Draft Regulation of Investigatory Powers (Maintenance of Interception Capability) Order 2002

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Norman Baker: I am delighted to see you in the Chair, Mr. Amess.

The Minister started by referring to the three reasons why interception is permitted—national security, economic well-being and the third, which I have temporarily forgotten.

Mr. Ainsworth: Serious crime.

Norman Baker: I thank the Minister for prompting me.

No one can dispute that it may be necessary to intercept communications, that those three categories are sensible or that a regime should set out when and how interception is permitted. To that extent, the proposals, which are mechanistic as the hon. Member for Beaconsfield (Mr. Grieve) said, are uncontroversial. However, like him, I am concerned about the one in 10,000 figure, which seems rather high.

The Minister said that there was an extensive consultation over some months. That is true, and the Government appear to have listened to the representations and taken action accordingly, but the one in 10,000 figure was in the proposals that were put out for consultation and it appears unaltered in the schedule to the draft order, despite the fact that objections came from a range of providers, including e.centre, EURIM, Orange, Thus, UKERNA and others. They all thought the figure too high, while BT

    ''commented that an interception capability of 1 in 10,000 applied across all platforms would have an impact on service development and implementation.''

The industry is clearly unhappy about the figure, so why has it not been altered to take account of those representations? As the hon. Member for Beaconsfield

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said, the draft order appears to allow interception on a large scale.

NTL was also concerned about the one in 10,000 figure and the requirement in paragraph 9 of part II of the schedule:

    ''To ensure filtering to provide only the traffic data associated with the warranted telecommunications identifier, where reasonable''.

That was changed from ''where feasible'' in the consultation document, and NTL has said that it is concerned that it will be obliged to conduct—in its own words—mass surveillance operations. That is significant, so what is the Minister's response to that concern? No one wants such operations to be undertaken, as they would be disproportionate and could invoke data protection issues.

The other main issue involves cost. In principle, it is right that the communications providers should not be out of pocket as a consequence of interception requirements placed on them by the Government, but it is equally right that taxpayers should not pay excessively for a service that they require from such bodies. Therefore, an independent and fair calculation must be made to assess the costs.

The Minister said, rightly, that he will separate warrants and maintenance of capability, and a clear audit trail will show who is responsible for what. Nobody can dispute that, but as I understand what he said, there will, by definition, be an annual cost to the Home Office from the maintenance of interception capability, because that capability must be maintained. We should have been told its estimated cost to the taxpayer.

A calculation must have been done, or has the Home Office simply adopted the principle that it will take action without costing it? If so, that is a peculiar way for the Government to proceed. If we are not careful, that could be a blank cheque for the communications industry were it so minded—I am sure it is not—to send unwarranted bills to the Government. I ask the Minister what audit procedure will ensure, first, that the communications industry is not unfairly out of pocket because of the requirements placed on it and, secondly, that the taxpayer is not ripped off by excess bills for the maintenance of capability being sent to the Home Office? The cost element must be sorted out.

Lastly, the Minister mentioned the interception regime. What is the legal position in respect of the interception of communications by the United States authorities when that takes place on British soil such as Ministry of Defence land at RAF Menwith Hill and elsewhere? Does RIPA govern those activities, and does the one in 10,000 figure refer to that interception capability, too?

10.56 am

Mr. Ainsworth: First, I want to pick up on the comments made by the hon. Member for Beaconsfield. I say for the record that this is not the first order; at least one other order has gone through. I am racking my brains to remember whether there were two other orders. I certainly took one such measure through the

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House a week or two ago concerning the code of practice for the provision of a capability.

I would not want to say on the record that this was the first of a number of RIPA orders. The hon. Gentleman is probably right to say that there are others. There may be a confusing cross-referencing of some of the orders and the issues within them.

As usual, the hon. Gentleman goes to the heart of an important issue in his request for information about the one in 10,000 figure. He asked for information about how many lines there are at present and whether the proposal is an indication of a desire for a substantial increase.

Mrs. Cheryl Gillan (Chesham and Amersham): I may have misheard the Minister, so for the sake of clarification I ask him whether he said that another order went through Committee last week. If so, which order was it?

Mr. Ainsworth: I cannot give the hon. Lady the name of the order now but a RIPA order concerning the code of practice went through a similar Committee to this one. I shall make sure that my office provides the hon. Lady with details of that order so that she knows which one it is. If there was more than one, I shall ensure that she is aware of that, too.

Mrs. Gillan: I would not want to embarrass the Minister or myself, and if he is wrong I shall forgive him for it. However, he needs to let hon. Members know. There are a number of orders on the Order Paper, several of which have not yet been committed to the Joint Committee on Statutory Instruments, several of which have been committed to a statutory instrument Committee and one of which may be dealt with on the Floor of the House. As far as I was concerned, however, nothing had gone through in the last week or so, unless, of course, I missed it.

