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Lord Cope of Berkeley: My Lords, as the Minister said, I was one of those who had misgivings about the order-making power, particularly because it would have enabled the Government, by order, to extend

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some of the definitions in the Bill so as to be able to intercept e-mail traffic without the safeguards provided. That was not desirable. I quite understand that the Minister, his colleagues and advisers found it difficult to draft a different order-making power which would have had precisely the effect that we had suggested. In the circumstances, I believe that the Minister has done the right thing in withdrawing the order-making power through Amendments Nos. 1 and 12 and those that go with them.

Lord McNally: My Lords, if the spirit of this afternoon is to be "When in doubt, leave it out", we shall make very rapid progress indeed,

On Question, amendment agreed to.

Clause 10 [Modification of warrants and certificates]:

Lord Bassam of Brighton moved Amendment No. 2:

    Page 13, line 26, leave out subsection (10) and insert-

("(10) For the purposes of this section-
(a) the scheduled parts of an interception warrant are any provisions of the warrant that are contained in a schedule of identifying factors comprised in the warrant for the purposes of section 8(2); and
(b) the modifications that are modifications of the scheduled parts of an interception warrant include the insertion of an additional such schedule in the warrant;
and references in this section to unscheduled parts of an interception warrant, and to their modification, shall be construed accordingly.").

The noble Lord said: My Lords, I am tempted to utter those fateful words, "This is a technical amendment". It is, actually. Noble Lords will recall that an interception warrant comes in two parts. The front part--or "unscheduled part"--contains the name of the target person or premises. The back part--or "scheduled part"--contains, in an ordinary case, the telephone numbers which are to be intercepted. There may be more than one schedule in the scheduled part, with each containing numbers belonging to a particular service provider. The difference in practice between the two parts of the warrant is that only the Secretary of State can modify the front part of the warrant, while the scheduled part may be modified by a senior official or, in urgent cases, by an authorised officer within the intercepting agency.

This amendment removes an ambiguity in the Bill by making it clear that modifying the scheduled part of a warrant can include adding a new schedule. So if a target changes not just his phone number but also his service provider, the necessary modification will keep up with him. This has always been the intention. The amendment seeks only to clarify Clause 10. I trust that the amendment will be satisfactory to the House. I beg to move.

On Question, amendment agreed to.

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Clause 12 [Maintenance of interception capability]:

Lord Cope of Berkeley moved Amendment No. 3:

    Page 15, line 22, leave out ("The person to whom a notice is given may") and insert ("Where a notice is given to any person under subsection (2) and otherwise than by virtue of subsection (5A)(c), that person may, before the end of such period as may be specified in an order under this section,").

The noble Lord said: My Lords, I move this amendment with great hopes of success on this occasion in view of the support given to our amendment by the noble Lords, Lord McNally and Lord Bassam of Brighton. That is probably a winning combination. The amendment and the other amendments grouped with it follow the decision of the House about the introduction of a technical advisory board. In moving that amendment at Report stage, I said that it was the principle which concerned me rather than the detail of the drafting. The Government have suggested some improvements in the drafting which are now embodied in this set of amendments. Those improvements should recommend themselves to the House.

The position remains that the technical advisory board will be set up and will have two duties. First, it will need to examine, together with others, statutory instruments involving the orders put forward by the Secretary of State as regards what are now known as black boxes; namely, the equipment to be put in place with Internet service providers to monitor e-mails and so forth. The technical advisory board will advise the Secretary of State on that matter. The reports that it will submit to the Secretary of State may well be published in part or in full, but that would depend on the members of the board and on the Secretary of State. No requirement has been put in the Bill. Obviously, some of the board's comments and recommendations may well be extremely confidential.

The second role of the technical advisory board will be to act as a form of appeal mechanism if a black box is imposed on a provider which seems unreasonable, either for technical reasons or because the move appears altogether over the top, as it were. In that case, the provider will be able to appeal to the technical advisory board, although it will remain for the Secretary of State to take the ultimate decision.

