Mr. Heald: If a police officer gets it wrong because he misunderstands what the parents say to him or because they do not make themselves clear, would his defence be that he may not have had lawful authority under clause 3, but that he genuinely believed that he did and so it was not an intentional interception without lawful authority?
Mr. Clarke: As I understand it, that is right. We are requiring different standards in the different circumstances. The defence would be as the hon. Gentleman suggested.
Mr. Heald: My only other question, if the Minister is going to be generous, is whether the answering machine is the only example that he and his officials have come across of a joint consent or are there others? If so, what are they?
Mr. Clarke: It is the only example that I have in front of me, but I shall try to find out whether there are others, and I shall let the hon. Gentleman know.
Mr. Heald: On that basis, I am satisfied. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 ordered to stand part of the Bill.
Power to provide for lawful interception
Mr. Heald: I beg to move amendment No. 10, in page 6, line 24, at end insert
`under the affirmative resolution procedure'.
This is one of a series of amendments that my right hon. Friend and I have tabled that are designed to ensure that important matters relating to interceptions are debated in the House under the affirmative resolution procedures. As I have mentioned on a number of occasions, these important matters are at the nexus of three key principles: human rights, freedom of trade and the right of crime fighters to the weapons they need. That balance should be struck by the House of Commons and not by others.
Subsection (1) deals with situations involving telecommunications service providers and others in this country who are required by Governments elsewhere to intercept in accordance with international agreements and regulations that are to be set out under 4(1)(d) by the Secretary of State. The explanatory notes make the point that these regulations would specify
the conditions under which communication service providers may be authorised to use telecommunications systems located in the United Kingdom to intercept the communications of subjects on the territory of another country in accordance with the law of that country. This subsection applies only where the subject of the interception is in the country whose competent authorities issued the interception warrant. The inclusion of the phrase ``or who the interceptor has reasonable grounds for believing is in a country or territory outside the United Kingdom'' reflects the fact that it will not always be possible to be certain about the precise location of the interception subject.
The ``interceptor'' is likely to be a communication service provider located in the UK which is either providing a public telecommunications service to another country or is in a business relationship with another communication service provider providing such a service.
It further explains:
This subsection will allow the United Kingdom to comply with Article 17 of the draft Convention-which we were discussing earlier-on Mutual Assistance in Criminal Matters between the Member States of the European Union. This Article, as currently drafted, is intended to allow operators of satellite communications systems to use a ground station in one Member State to facilitate interception using a ``service provider'' (in practice, a communications service provider which is in a business relationship with the satellite operator) located in another Member State.
It is not clear what conditions the Secretary of State may wish to set. The matter comes under the negative resolution procedure, so it is most unlikely to be debated. First, will the Minister tell us what the generic conditions are, or are likely to be? Secondly, why could we not deal with this under the affirmative resolution procedure? Why should we not debate these important matters? I should also like to know what countries could become involved in these international agreements. If we are referring to countries that are in the European Council area that are required to follow the European convention on human rights, many of us would probably agree that it is perfectly acceptable for us to have reciprocal arrangements.
Mr. David Maclean (Penrith and The Border): Oh.
Mr. Heald: Not all, necessarily. However, what about other countries? Some countries are not great respecters of human rights, and we would not want our communicaton service providers to be required under this legislation to assist in countries where there are human rights problems. At least the affirmative resolution procedure would give the House of Commons a veto over this particular provision.
Thirdly, what countries has he in mind? Fourthly, what about the judicial aspect? In Britain, many of us have a great deal of confidence in the Secretary of State because-as my right hon. Friend the Member for Bridgwater (Mr. King) said on Second Reading-we are used to Home Secretaries taking a serious attitude to this issue and doing a proper job. That is true of all Home Secretaries from all parties over many years. People in other countries have so little confidence in their Executives that they have to have judicial oversight, which may be the least bad option. Is the Minister prepared to say that the countries which would be involved in these agreements would have to be countries which either had arrangements at least as good as own own, or independent, high-quality, judicial oversight. In some countries, the judges are as bad as the politicians-although one would not say that of this country.
We would be interested to know what protections are available. I would not want this country to sign up to an agreement that turns out later to be unsatisfactory. That could force all our communication service providers to take actions that they would find exteremely unpalatable.
Mr. Charles Clarke: I am in a slight procedural difficulty because the third point that the hon. Gentleman made, about the countries with which we are dealing, is also the subject of amendment No. 59.
The Chairman: Order. I understand your difficulty and, if you are agreeable I think it may be sensible to call Mr Allan first, to speak to amendment No. 59.
Mr. Allan: That makes sense, and it will facilitate the business of the Committee. I am always keen for that to happen because it enables us to have a sensible comprehensive debate.
The hon. Member for North-East Hertfordshire raised some of the concerns that caused us to table amendment No. 59. We have agreements with our European neighbours about the exchange of telecommunications data: the explanatory notes set that out clearly in terms of the convention on mutual assistance in criminal matters. No one could fail to wish us to advance on a common European front in the fight against criminality. Interception may be an essential tool in that fight. If all the countries involved sign up to the European convention on human rights, we can be confident that the citizens of every country in the EU have recourse to the same human rights provisions. Our debates have revealed the extent to which privacy has become a human rights issue.
Clause 4 does not specifically mention limiting agreements to other European countries, so our assumption is that they could be drawn up in any country in the world. We are aware of specific incidences of individuals who are resident in the United Kingdom-I can think of a number of prominent individuals who are opposition politicians in their countries of origin-whose country deems them to have committed a crime and wishes to pursue them, and would seek to involve the UK authorities in interceptions as those people travel the world and use communication systems that are under the control of UK companies.
We are anxious for a clear statement from the Minister that if that type of interception is requested, or if the UK telecommunications system providers are likely to participate in the interception of individuals' communications, it will not be done in a way that compromises anyone's essential human rights. I hope that the Minister would give us that assurance anyway, but amendment No. 59, or a similar proposal, would make it much firmer because it would put an explicit commitment in the Bill and send a message of reassurance to the telecommunications systems providers, and to countries that may ask us for this type of assistance, that this country insists on the essential bottom line of ECHR security safeguards being in place before we consider co-operating in the interception of communications. Essentially that is the motivation behind the amendment. I hope that the Minister will give the Committee a clear statement of the Government's commitment to not using interception in such a way as to compromise people's human rights, wherever they come from.
Mr. Peter Luff (Mid-Worcestershire): May I press the Minister on one point, and underline another made by my hon. Friend the Member for North-East Hertfordshire? I have read and reread paragraph clause 4(1)(d) part of which reads:
the situation is one satisfying such conditions as may be prescribed
The more I think about it, the more important I think it is that regulations be made under the affirmative procedure, unless the Minister can give a clear indication of what, in general terms, the conditions would be. This part of the Bill confers a very wide power on the Secretary of State and the Committee needs to know exactly what the Minister has in mind, and what the draftsman had in mind when those conditions were written into the Bill.
Mr. Clarke: I appreciate the procedural change that you made, Mrs Michie, because the issues are related and the points well made.
I will respond first to amendment No. 59 because I am able to give the hon. Member for Sheffield, Hallam (Mr. Allan) the assurance that he sought. At present, we intend to use the regulation under clause 4(1) only for the purpose of implementing article 17 of the draft EU convention on mutual assistance in criminal matters, to which the hon. Gentleman referred. All EU member states have ratified the ECHR, yet we intended to leave the clause open to accommodate future international agreements. I mentioned the G8 conference in Moscow last September as an example of the type of international agreement that might arise.