§ 8.2 p.m.
§ Lord Rooker rose to move, That the draft order laid before the House on 17th October be approved [6th Report from the Joint Committee].
§ The noble Lord said: My Lords, I lay before the House the order under Section 13 of the Regulation of Investigatory Powers Act 2000 which requires 749 affirmative approval. The technical advisory board's function is to act as an appeals body should a communication service provider believe it is being asked to make unreasonable efforts to maintain an interception capability, and to act as a point of consultation on the order under Section 12 which in due course will define the scope of this capability.
§ The creation of the technical advisory board was supported by the Opposition parties during the passage through Parliament of the Regulation of Investigatory Powers Act. Therefore, I hope that I do not need to explain it in further detail, other than to say that the technical advisory board will be an advisory non-departmental body. It will be run in accordance with the Cabinet Office guidelines while the recruitment of members will follow the Commission for Public Appointments' code of practice. Our intention is to recruit the chair first, so that he or she can then assist with the selection of the members.
§ This instrument is compatible with the ECHR. It is a straightforward order which gives effect to the will of Parliament. I commend the order to the House.
§ Moved, That the draft order laid before the House on 17th October be approved [6th Report from the Joint Committee]—( Lord Rooker.)
§ Lord Dixon-SmithMy Lords, I hope that the Minister will forgive me if I ask one or two technical questions. This matter is relatively straightforward in some ways. The European Council Directive 98/34/ EC, amended by Directive 98/48/EC, creates an obligation on member states to notify draft technical regulations relating to manufactured products, agricultural products and information society services to the European Community before national adoption.
The technical question is whether that has been done. It may seem that the creation of a technical advisory board is not something that the European Community would be in the least concerned about. I have some sympathy with that position. The difficulty is that the European Council directive does not specify what should and what should not be included. We are stepping on to dangerously thin ice if we begin to decide to comply with these directives in some matters which we think are relevant and in other matters which we think are not. So I believe that that is a proper question to ask.
It would also be interesting to know how the law enforcement membership of the board will be selected, and, more significantly, how the communications industry members will be selected. That is relevant information to which this House should be entitled.
There have been wildly differing estimates of what the directive will cost the industry as it is implemented. Does the Minister have any further information on whether the Government's estimates of costs of the order of £20 million are correct or whether the industry's estimates—I entirely agree that industry tends to overestimate costs in these circumstances—are more realistic?
750 The final point is that the EU is moving slowly towards greater privacy and protection of individuals and what they say and do to each other. One wonders whether the powers that this advisory board is directed to controlling, which involve a greater intrusion into the privacy of communication, are consistent with the spirit of EU law as it is now developing.
§ Lord Phillips of SudburyMy Lords, it was interesting to hear the noble Lord, Lord Dixon-Smith, say that this is a straightforward matter. I seem to remember nights and nights of battling over this question. The good Lord Bassam, who sits next to the good Lord Rooker, is nodding his head. We must acknowledge a little gratitude to the Government for at last admitting that this was a necessary board It will have very important work to do.
I have two questions to add to those raised by the noble Lord, Lord Dixon-Smith. The first is whether the Minister can give any indication of the kind of person who will be looked for as chair of the technical advisory board. It will obviously he a very important position.
The second question is whether or not the Government have in mind, even now, to use the provisions of Section 13(2)(c) to appoint others to the board. That is a power which the Secretary of State retained. On these Benches we had in mind the possibility that there might be, in addition to the phalanxes of industry on the one hand and officialdom on the other, a representative of the independent technical world or the civil liberties world. This issue is thick with civil libertarian issues. They also come into play under the anti-terrorism Bill. Perhaps the Minister can give us some guidance on both those points.
§ Lord RookerMy Lords, this fantastic brief does not enable me to answer the first point of the noble Lord, Lord Dixon-Smith. He has me "bang to rights" on the EU.
With regard to the costs aspects, we stick to the £20 million that the noble Lord mentioned. We are considering policy options at the moment. Obviously, we have had much information from service providers and manufacturers.
During the passage of the anti-terrorism Bill, when this issue is relevant in terms of the data holding aspect, I shall ensure that I get the necessary answers on the cost.
Regarding the appointments, we propose that the technical advisory board should consist of six people able to represent the interests of industry, six people able to represent the interests of the intercepting agencies and a neutral chair.
As I have said, the appointments must conform with the usual conduct of selection set out by the Commission for Public Appointments, by which we shall abide. We wish to appoint the neutral chair first. It is likely that the identity of the chairman or chairwoman will be announced in response to a Parliamentary Question.
751 We are undecided about industry representatives. Some potential members have stated that they would be willing to participate only if their involvement is not made public. This is a sensitive issue and one that will require further examination.
I regret to say that I do not have the answers to the remainder of the questions that have been put to me. I shall write to both noble Lords as quickly as possible.
§ Lord Phillips of SudburyMy Lords, I do not wish to prolong discussion on the order, but I should like to ask the Minister one further question. When he responds to the question I put to him on the cost of provision of the mark one black boxes, perhaps he will add a paragraph covering the mark two black boxes. The industry is fast-moving and I understand that concerns have been expressed about the second generation black boxes and the Government's attitude as regards making a contribution towards the cost.
§ Lord RookerMy Lords, any further information that I can obtain that can be made available with regard to the points he has put to me will be included in my written response.
§ On Question, Motion agreed to.