§ (" . Any person disclosing a key in an unauthorised manner shall he liable for any damage so caused.").1028
§ The noble Lord said: Amendment No. 179A gives me the opportunity to ask the Government who is liable if one of its officers, servants or agents discloses a key and thereby causes substantial damage to a major corporation. I beg to move.
§ Lord Bassam of Brighton
We recognise that this is an issue of fundamental concern to industry. The general welcome for the intentions of the Bill by industry has been qualified by that concern. Some areas of concern remain and they are reflected in the intention of the Government in amendments tabled for today or in amendments that we intend to table on Report. I note that the potential liability incurred through the disclosure of seized keys is one of the points on which industry seeks particular reassurance.
In the light of that we have actively looked into the possibility of including something on the face of the Bill to make it clear where liability lies. However, it should be borne in mind that where keys are demanded, they are most likely to be held by the technical assistance centre. A considerable amount of resource has been devoted to the establishment of that centre and a primary objective of the centre will be to look after keys securely. I am in no doubt that where the centre negligently fails in that regard, and where there is a duty of care, it will be liable for the disclosure of any keys. But I should add that I do not expect the centre to fail in that regard.
I should draw the Committee's attention to Clause 14 of the Bill and the safeguards that are to be applied to intercept material. The safeguards in Clauses 14 and 15 are built, to a large extent, on those that exist in Section 6 of the Interception of Communications Act 1985. Such high standards for protection and destruction of material have existed since then and I do not believe that any of our researches have shown any leakage would expect that impressive track record to continue in respect of any keys that are seized.
All that said, we have looked at the possibility of reflecting the secure position of persons acting in obedience to disclosure notices served under the Bill. The industry concern is the potential civil or criminal liability that they will face by making disclosures pursuant to a Section 46 notice. The Government reassurance, for the record, is that we believe a contractual term will be unenforceable if it puts someone in breach of meeting a statutory requirement. We expect the criminal law to be construed similarly.
The London Investment Banking Association helpfully pointed us to the Drug Trafficking Act 1994. Section 52 of that Act is the offence of failure to disclose knowledge or suspicion of money laundering. Section 52(4)states:Where a person discloses to a constable … his suspicion or belief that another person is engaged in drug money laundering, or any information or other matter on which that suspicion or belief is based, the disclosure shall not be treated as a breach of any restriction imposed by statute or otherwise".Similar wording appears in regulation 16(4) of the Money Laundering Regulations 1993.
1029 We have looked at those pieces of legislation to see if they provide a precedent. But they do not. The cases are different. The person acting on a subjective suspicion in those two examples is not obeying a statutory requirement which unequivocally applies to his situation, whereas the person obeying a Section 46 notice is indeed obeying a statutory requirement which does unequivocally apply to his situation.
In short, there is no doubt as to the lawfulness of what the person who obeys a notice is doing. But the provisions of the Drug Trafficking Act are needed because that doubt exists. If we were to repeat such a formulation on the face of the Bill, there would be a real danger that the need to spell out the position on liability in this Bill would be inferred to apply across the statute book. Generally, that compliance with a statutory duty to disclose information does not, without express words that might be put into this Bill, provide a defence to criminal and civil liability. That could have serious implications elsewhere. We know of no precedent for such a provision and should not create one.
I appreciate that this is good and bad news. The good news is that we are clear as to the position of people served with disclosure notices. We are also confident that keys which are treated negligently will give rise to liability where a duty of care is found to exist. The bad news is that not only do we not see the need to place this on the face of the Bill, but we also see positive dangers in so doing in so far as it could impact on other parts of the statute book. The good news is the important news here, and I hope that Members of the Committee, and particularly concerned elements of industry outside, will hear what I have said. I trust therefore that the noble Lord will feel able to withdraw his amendment accordingly.
§ 11 p.m.
§ Lord Cope of Berkeley
This is an important amendment. Clearly we shall have to study carefully what the Minister said because there were important elements in his response, among them that if the centre did disclose a key, then it would be liable if it disclosed it negligently. That is quite a high test in the courts, a much stronger test than that proposed in Amendment No. 179A.
