words, if the prosecutor is doing his duty, then, under the present system, there is no danger of the massive injustice in the example given by the noble Lord, Lord Lucas, being done.

Lord Cope of Berkeley

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

Let us suppose, however, that it does not make it quite clear but makes it a possibility. Is it then for the prosecuting barrister to decide how the matter lies? Apparently it is. It is not for the court, the jury or anybody else to decide. It is for the prosecution to decide whether or not the case should be withdrawn as a result. As far as I can see, the defence does not get a look in. The defence is not allowed to suggest that the case is withdrawn. The prosecution has to behave as a jury and make the decision. That does not seem to be satisfactory, either. I believe there is still a case to answer as regards Clause 16 stand part.

Lord Lloyd of Berwick

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

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

Lord Cope of Berkeley

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

Lord Lloyd of Berwick

I hope that he does.

Lord Cope of Berkeley

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

Lord Lloyd of Berwick

No, I would much sooner the Minister did.

Lord Bach

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

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

Lord Lucas

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

Lord Bach

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

Lord Lloyd of Berwick

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

Lord Lucas

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

Lord Cope of Berkeley

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

Clause 16 agreed to.

Clause 17 [Exceptions to section 16]:

Lord McNally moved Amendment No. 68: Page 19, line 2, at end insert— ("( )any proceedings for a criminal offence subject to the provisions of the Criminal Procedure and Investigations Act 1996;").

The noble Lord said: It is becoming almost customary in this Committee to start speeches by either declaring that one is a lawyer or saying that one is not. I am not a lawyer. I do not know whether that is a badge of honour or a stain on my escutcheon; but it is a fact. I note also with some trepidation that the noble Lord, Lord Mackay of Ardbrecknish, has joined us. It may be recalled that in the last Committee he arrived at this time, feisty and full of vim.

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

I shall be brief. The two amendments take the point that Clause 17 lists the exceptions to Clause 16. They are merely probing amendments to understand why the Government set out those exceptions. In the briefing that we received from Justice, it was interesting to note that it believes that, lawfully intercepted material should be prima facie admissible as evidence in criminal proceedings, subject to the usual disclosure of evidence rules under the Criminal Procedure and Investigation Act 1996 and judicial discretion under Section 78 of PACE".

That is an interesting opinion from an interesting source.

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

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

Lord Bach

I am grateful to the noble Lord, Lord McNally, for pointing out that we have received support from two noble and learned Lords for the Bill. However, the noble Lord is too shy. He is a supporter of the Bill; indeed, he made that very clear in his Second Reading speech. I should hate him to forget that in the excitement of the media publicity that we have seen over the past few days. I could even read out the paragraph of his speech that ended with the words: That is our basic welcome for the Bill".—[Official Report, 25/ 5/00; col. 890.] The noble Lord was quite right.

I shall deal, first, with the two Liberal Democrat amendments, if I may so call them. Amendment No. 68 would effectively wreck Clauses 16 and 17 and enable intercept material to be adduced in evidence in almost all criminal prosecutions. So the debate on that is the one that we had on Clause 16 stand part a short while ago. Amendment No. 70 would remove the provisions allowing a judge in certain circumstances to be told about the material gathered by interception.

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

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

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

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

However, there are exceptional circumstances in which the judge will need to know the fact that interception took place in order to make sure that the trial proceeds fairly. For example, the evidence before the court might lead the defence and the jury to take a particular view of a certain fact. That view might, in the light of intercepted material, be misleading and wrong. These provisions allow the judge to see intercept material to the extent necessary to guard against that kind of mistake.

