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Lord Goldsmith: My Lords, the noble Lord quoted the conclusion from the Joint Committee's report. Would he agree that while it expressed the view that the safeguards are capable of being adequate, the conclusion of the committee was that, "on balance", it was "satisfied" that those safeguards,

I am reading from paragraph 32 of the committee's conclusion. It is an important point.

Lord Lester of Herne Hill: My Lords, I was reading from paragraph 25. In that paragraph, we reported in the way in which I have just described. In paragraph 32, we reported in the way in which the noble and learned Lord the Attorney-General has quoted. I regard that as confirmation that, on balance, the requirement of proportionality would be satisfied, but perhaps I may ask the noble and learned Lord the Attorney-General exactly how he believes that the availability of judicial review could provide an effective safeguard. That is obviously important to this House.

I shall not detain the House much further on consultation. I shall not repeat the views that were expressed so eloquently by the noble Baroness, Lady Blatch, but in paragraph 30 of the report, we made an observation on the parliamentary procedure and stated:

    "The total sitting period allowed for consideration of these proposals . . . amounts to about five weeks. In our view, this is not sufficient in view of the importance of the measures, their potential to affect human rights, and the long period of gestation of the proposals since December 2001".

The Joint Select Committee on Statutory Instruments was also concerned about that. The Government are therefore confronted by two watchdog bodies, neither of which has been satisfied by the manner in which the consultation on matters of such great importance to the citizen has been handled. I would be grateful if the noble and learned Lord the Attorney-General would express at least some regret on behalf of the Government at the way in which the matter has been handled. The other place has not been allowed to consider the proposals properly and it now requires us to do so in a hurry, not in terms of the length of the debate, but of the length of the consultation.

Lord Phillips of Sudbury: My Lords, I want to speak to the amendment standing in my name, which would amend in a non-fatal way the orders before us; in particular, the Regulation of Investigatory Powers (Communications Data) Order 2003. We are not staging in any sense a contest about who has the best

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civil libertarian credentials. Our debate might well have taken place during the course of the RIPA legislation itself. However, as the noble and learned Lord the Attorney-General has rightly said, and others have reflected, I not aware of any measure during my five years in this House where your Lordships' House has been so at sea for so much of the time. The issues with which we are contending are arcane, complicated and interlocking, and one of the dangers in such circumstances is that the politics of the issue does not reach the wider public. If ever a measure affected the wider public—not in thousands, but in millions, because the communications data of millions will be accessed under the order—this is it. However, as I have said, it is not a contest, but rather a challenge to try, even at the eleventh hour, to improve an order that everybody believes needs to be improved.

It would be cynical and irresponsible for us to pretend that we protect the citizen against abuse of his communications data while denying the selfsame citizen the information without which he cannot protect his personal data, because he will not know that an abuse and a breach has taken place. That is most vividly demonstrated by the whole tribunal mechanism to which the noble and learned Lord the Attorney-General referred in his opening remarks. The tribunal exists to protect aggrieved citizens. Section 65(4) of the Act states:

    "The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within"—

and so forth. I suggest that it is a farce to have that section and the others alongside it if there is no means of the citizen knowing of the abuse. Judge Brandeis of the Supreme Court said:

    "Experience should teach us to be most on guard to protect liberty when the Government's purposes are beneficent".

And that they are beneficent there is no doubt. We support the broad thrust of the legislation in the orders, but this is a challenge to our ability.

While thanking Home Office officials for the help they have tried to give to those of us who are bemused by these orders, I remind the House that the Home Office has form when it comes to legislation of this kind. Perhaps I may take noble Lords' minds back to the Anti-terrorism, Crime and Security Act 2001. In my view, and in the view of many Members of this House, it was not proper, correct or right that on the back of emergency anti-terrorism legislation the Government should sweep up many petty offences which had nothing whatever to do with terrorism—

Noble Lords: Hear, hear!

1 p.m.

Lord Phillips of Sudbury: My Lords, if there is a touch of extra caution, that must be excused. In any event, we must be jealous and vigilant when liberties are at stake, particularly when seeing the libertarian woods for the bureaucratic and state trees is hugely difficult, as it is here.

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Let me come to the point. What are the protections for a citizen whose communications data rights have been abused? First, the communications data definition in the RIPA is not at all clear. That is an impediment to the huge number of officials who under the order will have the right and duty to seek authorisation to tap into the communications data concerned.