The Minister also sought to reassure us about contractual liabilities in relation to companies which might find themselves in this position. He may be right—I have no reason to doubt that—in relation to United Kingdom law, but many of the liabilities about which bankers and others are worried arise from the law of other countries. That is where the liabilities will be and, in some cases, they could be extremely large. That is why there is nervousness about this provision. That is why we shall study carefully what the Minister said.
§ Lord Lucas
As the Minister is doubtless aware, one prominent American but London-based merchant bank has already taken steps to transfer its entire 1030 central data operation from London to Switzerland. It has put in place steps so that no authorisations or key disclosures can be actioned from any address in the United Kingdom. Therefore no employee served with that sort of notice in the UK can get at any of its keys because they are all in Switzerland and he cannot have them.
Given the quality of the people who have taken this action, I would expect this to be followed fairly quickly by other businesses taking preventive measures. The sort of action that follows from this is that, once you begin to establish your real core, central operations somewhere outside the United Kingdom to avoid this sort of legislation, other parts of your operations will follow. I do not believe that this is a healthy state of affairs for us; indeed, it is something that this Government ought to be taking seriously. They should be taking positive, not just tentative, steps to try to allay the quite reasonable concerns of industry when it comes to this sort of international obligation, as pointed out by my noble friend Lord Berkeley.
I hope that we will hear more from the Government on this area during the Report stage. But, if we do not, I shall certainly wish to return to the matter. However, for now, I shortly hope to be able to sleep on the Government's reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 52 [Interpretation of Part III]:
Lord McNally moved Amendment No. 180:
Page 55, line 31, at end insert (". and does not affect the intelligibility or accessibility of that communication or data).
§ The noble Lord said: About seven-and-a-half hours ago, the noble Lord, Lord Williams of Elvel, chastised my noble friend Lord Phillips for questioning the wisdom of the Marshalled List. I take courage in both hands now partly because—for reasons I do not quite understand—the noble Lord is no longer in his place. However, I am sure that he will read the Hansard report of these proceedings and "buttonhole" me tomorrow.
§ However, the latter is the preamble to saying that I should prefer to talk to Amendments Nos. 180, 181, 183 and 186 as a group. They all relate to this definition clause and have the same objective; namely, to try to tighten up the electronic signature and key definitions to close various loopholes. The present wording brings all sorts of applications of signature-only keys into the ambit of Clause 46 notices, which is contrary to the content of the Bill. The proposed wording would make it abundantly clear exactly when a key is being used for the purposes of signature.
§ Amendment No. 181 provides the third reason—"the authority"—for using an electronic signature, which is defined under Amendment No. 186. Amendment No. 183 seeks to ensure that the word "key", as applied to encryption, always implies some intent to conceal, which surely is the essence of encryption. I beg to move.
§ Lord Bassam of Brighton
I am happy to consider the re-grouping of these amendments, as proposed by the 1031 noble Lord. These amendments hark back to concerns which underpinned noble Lords' proposed changes to Clause 46(6) by restricting access to keys that have been used solely for electronic signature purposes.
In simple terms, I suppose that an electronic signature can be described as something associated with an electronic document that is the electronic equivalent of a manual signature. Providing a definition for this in statute is somewhat trickier. I understand what the noble Lord is seeking to achieve by way of these amendments, but we believe that the definition in Clause 52(1) is clear enough. Perhaps I may just draw the important words to the attention of the Committee. Clause 52(1)(c) states that an electronic signature is anything in electronic form which,is used for the purpose of facilitating, by means of a link between the signatory or other source and the communication or data, the establishment of the authenticity of the communication or data, the establishment of its integrity, or both".In respect of Amendment No. 180, I believe that I would probably go further and suggest that if signatures are encrypted they will always affect the intelligibility or accessibility of the data in question. Therefore, the effect of the amendment seems questionable—if, indeed, there is an effect. I am not certain that there is.
