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Lord Phillips of Sudbury: My Lords, I am most grateful to the noble and learned Lord for giving way. Is he suggesting that the Government are minded to bring in further powers, ones that are not available either in the present RIPA order or in the Act, which would enable the Interception of Communications

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Commissioner to take steps with regard to individual transgressions and to name the people concerned in his report?

Lord Goldsmith: My Lords, this relates to the amendment tabled by the noble Lord, Lord Phillips of Sudbury. If he will permit me, I should like to deal with it when I come to the amendment because I have something to say which I hope he will find helpful in relation to that issue.

I said that I wished to make two points. The first point is that the safeguards and the strict regulation that we have been discussing will not be brought in if the orders are voted down. The second point concerns what will happen to the requirement that authorities should be able to exercise these powers, which all noble Lords who have spoken agree is extremely important.

Without bringing in the RIPA power for access to communications data, authorities will be thrown back on one of two alternatives. The first alternative, which many authorities adopt at the moment, is to call upon communications service providers voluntarily to disclose data under the Data Protection Act. There is an exemption for non-disclosure. The noble Baroness looks surprised, but that is the fact. Communications service providers currently provide information voluntarily under an exemption in the Data Protection Act, most usually under the crime exemption provided in Section 29(3).

This voluntary disclosure places the communications service providers in the difficult position of having to make a decision of whether or not to exercise the exemption. With the police service, that may well be a clear decision, but with other public authorities exercising their statutory functions it may be less clear. Where a public authority which does not have an investigatory function tries it on, it may have no idea whether or not it should exercise the exemption.

Baroness Blatch: My Lords, the noble and learned Lord the Attorney-General said that if the order was not passed the public authorities would have to fall back on the voluntary powers. But it is the Government's intention to have a voluntary scheme. They have not yet expressed their intention for a compulsory scheme. Is the noble and learned Lord now talking about the merits between a voluntary and a compulsory scheme?

Lord Goldsmith: My Lords, unless I am very much mistaken, the powers in RIPA which would be conferred as a result of the access to communications data would enable people to require information to be passed to them. I am getting strong nods from the Box. We are not talking about retention of data; we are talking about the access to communications data. RIPA provides powers which do not exist at the moment and which will not exist unless and until this order is brought into effect.

As to what will happen if communications service providers simply go back to the Data Protection Act exemption, there are potential difficulties. Some have

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already arisen in certain cases. I am told that the Maritime and Coastguard Agency has been frustrated in trying to obtain communications data that would assist in the location of individuals reported lost in coastal waters. What happens there is that someone manages to make a call but locating that person, who does not know where he is in a storm, depends upon being able to track traffic data. The agency has been unable to obtain that information in certain cases because the service providers have been unable to assure themselves that they were exercising their exemption under the Data Protection Act appropriately.

The noble Viscount, Lord Goschen, referred to the NHS. The NHS Counter Fraud and Security Management Service has tried to obtain communications data to investigate NHS fraud—which is very important to the taxpayer and to the country—and it has found that providers are unclear about what is their service function and whether it is appropriate to disclose data.

Communications service providers have made clear that once this part of the Act comes into force they will no longer disclose information under the Data Protection Act. There is a real risk that, if this order does not come into effect, some providers will take it as a signal that Parliament is of the view that they should not provide the information. That would create further confusion and could lead to great problems, an inability to deal with important matters and perhaps even a risk to lives.

The Association of Chief Police Officers has told the Home Office and, I understand—if I am wrong, I shall withdraw the point—the official Opposition that should the communications data order fail the police service will decide to stop relying on the good will of communications service providers, as they do at the moment, and instead rely upon compulsory Police and Criminal Evidence Act production orders issued by circuit judges.

The problem in relation to that is that some crimes will go uninvestigated because the powers relate only to the investigation of serious arrestable offences; the industry will not be recompensed because the arrangements in place for providers to be recompensed will not be required; the Crown Courts would be flooded with applications for production orders; industry would incur extra legal costs in attending hearings; and there would be inconsistency because the established single point of contact system between the police and the industry would break down. The Government want to ensure that a single point of contact with the industry is established.

The noble Lord, Lord Jenkin of Roding, asked about local authorities. There will be some cases where local authorities will be able to rely upon existing powers—for example, under the Timeshare Act trading standards officers have powers to obtain information. But they do not have such powers in all cases and they would have to go back to relying upon voluntary disclosure by service providers—if they will do it—under the Data Protection Act.

So there is absolutely no certainty at all that voting this order down will not matter or that everything will go on as it does at the moment. There will not be the

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regulation in place; there will not be the safeguards in place; andthere is a very real risk that information that ought to be provided for the protection of all our citizens will simply not be available.

Lord Lester of Herne Hill: My Lords, the noble and learned Lord's reply is predicated on an all or nothing approach. He is saying, "You either accept the orders or you have no orders, and then look where we are". But I do not understand why one cannot have the orders reconsidered to include more effective safeguards than there are already. In that way we could reach a fair compromise that protects the right of privacy and balances it more appropriately.

Lord Goldsmith: My Lords, we need the orders now. We have reached the stage where, having brought forward the orders, the amendments of the noble Baroness, Lady Blatch—I am not talking about the non-fatal amendments—would prevent the orders having effect at all. There is no getting away from it. That is what would happen.

Baroness Blatch: My Lords, perhaps I may suggest to the noble and learned Lord that he is being extremely disingenuous. During the course of my speech to these amendments I emphasised many times that the purpose of both my fatal amendment and the supporting amendments was to give the Home Office time to take them away and re-present them. I made it clear time and again that we support the principle; that we support the framework of regulations; and that we believe it is right that all people should come under the same regulatory framework. Everything I said was constructive to that end. The idea that we would be voting the orders out for all time so that their powers are never exercised was not part of my presentation.

Lord Goldsmith: My Lords, I hope, in turn, that noble Lords opposite have heard what I have been trying to say about how we can see if the scheme is operating. I shall deal with some specific points, including those made by the noble Lords, Lord Phillips and Lord Lester, but if the orders are voted down and do not go through today, they will not come into effect.

The question of the noble Lord, Lord Lester, presupposed that the order could introduce more safeguards. The power that Parliament has given under this order is to add authorities and to place restrictions. That is what has been done. I do not believe that the order could, for example, do what the noble Lord, Lord Phillips, would like it to do. There may be another way of achieving that, but it cannot be done by this order. It is not, therefore, a reason for not accepting the order now. Those concerns have been expressed.

4 p.m.

Viscount Goschen: My Lords, I am grateful to the noble and learned Lord for giving way. Could the orders not be amended or brought back with additional restrictions not only in terms of the four

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columns detailing the bodies that can acquire data at the moment but also to restrict the type of data, not just the purpose for which they can obtain them, which is an existing restriction? I am talking about an additional restriction to acquire the type of data—not just that described under paragraphs (a), (b), (c) and (d). In that way, the Maritime and Coastguard Agency could acquire location data about mobile telephones, for example.

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