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Mr. Simon Hughes: We accept that Government amendments Nos. 22 and 23 cover amendment No. 1. As the Minister hoped, we are happy to accept Government amendment No. 64, which covers amendment No. 2. I hear what the Minister says about amendment No. 3 and he has a reasonable argument. We may come back to the issue in the other place after reflection.
In relation to amendment No. 60 and the associated amendments, we anticipated that the Government would not budge. I do not propose to delay the House again on
a principle about which it has made its view clear on several recent occasions. The Minister acknowledged that judicial authority is given in other countries, and that in some countries the national security consideration can be separated and given to Ministers, while judges deal with other considerations. A third category exists, in which countries have a twin-track authorisation procedure.I accept that the Minister is right to say that some external approval has been given to the process that the Government have traditionally used, and that it is supported in various quarters.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6
Amendments made: No. 64, in page 8, line 44, leave out paragraph (i) and insert--
'(i) the Chief of Defence Intelligence;'.
No. 22, in page 9, leave out lines 4 to 9.
No. 23, in page 9, line 13, leave out subsection (5).--[Jane Kennedy.]
Clause 12
Amendment made: No. 24, in page 14, line 41, at end insert--
'(6A) The Secretary of State shall not make an order under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.'.--[Jane Kennedy.]
Clause 13
Amendment made: No. 25, in page 15, line 28, at end insert--
'( ) It shall be the duty of the Secretary of State to ensure that arrangements are in force for securing that persons on whom obligations are imposed by virtue of an order under section 12 receive, by way of payments under this section, such contributions as he thinks appropriate towards the costs incurred, or likely to be incurred, by them in complying with requirements to provide assistance with giving effect to interception warrants.'.--[Jane Kennedy.]
Clause 17
Jane Kennedy: I beg to move amendment No. 49, in page 19, line 4, after "Tribunal", insert--
'( ) any proceedings on an appeal or review for which provision is made by an order under section 58(7);'.
Mr. Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 50, 84 to 86, 51 to 53, 42 and 43.
Jane Kennedy: These amendments all deal with the jurisdiction of the tribunal, but amendments Nos. 83 to 86 relate to the tribunal's jurisdiction in Scotland. The amendments would extend the tribunal's human rights jurisdiction to include any directed or intrusive
surveillance, and any conduct or use of a covert human intelligence source, where any of these activities take place in Scotland.However, I must advise the House of something about which we became aware this morning. At one point, there had been the possibility that a separate Scottish tribunal would be established, but the Scottish Executive has considered the matter and decided to join the tribunal arrangements for the rest of the United Kingdom. The amendments should ensure that a proper avenue of redress is available wherever in the UK any investigatory powers are used.
We have discovered that, to be effective, the amendments require one further amendment, which I believe to be of a minor and technical nature, to clause 56. It has not been possible to table the necessary amendment for today's debate, as the notice was too short, but we intend to table the last in this set of amendments when the Bill is considered in another place. That will ensure that the tribunal's jurisdiction is extended to Scotland, in accordance with the policy agreed here and in Edinburgh.
Mr. Heald: The amendments are not contentious. The Parliamentary Secretary has outlined the technical problem that has been encountered, but the Opposition do not consider that that should delay matters. We hope that the appropriate amendment can be made in the other place.
Mr. Simon Hughes: I, too, shall deal with the Scottish point. I am in no position to disagree with the Scottish Executive: if it has agreed the matter, it must be right.
I have not had an opportunity to be briefed on the development set out by the Parliamentary Secretary, but my hon. and learned Friend the Member for Orkney and Shetland (Mr. Wallace) is the Deputy First Minister in Scotland, with responsibility for this matter there. We have worked with him on those areas of legislation that are devolved to Scotland, on those on which Scotland has allowed the Westminster legislation to be used, and on those about which there is agreement that legislation should apply across the UK. For students of devolution, this Bill has all three options available, and it provides an interesting case study.
However, I have one question for the Parliamentary Secretary. Amendments Nos. 42 and 43 provide for interim rules governing the tribunal, but I am not clear why we need interim rules. There may be a good reason. It struck me that another group of amendments, to be debated later, contain an interim provision. There should be no need for interim rules; it should be possible to have draft rules and then move straight to the formal ones. Amendment No. 43 provides for a 40-day period. I am open to persuasion, but I would be grateful to know why interim rules are being proposed.
I think that amendment No. 52 is the Government's response to some of the concerns expressed in Committee by my hon. Friends, for which we are grateful. We support amendments Nos. 49 and 50.