Amendment No. 181 seems to have an intended effect similar to Amendment No. 185 which we shall discuss later. Both address the question of whether a legal effect is intended. Similar reference to what is included in this Bill was included in the Electronic Communications Act for fear that, without it, some activity might be caught in which there had been no intent to create legal relations. The provisions as drafted here, and in the other Act, are intended to ensure that signatures are a means of creating legal relations only where that is intended and not, perhaps, by chance through the accidental operation of software. Authenticity and integrity are the crux of the matter. Clause 52(1), as drafted, says that. I hope that that deals with the point.
I turn to Amendment No. 183. We have currently cast t he definition of "key" for the purposes of this part of the Bill in what we hope are clear and workable terms. A key which may be required to be disclosed is one—this is the crucial point—which allows access to the electronic data in question, or facilitates putting the electronic data into intelligible form.
This is the whole purpose of the Part III power. We believe that the current definition is clear. We are not convinced that the suggested amendment adds anything to it. We have already discussed the issue of electronic signature keys. We do not believe that the inclusion of limb (b) in Amendment No. 183 is appropriate here. It seems to try to include in the definition of a key something that is more appropriate for the definition of a signature. In as far as the only need to mention signatures in this Bill is to exclude them from what can be accessed as keys, it would be distinctly unhelpful specifically to include these signatures in the definition of keys in the first place only to exclude them later.
1032 We have difficulties with the first limb of the amendment. What is described in the first limb seems to be an encryption key. What is relevant to this legislation is a decryption key. This is a significant difference which I am sure noble Lords will appreciate. I take it that Amendment No. 186 must be consequential to Amendment No. 181 and provides a definition of "authority" as regards an electronic signature. I have already explained why we do not believe that the proposed addition of a reference to "authority" is appropriate. It follows that this proposed definition is unnecessary. While the amendments have sought to be constructive we do not believe that they add anything to the legislation.
§ Lord McNally
I thank the Minister for co-operating in my re-ordering of the Marshalled List. I promise not to tell the noble Lord, Lord Williams of Elvel, that he has done that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 181 not moved.]
Lord Lucas moved Amendment No. 182:
Page 55, line 38, leave out from ("means") to end of line 40 and insert ("anything (including any key, code, password, algorithm or other data) the use of which, with or without any other thing").
§ The noble Lord said: Amendment No. 182 merely seeks to broaden the definition of "key" and supposes that the "key" is a key as we ordinarily understand that, or at least such a key is part of the "key". We seem to have a definition in the Bill whereby if you have some kind of physical lock on information, as well as a password lock, you are home free. That seems to me unsatisfactory. I beg to move.
§ Lord Bassam of Brighton
I believe that I have already used the word "perceptive" in regard to amendments moved by the noble Lord. This is a perceptive amendment. However, it has the consequence—I do not know whether this is intended—of widening the definition of "key". I should be interested to know whether that is the noble Lord's intention. The query really is whether the definition we have for "key" in Clause 52(1) is future-proof.
As with the rest of the Bill, we have sought to ensure that the definitions included in it are future-proofed as far as possible without making them too loose or unworkable. The definition of "key" here is probably a case in point.
I am attracted to the suggestion of the noble Lord, Lord Lucas. We have given it a good deal of consideration. However, the use of the word "thing" may be casting the definition of a key too widely. I quite like things being called things.
In drawing up these proposals we considered the issue of what might happen in the future in terms of devices used to access data—something like biometrics or electronic fingerprinting are perhaps good examples. Even these devices will ultimately be reduced to data before they can have their intended effect. The Part III power is about being required to 1033 hand over something—for example, a key or a password—which allows access to particular data or puts it into what we would accept is an intelligible means or form. We have included a reference to data in the definition of key in Clause 52(1). That is as far as we feel we can legitimately go. I appreciate the helpful way in which the noble Lord moved the amendment. However, I hope that with my explanation he will feel able to withdraw it.
