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Lord Lucas: Is it not astonishing that the Government can forecast, as exactly as they have, the cost of a system which is as yet unknown and undescribed and yet be totally unable to say what the cost is of a system which is in place and working?
Lord Bassam of Brighton: I did not say that we were incapable of finding out and saying how much that cost might be. However, I said that I thought that we would be ill advised to reveal that. I believe that the PTOs would not wish us to reveal information which is commercially sensitive. That is the point I am trying to drive home. I am sure that the noble Lord will understand that. The noble Lord asked whether we would reconsider the use of the term "appropriate" in the clause. He suggested that we might like to consider using the term "fair". I am happy to give that matter reasonable, fair and appropriate consideration. I am trying to be helpful.
I believe that the noble Lord, Lord Phillips, asked about consultation on the whole issue. We shall need to consider the noble Lord's observations. I shall give careful consideration to his important comments. We shall continue to consult. I believe that that consultation will make a difference. I take seriously the suggestion he made.
Lord Bassam of Brighton: I understand entirely. That is the point I am trying to make. The noble Lord has made a suggestion. I am quite happy to give that fair consideration. If there is merit in it, we shall perhaps outline our strategy in more detail in that regard. We have tried to do that throughout the consultation and we shall continue to do so. I am happy to renew that commitment.
Viscount Astor: The Minister initiated the debate on the clause in so far as the Government could not answer the rather simple question of the noble Lord, Lord Phillips, regarding which recommendations they accept from the Smith report and which they do not accept. That has left the Committee grasping at straws. I hope that the Minister appreciates why we became so concerned over this issue.
There is a slight feeling of deja vu because the Minister reached the point in his brief headed, "If pressed". I seem to remember that at that point the brief always refers to judicial review. However, we all know that judicial review is incredibly expensive and takes a long time. It is not always effective. Often it is not effective because the judge is not deciding whether someone has a fair case to put to judicial review; he considers the legislation and decides whether the Secretary of State has interpreted it fairly. We argue that the correct provisions should be included in the Bill from the beginning. I am afraid that the argument of judicial review does not gain much favour in this Chamber, even though it contains many distinguished noble and learned Lords. What is important is what is in the Bill.
The Minister then reached that point in his brief headed, "If very seriously pressed". I am delighted that he made some concession in being willing to consider in a fair and appropriate way whether the term "appropriate" is preferable to the term "fair". However, the Minister should recognise that Members on all sides of the Committee are unhappy with Clause 13 as it stands. Unless the Government are able to clarify their thinking and clarify the meaning of the terms "fair" and "appropriate" and say which term should be used, some mechanism will have to be included in the Bill to ensure that everyone is treated fairly in future. I hope that the Minister will consider these issues seriously--I am sure he will--between now and the next stage of the Bill.
Amendment No. 59 also stands in my name. It inserts the words "and only if" in line 39 on page 15. In subsections (2) and (3), which are the teeth of this clause, certain requirements are set down. If they are fulfilled, then confidentiality is reckoned to have been sufficiently carried out. What the Bill does not say is that if these fairly basic requirements are not fulfilled, there is a failure of confidentiality. By inserting the words "and only if" in Amendments Nos. 59 and 61, I hope to strengthen the safeguards in subsection (2)(a), (b), (c) and (d), and later in subsection (3), and say that if they are not carried out it is clear that confidentiality has not been respected. There are various other amendments, all on a similar theme, mostly moved by other noble Lords. I beg to move.
I want to focus on the way in which the Internet operates. As has been made abundantly plain in our debates on the Bill thus far, it is a packet-switching system. I do not need to dwell on a detailed explanation of that. As my noble friend Lord Cope has explained, the consequence will be that a fair amount of communications data could be intercepted which will not be relevant for the purposes for which the authority to intercept was granted. That is the first point.
Irrespective of whether intercepted communications data are legitimate, the Bill is explicit that where there are no longer any grounds for retaining it as necessary for the authorised purposes, it should be destroyed. I am content with that. However, the difficulty is that, in either case, it is stated that only the copy should be destroyed. There is no mention of the original from which any copies may have been made.
I am, of course, conscious of subsection (7), where "copy" is defined for the purpose of the clause, but I am not convinced that this fully meets the point. The Minister will note that in the amendment I have retained paragraph 4(e) as a qualification on destruction of any intercepted communications data. I can see that there may be a statutory justification for this, although I await with interest the Minster's response to Amendment No. 62A on that point.
With regard to Amendment No. 61B, I am sure that the Committee will be aware of quite how difficult it is to destroy a file that is stored on a computer's hard disk. Even though one can delete it from within a software programme, the way in which it is stored on
Lord Phillips of Sudbury: I speak to Amendments Nos. 59A and 62A standing in my name. It is common ground that Clause 14 is an absolutely crucial and central clause. It provides the general safeguards according to which the whole of the regime must be undertaken.
Amendment No. 59A deals with what seems to us to be a lacuna in the arrangements set out in Clause 14. Although there is a reference to the destruction of intercepted material and related communication, there does not seem to be any reference to the storage of the confidential information gathered under this Bill. Amendment No. 59A addresses the issue that proper storage must be one of the requirements under subsection (2), susceptible therefore of the overview of the interceptions of communications commissioner. We believe that that is quite essential.
Amendment No. 62A is in the nature of a probing amendment. It seeks to ascertain from the Government what proposals they intend to put in place to keep confidential information in public records. We are anxious to know, as I am sure the whole House is, whether full copies of warrants will be retained, together with their schedules and certificates, when and if they will be destroyed, how much detail will be recorded about the volume and nature of the material intercepted, and indeed the consequences of such interception.
One has to bear in mind that the volume of information which will come within the purview of this Bill is rising exponentially. The debate in the other place referred to the fact that daily there are over 100 million e-mail messages now traversing the wires, although I cannot even say that now. Those are huge numbers and growing. We are, therefore, anxious to know whether the Government have thought sufficiently carefully about how this rising tide of confidential information, which will be particularly intercepted under the sort of trawling certificates allowed by Clause 8 of the Bill, will be confidentially logged and secured.
Finally, Amendment No. 62A is designed to draw from the Government what plans they have vis-a-vis the historic archive of all this information--an archive which will allow those who have proper access to it the ability to analyse and appraise policy in order to refine the way in which this information is dealt with in the future.
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