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Lord Lucas: I should be grateful, not now but in correspondence, if the Minister could point me to a definition of data in the context of legislation which is as wide as he seems to presume it is. Suppose one thinks of a system which is a fingerprint recognition system which does not reduce the "thing" to a digital pattern but which relies on some kind of analogue matching system, so that actually the "thing" is never reduced to data. It merely produces the answer, yes. It is very hard to describe "fingerprint" as "data" if it is never reduced to data. I suppose one might embrace it in the term "information" if one was prepared to use the philosophic version of that. I am not aware that that has been incorporated or understood in legislation. I should like to understand the basis for what the Minister is saying. The noble Lord is quite right. I am seeking to widen this to the point where we do not just think in terms of how it happens to be done at the moment--at the beginnings of cryptography--but use something other than an essentially digital password as protection. I should like the reassurance that the word "data" covers that.

11.15 p.m.

Lord Bassam of Brighton: I am always happy to correspond, as the noble Lord, Lord Lucas, knows. The fingerprint is an interesting example. When does the fingerprint become data? Does it become data when it is stored? I shall be happy to pursue the point further. No doubt we can pick that up with some of the other issues we shall be putting down on paper.

Lord Lucas: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 183 not moved.]

Lord Bach moved Amendments Nos. 183A to 183C:



    Page 56, line 16, leave out ("protected information") and insert ("information (including a key to protected information)").


    Page 56, line 19, after ("concerned;") insert--


("( ) to his having an immediate right of access to it, or an immediate right to have it transmitted or otherwise supplied to him;").

The noble Lord said: These amendments were spoken to with Amendment No. 139A. I beg to move.

On Question, amendments agreed to.

[Amendment No. 184 not moved.]

Lord Lucas moved Amendment No. 185:


    Page 56, line 34, leave out sub-paragraph (iii).

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The noble Lord said: Amendment No. 185 seeks to leave out sub-paragraph (iii) of Clause 52(5). I cannot see what,


    "whether it is intended to have a legal effect",

has to do with authenticity. Authenticity is quite well-defined by sub-paragraphs (i) and (ii). If those conditions are satisfied, I am happy that the communication is authentic. Why should legal effect have anything to do with it at all? I beg to move.

Lord Bassam of Brighton: I believe that the noble Lord, Lord Lucas, thinks that this is irrelevant to the question of authenticity. The definition contained in Clause 52(5), to which this amendment refers, is exactly the same as that set down in Section 15(2) of the Electronic Communications Act 2000.

I believe that we should engineer as much consistency as possible between these two statutes. I have explained why this definition appears in the Electronic Communications Act. In that legislation we were concerned to ensure that electronic signatures had "legal effect" only where that was intended. Having felt the need to make such a clarification in that Act, we decided that it would be confusing not to replicate it in the legislation before us. I hope that it is clear to the noble Lord that we are seeking consistency here.

Lord Lucas: I understand entirely what the Minister has said. I shall have to do a little more homework to check that the two measures are truly consistent. I have happy memories of taking a Bill on construction through this House where, for the sake of consistency, a definition of construction was taken from the Taxes Act. Sometimes these matters can be taken a little too far. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 186 not moved.]

Clause 52, as amended, agreed to.

Clause 53 [Interception of Communications Commissioner]:

Lord Lucas moved Amendment No. 187:


    Page 57, line 3, leave out paragraph (a).

The noble Lord said: Matters are now moving a little too quickly for me. I find myself hoisted by my own petard here while I try to catch up with the intention behind this amendment.

The Minister will recall a letter that I received from him, to which I have referred on previous occasions, which examined the extent to which the activities of the Secretary of State were subject to review. It was pointed out that Clauses 12 to 19 were free of such review. We dwelt on that point while moving through our detailed examination of those clauses. The noble Lord said that he would consider again whether in fact that was right; namely, that some of those activities should be free of supervision.

Amendment No. 187 merely provides an opportunity to call attention to that absence. Amendment No. 188, tabled in the name of my noble

28 Jun 2000 : Column 1035

friend, does this rather better and replaces the clauses. Amendment No. 189 is a similar attempt to look at the spread of powers of the commissioner. I beg to move.