§ Lord Lucas
I should be grateful, not now but in correspondence, if the Minister could point me to a definition of data in the context of legislation which is as wide as he seems to presume it is. Suppose one thinks of a system which is a fingerprint recognition system which does not reduce the "thing" to a digital pattern but which relies on some kind of analogue matching system, so that actually the "thing" is never reduced to data. It merely produces the answer, yes. It is very hard to describe "fingerprint" as "data" if it is never reduced to data. I suppose one might embrace it in the term "information" if one was prepared to use the philosophic version of that. I am not aware that that has been incorporated or understood in legislation. I should like to understand the basis for what the Minister is saying. The noble Lord is quite right. I am seeking to widen this to the point where we do not just think in terms of how it happens to be done at the moment—at the beginnings of cryptography—but use something other than an essentially digital password as protection. I should like the reassurance that the word "data" covers that.
§ 11.15 p.m.
§ Lord Bassam of Brighton
I am always happy to correspond, as the noble Lord, Lord Lucas, knows. The fingerprint is an interesting example. When does the fingerprint become data? Does it become data when it is stored? I shall be happy to pursue the point further. No doubt we can pick that up with some of the other issues we shall be putting down on paper.
§ [Amendment No. 183 not moved.]
Lord Bach moved Amendments Nos. 183A to 183C:
Page 56, line 12, leave out subsection (2).
Page 56, line 16, leave out ("protected information") and insert ("information (including a key to protected information)").
Page 56, line 19, after ("concerned;") insert—
("( ) to his having an immediate right of access to it, or an immediate right to have it transmitted or otherwise supplied to him.").
§ The noble Lord said: These amendments were spoken to with Amendment No. 139A. I beg to move.
§ On Question, amendments agreed to.
§ [Amendment No. 184 not moved.]
Lord Lucas moved Amendment No. 185:
Page 56, line 34, leave out sub-paragraph (iii).
The noble Lord said: Amendment No. 185 seeks to leave out sub-paragraph (iii) of Clause 52(5). I cannot see what,
whether it is intended to have a legal effect",
has to do with authenticity. Authenticity is quite well-defined by sub-paragraphs (i) and (ii). If those conditions are satisfied, I am happy that the communication is authentic. Why should legal effect have anything to do with it at all? I beg to move.
§ Lord Bassam of Brighton
I believe that the noble Lord, Lord Lucas, thinks that this is irrelevant to the question of authenticity. The definition contained in Clause 52(5), to which this amendment refers, is exactly the same as that set down in Section 15(2) of the Electronic Communications Act 2000.
I believe that we should engineer as much consistency as possible between these two statutes. I have explained why this definition appears in the Electronic Communications Act. In that legislation we were concerned to ensure that electronic signatures had "legal effect" only where that was intended. Having felt the need to make such a clarification in that Act, we decided that it would be confusing not to replicate it in the legislation before us. I hope that it is clear to the noble Lord that we are seeking consistency here.
§ Lord Lucas
I understand entirely what the Minister has said. I shall have to do a little more homework to check that the two measures are truly consistent. I have happy memories of taking a Bill on construction through this House where, for the sake of consistency, a definition of construction was taken from the Taxes Act. Sometimes these matters can be taken a little too far. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 186 not moved.]
§ Clause 52, as amended, agreed to.
§ Clause 53 [Interception of Communications Commissioner]:
Lord Lucas moved Amendment No. 187:
Page 57, line 3, leave out paragraph (a).
§ The noble Lord said: Matters are now moving a little too quickly for me. I find myself hoisted by my own petard here while I try to catch up with the intention behind this amendment.
§ The Minister will recall a letter that I received from him, to which I have referred on previous occasions, which examined the extent to which the activities of the Secretary of State were subject to review. It was pointed out that Clauses 12 to 19 were free of such review. We dwelt on that point while moving through our detailed examination of those clauses. The noble Lord said that he would consider again whether in fact that was right; namely, that some of those activities should be free of supervision.
§ Amendment No. 187 merely provides an opportunity to call attention to that absence. Amendment No. 188, tabled in the name of my noble 1035 friend, does this rather better and replaces the clauses. Amendment No. 189 is a similar attempt to look at the spread of powers of the commissioner. I beg to move.
