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Lord Cope of Berkeley: I believe that the noble Lord, Lord Phillips, did an excellent job in trying to unravel the complexity of this clause. Like the noble Lord, I greatly benefited from the advice of Mr Caspar Bowden and the FIPR in trying to understand it. I do not want to add to what the noble Lord said, except to say a few words on the question of packet switching, which is relevant to what is an internal and an external communication and the difficulties involved. This became clear to me when I realised that a lot of Internet messages, particularly the longer ones, are not the equivalent of a message written on a piece of paper and sent in an envelope; they are much more like a message written on a blank jig-saw puzzle, which is then broken up into many pieces and sent through different envelopes.
One when bears in mind the fact that there are literally 100 million jig-saw puzzles circulating in different packets, each with a piece or two in one envelope and the other pieces spread around other envelopes, one begins to understand the complexities involved. Some of the pieces of the jig-saw when going, say, from Manchester to Birmingham--or perhaps the other way round--may well go overseas and come back again, while others may not. In order to look at a single message, you have to collect an enormous number of jig-saw pieces and do most of the jig-saws before you get a whole one. That is the nub of the difficulty that we are discussing here.
It seems to be the Government's intention--and, indeed, everyone else's--that external communications should be treated differently from internal communications, and should be easily accessed by the equivalent of certificated warrants. But, given that background, it becomes extremely difficult to decide what is internal and what is external. It would be most helpful if the Minister could explain to us, as asked, how the Government see the difference between internal and external in these circumstances. Perhaps he can also tell us exactly what the limits of a certificated warrant will be under these new circumstances as opposed to the earlier ones in which we are interested.
I refer briefly to the amendments tabled in my name which all refer to the same general point. Amendments Nos. 64 and 66 are an attempt to probe the meaning of the word "referable". With a little imagination, you can see that something may be referred to more or less anything else. Although "association" is not necessarily a better word for what is meant, I should like to know what is meant by the word "referable" and whether anyone thinks that "association" is better.
Amendment No. 65 deals with the procedure for the override certificate to be issued. Again, this is a probing amendment. Can the Minister say how the commissioner will know whether override certificates are in force? Will he be notified on every occasion? There is a danger that people inside the United Kingdom with internal traffic could be subjected to trawling in the way outlined by the noble Lord, Lord Phillips. Subsections (4) and (5), which are the targets of Amendment No. 67, create temporary exceptional procedures that allow for changed circumstances and inexact information. There is a good deal of inexact information at any given point in these matters. Again, this is an attempt to draw out an explanation of the circumstances.
We should also like to know whether the incidental effect of these two subsections is to constitute a mechanism by which the normal controls, which we are led to believe from other parts of the Bill will be applied, could be circumvented. It is all incredibly complicated. I, for one, do not stand here in an attempt to suggest that the words proposed are infinitely better than those in the Bill. We are probing here for reasons and are trying to ensure that the controls and the
Lord Hylton: I should like to say a few words about the distinction that has been drawn between external and internal communications. It seems to me that "internal" does not necessarily have to mean domestic to the United Kingdom. It could, for example, mean internal to the affairs of a large multinational company which might have offices throughout the globe. I hope that that suggestion will be borne in mind by the Government when they reply.
Lord Bassam of Brighton: The debate has focused on definitions. In essence, these are a series of useful probing amendments. If I do not cover all the points that have been raised, I undertake to write to noble Lords to explain further the Government's thinking. However, I believe that I shall be able to respond to many of the points that have been raised during the debate on these important amendments.
Two exceptions to this rule are given in the clause. First, subsection (4)(a) provides a defence where a person treats the communication as external in the reasonable belief that an individual is outside the British Islands and that the material has not been selected for the purpose of identifying material containing communications sent by, or intended for, him. Secondly, subsection (5) provides that under a written authorisation from a senior official, communications referable to an individual who has entered the British Islands, or concerning whose whereabouts the person carrying out the interception was mistaken, may also be intercepted under the authority of a warrant in relation to which there is a Clause 8(3) certificate until the end of the first working day after the day on which such a situation became apparent.
