HL Deb 18 July 2002 vol 637 cc1467-71

7.30 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)

rose to move, That the draft order laid before the House on 22nd May be approved [31st Report from the Joint Committee].

The noble Lord said: My Lords, this order has been made in exercise of the powers conferred on the Secretary of State by Section 12(1), (2) and (5) and Section 78(5) of the Regulation of Investigatory Powers Act 2000 (RIPA).

Part I of Chapter I of RIPA updates the previous law in the UK governing the interception of communications. It provides for and regulates powers to allow lawful interception of communications by law enforcement, security and intelligence agencies, consistent with the Human Rights Act 1998. It also creates a system of safeguards reflecting the requirements of Article 8 of the European Convention on Human Rights.

In the United Kingdom, interception is only conducted under warrants authorised personally by the Secretary of State and where it is deemed necessary in the interests of national security for the purpose of preventing or detecting serious crime, or for safeguarding the economic well-being of the UK.

In short, the order under the Act gives the Secretary of State the authority to require communications service providers, which could be a telephone company or a postal service, to put in place an infrastructure capable of intercepting communications when a warrant is issued with proper authority for them to do so. So the order is not about the actual interception, but the putting in place of an interception capability, as the title implies.

The schedule to the order lists those obligation which appear to the Secretary of State reasonable to impose on communications service providers for the purpose of securing the information required. The obligations under Part I provide for public postal services and public telecommunication services being required to respond.

There has been lengthy consultation on the order. Also RIPA established a Technical Advisory Board. As the House may well know, it is a non-departmental public body, with the right and the role to comment on draft orders or draft notices made under the Act and to give advice to the Secretary of State. If approved by the House, the order will take effect on 1st August 2002. The Secretary of State's power to impose the obligations in the order shall be exercised through a notice issued to specific communications service providers. So it is order, then notices and then—if the provision is in place—in future times, warrants to undertake interceptions.

The Government intend that a notice given to a CSP will, wherever possible, be the product of prior dialogue and agreement between the Government's representatives and the CSP in question. However, should a CSP consider that a notice given to it is unreasonable, it is able to make reference to the Technical Advisory Board, as I indicated.

Clearly, there are issues of financial burdens imposed on CSPs in setting up such an infrastructure or responding to specific warrants. Therefore, the Act imposed a requirement on the Secretary of State to make fair contribution to the costs incurred as a consequence of those obligations. For example, last year alone, CSPs received some £14 million from the Government. But there is under way a fuller consultation process with the industry about trying to develop the costing regime and the compensation framework to compensate for it.

Without more ado, I commend the order to the House. I beg to move.

Moved, That the draft order laid before the House on 22nd May be approved [31st Report front the Joint Committee].—(Lord Filkin.)

Baroness Seccombe

My Lords, I thank the Minister for his explanation of the order. Although some of the orders which follow on from the passage of the Regulation of Investigatory Powers Act are controversial, we accept that this is not one of them. As my honourable friend Dominic Grieve made clear in another place, we believe that the draft order's objective is eminently sensible.

RIPA contains a provision that places an obligation on service providers and the draft order defines it. It does not go to the issue of what should be intercepted, but it shows how the matter should be intercepted. We are satisfied that the draft order is acceptable to the public service providers themselves.

My honourable friend pointed out that it would be desirable for Parliament to be kept informed about the continuing discussions about what will be defined as a fair contribution to costs incurred by public telecommunications services as a consequence of the order. There should be a contribution to their costs. After all, their job is not to intercept people's communications. That work is only done at the Government's specific request.

In his response, the Minister in another place stated that it was reasonable to ensure that during the discussions the Government are transparent with Parliament. He undertook to find mechanisms for so doing. Will the Minister give that same assurance tonight and therefore assure this House that noble lords will also he kept fully informed on these matters? With that one mild reservation, we recognise that this order should be welcomed as it is a good step to resolving satisfactorily the problem of how to undertake interception when it is needed.

Lord McNally

My Lords, it is funny how a tune, a smell or a taste can bring waves of nostalgia. When I picked up the Explanatory Note for this order and started to read it, suddenly I was wafted back two years to nights of pleasures that the noble Lord, Lord Bassam, and myself had on the RIP Bill, as it then was. Suddenly, the nature of some of those debates came back.

