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The problem is especially acute if self-authorising officials are later able to pass communications data to another body without anyone's knowledge. I have described how the later disclosures are not expressed in the notice given to a telecommunications operator.
Mr. Cohen: But they can pray in aid other legislation to get data from those who collected it originally. It follows that the interception commissioner examining the authorisation process would not know about such subsequent disclosures either, for the simple reason that they would not appear on the notice in the first place. To put it bluntly, the authorisation mechanism and other protections under chapter II of the Bill could be reduced to a meaningless sham if no record of subsequent disclosures is kept as part of the authorisation process.
I am not satisfied with the concessions made in the Lords. My hon. Friend said that the Data Protection Act 1988 was a protection. He repeats that as a mantra, but detailed examination reveals that the protection offered is not very strong. I suspect that it could be overridden easily: information could then be transferred and data used for purposes other than those specified when collected. The interception of communications commissioner would have little power to prevent that transfer of information; in fact he would have little knowledge of it.
I agree with my hon. Friend the Minister about the need to tackle organised crime, but at the beginning of our deliberations on the Bill he said that it was about striking a balance between what is public and what is private. That has not been properly achieved in respect of communications data. It is sad that the Bill does not contain the necessary safeguards in respect of the subsequent disclosure of communications data to a body not described on the original notice.
Mr. Richard Allan (Sheffield, Hallam): Liberal Democrat Members are pleased with the Lords amendments, which are precisely what we hoped would be agreed in the other place. I remind the House that my hon. Friend the Member for Southwark, North and Bermondsey (Mr. Hughes) said on Third Reading that we anticipated further amendments.
The Minister was kind enough to say that I raised in Committee the key point covered by the amendments. The Hansard record shows that the Minister did his best to defend the Bill, but at the time I felt that he was listening to our arguments. I had every confidence that he would think about them and perhaps that he would seek to amend the Bill. We are pleased that that is what happened.
The amendments deal with the problem that communications data in the historical sense were not appropriate to be covered by the Bill. An example of such data might be the records on a telephone bill of calls made. The amendments' adoption of the term "traffic data" is welcome, but the change is more than cosmetic. It extends the definition to include matters appropriate to the internet, and it goes beyond the older forms of telecommunication, which merely involve voice calls between specific numbers.
The phrase "big browser is watching you" has been used to encapsulate the concerns that have been raised about the Bill's effect on browsing among internet websites, and the extent to which communications data could bleed into that activity. We are pleased with Lord Bassam's specific assurance on the matter, when he said that the amendments
My noble Friend Lord McNally said in another place that the new amendments offered a definition that we could live with. We do not intend to reduce our scrutiny of the application of the new definition of "traffic data", or of any codes of practice or regulations that are introduced, but we consider that we can live with the new definition. The internet and e-commerce communities had been worried that the Bill would be so intrusive that it would damage this country's business interests, as well as the right to personal privacy that everyone expects to enjoy. We accept that that enjoyment must recognise the reasonable limits imposed by the need to deal with serious crime and national security.
We are pleased with the amendments. I am grateful for the Minister's kind words about the work that has been done by Liberal Democrat and Conservative Members in this House, and by Members of the House of Lords. My noble Friends Lords McNally and Phillips of Sudbury have been especially active, as have the Conservative peers with whom they have worked and to whom I also pay tribute. That was a good example of how to work together on complex and detailed matters.
There is no need to go into detail about the amendments. We will look at the codes of practice when they are published, but we now have a definition of "traffic data" that we can live with. The previous definition, of "communications data", would have been too intrusive, and not proportional to the safeguards covering matters of lesser security. It is quite proper that the interception of communications should require more stringent safeguards in terms of authorisation, and of those who can take out warrants for that purpose.
Mr. Ian Bruce: I shall be brief. Conservative Members are pleased that the Government eventually listened to criticism of the Bill and introduced these amendments. We are also pleased with the level of co-operation extended by the Home Office. We warned at the outset of our proceedings about the effect of the Bill's provisions in respect of telecommunications. The Department of Trade and Industry washed its hands of the Bill, as did Oftel when it was confronted with the provisions relating to interception of communications.
The Home Office was left to rescue the Bill on its own, and Ministers and their officials have done their best. However, although I do not want to seem mealy mouthed, the latest briefing that I have received from FIPR describes the Bill as being
I understand that the Government are attempting to deal with difficult issues. The Human Rights Act 1998 precludes authorities from looking at various matters, while complicated regulations allow the Government, according to certain criteria set down in law, to overturn what is supposedly a basic human right. That difficulty is a result of human rights legislation overturning quite sensible regulations that the Government would want to introduce for the safety of individuals while ensuring that we find out about crimes that are being committed.
I echo the comments of my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) and of the hon. Member for Sheffield, Hallam (Mr. Allan) that we must look at the way in which the regulations will be introduced. As for the amendments on the cost of introducing the legislation, I do not want Her Majesty's Government to spend my taxpayers' money in dealing with matters that can be bypassed so simply. We want a simple set of regulations. We need to ensure that when a criminal is investigated, there are no loopholes--which the Bill and the amendments could well provide--that could allow a clever lawyer to say that under subsection so and so, somebody did not put the right tick in the right box at the right time. In that way, although everyone can see that someone is guilty of a crime, all the evidence that had been collected would be thrown out.
The Minister has clearly tried to do a workmanlike job. I do not blame him for being left with this mess to sort out, but unless the measure provides a simplified, cost-effective way of dealing with this issue that will make it easier for the police services and others that have a role in such investigations, I am afraid that we will be coming back in a year or so to try and untie this Gordian knot.
Mr. Charles Clarke: First, I think that there is a misunderstanding between my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen) and me. I believe that the safeguards in the Bill are sufficient to cover the
Secondly, I do not accept that the comments quoted by the hon. Member for South Dorset (Mr. Bruce) that the Bill is technically inept, ineffective against criminals, and so on. We have made it clear from the outset that law enforcement faces a number of serious technical challenges as a result of technological innovation. It is also a simple and important fact that criminals need to communicate. That is particularly true in the case of organised crime involved in trafficking drugs and people. This power is therefore very important in contesting those criminal organisations.
Thirdly, and very importantly, interception powers are carefully targeted--that is what the Bill is all about. We are very keen, and have been throughout the Bill's passage, to work not only with the Opposition but with industry. We do not want a breakdown of trust or confidence. However, I do not accept the comments of the Foundation for Information Policy Research quoted by the hon. Member for South Dorset. I would not have responded to this debate except to say that, but I cannot let his remarks stand on the record unchallenged. I accept the genuine feeling with which he said that we had tried to address the point, but not the views of the Foundation for Information Policy Research. We also do not accept that we can do nothing in the face of criminal organisations which work in this way--we must try and deal with the problem. I hope that the House will agree with the Lords amendments.