The Deputy Chairman of Committees (Lord Dean of Harptree): If this amendment is agreed to, I shall not be able to call Amendment No. 188.

Lord Cope of Berkeley: Amendment No. 188 tabled in my name seeks to extend the duties of the interception of communications commissioner to cover Clauses 14 and 15 of the Bill as well as those with which he is already charged. The clauses detail the safeguards governing the restrictions on the use of intercepted material. It seemed to me that it would be helpful if the commissioner had an oversight of those matters so as to reassure those who are, as it were, at the receiving end of these provisions.

Lord Bach: Amendments Nos. 187, 188 and 189 seek to add to the role of the interception of communications commissioner. During our discussion last week on Clause 15, I undertook to consider the position of the interception of communications commissioner in relation to that clause. We have done that and I can say to the noble Lord, Lord Cope of Berkeley, that Amendment No. 188 is not necessary.

Perhaps I may deal first with Amendment No. 188. Its ambition is simply to add Clauses 14 and 15 to the elements of Part I of the Bill which are to be overseen by the interception of communications commissioner. Noble Lords will see from subsection (2)(d)(i) of Clause 53 on page 57 that the duties of the Secretary of State under Clause 14 already fall to be overseen by the interception of communications commissioner. It is also the case that Clause 15 merely elaborates on the duties that are to be undertaken in order to ensure that the duty under Clause 14 is properly discharged. The effect is that the interception of communications commissioner already has, under the Bill as drafted, a role in the oversight of the very important regime under Clauses 14 and 15 of the Bill. I hope that the noble Lord finds that reassuring.

The ambition of Amendments Nos. 187 and 189 in the name of the noble Lord, Lord Lucas, is rather greater. These amendments seek to ensure that the entirety of Part I of the Bill is reviewed by the commissioner. I have answered the question in relation to Clauses 14 and 15--they are already under his auspices. I now move to those elements of the Bill which are not under the auspices of the commissioner and explain why that is not necessary.

There are not many clauses which are not under the interception of communications commissioner. The clauses in question are Clauses 12, 13, 16, 17, 18 and 19. No one will forget our previous detailed discussions of Clauses 12 and 13. Noble Lords opposite have impressed on us very firmly the need to offer further reassurance as to their operation. As we have indicated, the Government are seriously considering the regime under Clauses 12 and 13 and what extra reassurance can be offered. But we do not believe that there is a proper role for the interception

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commissioner in providing this reassurance. These assurances are about detailed technical issues and the costs involved.

Noble Lords opposite have suggested that a technical advisory board is the appropriate answer, at least in part. We accept that and continue to consider whether this board needs a statutory base. The vital and independent insight that is needed on the operation of Clauses 12 and 13 should come from industry and industry organisations. We do not see that the interception of communications commissioner can fulfil that role. In short, we continue to search for ways of providing reassurance on the operation of Clauses 12 and 13 but we do not think that this is a role for the commissioner.

Turning to Clauses 16 and 17, during our debates last week, the noble and learned Lord, Lord Lloyd, prompted a fascinating discussion of those clauses which addressed important legal points. But the import of the clauses is that they set out rules that are to be followed by the prosecutor in each case, and sometimes by judges. As such, we believe that there is no requirement for further judicial oversight on the operation of those clauses.

That leaves Clauses 18 and 19. Clause 18 carries an offence of tipping off which will only ever be effected through the courts, so there is no need for oversight by the interception of communications commissioner. To put it another way, it makes no sense for offences to be overseen. That is what is required only in respect of functions conferred by the Bill. Clause 19 is merely about the interpretation of Chapter I, which similarly does not require oversight by the commissioner.

I have spelled out why the only elements which fall outside the oversight of the interception of communications commissioner should remain outside. Clauses 14 and 15 actually fall within it. I hope that my remarks are enough to satisfy Members of the Committee and that they will feel able to withdraw their amendments or not move them when they are reached.


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