Although, as the noble Baroness says, this is not about the practical operation of RIPA, it touches on two issues I remember well that we discussed in some detail during the passage of the Bill. The first, as she has rightly said, was that we wanted assurances at the time—indeed, it was a concession won in this House—that the CSPs, the communications service providers, would not be unfairly burdened by cost in carrying out an operation which was in the national interests, in the fullest sense of that word. We welcomed the provision of £20 million over three years.

It is interesting, as the Minister said, that £14 million was spent last year. I wonder whether that was the impact of 11th September or whether operationally we have found that the cost is slightly more than was anticipated when the Bill was first passed. Some clarification would help.

The other item which was a direct result of pressure in this House was the setting up of the Technical Advisory Board. I remember there was some reluctance by the Government and their side of operations to have the board. It would be interesting to see how it is working in practice. It seems to have done a job in giving the order a clean bill of health. At the time there was doubt whether TAB would be robust or independently-minded enough to carry out its job as a kind of referee between the security services and the providers. There is a constant balance to be found between "want to know" and "need to know". At that time there was concern whether we would have unfair, onerous duties put on CSPs because of a voracious appetite by the security services for these facilities with the knock-on effect on costs and technology. So I hope that the TAB, which was established as a kind of referee, is working well. It would be interesting to know what is the assessment of that. Knowing the lobbying that I received during the passage of the Act, if it were not, I know that the Internet community would have been bombarding me with e-mails to tell me so. So I am taking silence as an indication that it is working well and that the balance of six government and six independent assessors is right. Has the Minister any comments about that?

That apart, like the noble Baroness, Lady Seccombe, we find the order entirely acceptable—the more so because it contains within it two of the concessions that the noble Lord, Lord Cope, and I won from the Government during those happy days spent two years ago with the noble Lord, Lord Bassam.

Lord Filkin

My Lords, I shall be pleased to pass those fond memories on to my noble friend, who will he delighted to receive them. I thank both Front Benches for their positive support and acknowledgement of the role played by this House in developing the Act. We are now experiencing some of the benefits of that. I agree that the issue of fair contributions to CSPs is important and am happy to repeat the undertaking given by my honourable friend in the other place.

With regard to costs, £14 million was indeed spent this year. I am scratching my head wondering why the sum spent appears to be so high in the current year. It certainly was not as the result of September 11th. Let me return to that in a moment. The £14 million was for on-going work with CPSs with existing capability. The £20 million is to establish a new capability, primarily for Internet interception. I hope that that makes it clear.

Lord McNally

My Lords, I am sure that it will be clear when I read Hansard.

But the core promise was that further negotiation with the CSPs continued. I think that £20 million was an amount plucked out of the air because none of us knew how it would work or what would be the pattern of demand. What both I and the noble Baroness want is an assurance that the House will be kept informed of the progress of negotiations with the CSPs and that the on-going pattern of expenditure is considered to be fair both by industry and by the Government.

Lord Filkin

My Lords, I agree. That was what I was confirming in short in my previous remark. I was touching in my introductory remarks on the fact that a working group was under way with the industry to try to identify a more sophisticated way to assess costs. In essence, that is to distinguish between the costs of establishing the infrastructure and the costs associated with responding to warrants. Those are essentially two drivers of costs: having in place the platforms or systems; and the frequency with which they are used. That work is on-going and, no doubt, at some stage, its results will be appropriately shared with any Members who are interested.

My further advice on expenditure is that the £14 million paid last year is likely to be the typical level. The £20 million may be additional. There is at least the potential for increased compensation through what is seen to be a fuller and more transparent formula.

I was also asked about the TAB. Of course, it is early days to assess it, but we hope that the silence on the personal computer of the noble Lord, Lord McNally, is a sign of it progressing well. We also hope that the balance of membership, including six from the law enforcement and security services and six from the industry, is a good one that places the existing dialogue and tensions into a forum in which people must at least explore and clarify the issues and then produce advice for the Home Secretary—which is, essentially, its route forward. No doubt, how that is working will be the subject of further debate.

On Question, Motion agreed to.