It was suggested in the amendment tabled on Report that the board should comprise six members drawn from the industry (service providers and so forth) and six members from the users of interception (the police, HM Customs and the security services). The amendments tabled today provide for a more flexible arrangement, still allowing for a balance between the two sides, but nevertheless including a provision that others may be appointed at the discretion of the Secretary of State, which might broadly represent consumers--those whose communications are likely to be intercepted. That meets the comments made on Report and at Committee stage by the noble Lord, Lord Desai, when similar amendments were discussed.

I hope that the technical advisory board will lead to greater co-operation within the statutory framework between the security agencies and the police on the one hand and the electronics experts, service providers and

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so forth on the other. That will lead to a greater mutual understanding of the requirements of both sides and hence to a more effective mechanism which, it is hoped, will interfere less than might otherwise be the case with the normal operations of service providers and ultimately with e-commerce. The amendments provided by the Government to this proposal are desirable and I commend them to the House. I beg to move.

Lord Bassam of Brighton: My Lords, I should like, first, to thank the noble Lord, Lord Cope, and the noble Lord, Lord McNally, for working so closely with the Government on this group of amendments. I pay tribute to their pragmatism as regards this issue. In the debate on Report the noble Lord, Lord Cope, said--quite rightly--that the principle was more important than the detail here. He made it clear that he was less concerned about the detail than the basic proposal for a board. Indeed, he has reflected that in his comments this afternoon. In my response on Report I said that not much lay between us on this issue. It was only the vehicle and detailed mechanisms that we were debating. What has been tabled today is a set of amendments which we believe will be far more workable.

Before I address the substance of the amendments, I wish to clarify one point. Some commentators have rather dramatically overestimated the number and range of telecommunications service providers on whom an interception capability requirement may be imposed. The consultation paper we published in June last year set out the kinds of areas we have in mind. These include the Internet service provider industry and the satellite market.

However, notices under Clause 12 will not be served wholesale across a market sector. In particular, I should like to emphasise that we do not envisage serving notices under Clause 12 with respect to telecommunication services provided solely to the financial markets. Interception is only ever used as a method of last resort--that is how we see this matter. We do not believe that requiring such services to develop and maintain an interception capability would be appropriate. I hope that this commitment will reassure those who are concerned that we may serve a notice on such companies and that they will derive further reassurance from the wording of the order which the Secretary of State will make under Clause 12 in due course.

Turning to the set of amendments before us, I shall explain how they achieve three things. First, they seek to clarify the function of the technical advisory board in considering a reference. Secondly, they provide that a notice is effectively suspended pending consideration by the board. Thirdly, they make it clear what may happen when a reference is made. Finally, as the noble Lord, Lord Cope, acknowledged, they introduce an element of further flexibility as to the constitution and membership of the advisory board.

I am glad that noble Lords opposite have joined together in tabling these amendments. On the question of the membership of the advisory board, as I said

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earlier, I know that no firm views were expressed as to the precise membership when this matter was debated last week. Some suggestions were made that voices above and beyond those of the communications industry and law enforcement should be heard on the advisory board. I am not entirely convinced that that would be appropriate. The board is likely to need to consider highly technical issues. It will need to focus its attention on such matters. None the less, the order-making power which is proposed in Clause 13 allows for flexibility here.

More important is that the flexibility engendered by the order-making power gives the Government some further time to consider the question of who should act as the chairman of the board. This is a point that has been raised by the noble Lord, Lord Cope, on previous occasions. It is a difficult issue to which we should like to give proper thought, along with industry. We shall consult with representatives on that matter.

Finally, we are yet to speak to industry about the precise composition of the board and would like to take those views before establishing it in an order made under the Bill. The important point to note is that the board should include representatives of industry, as identified at subsection (2)(a) of the proposed amendment; that the board should include membership from those who apply for interception warrants, as identified at subsection (2)(b); and, crucially, that there should be a balance between these two groups as stipulated at subsection (2)(d).

I shall be happy to work with these amendments. The joint drafting has greatly improved their quality and, as I said earlier, I am most grateful to noble Lords for their assistance in this matter.

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