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Lord Cope of Berkeley: I apologise for interrupting the noble Lord again but Clause 5 states that the Secretary of State may issue a warrant. That might be the Secretary of State, Home Department or the Secretary of State for Scotland but the Secretary of State may issue warrants—not Scottish Ministers.

Lord Bach: It is not a question of who issues the warrant but who should apply for one.

Lord Cope of Berkeley: Yes. As far as concerns an application, that may be done in Scotland by the chief constable of any police force. An application cannot be made by the chief constables of an English or Welsh police force. They can only apply through NCIS. That is not quite what the noble Lord said.

Viscount Astor: To give the noble Lord the opportunity to receive further advice, I thank him for his helpful explanation about Clause 6(2)(j). He clearly said that it includes the European Union and any international mutual assistance agreement—and could be added to by regulation. I will not press the point now but it would be helpful to the Committee if the noble Lord would send me a written explanation of the regulations required to add new countries and how that mechanism will work.

Lord Bach: I have not quite finished my response because I have to tell the noble Lord, Lord Lucas, that I shall be writing to him in answer to his question.

Perhaps I may return—it is to be hoped, for the last time of asking—to the Scottish police; not the Leith police, but the Scottish police. The Scottish police forces apply to the Scottish Ministers by way of a devolution order made under the Scotland Act. The Secretary of State's powers go to Scottish Ministers. Therefore, the noble Lord, Lord Cope, is right: it is the

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Scottish police chiefs who make the application, but the decision is reached by Scottish Ministers in Edinburgh.

Lord Archer of Sandwell: Can my noble friend confirm that the reason for this is that there is no National Criminal Intelligence Service in Scotland?

Lord McNally: I wanted to intervene earlier in the debate because I wished to withdraw my amendment. I did not wish to do so for the spurious reason that I intended to bring it back later. It may be just the Minister's presentational skills, but what he said about the area that is at the centre of my amendment sounded to me to be rather reassuring.

We have heard much about the horrors of the Internet, but we should all welcome the fact that this will make it much more difficult for totalitarian states to keep their people in ignorance. It will also make it much more difficult for those concerned to run totalitarian regimes. But, alas, not all totalitarian regimes are unfriendly states. Therefore, the intention of my amendment was to ensure that we did not get into the habit of helping out friendly but, nevertheless, unacceptable regimes (in human rights terms) in controlling their legitimate dissidents.

I heard the Minister spell out the assurances made in the other place and the comments that he made tonight. That seems to me to be the Government's intention. I shall, of course, read the Hansard report carefully, but if what the Minister said was such a tightening assurance, I very gladly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Dean of Harptree): I should point out to the Committee that if Amendment No. 28 is agreed to, I cannot call Amendments Nos. 29 or 30.

Lord Cope of Berkeley moved Amendment No. 28:


    Page 6, line 27, leave out subsections (2) and (3).

The noble Lord said: It has been suggested that we should discuss Amendments Nos. 29, 30 and 31 with this amendment. Perhaps I may deal, first, with Amendment No. 31, which is extremely small. Again, this is another amateur effort of mine at parliamentary drafting. However, if Members of the Committee will refer to line 15 on page 7 of the Bill, they will see that it says that prison,


    "has the meaning given by subsection (8) of this section".

It promptly goes on in the next line to establish what prison means. It seems to me that line 15 is entirely unnecessary; indeed, it just clutters up the page. This is a small point but one which I thought was worth mentioning.

By comparison, Amendments Nos. 28 and 29 deal with a much more important point of principle. The former seeks to leave out subsections (2) and (3) of Clause 4 which provide for the Secretary of State to make regulations authorising legitimate business practice as far as concerns interception, and so on.

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It is extremely important that businesses should be able to do a certain amount of interception during the course of their normal and perfectly respectable business, as is suggested in paragraphs (a) and (b).

However, I am much less happy about the fact that this should be achieved by way of regulations, subject only to the negative procedure, which will be produced at some future date. I hope that the undertaking given by the Minister earlier—namely, to produce information on the codes of practice before the Report stage—might apply also to these regulations.

As I said, this Bill is quite damaging to business. These regulations are potentially extremely restrictive in terms of carrying on normal business. However, I feel sure that eventually the Secretary of State will provide some satisfactory regulations—at least, I hope that he will. We in this Chamber, and Parliament generally, will not have the opportunity to do much about that if they take the form only of negative resolutions. We can, of course, debate them, but we cannot amend them or do much to them. In practice, it is extremely difficult to tinker with any regulations which may be produced on that basis.

Amendment No. 28, which seeks to delete subsections (2) and (3) of Clause 4, is an attempt to persuade the Government to tell us what the regulations will contain and to produce them before we reach Report stage.

Amendment No. 29 seeks to delete "may" and insert "shall" to place a duty on the Secretary of State to produce regulations of the character we are describing. If he does not do so, businesses will not be able to indulge in the perfectly acceptable practice of keeping a record of transactions that employees and others are undertaking on their behalf and of other communications relating to their business. This is frequently done and is a perfectly legitimate and correct practice essential to business. The idea that the Secretary of State may, or may not, introduce regulations is quite wrong. He should introduce such regulations and, what is more, he should produce them before Report stage so that we can consider them. I shall not discuss Amendment No. 30 which stands in the names of Liberal Democrat Peers. I beg to move.

