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Lord Phillips of Sudbury: If I may, I should like to address a few comments to Amendments Nos. 22 and 83, which have been dealt with by the noble Lord, Lord Bassam of Brighton. They really come back to what I was seeking to impress upon the Minister in talking earlier about Amendments Nos. 5, 9 and 11. It seems from these two amendments—I should be grateful if he would correct me if I am wrong—that it is the Government's intention that HTTP requests, which I understand are hypertext transfer protocol requests for individual pages from a web server or interrogation of search engines, along the lines I was referring to in connection with earlier amendments, are now to be considered as communications data matters and not as issues relating to content, which would bring into play Chapter I of Part I of this Bill.

I am sorry that this matter has to be put in such technical terms, but, if that is so, we would say that is a really massive breach of the privacy entitlement of citizens of this country, while well understanding that the ills—dialled–through frauds and the like—towards which these amendments are addressed are very serious matters which do indeed need to be contained by effective legislation.

I do not for a moment pretend that it is at all easy to strike the balance between, on the one hand, cutting out those sorts of ingenious fraud, and, on the other, not engaging in the sort of discretionary intervention in the facts pertaining to individual citizens in the way apparently permitted by these amendments, but I would be grateful if the Minister would confirm that these amendments would confine the two matters of the HTTP requests for individual pages from the web server and the interrogation of search engines to the lesser category of communications data.

7.15 p.m.

Viscount Goschen: Picking up on the points made by the noble Lord, Lord Phillips of Sudbury, and referring to the distinction which the Minister sought to draw between visiting a website and having address information and actually communicating with that website, could the Minister offer the Committee his views on whether the exchange of so-called cookies or pre-packaged information between a visitor to a website and the website itself would fall into the first or second category? There would seem to be something of a middle ground.

Lord Bassam of Brighton: I will try to find the answer to that one for the noble Viscount. His question is a very good one. I must say that this debate is very helpful because we are getting more and yet more pieces of technological verbiage. They grow by the hour. "Cookies" is one of them and HTTP is another one.

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To pick up the point made by the noble Lord, Lord Cope, regarding my explanation that there were no mentions of "communications data" in Chapter I, I think he will find that it is only in the reference to "related communications data". That is to be found in Clause 19.

Referring to the point made by the noble Lord, Lord Phillips of Sudbury, as we understand it, the term "interrogation of search engines" is a communication, and HTTP requests are also included in the term "communications data". I hope that clarifies the point. I would say to the noble Viscount, Lord Goschen, that I will write to him on the subject of cookies. We will try to sort out that very interesting point.

Lord Lucas: I apologise for prolonging the debate, but it seems to me that we must bear in mind that we are not seeking in any of our discussions to deny the Government access to this information. All we are discussing is under what conditions this information—to which, as I understand it, Uncle Tom Cobbley and all seem to be able to have access—requires a warrant. It appears that under Amendment No. 22, which is drafted to deal with a real and specific ill, it is quite likely that this Government have opened up to inspection by all sorts of people a whole wealth of information which was not otherwise intended to be open in this Bill. That seems a wrong-headed approach to the individual's rights and civil liberties. If such information is required, the Government can obtain it through a warrant. That may a little tiresome but can be done. The Government should suffer a little inconvenience in obtaining warrants to safeguard the civil liberties of the vast majority of people going about their ordinary business and messing about on the Web. They should not have their private affairs pried into by all sorts of government officials on their own recognizance.

The Government are getting the balance wrong. There is an ill to be dealt with but the Government do not seem to recognise that the consequences they are inviting far outweigh the benefits of not having to be troubled with obtaining warrants. One has always thought of the Labour party as having liberty somewhere at its heart. Surely there is a spark of that left in the Government and they recognise the damage they are doing adopting a cavalier disregard for individual liberty in order to pick off a small number of pestilential malefactors. That attitude should not be part of any government—let alone one made up of the Labour party.

Lord McNally: We are asked not to move Amendments Nos. 74 and 75. The Bill introduces more draconian concepts than any of the existing legislation that it is supposed to consolidate. I speak as a layman. I am sure that the parliamentary draftsmen are operating from the best of technical grounds but I worry when I read, at Clause 20(2):


    "Conduct to which this Chapter applies shall be lawful for all purposes if—


    (a) it is conduct in which any person is authorised or required to engage by an authorisation".

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Our amendments, which we will not press at this stage, are an attempt at some tightening. The Minister seems strangely impervious to the criticisms uttered by the noble Lord, Lord Lucas, in a rather robust way but felt in all parts of the Committee. The Government seem to be taking some very large sledgehammers to the nuts they want to crack—and we are not sure that in every case, those nuts require such a draconian approach.

Lord Bassam of Brighton: I take to heart the comments made by the noble Lords, Lord Lucas and McNally, but it is a question of balance. I cannot agree that the nuts we seek to crack are worthless. They are real problems. Looking at the history of the interception of communications, perhaps it has not been sufficiently regulated in the past. We are trying to achieve balanced regulation that protects the civil rights and liberties of the individual. I come from that stream of philosophy within the Labour party and have argued that course throughout my political life.

There is another side. We have to deal with evil and nuisance. The interception of communications that the Bill seeks to permit addresses precisely those matters. We need those powers to be effective. The narrowing sought by some amendments would undermine the important and powerful needs not just of the Intelligence Service but of the police and a range of other agencies. None of your Lordships would seek to render that activity beyond use or of little value. After considering the case for these powers and the controls and checks on them that the Bill contains, I am entirely convinced that we are getting into the right territory.

Throughout, we are informed by the Human Rights Act and its impact. That framework will serve us well and protect the individual's rights, freedoms and liberties. Sometimes one can see more conspiracies than exist—but we are right of think of them because they are the worst-case example. I invite noble Lords not to move the linked amendments. The spirit of getting the balance right is one we all share.

Lord Lucas: Before the amendment is put to the Committee, I want to point out that the Government already have the power they want in Amendment No. 22. It just requires a warrant.

On how many occasions in the past year—or whatever period for which the Minister has data—did the Government use, or might they have used, the powers in the amendment? If there were 1,000 or 10,000 occasions, it might be reasonable not to plague the Home Secretary with that number of warrants in future. But if such a warrant was issued only 20 or 30 times a year, a few extra interception warrants under Part I would be a small price to pay for not endangering the liberty of the citizens to look where they have wandered in their travels through the Web.

Given that a large part of the Web is composed of unsavoury if not illegal material, a substantial proportion of our citizens must visit such sites from time to time. I am sure that the Minister has never done such a thing. To place such data on public files and make them available to all sorts of people—as if every visit one made to a X-movie or an Ann Summers shop

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were recorded—would be entirely inappropriate. One might consider doing so in the case of a major evil but if such occurrences are relatively minor, the Committee should not think of passing Amendment No. 22.

Lord Bassam of Brighton: I respect the integrity with which the noble Lord posed his question but I do not have those data in my back pocket. I will see whether I can provide some useful information further to elucidate the matter. The noble Lord's request is not unreasonable on the face of it, so I shall reflect on his point.

As to whether I would wander into a website other than where I might want to be, I am not sure that I have the competence—but perhaps that is an admission too far. I will ascertain what information we have and whether we can reasonably disclose it.


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