Secondly, the Attorney-General repeats the mantra of proportionality. That is all very well because lawyers, particularly the able, senior lawyers such as himself and my noble friend Lord Lester, live by proportionality—they wake up breathing proportionality. However, the officials who will have to deal with this legislation are not chief constables and the like; they are middle-ranking civil servants. In the Charity Commission, their rank is PB5, if that means anything to your Lordships. That is a middle-ranking civil servant. It is totally excessive for the Government to place such huge reliance on this rubbery word that only expensive lawyers can understand—and even they cannot because they have to go to the House of Lords to have it decided.

Furthermore, the severe drawback in the regime on communications data compared with any other part of the RIPA is that there is no pre-event check on a decision made by a middle-ranking civil servant to seek authorisation. Under any other part of the Act, it is necessary to go to the Secretary of State for an interception warrant. That is a massive protection of the citizen because the Secretary of State will be extremely cautious and judicious in the way he exercises the power. Above all, if there is no second check, the matter is left solely in the hands of the official who is personally involved in wanting the information, and who may have an excessive zeal in relation to his actions. That is not good enough.

I have referred to the fact that without information, the tribunal protection which exists in the RIPA is useless. Furthermore, the Interceptions of Communications Commissioner has no duty to tell a citizen when his or her information has been purloined or otherwise abused. I am afraid to say that I take no solace from the point made by the noble and learned Lord the Attorney-General in his opening remarks that under Section 58(2)(a) he will be required to report to the Prime Minister. We achieved that change to the Bill. The duty report is in respect of contraventions of the provisions of the Act. That refers to the many criminal offences that are available as a protection for the citizen in all other parts of the Act except this. In Chapter 2 of Part 1 of the RIPA legislation there is no criminal offence. Therefore, I do not believe that there will be a duty to report to the Prime Minister because I do not believe that there will be contraventions within the technical meaning of that word.

Even if I am wrong on that, what solace to the citizen? The matter goes to the Prime Minister, but he has no duty to do anything in regard to it. There is a duty to report and the report is laid before Parliament. Jolly good, but there is no warrant in the legislation to name names in the report. The most recent report of

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the Interception of Communications Commissioner for 2002 is extraordinarily cautious in its detail. For example, at paragraph 34 he states:

    "I can only provide the information on the total number of complaints made to the tribunal".

Nothing more. One assumes that the Interception Commissioner has a great body of people charging around the country seeing that nothing amiss is occurring. I have to tell the House that the staff available to the commissioner is not remotely sufficient to do that. At paragraph 7 of his recent report, he talks of his twice yearly visits to various bodies, which he names. He then states:

    "I then select, largely at random . . . a sample of warrants for close inspection".

Fair enough, but how big is the sample? And what about the majority—I suggest the vast majority—of matters which are not investigated at all? This is the only protection for the citizen against this massive extension of state surveillance. And it is a massive extension. We are not talking about 10,000, 20,000 or 50,000 because estimates from the industry are between 1 million and 1.5 million authorisations a year. I put it to the House that that is not good enough.

We then come to the question of whether the interception of communications data is important. There was a hint that it was pretty minor beer compared with interception, direct surveillance, covert human surveillance and so forth. I suppose in the sense that it does not go to the contents, that is a fair point. However, sometimes what is not said is more important than what is and often actions are more important than communications. Communications data include who, when, where and how any of us communicates at any time with any other person by any technological means. I am told by people in the industry that an extremely sensitive profile can be built up of any of us who uses any of those instruments frequently. There can be built up an extremely sensitive profile of our life patterns, our contacts, where we go and when we go—not why we go, but the "why" can be built up out of a great deal of data. The Rio Ferdinand case gave one a slight hint of the kind of thing that can occur.

Therefore, the reason for putting forward the amendment—I am grateful for the support of others who have spoken and I, in my turn, extend my support for their amending resolutions—is that there are simply not sufficient and adequate protections in place for the so-called "ordinary" citizen.

I extend to the noble and learned Lord the Attorney-General my deep sympathy for the fact that he is sitting where he is today. I would extend it to him even if he had had three years to prepare for the occasion. However, when he comes to respond, I should be grateful if he could say whether or not the Government would be minded to make a wilful or reckless abuse of the communications data chapter the subject of an offence. The same protection might be afforded as under the Data Protection Act, which, incidentally, provides all the protections that do not occur in relation to personal data. The protection would be that there would not be a

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prosecution without the consent of the Interception of Communications Commissioner or the Director of Public Prosecutions.

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