§ The Deputy Chairman of Committees (Lord Dean of Harptree)
If this amendment is agreed to, I shall not be able to call Amendment No. 188.
§ Lord Cope of Berkeley
Amendment No. 188 tabled in my name seeks to extend the duties of the interception of communications commissioner to cover Clauses 14 and 15 of the Bill as well as those with which he is already charged. The clauses detail the safeguards governing the restrictions on the use of intercepted material. It seemed to me that it would be helpful if the commissioner had an oversight of those matters so as to reassure those who are, as it were, at the receiving end of these provisions.
§ Lord Bach
Amendments Nos. 187, 188 and 189 seek to add to the role of the interception of communications commissioner. During our discussion last week on Clause 15, I undertook to consider the position of the interception of communications commissioner in relation to that clause. We have done that and I can say to the noble Lord, Lord Cope of Berkeley, that Amendment No. 188 is not necessary.
Perhaps I may deal first with Amendment No. 188. Its ambition is simply to add Clauses 14 and 15 to the elements of Part I of the Bill which are to be overseen by the interception of communications commissioner. Noble Lords will see from subsection (2)(d)(i) of Clause 53 on page 57 that the duties of the Secretary of State under Clause 14 already fall to be overseen by the interception of communications commissioner. It is also the case that Clause 15 merely elaborates on the duties that are to be undertaken in order to ensure that the duty under Clause 14 is properly discharged. The effect is that the interception of communications commissioner already has, under the Bill as drafted, a role in the oversight of the very important regime under Clauses 14 and 15 of the Bill. I hope that the noble Lord finds that reassuring.
The ambition of Amendments Nos. 187 and 189 in the name of the noble Lord, Lord Lucas, is rather greater. These amendments seek to ensure that the entirety of Part I of the Bill is reviewed by the commissioner. I have answered the question in relation to Clauses 14 and 15—they are already under his auspices. I now move to those elements of the Bill which are not under the auspices of the commissioner and explain why that is not necessary.
There are not many clauses which are not under the interception of communications commissioner. The clauses in question are Clauses 12, 13, 16, 17, 18 and 19. No one will forget our previous detailed discussions of Clauses 12 and 13. Noble Lords opposite have impressed on us very firmly the need to offer further reassurance as to their operation. As we have indicated, the Government are seriously considering the regime under Clauses 12 and 13 and what extra reassurance can be offered. But we do not believe that there is a proper role for the interception 1036 commissioner in providing this reassurance. These assurances are about detailed technical issues and the costs involved.
Noble Lords opposite have suggested that a technical advisory board is the appropriate answer, at least in part. We accept that and continue to consider whether this board needs a statutory base. The vital and independent insight that is needed on the operation of Clauses 12 and 13 should come from industry and industry organisations. We do not see that the interception of communications commissioner can fulfil that role. In short, we Continue to search for ways of providing reassurance on the operation of Clauses 12 and 13 but we do not think that this is a role for the commissioner.
Turning to Clauses 16 and 17, during our debates last week, the noble and learned Lord, Lord Lloyd, prompted a fascinating discussion of those clauses which addressed important legal points. But the import of the clauses is that they set out rules that are to be followed by the prosecutor in each case, and sometimes by judges. As such, we believe that there is no requirement for further judicial oversight on the operation of those clauses.
That leaves Clauses 18 and 19. Clause 18 carries an offence of tipping off which will only ever be effected through the courts, so there is no need for oversight by the interception of communications commissioner. To put it another way, it makes no sense for offences to be overseen. That is what is required only in respect of functions conferred by the Bill. Clause 19 is merely about the interpretation of Chapter I, which similarly does not require oversight by the commissioner.
I have spelled out why the only elements which fall outside the oversight of the interception of communications commissioner should remain outside. Clauses 14 and 15 actually fall within it. I hope that my remarks are enough to satisfy Members of the Committee and that they will feel able to withdraw their amendments or not move them when they are reached.
