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Lord Phillips of Sudbury: My Lords, with respect I thought that that was precisely what I had said. To continue, I shall be grateful if when the noble Lord, Lord Bach, responds he is able to confirm that trawled interception of communications can be lawful only if, first, it takes place subject to a Clause 8(4) certificated warrant, and, secondly, that it can apply only to external communications. If one reads Hansard one sees that at the previous stage the noble Lord, Lord Bassam, said that it was still the Government's intention that Clause 8(4) warrants should be aimed at external communications. There was a scintilla of doubt put into my mind by that formulation.
This matter harks back to the problem of overlapping warrants and the informal regime that has grown up hitherto. I seek reassurance in the clearest possible terms that the regime of overlapping warrants
I make one further plea to the Government. Is it possible that in dealing with these very difficult clauses, with the interlocking parts of the Bill which are necessarily brought in by reference, the Government can develop an extra-statutory protocol with the interception of communications commissioner in order to agree just how a mixed catch of internal and external communications is to be handled in practical terms? I am still mystified by the fact that Clause 16 (Clause 15 at Report stage), which is concerned with extra safeguards in the case of certificated warrants, provides that,
My first point in relation to the notion of an extra-statutory protocol is that it may cover precisely how the interception of communications commissioner or his staff sit alongside the staff at GCHQ, or wherever, and engage in the business of sorting the sheep from the goats to ascertain, as far as is humanly possible, that the provisions of Clause 16(1) are complied with; namely, that such communications are looked at, listened to or read to the minimum extent necessary to decide which manner of beast they are. Secondly, there should be a regime of destruction of the material that is trawled which is not external. I believe that if that was the case a good number of noble Lords on this side of the House, on the Government Benches--this is not a partisan issue--and many outside this place would be greatly relieved. I shall be grateful if, when the Minister replies, he will consider that suggestion. I beg to move.
Lord McNally: My Lords, the noble Lord, Lord Bach, raised the question of whether or not we should have engaged in private briefings. The Government have been extremely generous and helpful in the progress of this Bill. However, we should not fall into the trap of believing that private briefings, however reassuring, are a substitute for provisions on the face of the Bill or words spoken from the Dispatch Box. I see the noble Lord nodding assent. Sometimes I worry, particularly in the world of spookery, that parliamentarians and politicians become intimidated, perhaps dazzled, by the intelligence world. Sometimes they are beguiled by the luxury of knowing something that the rest of us are not privileged to know, but if only we knew it we would understand why it was being done. In dealing with the intelligence community and its activities Parliament should always resist that tendency and retain a healthy scepticism in these matters.
Therefore my question is simple and innocent. It has been a recurring theme throughout the Bill. Are we seeing here an extension of the powers of the security services or simply an update of the powers of previous legislation? I have never been quite clear about that. If it is an extension it may be entirely justifiable. If so, it should be justified and should not masquerade as simply an update.
Lord Bach: My Lords, I am grateful for the contributions of the two Front Bench spokesmen from the Liberal Democrat Party. The noble Lord, Lord McNally, is right: there should always be some separation between the role of Parliament and briefings. It is fair to say that in some cases briefings are more important than others. I suspect that this instance may be one of them. No criticism is implied. Sometimes these meetings cannot take place; sometimes they can. I rather wish that in this instance it had. I think that I can go some way towards satisfying the noble Lords' concerns about this part of the Bill.
The provisions in Section 3(3) of the Interception of Communications Act, which are taken forward in this Bill as Clause 16(3), provide an important weapon for the law enforcement and security agencies. They allow for interception of external messages to or from a named individual in the British Islands, under the specific authority of the Secretary of State. The Secretary of State must consider that the interception is necessary and proportionate to the objects it seeks to achieve, just as he would if he signed an ordinary Clause 8(1) warrant in respect of that individual.
Why is this separate power provided? It is in fact less intrusive than a Clause 8(1) warrant. A warrant under Clause 8(1) would allow interception of all communications to or from a subject. In most cases the majority of these communications would be with other persons in the British Islands, and so would qualify as internal communications. But a certificate under Clause 15(3) refers to a warrant under Clause 8(4), the target of which can only be external communications. Therefore, a Clause 8(1) warrant will allow the interception of all my communications; but a Clause 8(4) warrant--that is what we are discussing in the amendment--with exactly the same safeguards in place will only allow the interception of my external communications, for example my international communications. It is not as intrusive as a Clause 8(1) warrant.
In some cases the external communications are all that is needed, and so there is no justification for obtaining the more intrusive Clause 8(1) warrant. The noble Lord, Lord Phillips, has been full of examples during the passage of the Bill, sometimes using Christian names very similar to those of some noble Lords on this side of the House. However, I shall not fall into that trap but I shall give an example.
Why are we removing a safeguard, as it is perceived, that exists in the current Interception of Communications Act? I believe that this is the background to noble Lords' questions. We argue that we are not. The Bill in fact provides a more comprehensive set of rules than the current Act on when communications to or from targets in this country can be looked at under a certificated warrant. First, as I have said, no factor referable to an individual known to be in the British Islands can be used to determine what is "read, looked at or listened to" except with the Secretary of State's personal authority. This is, in terms of safeguards, as good as a warrant; and like a warrant, the permission is limited to three months.
So not only is there an inhibition on what goes into the certificate; there is also a direct connection between what is in the certificate and what may be looked at. This is a connection which is made explicit for the first time. In other words, what is on the certificate is all that can be looked at. It is not present in the 1985 Act. It offers a legal guarantee that external warrants will not be used to target individuals in this country except in the circumstances I have described.
These provisions are indeed complicated. I am attempting to assure the noble Lord that the safeguards attached to the system are as robust as under the current Act--in some respects more so. The interception commissioners have in the past been careful and diligent to ensure that these provisions are properly followed. It almost goes without saying that we are confident, and the House can be confident, that the new commissioner will confirm this scrutiny.
Lord Chalfont: My Lords, perhaps the Minister can clear my mind about what seems an important issue. Is it not true that the Echelon network can already intercept any telephone call and any e-mail anywhere in the globe from satellite interception? If so, are not some of the warrants somewhat irrelevant?
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