9 pm
Jane Kennedy: The hon. Gentleman is right about amendment No. 52. Amendments Nos. 42 and 43 relate to the tribunal rules for which clause 60 provides. We had a lengthy discussion in Committee about the order-making powers in the Bill. It is important that the tribunal established by the Bill is able to hear any complaints as soon as the surveillance provisions come into force. For the tribunal to function, rules must be made governing its procedure. They will require parliamentary approval under the affirmative resolution procedure.
The amendments allow such rules to be made by the Secretary of State in the absence of Parliament between the Bill receiving Royal Assent and Parliament reconvening after the summer recess. That is their sole purpose. It is necessary to ensure that the tribunal is functioning when the surveillance provisions come into force before 2 October, when the Human Rights Act 1998 is implemented. Only the initial order and rules could be made without Parliament's approval. They would in any case need to be approved by Parliament, as made clear by the amendments, within 40 days of being signed.
Mr. Hughes: That is entirely logical, but I cannot quite work out the maths. If we break, as we normally do, at the end of July and come back, as we normally do, in October, that means a gap of more than 40 days, even given the date of 2 October, when the Human Rights Act is implemented. Should not the amendments provide for a period longer than 40 days? I am not trying to make the Minister's case for her--I am happy to have a bridging period, but we must get it right.
Jane Kennedy: The hon. Gentleman is right. However, I would not want to presume when the House will rise or reconvene. The hon. Gentleman's point is valid; I will check to make sure that the 40-day period is adequate, but the intention is quite clear in the amendments.
Clause 18
Amendment made: No. 36, in page 21, line 44, leave out "authorised-" and insert--
'confined to a disclosure made to the Interception of Communications Commissioner or authorised--
( ) by that Commissioner;'.--[Mr. Betts.]
Clause 21
Mr. Heald: I beg to move amendment No. 14, in page 23, line 45, leave out from "health" to end of line 3 on page 24.
Mr. Deputy Speaker: With this it will be convenient to discuss amendment No. 58, in page 24, line 21, at end insert--
'( ) Communications data obtained on grounds falling within those specified in subsection (2) shall not be subsequently used or disclosed for any other purpose.'.
Mr. Heald: The amendment deals with the purposes for which communications data may be obtained. Many
commentators in the industry and individuals who have contacted me have made the point that clause 21 is a wide provision--especially subsection (2)(h), which provides that the Secretary of State may specify any purpose for obtaining communications data and goes beyond what is reasonable or in the Government's interests.Great concern has been expressed about the very wide terms of clause 21. It is believed that, when taken with clause 24(1)(f)--which provides that the Secretary of State can specify any public authority as designated for the purposes of obtaining communications data--any public authority could obtain communications data for any purpose. Such matters would obviously be subject to an element of scrutiny, but the uncertainty of the position has created concern, especially among City institutions. I do not believe that the Minister is uncertain about what he wants to achieve, so it seems a pity that he has not nailed his colours to the mast by saying what the purposes are, as he has done in clause 6, in which he has been prepared to list those who may apply for an interception warrant. Why not list the purposes without adding the catch-all?
Friendship tree technology exists today--one can learn a lot on these Bills, Mr. Deputy Speaker. If one has enough communications data, one can use that technology to find out in tremendous detail who communicates with whom. One can find out all sorts of interesting information about a person's life. It is an invasive form of investigation, not just a matter of finding out who telephoned whom and when, but of finding out in great detail about their internet communications and a range of other communications.
That is a valuable tool if used against a serious criminal, but the danger is that it will be used against others. If City institutions fear that they will be subject to it, there will come a point when we lose the benefits because the industry will not function effectively. Vodafone, one of the leading players in the field, has expressed concerns, saying that the underlying assumption is that communications data access represents a lesser intrusion into the rights of privacy than interception does. That is not necessarily true.
Verification is also a concern, as I have said before. Verification of a request for communications data is important, and the protections that we have already discussed must be provided. Finally, I cite again what Philip Virgo said in his e-mail, which was copied to the Minister. He wrote:
- Most of the City institutions do not appear particularly concerned by the Human Rights issues. Their main concern is over the uncertainty as to who will have what rights of access to their data and communications and the risk of criminal access under guise of a warrant or via the law enforcement agencies themselves.
We need proper protections. Saying that communications data may be obtained for any purpose that is specified by any public authority that the Minister chooses to designate simply is not good enough. We ask the Minister to think again.
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