§ Lord Cope of Berkeley
With respect to Amendment No. 188, I fully accept that Clause 14 is covered by the provisions in subsection (2)(d). But the wording is significantly different from that in subsection (2)(a). Subsection (2)(a) refers to a review being of the "exercise and performance" of the various matters, which is also the wording in paragraphs (b) and (c); whereas subsection (2)(d) merely states that the commissioner shall review "the adequacy of the arrangements" by which duties are sought to be discharged. It is a considerably lesser hurdle. As the arrangements we are talking about are the ones for certificated warrants, it is important that they should be properly supervised. Therefore, I hope that the Minister will reflect on his answer on that matter between now and Report.
§ Lord Lucas
I am so pleased by the news that Clause 12 is under active review that I am prepared to withdraw almost anything, and certainly this amendment. I beg leave to withdraw the amendment.
1037 Amendment, by leave, withdrawn.
§ [Amendments No. 188 and 189 not moved.]
§ 11.30 p.m.
Lord Phillips of Sudbury moved amendment No. 189A:
Page 57, leave out lines 36 and 37 and insert (", provide the Commissioner with such technical and other staff, equipment and other resources as may be requisite to enable him to carry out his functions").
§ The noble Lord said: The amendment is designed to try to ensure that the power and resources of the interception of communications commissioner are sufficient for him or her to do what is, on any reckoning, a massive job. The background is that the Bill represents a complex and vast legal superstructure necessary in order to control a burgeoning new industry, increasing in scale and scope day by day. Therefore, I do not think it is helpful to consider the power and resources of the commissioner against those currently at the behest of the existing interception commissioner.
§ We on these Benches feel that the duties of the commissioner under the clause are enormous. Basically, apart from the few clauses to which the noble Lord, Lord Bach, referred, he or she is the watchdog of the whole Bill. Unless there are fully adequate resources in all respects—people, machinery, equipment and so on—there is no chance that what we all so devoutly wish for will come about, namely, that the great powers and discretions under the Bill will be matched by commensurate safeguards. The motif of all these debates is concern about civil liberty issues above all others.
§ The commissioner's duties under subsection (2) go to the whole of the operation of the Bill, except for the few matters mentioned. It will be necessary for the commissioner to have oversight of the 10 categories of authority set out in Clause 6; of the eight categories of authority set out later in the Bill; and of the police forces, not just at chief constable level but at lower levels as will be authorised as the Bill comes into effect, where one is issuing direct surveillance authorisations and covert human intelligence authorisations. There are emergency warrants to consider, intrusive surveillance procedures to oversee. Every discussion on every amendment has pointed to the difficulty and complexity that that will involve.
§ I suppose that what the amendment is based upon is a doubt that in the event there will be sufficient resources available to the commissioner. Our governance is littered with individuals who have huge jobs to do with inadequate resources. I mentioned earlier the failure to deal at all with insider trading in the City, which is partly a function of lack of sufficient expertise and resources.
§ I am grateful to the noble Lord, Lord Bassam of Brighton, for responding as he did two days ago to a letter I wrote him on 13 June raising these concerns. He referred to the hope of a unified and investigative secretariat whose resources would be available to the 1038 interception commissioner. He also referred to the remarks of the noble and learned Lord, Lord Nolan, in the 1997 report of the commissioner. (I am glad to see the noble and learned Lord in his place.) However, those remarks were concerned with the extent to which it was believed that the Secretary of State dealt with warrants properly. This amendment is not concerned with the Secretary of State; it is way downstream of the Minister.
The noble Lord, Lord Bassam of Brighton, also said in his letter that,
Clause 54(l) imposes a duty on everyone involved in interception to disclose or provide to the Commissioner all such documents and information as he may require to carry out his functions. This means, for example, that expert technical staff in the agencies would be obliged, at the request of the Commissioner or his staff, to explain how any particular system worked".
I do not believe that that is remotely good enough. The commissioner will require his own bespoke staff and not be reliant upon calling in experts or staff from other agencies who may already be heavily involved in important work.
The Minister also said it was expected that the commissioner would have a staff of four:
one grade 7, one higher executive officer, one administrative officer and a personal secretary".