I turn to Amendments Nos. 64 and 66. The noble Lord, Lord Cope, said that these were probing amendments. They substitute the phrase "associated with" for the current phrase used in the Bill "referable to". The noble Lord may consider that his phraseology is more restrictive. However, I believe it is the opposite. We consider that the term "referable" limits far more than "associated with". We make reference to factors "that are referable" to a specific individual. But factors that are "associated with" an individual can just as
The effect of accepting Amendment No. 65 would be to remove the whole of subsection (3) of this clause. Subsection (3) allows for limited exceptions to be made to the restrictions set out in subsection (2). For example, the Secretary of State may have certified that it is necessary to target a particular communication for one of the authorised purposes (national security, serious crime or economic well-being).
I believe that the noble Lord is concerned that the communications of a UK citizen can be read by means of a Clause 8(3) warrant rather than a 8 Clause (1) warrant. But subsection (3) clearly states that if this is to be the case the Secretary of State must certify the 8(3) warrant. This means that, just as with Clause 8(1) warrants, he personally must authorise the interception of a communication for one of the authorised purposes (national security, serious crime and the economic well-being of the UK). The Secretary of State will also have the same considerations in mind when doing so.
Subsections (4) and (5) allow for two further exceptions to the restrictions as set out in subsection (2). This is where the person to whom the warrant is addressed believes on reasonable grounds that the material examined is not referable to an individual in the British Isles, and also if there has been a change of circumstances, such as a person entering the British Islands, in which case a senior official may authorise the continued selection of that person's communications for a brief period. By means of Amendment No. 67 the noble Lord wishes to see these provisions removed completely from the Bill.
I understand the noble Lord's concerns but I believe that they are misplaced. Successive IOCA commissioners have declared themselves satisfied that Clause 8(3) warrants are used in accordance with both the letter and the spirit of the law. It can happen that an individual's communications are being selected for examination while he is abroad, for one of the purposes set out in Clauses 5(3)(a) to (c). For example, the individual may be involved in terrorism. If he unexpectedly comes to the UK, it will be vital to maintain continuity of interception. It is not practically possible for a Secretary of State to consider the case and issue an overlapping warrant at once. The power in Clause 15(5) provides the necessary cover, strictly limited to a single working day.
I can assure the noble Lord that there is a real and genuine oversight of the external warranting regime. The interception commissioner is charged with overseeing the issue of all warrants and certificates and the arrangements that are put in place to meet the requirements of Clauses 14 and 15.
With regard to Amendment No. 67A, the noble Earl, Lord Northesk, advised your Lordships' House that he was trying to help us by tidying up the drafting of subsection (4)--we are always grateful to the noble Earl for his help--which is in line with subsection (3). While, of course, I am always open to helpful suggestions from noble Lords opposite, I believe that in this case the wording is probably best left as it stands for the sake of clarity.
Subsection (2) sets out the conditions. Subsection (3) states that there are additional factors which may bring a case within subsection (2). Subsection (4) states that there are further additional factors which may have the same effect. The fact is that subsection (4) is further to subsection (3), which requires the addition of the word "also". Otherwise, the words risk implying that the tests in both subsections (3) and (4) must be applied in combination.
The noble Lord, Lord Phillips, made two specific points which to my mind were questions. At one stage he asked if a warrant could be treated as external merely because it was routed outside the British Islands. I have read the definition of "external communication". Clause 19 defines an external communication as one,
The noble Lord, Lord Phillips, also asked whether a black box could be used covertly. The imposition of a intercept capability on a service provider does not mean that a black box can be used covertly by the intercepting agency. If the provider's capability is to be used for an interception, this will always be achieved by the individual warrant being served on the provider. I hope that that clarifies the other point that the noble Lord raised.
Having heard this somewhat lengthy explanation, I trust that the noble Lords whose amendments make up this group will feel that they need not press those amendments.
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