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7.45 pm

It is critical that we should have an equal assurance on the question of the Schengen acquis to the one we have had on the European arrest warrant and on all decisions that may be made under the third pillar beyond June 2002. If we can rest easy on that point, we will have achieved a major improvement in British law from the position we faced on Second Reading. I hope that we will also be able to achieve such improvement in relation to the disclosure provisions. I do not want to have been part of a Parliament that brought about a situation in which a British policeman had the capacity to obtain every record on an individual because of a traffic offence that could have been committed in Baltimore, Ohio. That would not be tolerable and we need to change it. If the Home Secretary finds a way to change that, we will accept it.

Norman Baker: I, too, welcome the Home Secretary's constructive comments and the approach that the Government have taken to the Bill in the past 48 hours. It is welcome that he wishes to find common ground and we and, I believe, the Conservatives share that aspiration. The Home Secretary said that he has tried to be helpful and I hope that he will feel that we are also trying.

The Government are entitled to respond to the international situation and to introduce legislation to deal with unexpected and emergency threats from terrorism. That is common ground. If the Home Secretary can achieve a Bill that will do that, he will have the support of the House and the country. The dispute, as the hon. Member for West Dorset (Mr. Letwin) pointed out, is on a relatively small area of the Bill. The question is whether in the legitimate and correct pursuit of legislation to deal with terrorism it is appropriate to include provisions that would effectively give a green light to excessive state interference in the lives of ordinary citizens. Seeking to suspend some of them is an odd way in which to seek to protect our civil liberties. I ask the Home Secretary to reflect on that paradox. The drugs taken to cure an illness sometimes cause complications worse than the original illness. Reactions must be proportionate—and the Home Secretary used that word himself tonight.

I share with my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) and the hon. Member for West Dorset a failure to understand why the Home Secretary is determined to introduce measures that do not deal with terrorism or the threat to national security directly or indirectly—which is a wide target—but would address any criminal activity. For example, clause 102 states that the code of practice could contain provision

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It does not refer to terrorism or threats to national security, or even to serious crime, which might deal with people who smuggle cigarettes.

Mr. Blunkett: I have two questions for the hon. Gentleman. Have we not now agreed to the code being made on an affirmative order so that it can be examined automatically by both Houses? Secondly, have we not tried to show that data cannot be held—held, rather than just exposed—on the presumption of the holders that they can distinguish whether it will be required for terrorism or for crime? The provision is as broad as it is because the data have to be accessed when there is a suspicion of terrorism. If the data were not held, access would not be possible.

Norman Baker: We welcome the Home Secretary's approach with regard to the affirmative order, as I hope I made clear earlier. However, in respect of the right hon. Gentleman's second question, the Bill states that part of its purpose is the detection of crime. The use of the word "purpose" has wide connotations.

I thought that the Bill's purpose was to deal with the terrorist threat, not the threat of crime. That is the difference that divides Government and Opposition Members. The Government want to reverse amendments made in the Lords, but there are serious worries that the Bill would place us in contravention of article 8 of the European convention because of the range of offences covered and the lack of statutory criteria to guide decisions. Another problem is the lack of procedural safeguards.

The Home Secretary mentioned the proportionality test. It was a helpful suggestion, and shows that he recognises that proportionality has to apply in these matters. However, the human rights legislation already contains the necessary proportionality, so with the best will in the world, I cannot believe that the Home Secretary is adding much to the existing arrangements. At best, he is spelling them out.

It has already been said that the Lords amendments are quite wide ranging. Amendment No. 6 states that the information

In an intervention, my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) asked what reason there might be for taking advantage of the measures that the Home Secretary wants in the Bill if there is no suspicion.

Mr. Michael Weir (Angus): I am confused by the argument about disclosure. If there is no question of suspicion of terrorism, what is the trigger for disclosure of information? If organisations and people properly investigating terrorism act on the precautionary principle, might not they be unnecessarily swamped by disclosures if the trigger is not inserted in the Bill?

Norman Baker: I absolutely agree. The Home Secretary should be seeking a rapier, but he appears to want a blunderbuss. That may lead to the intelligence services being swamped, and require them to undertake

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inquiries with police forces that will detract from their proper work of dealing with terrorism. The proposal may therefore be counterproductive and ineffective.

Last week, the Home Secretary challenged the police service to improve its performance and raise detection rates. The worry is that the police, in looking for every means to do that and ensure that criminals are brought to justice, will be tempted to fish for information from various authorities if they do not have enough evidence otherwise. No hon. Member would support such fishing expeditions. Moreover, there is a possibility that other authorities, including the security services, will be asked for data without much justification.

Simon Hughes: Last year, when we debated the Bill that became the Terrorism Act 2000, we agreed to give the authorities much wider powers than normal to deal with serious activity. Many people outside the House are worried that it would be unhelpful and invasive of citizens' liberty to equate serious crime that is terrorism- linked with the motoring offences referred to by the hon. Member for West Dorset (Mr. Letwin), or with sex offences or public drunkenness. All such matters are subsumed under one head, but does my hon. Friend not agree that they should be distinguished one from another and placed into categories such as "serious", "terrorist-related", and so on?

Norman Baker: My hon. Friend is right. Everyone wants to deal with the threat of terrorism. People are prepared to accept that that may require measures whose impact on civil liberties is in excess of what we would normally condone, but they are not prepared to accept measures which go far further and which might impact on people with no connection with terrorism whatever.

The Home Secretary must find a way to ensure that people who need to be apprehended and prevented from carrying out acts of terrorism or from posing a threat to national security are dealt with effectively. However, he must do so without infringing those civil liberties that the House is seeking to defend by introducing the Bill in the first place. I do not think that the Home Secretary has got that balance right yet.

Mr. Allan: I am very interested in my hon. Friend's argument, but the question of workability was raised earlier and it is important. Does my hon. Friend share the concerns about clause 102 that have been raised by communication service providers? They fear that the Government will end up with legislation that will be unworkable for the security forces, as it would require very close co-operation between technicians and Government in dealing with large amounts of data. Under the present proposals, that co-operative spirit does not exist.

Norman Baker: The Government have proposed a code of practice and changed the terminology used in the Bill. It is sensible to produce a draft code of practice in advance, and I give the Home Secretary credit for that. However, it is worth noting the many objections expressed by the communications industry, and the Confederation of British Industry. The CBI is normally the Government's best friend, but it objects to some parts of the Bill. It is unusual to receive representations from the CBI in connection with a Home Office Bill, so it is

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clear that the matter is one for business as well as for the civil liberties groups that have contacted us at great length.

The worry is that, without any suggestion that national security or terrorism is involved, almost anyone suspected of any activity can trigger the type of investigations involving data sharing that more properly relate to national security and terrorism.

The Parliamentary Under-Secretary of State for the Home Department (Beverley Hughes): I am listening to the hon. Gentleman carefully, but will he confirm that he realises that we are talking not about the power to access information, but about clarifying the legal position of the communication service providers in retaining data? As for workability from the point of view of the communication service providers, will the hon. Gentleman explain how the link with national security will work to help those providers decide to retain certain data? How will they distinguish data that might be shown to be linked to a national security inquiry, and other data that might be shown not to be so linked?

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