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

Lord McNally

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

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 69: Page 19, line 8, at end insert ("or any proceedings arising out of proceedings before that Commission; or (f) any proceedings before the Proscribed Organisations Appeal Commission or any proceedings arising out of proceedings before that Commission. ( ) Subsection (1) shall not. by virtue of paragraph (e) or (f), authorise the disclosure of anything— (a) in the case of any proceedings falling within paragraph (e), to—

1. (i) the appellant to the Special Immigration Appeals Commission; or
2. (ii) any person who for the purposes of any proceedings so falling (but otherwise than by virtue of an appointment under section 6 of the Special Immigration Appeals Commission Act 1997) represents that appellant;

or (b) in the case of proceedings falling within paragraph (f), to—

1. (i) the applicant to the Proscribed Organisations Appeal Commission;
2. (ii) the organisation concerned (if different);
3. (iii) any person designated under paragraph 6 of Schedule 3 to the Terrorism Act 2000 to conduct proceedings so falling on behalf of that organisation; or
4. (iv) any person who for the purposes of any proceedings so falling (but otherwise than by virtue of an appointment under paragraph 7 of that Schedule) represents that applicant or that organisation.")

On Question, amendment agreed to.

[Amendment No. 70 not moved.]

Clause 17, as amended, agreed to.

Clause 18 [Offence for unauthorised disclosures]:

Lord McNally moved Amendment No. 71: Page 21, line 15, leave out ("another") and insert ("any person").

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

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

Lord Bassam of Brighton

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

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

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

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

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

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

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

Lord McNally

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 72 and 73 not moved.]

Clause 18 agreed to.

Clause 19 agreed to.

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

[Amendment No. 74 not moved.]

10.30 p.m.

Lord Cope of Berkeley moved Amendment No. 74A: Page 22, line 38, at beginning insert— ("Subject to subsection (2A),").

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

The question that the amendments are intended to raise arises from the existence of the so-called "black boxes". The question is whether black boxes could in future be programmed so as to obtain communications data directly for the police, the security services, or whoever, without the knowledge of the Internet service provider. At the moment, the Government have not said whether it is their intention that it should be possible that communications data can be obtained in this way. They have not clarified—and, so far as I can see, the Bill does not clarify—whether it would be unlawful for that to happen.

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

Lord Bassam of Brighton

In responding to Amendment No. 74A, I shall speak also to Amendments Nos. 74B and 75A.

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

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

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

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

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

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

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

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

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

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

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

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

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

There will also be cases where communications data, like any other document or piece of information, can be obtained compulsorily by bodies with their own compulsory powers. However, it may reassure the noble Lord to know that, since the arrangements under the Data Protection Act are voluntary, holders of communications data will be quite within their rights to refuse to supply under the Data Protection Act and to insist that the strict controls imposed by the Bill are, instead, adhered to. They would, of course, still be obliged to supply communications data in response to a judicially authorised production order.

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

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

Lord Cope of Berkeley

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

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

Lord Bassam of Brighton

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

Lord Cope of Berkeley

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

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

10.45 p.m.

Lord Lucas moved Amendment No. 76: Page 23, line 8, leave out subsection (4).

The noble Lord said: This amendment is intended purely to give the Committee an opportunity to debate the meaning of "communications data". I listened with interest to the observations of the Minister in relation to the previous group of amendments. I believe that he did himself an injustice. The term "communications data" is wider than the noble Lord implied—certainly wider than anything to which we are accustomed in relation to telephone tapping. One's telephone bill provides information about the numbers called and at what times. That provides a fairly limited range of information. As soon as one uses a mobile phone one is communicating information about where one is at a particular time. Outgoing messages contain information as to where one is located. If one is in a city that can be fairly precise information. One begins to be able to follow a person's movements.

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

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

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

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

We present here a very complete picture of someone's life, particularly if he lives on the Internet or with mobile communications, which is a completely different scale of intrusion and knowledge from that which is comprehended by a general look at a person's telephone bill or knowledge about those to whom he posts letters. We must be clear that that is what the Government intend. There will be other opportunities as we go through this clause—Clause 20 stand part may provide at least one—to look at what protection should be provided having defined the situation.

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

The Deputy Chairman of Committees (Lord Skelmersdale)

If this amendment is agreed to, I cannot call Amendments Nos. 77 to 83 inclusive.