I do not believe that they will be remotely adequate to do the job thoroughly in a way that puts the fear of god into those with these great powers that, if they do not exercise them properly and with due diligence, they are likely to be caught out. Unless that happens the people of this country will not be satisfied with the powers provided under the Bill. I am sorry to detain the Committee at this time of night, but I believe that this is a very important point. I beg to move.
§ Lord Nolan
For one of Her Majesty's judges, I have been silent for what must be a record time. I rise to agree with the noble Lord, Lord Phillips of Sudbury. As I am sure the Minister accepts, this is a very important point. During the six years that I held the post of commissioner up until April of this year, year after year I was able to assure the public in my reports not only about the remarkable efficiency of the system but of its integrity. I was able to say, as I firmly believed, that the possibility of the system being abused by government or government agencies was remote, almost inconceivable. That was due to the very high quality of the individuals in the agencies, the government departments concerned—the Home Office, Foreign and Commonwealth Office, the Northern Ireland Office and Scottish Office (now the Scottish Executive—the Secretaries of State of this and the previous administration, who have been most conscientious, and the individual employees of the telephone companies and the GPO. They are very carefully picked and have proved themselves totally trustworthy in operating the system.
The integrity of the system is paramount and, as the noble Lord, Lord Phillips of Sudbury, said, will become of even greater importance under the enormously increased scope of the commissioner's job as provided for under the Bill. The burden on the 1039 commissioner has already greatly increased under the present system, as is well known to the Home Office and to Ministers.
When I sat as a judge full-time in this House I spent about six weeks a year simply on the work of the commissioner. I did not find it a terrible imposition, but it was a burden on my fellow Law Lords who had to work that much harder. I believe that that point must be addressed in future. In the past 18 months or so the work has taken me, on an annual basis, at least eight weeks. Clearly, given the increased responsibilities the staff available to the commissioner must be substantially increased. I know that a good deal of thought has been given to the matter, and I look forward to hearing in more detail precisely what stage the preparations have reached. Knowing how well the problem is understood, I hope also that the points raised have been anticipated. I shall take a close interest in the matter and will be prepared to raise it in this Chamber should the need arise. The crucial factor is that the public should be able to feel that the commissioner has the knowledge and resources to carry out his functions.
We may be reaching the position where it is beyond the scope of one man or woman even if he or she is a retired judge. It may become necessary to consider, as it has with the chief surveillance commissioner, the appointment of a deputy to work in harness with the interception of communications commissioner. I am prepared to wait with interest to see what is proposed. I trust that it will be—in line with what has already been said to me privately— adequate for the purpose. I look forward to hearing the Minister.
§ Lord Bach
The noble Lord, Lord Phillips of Sudbury, is very fortunate indeed in the support he has for the principle underlying the amendment. As we have all noted, the noble and learned Lord, Lord Nolan, has sat with incredible patience for hour after hour through the late afternoon, the early evening and into the small watches of the night before speaking. The fact that he has spoken on this issue shows how deeply he feels about it. The Government are very sympathetic, of course.
In responding to an earlier amendment, we indicated that we have great sympathy with the suggestion that there should be a facility in the order made under Clause 12 to require that any capability developed should provide the commissioner with the wherewithal to fulfil his duties in the face of rapid technological development. We shall return to that question on Report.
The noble Lord, Lord Phillips, referred to Clause 53(7). That is a helpful subsection. There is further reassurance in Clause 54(1), which imposes a duty on everyone involved in interception,to disclose or provide to the … Commissioner all such documents and information as he may require … to carry out his functions".That means, for example, that expert technical staff in the agencies would be obliged at the request of the commissioner or his staff to explain how any particular system worked and to show them the information stored on it.
1040 The practice of successive commissioners—as the Committee knows, the current commissioner is the very distinguished judge Lord Justice Swinton Thomas—has been to make regular visits to the intercepting agencies and to inspect the warrant-issuing units of the four central government departments. Indeed, the noble and learned Lord, Lord Nolan, noted in his report for the year 1995 that he had extended his study so as to include the safeguards operated by the public telecommunications operators.
