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Lord Lucas: My Lords, the noble Lord, Lord Bassam, made a very good point in his speech on the previous group of amendments. He said that it was important that both the ISPs and the Government shared the financial responsibility for the decisions that would be taken. I believe that that is what we should try to achieve. Clearly, the ISPs must bear part of the cost. They have considerable ability to keep down the costs and need an incentive to do so. Anyway, if they did not have to contribute, they would merely trot off to any good defence contractor and find out how to turn costs into high profits. It is entirely right that the ISPs should make a fair contribution.
Similarly, the Government must be bound by financial responsibility and should not be able to cast unquantifiable costs on to the ISPs and bear none of it themselves. If the cost turns out to be £300 million, the Government must go for budgetary approval for a sum that bears a proper relationship to that cost. A sensible proportion that comes to mind is half. Therefore, if it is worth £150 million to the Government, perhaps they are right to ask for a similar
Lord Howell of Guildford: My Lords, I simply ask: how can the Government quantify these costs when they cannot define the scope of the Bill, as we have already heard in debate this evening and, I am sure, also in Committee? It is not clear to what extent the provisions are to be applied and how they will work, given the fact that a great many service providers and operations are located, at least partially, overseas. One thinks of the simple operation of transferring information and messages from local files to remote sites through the appropriate transfer protocol. In many cases that is done through remote sites which are deliberately not sited in the UK either because the technology has originated in America or because of low cost high quality provision elsewhere. India, for example, already provides remote site storage for a vast range of information and collects e-mails and website transfers through the necessary protocols on a colossal scale. Where will it come into the equation? What part of its operation will be addressed by this Bill? What costs will it have to pay?
Unless we can begin to answer these questions the debate about costs is in the area of fantasy. I do not see how this House, let alone the general public or industry, can be asked to plunge ahead with legislative provisions which are so stratospherically vague and unrelated to any definition of scope which could seriously give us a basis on which to compute the cost of this operation.
Lord McNally: My Lords, I make one further appeal to the Minister. I thought my appeal made during the previous debate had almost succeeded. The Minister teetered on the edge of making a sensible decision, but then he was dragged back, presumably by the Treasury. Looking from the outside, the words "shall" instead of
Lord Bassam of Brighton: My Lords, this debate is a reflection on the previous one and the comments that I made about costs. I accept that that is right. I made a statement on government policy and the way in which we believe we should develop our thinking in this area. The issue of costs revolves in part around a sense of trust. Perhaps it is because there has been a hyping of the debate that a view is emerging in some quarters that £20 million will be far too small a sum of money to cover the set up costs which we have made plain we shall cover. We do not see the exercise as being as extensive as some have imagined. It is that imagining that troubles me most in this debate.
I shall go over some of the points that have been made during the course of this discussion as briefly as I can. The noble Viscount, Lord Astor, asked me to correct something that was said during Committee stage. I gave that correction during an earlier debate, but I am not sure whether the noble Viscount picked it up. If it helps the House I shall repeat it for the record. It concerns the allocation of costs and how they will be dealt with in Clause 12.
I said that the order itself will not deal with costs, but the Secretary of State, in presenting the order to Parliament, will in practice have to explain the position on costs. That is partly because Parliament will expect it and partly because the Secretary of State will have to show that he has this duty under Clause 13(3). That is the correction. I wanted to put the matter right. I believe that the noble Viscount raised the matter with officials. He was right and I was wrong in what I said in Committee. I apologise to the House for that. It was not a deliberate error on my part and neither was I seeking to mislead. It was simply an error. It is only right that we put it on the record and get the matter corrected.
I turn to the amendments. There is good and bad news here. I am sure that the noble Viscount will be pleased to hear that we are happy to accept the suggested substitution of the word "fair" for the word "appropriate", as drafted. We have always said that we would be willing to look at this in a positive light, as we do at all times, in order to try to improve the Bill. Our initial view was that fairness could have been a factor to take into account in any event if one has the appropriate test to comply with. Nevertheless, if the Secretary of State is to make a payment we are happy to agree that he cannot make one that is less or more than a reasonable Secretary of State would consider to be fair.
Furthermore, Amendments Nos. 19 and 20 will ensure that the payments made to one operator are fair in relation to the payments he is making, or proposing to make, to other operators for an equivalent service. We are happy to accept Amendments Nos. 19 and 20.
I am sorry to disappoint the noble Viscount as regards Amendment No. 18, which requires that the Secretary of State "shall" make payments to communication service providers rather than "may". As regards Clause 12, we discussed at some length the issue of costs which may be incurred by industry and how the Government intend to alleviate them. I do not wish to detain the House by repeating that debate except to say that we have given our commitment to provide the sum of £20 million over the next three years to help Internet service providers who are required to maintain such a capability.
Noble Lords will be aware that the Government have previously amended the Bill to set out explicitly our commitment to pay the marginal costs incurred by communications service providers as regards processing each interception warrant. These marginal costs include the cost of providing staff, the overheads incurred and also the cost of transporting the intercept product to the intercepting agency. All these costs are currently, and will continue to be, met by the Government in addition to the extra £20 million to which I have just referred. I do not accept that it is now necessary to go any further than the commitments which have been given. I trust that the noble Viscount will feel able to withdraw Amendment No. 18.
Viscount Astor: My Lords, I am grateful to the Minister for his agreement to Amendments Nos. 19 and 20. I am also grateful for what he said about the order-making power in Clause 12, which, as I believe we now both agree, will not refer to costs, but that at the time the Secretary of State will explain it. That is helpful, but it makes it more important that we get Clause 13 right.
The Minister gave his commitment to £20 million and I accept that. But it is his commitment, and not one which is in the Bill. It is something separate. If the noble Lord accepts Amendments Nos. 19 and 20 the effect will be that the Secretary of State may, if he sees fit, make a payment and if he does so it has to be fair. It is not said that the Minister has to accept it because unless we include the word "shall" he does not have to make the payment at all.
The Minister said that the Bill revolves around trust. I accept that and that the Minister is an honourable person. But tonight we are not debating trust; we are debating legislation. What matters is passing good legislation in this House. I accept the Government's assurances, but we need to make sure that the legislation we pass in this House is correct. On that basis I accept the noble Lord's generous offer on Amendments Nos. 19 and 20, but I shall have to test the opinion of the House on Amendment No. 18.