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I believe I dealt quite fully with the points raised during the debate, as well as some of the issues. We understand the arguments that have been made. But the question upon which the Committee needs to focus is whether the industry wants it. The answer that we have received consistently on that question is, no. However, the industry does want a low-cost but flexible advisory body that is not statutorily based. That has been made very clear to us throughout our discussions. We are happy to continue with those discussions. We shall be happy to formulate the operations of the technical discussions, but industry does not think that it is essential, right or necessary for us to have a statutory technical advisory body. In view of that fact, I invite noble Lords who have tabled these specific amendments not to press them this afternoon. Clearly we can continue in our discussions with industry on such issues, but the latter has made its view crystal clear to us.
Lord Phillips of Sudbury: Before the Minister sits down, perhaps I may assist both him and the Committee by asking the following question regarding his final point on discussions over an advisory committee. If the advisory committee comes into existence, can the noble Lord say whether those discussions will be confined to generalisations or whether they will extend to specific cases where the Secretary of State was contemplating making an order under Clause 12? If those discussions were to extend to particular cases--in many ways that would be the most helpful role that an advisory committee might lend to a Minister--I suggest that legal problems may well arise as regards having a non-statutory body in that role.
Lord Bassam of Brighton: It would be unusual for that role to include discussions on specific cases. I think it would be possible for some more generalised discussion to take place on the application of the Secretary of State's powers. However, as regards specifics, I should be very wary of that because of the point made by the noble Lord. I should certainly want to take further advice.
Lord Lucas: The Minister mentioned Clause 21(7), so perhaps he can clarify a matter in that respect. Can he say whether that clause rules in or rules out an instruction by the Secretary of State that an ISP shall design its system so that it is convenient for tapping; in other words, so that it pushes its outflow, say, through one convenient tapping point? Alternatively, would that be prevented by this clause? What level of interference with the ordinary structure and operation of an ISP is ruled out by the clause?
As I said before, there are very few clauses in the Bill under which the Secretary of State's actions are not subject to any form of supervision. I have in mind in particular the point raised in the last two lines of Amendment No. 53. We are looking at an interception capability here that is essentially "unauditable". Once an interception capability is in place, there is no way that anyone can know what it has been used for unless some very strict controls are put in place. It seems to me important that the Secretary of State's activities in this area should be closely controlled. They are certainly as dangerous to public liberty as any of his other activities specified elsewhere in the Bill. I do not see why these two clauses have been left out of the ambit, say, of the interception and communications commissioner.
Lord Bassam of Brighton: Perhaps I may deal, first, with the noble Lord's second point. I take note of what he said. I shall reflect upon why that is the case and find out the answer. I am sure the noble Lord will understand that that is not a question to which I can immediately respond. As regards the noble Lord's point on Clause 21(7), my understanding is that this provision rules out such interference. I trust that that will assist him. As I said, I shall certainly reflect on the noble Lord's second point.
The next important comment that the Minister made was that the Internet service providers to whom he has been talking had been asking for voluntary arrangements rather than statutory arrangements along the lines suggested by this series of amendments. I do not doubt that the noble Lord correctly represented the discussions that have taken place. It is obvious that service providers and their organisations would in the first instance be looking for voluntary arrangements for a voluntary advisory board. However, I do not believe that they would necessarily be satisfied with that as time went on.
We all know what can happen with voluntary advisory boards; indeed, there are vast numbers of them in government advising the Government on all sorts of matters and many of them have very little authority. They are rather like people standing outside the windows of the Home Office shouting at the building: sometimes the windows are open and what they say appears to go in but sometimes it simply bounces back. In a matter of such importance--we all agree that this is of high importance--I do not have much confidence that voluntary arrangements of this kind would be satisfactory in the long run, given the speed of developments that applies to this sector. Therefore, a statutory board of the character suggested is much more desirable.
Amendment No. 50 is the "proportionality" amendment, if I may so describe it. The Minister seems to think that it would be impossible for the Home Office requirements under the clause to lead to black boxes being fitted. He finds it impossible to believe that such requirements could possibly be out of proportion to what they are intended to achieve. That is obviously wrong. The requirements for black boxes are quite capable of putting British ISPs out of business entirely, or almost entirely, by comparison with their foreign competitors. That would certainly be out of proportion. I do not suggest that that is what would happen, but the row would be enormous and the Government would have to back off at that stage. Therefore, it would be much better for them to do so now. It worries me that the Minister should think that there is nothing that the Home Office could do that would be out of proportion to this need.
There has been some discussion throughout the debate about adding representatives of the public to the board--a point made by the noble Lord, Lord Desai. I sympathise a little with the Government on that point. Clause 12 concerns technical aspects. The Home Office representatives on the board, and the Home Secretary in considering whatever the board
Lord McNally: We on these Benches responded favourably to the suggestion of the noble Lord, Lord Desai. Members of the public and members of civil liberties groups have considerable technical knowledge. There is another dimension of concern, as it were. The use of this technical knowledge by some in private industry is causing concern. I refer to spying on employees and so on. It might be reassuring therefore to have an element of lay membership, as it were, on the body as well as government and industry.
Lord Cope of Berkeley: I accept that. Provided that such a process did not disturb the technical nature of the board's deliberations, I do not think that it detracts from the idea behind the amendments.
Lord Desai: When I hear that experts and government will come together to look after my interests I become slightly suspicious. I should like to have one lay representative, as it were, looking after my interests, no matter how technical the subject matter. That is exactly how these situations arise. Someone says, "This matter is too technical for citizens. They should not be involved". However, I want one such representative.
Lord Cope of Berkeley: As usual, the noble Lord is persuasive. We all react in the same way as regards experts controlling aspects of our lives. However, he also betrays his distrust of the Home Secretary who has the ultimate word on this matter.
Lord Lawson of Blaby: I am grateful to my noble friend for giving way. This whole matter confuses me considerably, not least the position of the Liberal Democrats who say that they totally support the introduction of this board and that is why they will vote against it!
At a later stage we shall discuss much more important elements of this worrying Bill. On the one hand there are people interested in civil liberties such as the noble Lord, Lord Desai, and, I should have thought, noble Lords on all sides of the Chamber. There is a real civil liberties problem inherent in the Bill. Then there is the business case which is concerned about business costs. There is also an intermediate case. The businesses with which I am associated are concerned not merely with costs but also with commercial confidentiality. That is another important dimension. Therefore there are these two quite separate camps with their own totally valid concerns. But there is a third concern that, as it were, bridges the two.
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