It has always been government practice (whichever government are in power), as was said by the noble and learned Lord, to provide the commissioner and his staff with the necessary office accommodation and equipment to do their job properly and effectively. I assure the Committee that that practice will continue under the new regime.
I can confirm the contents of the letter that the noble Lord, Lord Phillips of Sudbury, received recently from my noble friend about the kind of thinking at the Home Office on how best to ensure that the interception commissioner has the support and staff necessary to carry out his new functions. The Government are thinking carefully about the best way to pursue that. I do not think that there should be any question about our motives. We agree entirely with both speakers about how important that is. It would be useful if the noble Lord withdrew his amendment today. It is not an issue that is dead.
§ Lord Phillips of Sudbury
I am grateful to the noble Lord. I shall withdraw the amendment. I am grateful for what the noble and learned Lord, Lord Nolan, said.
The Minister referred to Clause 53(7). At present, subsection (7) provides for such resources as the Secretary of State considers necessary, as opposed to the objective test of the amendment—that the commissioner would be provided with such resources as may be requisite. I hope that when the Government return to the issue they will agree with that.
§ Lord Phillips of Sudbury
I beg to differ and it may be that I shall have a discussion with the noble and learned Lord, Lord Nolan, afterwards and we will come banging on the noble Lord's door. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 agreed to.
§ Clause 54 [Co-operation with and reports by new Commissioner]:
§ [Amendments Nos. 189B to 189G not moved.]
§ Lord Lucas moved Amendment No. 190:1041
Page 58, line 42, at end insert ("seriously").
§ The noble Lord said: My interest here is merely to raise the test which the Prime Minister has to set himself in deciding whether to cut parts out of the commissioner's report.
§ The action will not be subject to any oversight or supervision whatever. In fact no one will know it has happened, except the commissioner who will presumably keep "mum" about it. It is a decision for the Prime Minister to make himself, and I believe it would be helpful in that context if there were some wording to indicate that it is not a test of whether it might cause some slight damage here or there. Either it is phrased in the way I have suggested, that it is serious, or we include a phrase such as "balance" to indicate that taking parts out of the report is only to be embarked upon when the consequences would be notably bad for any of the causes mentioned in that part of the Bill and that it should not be done lightly or at a whim. I am sure it would not be, but I believe that the wording of the Bill should reflect what we hope should happen. I beg to move.
§ Lord Nolan
In my experience there has never been any difference between the commissioner and the Prime Minister, or a previous Prime Minister, as to what should or should not stay in.
The matters which have been omitted are matters which really could not be disclosed without great prejudice to national security or for the other purposes of the Bill. That may not be an answer to the point raised by the noble Lord, Lord Lucas, but, for what it is worth, my experience would not lead me to regard it as essential.
§ Lord Bach
I may be fortunate enough to have an ally in the noble and learned Lord, Lord Nolan, in what I am about to say. Amendment No. 190 proposed by the noble Lord, Lord Lucas, would require that material only be excluded from any annual report where it was seriously prejudicial to national security or one of the other grounds as set out in paragraphs (a) to (d).
The Government believe it is difficult to place a specific meaning on the term "seriously" in that context. For example, if the term means "a lot" or "a great deal" it would mean that information which is damaging to a lesser extent, for example, some lesser prejudice, must be disclosed with no need to show that the public interest requires that such damage be caused. We do not believe that that would lead to a proper balance. It would mean that information damaging, for example, to the prevention or detection of serious crime would have to be published. Finally, we must not forget that the interception commissioner must be consulted on the exclusion of any matter from the annual report as laid before each House of Parliament. I hope that the noble Lord, Lord Lucas, is somewhat reassured by that explanation.
§ Lord Lucas
I am certainly reassured; I would expect nothing to happen other than what the noble and 1042 learned Lord, Lord Nolan, indicated has happened in the past. The Minister used the word "balance", but, as yet, there is no requirement for balance in this part of the Bill. Perhaps we should examine that issue at Report stage. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 54 agreed to.
Lord Bach moved Amendments Nos. 190A and 190B:
After Clause 54, insert the following new clause—