Mr. Ainsworth: The hon. Lady is clearly in danger of embarrassing either herself or me. I suggest that I am likely to have a better record of having taken an order through than she will have of everything that goes through in Committee. It is far more likely that she is wrong than I am—unless I have had a vivid dream of a debate that took place in Committee Room 12, although I am not certain about that. I am certain that an order has gone through the House and I can provide the hon. Lady with the details.

I turn to the substantial issue of the one in 10,000 capacity, why it is necessary and whether we envisage a substantial increase. The hon. Member for Beaconsfield asked about the current position. As ever, he goes to the heart of the issue. Presently, some 500 live intercepts are in existence at any one time. The hon. Gentleman will not be surprised to know that I questioned what seems at face value to be a large figure, but we do not envisage a massive increase in the number of interception warrants.

These are individual warrants signed off by the Secretary of State. No change to procedures or to the people who have access to them is envisaged. Only the three reasons I supplied and the proportionality test are relevant in deciding the justifiability of the warrants. The industry wanted a figure of some

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description. The Government position was to avoid any figure at all. The one in 10,000 figure arose because of the different sizes of companies and because exposure is not equally broad across the regions. Relatively small communications service providers are regionally based. An operation in a particular area could take up a proportion of intercept capacity at a particular time. We are unable to reduce the figure to fewer than one in 10,000 because of regional disparities, not because of the Government's desire massively to increase surveillance. None of the surveillance rules or authorisation procedures will be changed.

Norman Baker: We have been talking about the number of lines, but the Minister responded in terms of the number of warrants. Will he confirm that warrants can apply to more than one line and more than one person?

Mr. Ainsworth: Because of the nature of telecommunications, warrants, as I understand them—I am sure that the hon. Gentleman will appreciate this—apply to a named person, not a named line. They are signed off for a named person. If the hon. Gentleman were suspected of involvement in serious crime or deemed a serious risk to the state, a warrant would be issued for him, not for one of his telephone lines.

Norman Baker: I seriously hope that that would not be the case, not least because the Prime Minister gave me an assurance in a parliamentary answer that no Member of Parliament is subject to surveillance.

Mr. Ainsworth: After what one of the hon. Members for Ealing said recently, the risk of that has diminished considerably.

That is the position and I hope that I have provided an adequate explanation of why such an apparently large number is needed. As I said, the industry wanted a figure to be included, arguing that it would be infinitely exposed if no figure appeared. The Government did not want to set an unduly prescriptive figure. A particular operation might impact on a relatively small intercept service provider centred on a regional area.

On internet and telephone differences, the interception of internet traffic is included in the interception of telecommunications in the draft order. However, the Government recognise that internet interception can be complicated. Encryption is important. The Government will draw on the expertise of the National Technical Assistance Centre. When fully operational, NTAC will provide the capability to produce plain text images and audio from lawfully intercepted communications and lawfully seized encrypted media. The purpose of NTAC is to provide usable information in a relatively complex area.

The issue of parliamentary information on how much the negotiations will cost was central to some of the comments of the hon. Member for Lewes (Norman Baker), who said that we were in danger of issuing a blank cheque. We will not be able to get at the actual costs without the assistance of the industry, so detailed discussion and understanding will be necessary; the

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costs of maintaining such a provision will have to be demonstrated to us and we will have to satisfy ourselves that they are justified. If we do not get that right, taxpayers will be ripped off, one internet service provider could be given a subsidy that is not available to another, or we will impose a requirement that is in no way fairly recompensed.

I hope that the hon. Gentleman accepts and understands that we have no desire to issue a blank cheque but that detailed discussion, disclosure and transparency are necessary if we are to be fair and to win the confidence of the industry. We must reassure it that we seek not to rip it off but to know its costs in order to be fair to both it and the taxpayer. I hope that the hon. Gentleman accepts that that needs to be clear. If we hang a figure on the measure, we will invite people to aim at that target, even if just to complain that it is not high enough or to ensure that it is fully justified in any discussions with us. However, it is reasonable—to pick up the point of the hon. Member for Beaconsfield—to ensure that during the discussions we are transparent with Parliament. We undertake to find mechanisms for doing so. People will not be slow in coming forward if they are not satisfied with the state of those discussions. We must be able to update Parliament on our progress and on any problems unearthed as a result of attempts to get to the bottom of the costs.

The hon. Member for Lewes referred to the view of NTL that the issue is one of mass surveillance. As I understand it, NTL was complaining about the changing of ''feasible'' to ''reasonable''. I am not the best person to explain the precise meaning of every word in the ''Oxford English Dictionary'' but I do not know how NTL came to the conclusion that changing ''feasible'' to ''reasonable'' invites mass surveillance. ''Reasonable'' is a word that can be tested in law; ''feasible'' is a far more technical term. I am sorry that we upset NTL by that change but I hope that I have reassured the hon. Gentleman that there is no intention or desire—or, indeed, legal framework—to allow mass surveillance.

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