Lord Cope of Berkeley

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

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

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

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

The Earl of Northesk

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

If the intention is that the interception regime should have access to the same kind of information as at present by way of telephone logs and so on, would not that be facilitated by the phraseology "any address comprised in", and so on? The addition of "or other data" is unnecessary. On the other hand, if the intention is to widen the scope of data which can be intercepted—I can see no other reason for the inclusion of the phrase—it represents a considerable, potentially unwarranted, extension of interception powers. The Minister has categorically stated that that is not the purpose of the Bill. He said: As I have said on a number of occasions, the Bill is designed to update legislation, primarily the Interception of Communications Act, in the light of new technology and legal and market developments, not to extend the powers, which would I think be harmful to the Bill".—[Official Report, 12/6/00; col. 1418.] In passing, I simply say how much I agree with the sentiment of the noble Lord.

Viscount Goschen

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

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

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

Lord McNally

I have two conflicting briefing notes and therefore I am again grateful to the noble Lord, Lord Lucas, for helping me through the maze. I received the first briefing from the Home Office. I do not know whether it came by accident or design, but it is in "pop paper" format. Conspiracy theorists must not be allowed to get away with the ridiculous notion that law enforcement would or even could monitor all emails", says John Abbott, Director General of the National Criminal Intelligence Service. It then makes it clear that the Bill treats interception of content and the provision of communications data quite separately, stating: This is a crucial point, and one which is frequently overlooked". I shall not trouble the Committee by going through all of it, but it has the tone of shrill indignation, "What, us guy?", which has been the hallmark of the Home Office's defence.

Yet the Foundation for Information Policy Research in its briefing echoes what was said by the noble Lord, Lord Lucas, stating: The explosive growth of e-commerce, coupled with the anticipated high penetration of interactive digital television and third-generation mobile phones, means that the Internet is on the verge of becoming a single conduit carrying comprehensive transaction data tracing virtually every facet of private life". In many ways, that is another crunch part of the Bill and the Minister must read the comments which have appeared in national newspapers expressing concern. As the Bill is partly that pantomime horse to which I have referred—an old post and telecommunications Bill consolidation tacked onto an e-commerce Bill—we are in danger of allowing certain permissiveness without realising the speed and scope of the technology with which we are dealing.

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

11 p.m.

Lord Lucas

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

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

I turn to another aspect which perhaps harks back to the discussion we had on the cousin to Amendment No. 83. At that time, I asked how great was the problem of dial-through fraud. We have been sold this amendment on the basis that dial-through fraud is a real problem. I asked for statistics in relation to the number of cases which occur each year and I believe that this is a good opportunity for the Government to provide that information.

Lord Bassam of Brighton

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

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

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

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

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

I do not have a new definition of "communications data" to offer today, but I hope that the Committee will understand that formulating a new definition is no simple task. I can reassure the Committee that my officials are in active dialogue with industry. I hope that we can table an improved amendment shortly.

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

Lord Cope of Berkeley

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

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

I, too, received the Home Office briefing to which the noble Lord, Lord McNally, referred, under the cover of a letter from the Home Secretary. It has obviously been widely distributed in an attempt to fend off some of the criticisms. It says firmly and in rather large type, so that we do not miss it: The Government has no plans whatsoever to require anyone to install any equipment for the provision of communications data". That is a useful comment. As it comes from a Home Office document sent to me by the Home Secretary, we do not even need to get the Minister to repeat it, because I have placed it on the record.

Lord McNally

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

Lord Lucas

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

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

I return to my earlier suggestion, still unsupported by evidence because only the Government have the evidence, that perhaps that fraud is at a level at which it may be conveniently dealt with through the warrant system. If there is not much of it, that would surely be the sensible way to deal with it. Otherwise there is the automated PBX problem and the problem of people's activation of answering machines and other devices in the home, all of which look exactly like someone using dial-through fraud. But they happen to be using the subsequent digits for different purposes. I leave that problem for the Minister in the confident belief that he will be able to solve it.

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

Amendment, by leave, withdrawn.

[Amendments Nos. 77 to 81 not moved.]

The Chairman of Committees (Lord Boston of Faversham)

I must point out to the Committee that if Amendment No. 81 is agreed to, I cannot call Amendment No. 82.

Lord Lucas moved Amendment No. 81: Page 23, line 20. leave out paragraph (c).