Lord Phillips of Sudbury: It may be appropriate for me to say now that Amendment No. 30, which stands in the names of the noble Lord, Lord McNally, the noble Baroness, Lady Harris, and myself, should be withdrawn. We wholly approve of what the noble Lord, Lord Cope of Berkeley, has said with regard to his amendments. I add only that the Delegated Powers Committee had some stringent things to say about the Bill, quite a bit of which concerned the extensive power retained to the Secretary of State under its measures to bring forward regulations. I shall confine my comments to that.

Lord Bassam of Brighton: Amendment No. 28 deals with the monitoring of corporate and government networks for business practice reasons. Without the

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regulations for which subsections (2) and (3) provide, such monitoring would become unlawful by virtue of Clause 1.

We can give an undertaking that a full draft of the regulations will be available before Report. I hope that that will help noble Lords' deliberations. As I have said before, over the next few months we shall wish to consult fully with all those who are likely to be affected by the Bill. I give an undertaking here and now that we shall carefully consider any responses to that consultation.

I understand entirely the concerns of the noble Lord, Lord Cope. The intention of his amendment is, quite rightly, to avoid any excessive regulation on business—we have no desire to impose excessive regulation on business—and that is an aim with which I entirely concur. However, I am not convinced at this stage that providing a blanket permission on the face of the Bill is the right way forward.

As we have already discussed at length today, interception is an intrusive tool. I think that we well understand that. We do not believe that it should be undertaken lightly in any circumstances. Article 8 of the European Convention on Human Rights lays down clear requirements that any interference with privacy must be in accordance with the law and be necessary in a democratic society. In other words, the law must set out the circumstances in which interception may take place with a reasonable degree of specificity. The regulations which the Bill permits the Secretary of State to make will achieve that.

We intend to consult widely with all parties with a view to making regulations which establish the general circumstances in which interception may legitimately take place for business practice reasons, but which do not contain so much detail that they tie up businesses with red tape. We have already received positive reactions to this initiative from industry, from Oftel and the DTI.

Turning to Amendment No. 29, if this amendment were agreed to, it would oblige the Secretary of State to make regulations under Clause 4. I am pleased to say that my colleague, the Minister of State at the Home Office, made a clear commitment during the Committee stage of this Bill in another place. He said:


    "Later this year, we shall consult widely with all parties likely to be affected, with a view to making regulations that establish the circumstances in which interception may legitimately take place for business practice reasons".

The Government are committed to ensuring that regulations are in place before Part I of the Bill commences. The Department of Trade and Industry will begin the consultation process on their content shortly. We do not believe that it would be acceptable to put businesses or the Government in a position whereby they will be completely prevented by law from monitoring their own communication networks in the way described in Clause 4. I hope that the noble Lord will understand that and feel able to withdraw his amendment.

I shall turn now to Amendment No. 30 and then make a brief reference to Amendment No. 31. As I understand it, Amendment No. 30 is consequential

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upon Amendment No. 2, which would have made a change to Clause 1(6) to require any person described by that subsection to carry out an interception in accordance with Clause 4 regulations. As I explained during our debate on that amendment, we do not believe that the requirements these amendments would impose upon the public at large would be either reasonable or realistic. I trust that on that basis the noble Lord will withdraw Amendment No. 30.

We can gratefully accept Amendment No. 31. No doubt the noble Lord has helped us to improve the quality of the legislation. I am very happy to say that we can accept Amendment No. 31. Progress has been made and we have come to something that we can all agree.

I hope that with those explanations, the noble Lord will feel able to withdraw his amendments.

9.45 p.m.

Lord Cope of Berkeley: First, may I express my deep gratitude to the Minister for accepting the most inconsequential amendment that I have moved or spoken to. It is extremely minor, but I am glad to have made a small contribution to the clarity of the drafting.

So far as concerns the more important Amendments Nos. 28 and 29, of course I am in favour of consultation about the detail of what the regulations should contain. I do not object to this being in regulations as opposed to being in the Bill. The Government made the point in their memorandum to the Select Committee on Deregulation that business practices change and it may be necessary to modify the regulations in this respect in the future.

The Minister said that the Government would begin consultation shortly; he also undertook that a draft would be ready for Report stage. It will help us to forecast the business of the House if the consultations are just beginning and will be completed in time for Report stage. I should perhaps emphasise that I was talking about seeing a draft of the regulations—not necessarily the absolutely final form—so that we know what we are talking about when we come to consider this clause again at Report stage.

The Minister also spoke of excessive regulation of business and his wish to avoid that. That would of course apply only if the regulations were unduly onerous in prescribing the business practices that would be permissible under the clause. I hope that they will not be too onerous. However, we shall be able to make a judgment on that when we see the draft regulations.

If I noted it correctly, the Minister also stated that, if amended, the clause would "commit" the Secretary of State to making regulations. It would not. It would only "permit" the Secretary of State to make regulations, which was the point behind Amendment No. 29. However, when he used that phrase, he did, in effect, accept Amendment No. 29, even if he did not say that he will do so in actuality, as he did with

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Amendment No. 31. Bearing in mind the progress that we have made, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 29 and 30 not moved.]


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