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Viscount Astor: The Minister referred to the mutual legal convention and regimes in member states. Is he referring only to the EU or outside?

The Earl of Northesk: I am not sure that I have the correct place in the Bill, but I note that the Bill applies itself to the British Islands. Part of the explanation from the Minister thus far on the amendment is that the UK is obliged in this area because it has signed up to a mutual assistance agreement. As I understand the matter, the Isle of Man is not actually a signatory to the EU treaties, so can the Minister confirm that both the Isle of Man and the Channel Islands have been appropriately consulted about the content of the Bill? That is to say, is the constitutional position sound and secure? In asking this question, I should perhaps declare my interest as possessing a number of interests on the Isle of Man.

Lord Bach: There were a number of interventions then. All of them were equally helpful, if not all equally easy to answer. Regarding the double-lock point, as I understand it, the target of the interception, the alleged wrong-doer, will be protected by the practical domestic laws of both the member state—be it the United Kingdom making a request— and the member state in which the target is present. If one of those systems of law—and of course it is not the one in the United Kingdom, and, I venture to suggest, it is unlikely to be the one in the EU—was corrupted in the sense the noble Lord refers to, the double-lock would come into play and the rights of the target would be protected by our law. I do not know if that answers the question the noble Lord posed.

Lord Phillips of Sudbury: I hesitate to interrupt again. However, I am grateful for the invitation to do so. I was trying to get beneath the skin of the law as to how it was implemented in practice. How, for example, if the foreign country was making a request here for an intercept, would we have regard to the practical expression of that requesting country's laws, which might, as I say, be far less than we would wish in terms of compliance with their own legal system, let alone ours?

Lord Bach: I am sure we would have regard to it. I think that this issue may come up later on in our discussions and perhaps I may return to it then. The answer regarding the convention is that it is an EU convention. So far as the Isle of Man and the Channel Islands are concerned, the Bill does not extend to them, although they have been consulted regarding its contents.

Perhaps I may finish off what I was saying about the draft convention. The convention itself will only actually enter into force when eight member states have ratified it. That may take another two or three years. We have signed up to the draft convention.

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The Parliamentary scrutiny committees have been sent all formal texts of the draft convention and have recently cleared the latest text of the interception provisions from scrutiny. I have given quite a long answer to the noble Viscount, Lord Astor, because he wanted, quite rightly, to know more about the draft convention that we are signed up to.

Viscount Astor: I am extremely grateful for the explanation of the Minister. It poses a number of questions. The first point is that he said this is purely an EU matter and it is dependent upon eight countries signing up. If anyone reads Clause 6(j) it is not clear that this is just an EU matter. It merely talks about "any international mutual assistance agreement". I find that misleading, which of course was the reason why I asked the question. Perhaps the Minister, between now and Report stage, may like to consider whether there might be some wording which might make it more explicit that this is not something that relates to the EU but something wider. It then begs the question whether under the existing legislation the Government can add other countries that are not in the EU. For example, one would think that the USA is a natural home for some form of international agreement, because after all the USA is at the leading edge, the cutting edge, of technology, and whatever is invented in this form of technology is usually invented there.

Therefore it would be very helpful if the Minister could say whether, if the United States is not included under the present wording, there is any intention to carry out any form of negotiation with the USA on this, so that there could be some sort of mutual assistance agreement, to use the Minister's words?

It seems to me it would be very helpful if the Minister could put it in the context of "we have heard how this relates to the EU, but how is it going to relate to other non-EU countries? Can they be covered by the wording in Clause 6(j) as it is now worded?" Is it, on the other hand, merely intended to refer to EU countries? If so, perhaps we could improve on the drafting. If it is intended that this could be expanded to non-EU countries, it would be very helpful if the Government could say how they would propose to deal with it. After all, the United States of America is just one example. I think it would be enormously helpful to the Committee if the Minister were able to give some answers to those questions.

Viscount Goschen: Before the noble Lord, Lord McNally, or the noble Lord, Lord Phillips, tell the Committee how they intend to proceed with their amendments, I should like to ask the Minister one very straightforward question for elucidation. I am sure there is an equally straightforward answer, probably involving precedents or other legislation. Referring to Amendment No. 40, in Clause 6(2) there is a list of people who are permitted to provide the application. Could I just ask why the Commissioner of Police of the Metropolis, the Chief Constable of the Royal Ulster Constabulary or the chief constable of any police force maintained under or by virtue of Section 1 of the Police

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(Scotland) Act 1967 are shown there, but not other chief constables within the United Kingdom? It would be helpful to know the answer.

Lord Lucas: Might I ask the reverse question? What is the position going the other way? What rights have we, as a country, to extract this kind of information from other countries? As I understand it, we have a reciprocal arrangement with the European Union and in that case is it always on this Part I warrant-to-warrant basis, or could we find people who are after communications data under Chapter II, having a right to communications data that, say, I may have generated while on holiday in France? Is that something they could ask for and, if so, would they get it on a similar basis as applies in the United Kingdom or would they have to apply for a French ministerial warrant to get it?

The Earl of Northesk: I hope the noble Lord the Minister will permit me to come back on the Isle of Man and Channel Islands point. Clause 5(5) states categorically that,


    "A warrant shall not be considered necessary on the ground falling within subsection (3)(c) unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British islands".

I am happy with that drafting, but my understanding is that the Interpretation Act defines the British Islands as Crown dependencies. To a very major extent the Bill does impact upon the Crown dependencies, i.e. the Isle of Man and the Channel Islands.

Lord Bach: Before the noble Lord, Lord McNally, speaks, perhaps I could deal with several issues that have arisen. The noble Viscount, Lord Astor, asked about the European context. The Bill says,


    "for the purpose of any international mutual assistance agreement".

So it obviously does not include just the convention that we have signed up to. Your Lordships will remember my earlier reply that in the event of the Government wishing to extend the regulations under this clause in future to cover non-EU countries, we would look very carefully at their interception regimes to ensure that they are consistent with ECHR principles, before introducing any regulations.

In answer to the noble Viscount, Lord Goschen, the chief constables of other forces in England and Wales are not mentioned because all England and Wales interceptions, apart from those of the Metropolitan Police, are through the National Criminal Intelligence Service—a national body covered by the clause. Special Branch is covered through the Metropolitan Police and the Scottish police through the Scottish Office.

9.30 p.m.

Lord Cope of Berkeley: I apologise for interrupting the noble Lord, but it is not the Scottish Office that

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covers Scottish police but the chief constables of Scottish constabularies, who differ from the chief constables of England and Wales.

Lord Bach: I will return to the noble Lord's point.

As to the concern expressed by the noble Earl, Lord Northesk, the Bill does impact on the Crown dependencies, in the sense that it gives them special protection and treats them like the UK in that respect—but it does not apply as a matter of Manx law. That is the best I can do for the noble Earl tonight.

I referred earlier to the Scottish Office but the reference should have been to Scottish Ministers in the devolved government. No doubt it is through Scottish Ministers that the matter reaches the chief constables to which the clause refers—not the Scottish Office in London but Scottish Ministers in Edinburgh.


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