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

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

Lord Bassam of Brighton

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

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

The provisions of the Bill would allow, where it was considered necessary and for one of the designated purposes, interception of a telephone call to take place where the subscriber's real identity was unknown. Yet if this amendment were passed, it would restrict the ability of the law enforcement, security and intelligence agencies to find out who owned it. I am sure that that is not the noble Lord's intention.

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

Lord Lucas

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

Amendment, by leave, withdrawn.

11.15 p.m.

Lord McNally moved Amendment No. 82: Page 23, line 21, after ("service") insert ("and which serves to identify those persons").

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

Lord Bassam of Brighton

I confess that I am somewhat at a loss with this amendment.

Lord McNally

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

Amendment, by leave, withdrawn.

The Earl of Northesk moved Amendment No. 82A: Page 23, line 22, at end insert— ("but shall not be taken to mean any information or data that cannot be logically associated with information falling within paragraphs (a), (b) and (c)").

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

Lord Bassam of Brighton

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

The Earl of Northesk

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

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 83: Page 23, line 22, at end insert— ("( ) In subsection (4)(a) the reference to data comprised in or attached to a communication for the purposes of a telecommunication system by means of which it is being or may be transmitted includes a reference to any communication or part of a communication consisting of signals for the actuation of apparatus comprised in a telecommunication system by which they will be or may be received.").

On Question, amendment agreed to.

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

Clause 20, as amended, agreed to.

Clause 21 [Obtaining and disclosing communications data]:

Lord Cope of Berkeley moved Amendment No. 84: Page 23, line 32, leave out ("designated for the purposes of this Chapter") and insert ("specified in section 6(2)").

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

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

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

Lord Bassam of Brighton

In addressing Amendment No. 84, I shall speak also to Amendments Nos. 98, 98A, 99 and 208.

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

Amendment No. 84 would restrict the agencies which could apply for communications data. The main effect would be to channel the requests from all the police forces in England and Wales through NCIS. The reason why NCIS handles all the interception warrants on behalf of the England and Wales police forces is simply because each force makes only a small amount of use of interception and because recording centres are hugely expensive and require specialist staff (technical and linguists) to operate them.

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

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

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

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

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

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

Lord Cope of Berkeley

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

Amendment, by leave withdrawn.

Lord Cope of Berkeley moved Amendment No. 85: Page 23, line 40, leave out paragraph (c).

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

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

Amendment No. 86 is also in this group. Its purpose is to restrict the provision in subsection (2)(f), which extends the collection of communications data to the purpose not only of, collecting any tax, duty or levy … [but also any] other imposition, contribution or charge payable to a government department".

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

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

Lord Bassam of Brighton

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

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

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

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

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

11.30 p.m.

Lord Cope of Berkeley

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

Amendment, by leave, withdrawn.

[Amendments Nos. 86 and 87 not moved.]

Lord McNally moved Amendment No. 88: Page 24, line 8. leave out subsection (3).

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

Lord Bassam of Brighton

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

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

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

Lord McNally

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

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 88A: Page 24, line 11, at end insert— ("( ) The designated person has the appropriate permission if, and only if, written permission for the giving of the notice has been granted by a magistrate.").

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

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

Lord Bassam of Brighton

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

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

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

Lord Cope of Berkeley

The question whether or not this is more bureaucratic depends to some degree on how many magistrates there are compared to the number of senior police officers and how difficult it would be to gain access to one or the other. In any case, as the noble Lord has indicated and indeed as I indicated, it is all rather provisional upon the important revision of the definition of "communications data". 1 therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Lord McNally moved Amendment No. 90A: Page 24, line 25, at end insert— ("( ) It shall be the duty of the designated person, as soon as reasonably practicable after granting an authorisation or giving a notice under this section, to notify the Interception of Communications Commissioner appointed under Part IV of this Act of the grant of the authorisation or the giving of the notice.").

The noble Lord said: The intention of this amendment is to place on the 28 separate bodies that are currently empowered under this Bill to carry out surveillance activity and collect data the onus to deliver to the interception commissioner details of their activity, the rationale being that the interception commissioner can do his job only if he gets information promptly. It is with that intention that we propose this amendment. I beg to move.

