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Lord Bach: Before dealing with the amendments I first make the general point, already made in passing by the noble Lord, Lord Phillips of Sudbury, that the safeguards provided for material in Clauses 14 and 15 are extremely important. Not only are they extremely important, but I would argue that they are very tightly drawn indeed. I would go so far as to say--and this is a dangerous assumption--that it is unlikely that anyone would find elsewhere on the statute book such stringent requirements for data acquired by the state. This is not meant to be some sort of boast. The protection of intercept material requires no less than the highest protection available. But I hope that it will be acknowledged by the Committee that these are very stringent tests. It may address some of the rather over-the-top, hysterical suggestions that have been made about this Bill in the past few weeks--not, I hasten to add, in this Committee. I make those preliminary comments so that my subsequent comments on the amendments are put into a clear context.
I start with Amendment No. 58, which alters the current drafting so that the Secretary of State must make arrangements to ensure that intercepted material and communications data is kept confidential. We cannot see what this amendment adds to the provisions that we have already made to safeguard the uses to which this material may be put. We already state that the number of persons to whom the data can be disclosed, the extent to which the data can be disclosed or made available, the extent to which any data can be copied, and the number of copies which can be made are all limited to the minimum that is necessary for the authorised purposes set out in subsection (4). I would say much the same to the noble Lord, Lord Lucas, who has tabled Amendment No. 60--he spoke to it in a remarkably brief and welcome way--with the same intention; that is, to place strict limitations on the uses to which information obtained by means of a warrant can be put. We consider that the safeguards we have put in place should be sufficient to meet the real concerns of noble Lords. The Bill states that any intercepted material or data are destroyed as soon as there are no longer grounds for retaining them for any of the authorised purposes.
These provisions clearly place the limitations the noble Lord requires on the uses to which intercepted material or communications data can be put, and we emphasise that those limitations are subject to the authorised purposes.
Turning to Amendment No. 59A, we understand the intention behind it and we concur with that intention. However, we believe that the intention of the noble Lord, Lord Phillips of Sudbury, is met already by the requirements listed in the existing subsection. First, the number of persons to whom any of the material or data are disclosed or otherwise made available must be limited to the minimum necessary. This means, for example, that material is withheld even from fully-vetted staff in the interception agencies
Secondly, the extent to which any of the material or data are disclosed or otherwise made available must be limited to the minimum necessary. This involves the highest levels of physical, technical and personnel security. Intercept material is among the most sensitive categories of classified material and is handled accordingly. The code of practice on interception, a draft of which will be available shortly, will contain further details of the safeguards to be applied, including specific mention of technical security.
Amendments Nos. 59 and 61 add the term "and only if" to our use of the word "if" in subsections (2) and (3) of Clause 14. With great respect, we do not see the necessity for these amendments. Subsection (1) of Clause 14 states that the requirements in subsection (2) must be satisfied; and subsection (2) specifies precisely what are those requirements. Only when each of the requirements of subsection (2) are met is the Secretary of State's duty in relation to this discharged.
Subsections (3) and (4) are different. Subsection (3) essentially provides that intercepted material must be destroyed when no longer necessary for any of the authorised purposes. Subsection (4) describes the authorised purposes, but then the extra "and only if", which is to be found in that subsection at line 9, makes it clear that there are no other authorised purposes.
As regards Amendment No. 61A, subsection (3) of Clause 14 reproduces the essence of Section 6(3) of the current Interception of Communications Act, a section which we believe has worked well over the years. The subsection requires that all copies are destroyed as soon as it is no longer necessary to retain them. This includes the initial recording or transcript made of the material or data--to which I believe the words "the original" in the noble Earl's amendment refers. Any recording of any kind produces only a copy.
So far as concerns postal interception, the postal item clearly constitutes the original material. No intercepted postal items are retained by any intercepting agency. Copies may be made but the original is put back into the postal system as quickly as possible. An interception warrant does not constitute an authority to retain or destroy a postal item.
We believe that Amendment No. 61B, which seeks to qualify the requirement that intercept material be destroyed with the additional requirement that it be destroyed in an appropriate way, would make little difference in practice. All intercept material currently intercepted under the 1985 Act is covered by Section 6
The question of destruction is one in which the Interception Commissioner--now Lord Justice Thomas--has always taken a keen interest. If the committee will forgive me, I shall quote a part of the first report of the noble and learned Lord, Lord Lloyd, where he refers to the practice of Her Majesty's Customs and Excise at the time when he was the Interception Commissioner. The report stated:
Amendment No. 62A seeks to prohibit the retention of any copies of intercepted material or communications data despite a requirement in either of the Public Records Acts that they be retained. Section 3 of the Public Records Act 1958 provides a power to select any records in government departments for permanent preservation. Although in practice the proportion selected is very small, some official records of interception and other forms of intrusive surveillance are, by their nature, clear potential candidates for selection and eventual public access. It is for this reason that, for example, Sections 2 and 4 and Schedule 4 to the Intelligence Services Act 1994 provide for the retention of material where the Public Records Act requires it.
I wish to make a further three short points on this issue. First, the PRO specifically asked for this provision to be included; secondly, it is in line with the Government's approach to the repeal of statutory bars on disclosure currently being carried forward by the Freedom of Information Bill; and, thirdly, I want to emphasise that this provision does not provide a loophole for intercepting agencies to have permanent access to material. Any copies retained for public record purposes are stored under the strict conditions agreed between intercepting agencies and the Lord Chancellor's Department. These conditions are designed to ensure that the agencies do not have access to them in the normal course of duty.
Turning finally to the question of the noble Earl, Lord Northesk, in regard to how communications data will be dealt with and whether there are any arrangements for it under the Bill, communications data obtained under Chapter II of Part I are not covered by Clause 14. The phrase used in Clause 14(1)(a) refers to,
But the retention of those data, which is evidential--we shall debate this important matter in due course--unlike intercept material, is governed by the codes of practice under the Criminal Procedure and Investigations Act 1996 and, more generally, by the Data Protection Act 1998, which the noble Earl knows well. I hope that this provides a rather fuller answer for the noble Lord.
I have taken some time in responding to this series of amendments. The Government realise that Clauses 14 and 15 are important because they deal with the safeguards that the public wants to see for the unusual steps that are required here. Members of the Committee have not denied that such steps are necessary in order to secure the safety of the state and to ensure protection against serious crime. Safeguards form a very important part of this package. Having listened to my explanations, I hope that the noble Lord will consider withdrawing his amendment.
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