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Lord Cope of Berkeley: The question whether or not this is more bureaucratic depends to some degree on how many magistrates there are compared to the number of senior police officers and how difficult it would be to gain access to one or the other. In any case, as the noble Lord has indicated and indeed as I indicated, it is all rather provisional upon the important revision of the definition of "communications data". I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 88B to 90 not moved.]

Lord McNally moved Amendment No. 90A:



("( ) It shall be the duty of the designated person, as soon as reasonably practicable after granting an authorisation or giving a notice under this section, to notify the Interception of Communications Commissioner appointed under Part IV of this Act of the grant of the authorisation or the giving of the notice.").

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The noble Lord said: The intention of this amendment is to place on the 28 separate bodies that are currently empowered under this Bill to carry out surveillance activity and collect data the onus to deliver to the interception commissioner details of their activity, the rationale being that the interception commissioner can do his job only if he gets information promptly. It is with that intention that we propose this amendment. I beg to move.

Lord Bassam of Brighton: As I understand it, this amendment reflects concern about the latitude which agencies have under this chapter in accessing very large quantities of data and sharing that among themselves. It would require the law enforcement and security intelligence agencies to inform the interception commissioner within a reasonable period every time an authorisation or notice for accessing communication data was signed.

When considering the amendment, it is important to bear in mind the sheer volume of requests which currently occur under the Data Protection Act. As I stated earlier, in respect of only Customs and Excise, in the first quarter of this year there were nearly 19,000 requests for communications data, the overwhelming majority of which were for subscriber details. If Customs were to send a copy of all of those notices through to the interception commissioner he would be receiving more than 200 per day, far more than could possibly be individually scrutinised to any great effect without a large number of staff working on them--and, of course, those figures relate to only one investigating agency.

I hope that for that reason, and in view of the weight of paper that would be delivered on the interception commissioner, the noble Lord will perhaps consider it wise to withdraw the amendment. It would create great difficulties for the interception commissioner and the agencies involved. For those reasons it is an unnecessary and, in this context, unhelpful amendment.

Lord McNally: I am not sure whether or not the volume of interceptions and other work requests that the Minister revealed reassures me. It seems rather rum that we are talking about technologies which can, on the one hand, deal with millions of transactions in a matter of seconds, and then, on the other hand, we are told that this would cause problems in terms of clogging up the work of the interception commissioner.

I understand the Minister's argument. I should like to withdraw the amendment and take further advice on the matter. I do not like the idea that commissioners will be overloaded with information. The commissioners are there as a reassurance that the various agencies are behaving themselves, and there is an onus on them to provide information. I shall study what the Minister said and take further advice. I may return to this matter but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 90B not moved.]

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Lord Bassam of Brighton moved Amendment No. 91:


    Page 24, line 35, at end insert--


("(9) The Secretary of State shall not make an order under subsection (2)(h) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

On Question, amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 [Form and duration of authorisations and notices]:

Lord Cope of Berkeley moved Amendment No. 92:


    Page 24, line 37, leave out from first ("writing") to end of line 38.

The noble Lord said: Amendment No. 92 is an old-fashioned amendment which seeks to ensure that an authorisation under Clause 21(3) should be given in writing and not in a manner which produces a record of its having been granted. Amendment No. 94 has a similar effect on a notice requiring communications data to be disclosed.

I am not quite sure of the difference between something that is in writing and something which produces a record of its having been granted. If that record appears on a printer it obviously is in writing; otherwise, presumably, it is simply an electronic record of its having been granted. That does not seem very satisfactory.

I am entirely at one with my noble friend Lord Lucas in seeking to have Parliamentary Answers, for example, provided on the e-mail, but that would not rule out their appearing in Hansard as well. The same kind of considerations apply here. I hope that I shall not seem too old-fashioned in moving the amendment. I beg to move.

11.45 p.m.

The Deputy Chairman of Committees: If this amendment is agreed to, I shall not be able to call Amendment No. 93.

Viscount Goschen: At this late hour I should like to make an even more old-fashioned, unsuitable and esoteric point. Why have brackets been used rather than commas around the word "writing"?

Lord Lucas: I should like to make a slightly different esoteric point. Surely we are seeking the production of a record here? That is the crucial element. An authorisation should be recorded so that later it can be audited, as the Minister pointed out. If I scribble an authorisation enabling someone to do something on a piece of tissue paper and that person then proceeds to eat it, a record will not have been produced. It is not the manner in which the authorisation is granted which is the point at issue. The authorisation could be verbal, electronic or written. What is important is to ensure that a record of the authorisation is produced and kept. We should amend the sense of the paragraph to that effect.

Lord Bach: Amendments Nos. 92 and 94 would require that all notices are given in writing, which

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would stop electronic authorisations from being given. However, there are huge advantages to be gained from using electronic authorisations: convenience, ease of storage and speed of delivery, to name only a few. For those charged with oversight of this regime, electronic records can be searched far more speedily than can large numbers of paper records. No problem will be encountered in using electronic signatures to verify who authorised a particular notice.

Amendments Nos. 93 and 95 have not been spoken to. I do not know whether the noble Lord, Lord McNally, intends to do so.

Lord McNally: I had understood that because my Amendment No. 93 is consequential, I would not be able to move it if Amendment No. 92 is agreed to. However, I shall be happy to speak to the amendment.

It is not surprising to see the Conservative Party clinging to the technology of the 19th century while the Liberal Democrats embrace the technologies of the 21st. As I mentioned before, if the technology exists which can verify electronic records and thus allow them to be rendered tamper proof, it makes sense to allow for electronic means--along the lines which the Minister has argued so persuasively.

Lord Bach: The noble Lord's amendments would allow notices to be given in writing or by electronic means since the Bill already requires that authorisations or notices must be given in a manner which produces a record of their having been granted. We cannot think of any other way presently available by which notices or authorisations could be produced.

If noble Lords will forgive the phrase, the Bill is designed to be "future proof". We do not know whether new means of producing authorisations or notices may be invented over the next few years. I hope that noble Lords will not invite me to reflect on what those new methods might be. Provided that any new method produces a record, we can see no reason why it should not be used.

I think it is shameful that noble Lords opposite have been described as being old-fashioned or living in a past century. I believe that the point made by the noble Viscount, Lord Goschen, about the use of brackets is unanswerable. I shall certainly consider further that important point.

Lord Lucas: I should like to return briefly to the points I raised. What we are asking for here is that a record is made. However, the phrasing used in Clause 22(1)(a) means that it does not require, if the authorisation is granted in writing, that a record is made.

As I said a moment ago, I could write down the authorisation on rice paper only to have it eaten or lost in a file. No requirement is in place to produce a record if the authorisation is granted in writing. Furthermore, it is not clear that the record produced under Clause 22(1)(a) encompasses the information set out in paragraphs (b) to (e). In other words, such a record

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could merely state, "On this day I granted an authorisation to so-and-so", without any further information. That would be a record of the authorisation having been granted, but it would not contain further specification. I should at least like to know the Government's intentions so that I can be sure that the clause as drafted achieves those intentions.


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