Lord Bassam of Brighton

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

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

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

Lord McNally

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

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

Amendment, by leave, withdrawn.

[Amendment No. 90B not moved]

Lord Bassam of Brighton moved Amendment No. 91: Page 24, line 35, at end insert— ("(9) The Secretary of State shall not make an order under subsection (2)(h) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

On Question, amendment agreed to.

Clause 21, as amended, agreed to.

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

Lord Cope of Berkeley moved Amendment No. 92: Page 24, line 37, leave out from first ("writing") to end of line 38.

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

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

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

11.45 p.m.

The Deputy Chairman of Committees

If this amendment is agreed to, I shall not be able to call Amendment No. 93.

Viscount Goschen

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

Lord Lucas

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

Lord Bach

Amendments Nos. 92 and 94 would require that all notices are given in writing, which would stop electronic authorisations from being given. However, there are huge advantages to be gained from using electronic authorisations: convenience, ease of storage and speed of delivery, to name only a few. For those charged with oversight of this regime, electronic records can be searched far more speedily than can large numbers of paper records. No problem will be encountered in using electronic signatures to verify who authorised a particular notice.

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

Lord McNally

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

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

Lord Bach

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

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

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

Lord Lucas

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

As I said a moment ago, I could write down the authorisation on rice paper only to have it eaten or lost in a file. No requirement is in place to produce a record if the authorisation is granted in writing. Furthermore, it is not clear that the record produced under Clause 22(1)(a) encompasses the information set out in paragraphs (b) to (e). In other words, such a record could merely state, "On this day I granted an authorisation to so-and-so", without any further information. That would be a record of the authorisation having been granted, but it would not contain further specification. I should at least like to know the Government's intentions so that I can be sure that the clause as drafted achieves those intentions.

Lord Bach

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

Lord Lucas

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

Lord Bach

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

Lord Cope of Berkeley

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

Lord McNally

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

Lord Cope of Berkeley

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

Amendment, by leave, withdrawn.

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

Lord Lucas moved Amendment No. 96: Page 25, line 19, at beginning insert ("and such persons may not, without authorisation under this or another enactment, disclose such data to any other person;").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 97. Both amendments are examples of matters that would concern me under the old definition of communications data. That is certainly true of Amendment No. 96. Amendment No. 97 may have a wider application—certainly not in current practice, but if the definition of communications data with which we are left is such as to encourage any form of trawling for associations, for the way in which communications data link with each other to provide a pattern of association. Under those circumstances Amendment No. 97 would be an appropriate safeguard to have in the Bill. However, I am content to wait and see what form the definition will take before deciding whether the amendment is still required. I beg to move.

Lord Bassam of Brighton

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

Lord Lucas

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

Lord Bassam of Brighton

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

There is also the practical difficulty that in respect of virtually all communications data it will be impossible for the authorising officer to state honestly that the data required are in respect of only one person. In the case of the lowest level of intrusion, a subscriber check—which accounts for 96.8 per cent of customs inquiries—the investigating agency has only the phone number or e-mail address. It does not know how many people may use the telephone or e-mail. A similar principle applies to itemised billing, which is far more intrusive. If I was being investigated and the itemised billing for my home telephone was required by notice, that data would relate to more than one person since many other people apart from me make calls on that telephone.

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

Lord Lucas

I stand educated. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 97 not moved.]

Clause 22 agreed to.

Clause 23 [Arrangements for payments]:

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

Clause 23 agreed to.

Clause 24 [Interpretation of Chapter II]:

Lord Bassam of Brighton moved Amendments Nos. 98 and 98A: Page 26, line 29. leave out ("and their department"). Page 27, line 3, at end insert— ("(5) The Secretary of State shall not make an order under this section that adds any person to the list of persons who are far the time being relevant public authorities for the purposes of this Chapter unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

On Question, amendments agreed to.

[Amendment No. 99 not moved.]

Clause 24, as amended, agreed to.

Lord Bach

My Lords, 1 beg to move that the House do now resume.

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

House resumed.

House adjourned at two minutes before midnight.